Prerequisites: None. Prior knowledge of constitutional law is recommended but not required. Students with constitutional law background will benefit from the comparative approach.

Exam Type: No Exam

“The first thing we do, let’s kill all the lawyers” (Shakespeare, Henry VI). These are difficult times for constitutionalism, democracy, and judges. Erosion, backsliding, authoritarianism, illiberalism, populism, and so forth have become common descriptors of the state of affairs in many countries. Moreover, political actors increasingly deploy rule-of-law and ‘legalistic’ rhetoric to legitimize their actions. Constitutional breakdowns are no longer the remit of coups and violent revolution.

This course explores the pathways from democratic to autocratic regimes from a comparative perspective. While an overview of the broader political context of global illiberalism is necessary to frame the topic, constitutional courts will be the central focus of analysis. Through examples of court cases from around the world, the course will illustrate and critically assess the role of courts in constitutional crises—both as enablers of authoritarianism and as sites of resistance against it.

After introducing the historical and political backgrounds of constitutional erosion, we will examine various forms of judicial resistance. From militant democracy and party banning (Germany and Turkey) to the unconstitutional-constitutional amendments doctrine (United States, India, Colombia, and Mexico), we will assess the potential, limitations, and democratic critiques of courts. As a common thread in judicial resistance to abusive constitutionalism, the concept of constitutional identity will be explored, serving as our bridge to Europe. There, ongoing debates between various constitutional courts (Germany, Poland, and Hungary) and the European Court of Justice have highlighted how courts can engage in abusive constitutional borrowings and become instruments of totalitarianism. Expanding beyond domestic constitutional law, we will conclude with a discussion on international law’s responses to constitutional crises, as well as the crisis within international law itself when addressing these challenges.