“[W]e have to abandon liberal methods and principles of organizing a society […]. [T]he new state that we are building is an illiberal state, a non-liberal state.”1 When Hungarian Prime Minister Victor Orban famously made this proclamation in 2014, it was seen as exemplifying the turning point of liberal democracy’s success story and ushering in a new age of rising populism and wide-spread erosion of the rule of law. However, scholars who gathered in Jena on 2 and 3 December 2022 for a two-day conference, questioned Orban’s assertion of a “new state”. By focusing on the “dark legacies of illiberalism”, the organisers argued that the illiberal turn has laid bare the anti-pluralistic heritage of fascism and communism haunting our present constitutional order. The conference was part of the ongoing transdisciplinary research project “Towards Illiberal Constitutionalism in East Central Europe: Historical Analysis in Comparative and Transnational Perspective”.2

In his introductory remarks, JOACHIM VON PUTTKAMER (Jena) underlined how Russia’s war against Ukraine has not only changed the political framework but also given urgency to academic research. Von Puttkamer noted that the immediate repercussions of the invasion have been far-reaching and ambivalent. While the war has provided new fertile ground to right-wing populists across Europe, it has strained old alliances between Poland and Hungary and has given renewed agency to the European Union (EU). The long-term effects on political thinking remain to be seen.

The first panel “Authoritarian Constitutionalism in Interwar Europe and its Legacy” was opened by COSMIN CERCEL (Warsaw), who provided a reflection on the legal thought of the fascist movement in Romania. He emphasized that fascists had an ambiguous relationship with the existing constitutional state. While they fashioned themselves as its protectors, they increasingly resorted to unlawful means of violence. In the following talk, ZACHARY MAZUR (Warsaw) addressed the question of legitimacy which arose in the context of Poland’s adoption of its 1935 authoritarian constitution. Mazur argued that in the analysed case, legitimacy was anchored in the elitist idea of the superior qualification of the ruling class in steering the state. According to Mazur, the belief among some constitutional lawyers that the democratic distribution of power impedes the implementation of higher principles was carried on into the communist period. Closing this panel, ANTÓNIO COSTA PINTO (Lisbon) dedicated his talk to the diffusion of corporatist constitutions. Focusing on the example of Portugal under Salazar as an ideal model, Pinto outlined five key elements of fascist constitutions: the personalisation of the executive, anti-parliamentarism, one-party rule, “organic” representation, and social corporatism. The participants of the discussion pointed out that while authoritarianism is seen as strongly opposed to democracy, its stand towards the procedural legal order appeared to be more ambiguous.

KATHARINA ISABEL SCHMIDT (Hamburg) opened the panel on “Authoritarian Positivism and Its Legacies” with an examination of the not so obvious influences of the German Free Law movement. Although one of its most prominent representants, Gustav Radbruch, had admitted to parallels between the Free Law principle of “life is law” and national socialism, this continuity had remained largely obscured. In the following talk NAUM TRAJANOVSKI (Warsaw) focused on Stanisław Ehrlich, a prolific jurist and law journal editor in post-war Poland, whom Trajanovski described as an atypical critic of positivism. He underlined Ehrlich’s transition from a radical anti-positivist towards critical realism, as well as his later calls for interdisciplinarity in legal studies. In his talk which connected Spain’s dictatorial past with its present, SEBASTIAN MARTIN (Seville) proposed the hypothesis that the major authoritarian legacy in law could be seen in the continuation of a formalist culture which has failed to internalise the prevalence of rights and freedoms. Symptomatic for many transitions from authoritarianism to democracy, Martin showed, the democratisation of the judiciary has been insufficient as the fascist crimes are only hesitantly investigated. Commentator MACIEJ KISILOWSKI (Vienna) argued that the presentations showed that autocratic regimes abused law for political reasons, but at times happened to promote formalism and positivism to achieve similar goals.

