Populism, Authoritarianism, and the Rule of Law: Framework for a Comparative Constitutional Analysis

Abstract

Throughout most of the 20th century, the breakdown of the constitutional order had a specific date, time, and identifiable protagonists: the military coup, the suspension of the Constitution, the dissolution of parliament. The erosion of democracy in our time lacks that clarity. Contemporary democracies are rarely overthrown; they fade away gradually, and those who bring about their demise are often leaders who came to power through elections, invoking the mandate they received to dismantle, one by one, the checks and balances intended to limit them (Levitsky and Ziblatt, 2018). The result is not the absence of a Constitution, but its preservation as a ritual: elections are held, courts convene, and official gazettes are published, while the normative content of the text is hollowed out from within. This shift explains the diagnostic difficulty faced by this dossier. When the assault on the rule of law occurs through reforms approved by parliamentary majorities, rulings handed down by formally competent courts, and decrees published in accordance with due process, the legal scholar loses the comfortable foothold of manifest illegality and must operate with more nuanced categories, capable of distinguishing legitimate reform—however profound it may be—from that which, without violating any rule of jurisdiction or form, destroys the very conditions that make democratic competition possible.