The first day of the conference was completed with a key-note speech by CHRISTIAN JOERGES (Berlin) who reflected on his personal experiences with the “darker legacies of law in Europe”. Joerges posited that the selective process of coming to terms with the past determined his nervousness about the uncritical optimism surrounding the project of European integration. He warned against the exploitation of the delicate field of memory politics and called for the EU to institutionalise its diversity.

DERK VENEMA (Nijmegen) kicked off the panel on “Institutionalising Dictatorship” by giving an overview of his comparative research on supreme courts under Nazi occupation. Venema emphasized the ambivalent role of these institutions and their actors situated between defending of the old legal order and enabling of the occupier’s policies. The victory over fascism, he claimed, had set in motion a process of selective “moral hygiene” where continuities and ambivalences have been painted over. By analysing the constitutional and extraconstitutional functions of the USSR Supreme Soviet, IVAN SABLIN (Heidelberg) dedicated his talk to an under-researched fixture of the institutionalisation of communist power. Sablin attributed the ultimate failure of the Perestroika partly to the attempts to turn the institution into a working legislature which it had never been designed to be. JAKUB SZUMSKI’s (Jena) presentation established a connection between the formalist understanding of legality in socialist Poland’s academia and political ideas of the authoritarian Rechtsstaat. In using the term “socialist legality”, jurists commonly did not pursue socialist values but were providing institutional guarantees of administrations’ compliance with existing laws. However, and importantly for the concept’s reemergent relevance, these limitations to legal power, Szumski argued, did not directly constrain the party as the uncontested sovereign. The comments and discussion emphasised how liberal institutions have been harnessed by dictatorships which continued to transfer authority from the people through forms of representation.

The next panel was devoted to “Post-war Constitutional Visions”. LEILA BRÄNNSTRÖM (Lund) laid out how the Swedish Social Democrats’ distrust of constitutional checks on political power until the 1970s was perceived as a “darker legacy of law”. On the contrary, several opposition figures, who advanced individual property interests by employing the language of the emerging human rights movement, had a history of sympathizing with Nazism. Brännström concluded that the Social Democrats’ emphasis on the supremacy of popular sovereignty could be regarded as populist; their agenda, however, cannot be simply branded as anti-liberal. JAKOB RENDL (Vienna) challenged the prevalent claim that the nature of the EU treaties cannot be explained by means of international legal concepts but are only understandable by analogy to domestic constitutional orders. According to Rendl, the limitation of sovereignty of the member states and the transfer of power can be described against the background of the international treaty allowing for the occupation of alien territory in time of peace. He pointed to the historical example of the first German nation state in 1871, which was established on the basis of an international treaty. In his talk about “an open constitution for a closed regime” NICOLAS SESMA-LANDRIN (Grenoble) focused on formal particularities of the Francoist legal order. Sesma-Landrin explained that the regime disregarded a constitution enclosed in a single document as a liberal idea, and therefore opted for a constitutional arrangement through a set of several fundamental laws. The commentator accentuated the shift of focus undertaken by the panellists by concentrating on the 1970s as a distinctive break, rather than 1945. Equally, the research into the Spanish and Swedish examples provides a fruitful starting point to undercut dominant narratives of liberal-illiberal dichotomies.

MATEUSZ GROCHOWSKI (Hamburg) opened the panel on “Cold War Legacies in Constitutional Law” and examined the evolving concept of contract liberty in the 20th century Polish context and showed how Poland returned to a broad interwar model. In their joint presentation MICHAŁ STAMBULSKI (Rotterdam) and WOJCIECH ZOMERSKI (Wrocław) introduced the concept of “constitutionalist orientalism”. They contended that the European criticism of a growing trend towards authoritarianism in Poland has reinforced old ideas of perceived “Eastern barbarism” and claimed that the narrative, according to which a genuine constitutional law discourse arose only due to “Western” influence during the 1990s, ignores the legacy of Polish constitutionalism of the socialist period. In a similar vein, MICHAL KOPEČEK (Prague) argued that the revolutions of 1989 in Central and Eastern Europe were not just the result of human rights advocacy but also of socialist constitutionalism. From that perspective, the period of the 1970s to the 2000s could be placed within a frame of a continuous rise of law over politics. In today’s moment, the different conceptions of the rule of law, which had been subdued by the liberal consensus of the early 1990, were making a comeback.

The closing panel of the conference was dedicated to “Liberal Constitutionalism and its Legacies in the Post-Liberal Age”. In his talk on the “transitional legality of ‘Market Democracy’”, BOB ROTH (London) argued that the EU as a legal community can only be understood as an effect of the crisis of the West European welfare state of the 1970s and 1980s. PRZEMYSLAW TACIK (Cracow) proposed a new conceptualization of the continuity between various forms of illiberalism, and more specifically, the link between socialism and the illiberalism in today’s Central and Eastern Europe. Like socialism before, the contemporary illiberalism seeks to establish the dominance of the political over the legal. Accordingly, the inoperativeness of law has become a shared feature of these regimes, Tacik claimed.

As the representants of today’s illiberalism resort to misleading demagoguery and outright lies in their quest to weaken fundamental rights and discredit constitutional checks and balances, one might be tempted to dismiss their criticism of liberalism altogether. However, their continuing appeal begs constitutional democracies for self-reflection. The Jena conference’s speakers and discussants did not provide simple answers, but instead raised new and poignant questions. If democratic “backsliding” is not merely an expression of “Eastern barbarism”, how do we contain it globally? How do we allow for pluralism in the EU without giving up on the adherence to core values? And ultimately: How to accept the disquieting findings of historical explorations into the “dark legacies” overshadowing our constitutional order while maintaining the idealism needed to defend liberal democracy?

Conference Overview:

Opening Remarks
Joachim von Puttkamer (Jena)

Panel I: Authoritarian Constitutionalism in Interwar Europe and its Legacy
Moderator: Joachim von Puttkamer (Jena)

Cosmin Cercel (Warsaw): Fascists Claims to Sovereign Power: From (Counter)Revolution to Constitutional Design in Romania

António Costa Pinto (Lisbon): The Diffusion of Corporatist Constitutions in the Era of Fascism

Zachary Mazur (Warsaw): Justifying the Authoritarian State: Constitutional Legitimacy in Interwar Poland

Commentator: Michael Wilkinson (London)

Panel II: Authoritarian Positivism and Its Legacies
Moderator: Annette Weinke (Jena)

Katharina Isabel Schmidt (Hamburg): Reckoning with Radbruch: On Continuities and Ruptures in Modern German Legal History

Naum Trajanovski (Warsaw): An Atypical Critic of Positivism. Stanisław Ehrlich And His Early Years at Państwo i Prawo

Sebastian Martin (Seville): Legal Thought and Judicial Authoritarianism. A Francoist Legacy in Today’s Spanish State

Commentator: Maciej Kisikowski (Vienna)

Key-Note Speech
Christian Joerges (Berlin): “Darker Legacies of Law in Europe”: The Florence Project Revisited - Accomplishments, Failings, Lessons.

Panel III: Institutionalizing Dictatorship
Moderator: Sophie Lange (Erfurt)

Derk Venema (Nijmegen): Supreme Courts Under Nazi Occupation, Greater Goods and Lesser Evils in Dealing with the Enemies of Democracy

Ivan Sablin (Heidelberg): Functions of a State Socialist Parliament: The USSR Supreme Soviet in 1955–1991

Jakub Szumski (Jena): Minimal Legality and the Road to Authoritarian Rechtsstaat in Poland (1945-1980)

Commentator: Ned Richardson-Little (Erfurt)

Panel IV: Post-War Constitutional Visions
Moderator: Katrin Stoll (Jena)

Leila Brännström (Lund): The Rise and Fall of the Swedish Social Democratic Constitutional Vision

Jakob Rendl (Vienna): Dark or Bright? European Constitutionalism and International Law in the Post-War Period

Nicolas Sesma-Landrin (Grenoble): An Open Constitution for a Closed Regime. The Legal Newspeak of Francoist Dictatorship

Commentator: Sebastian Gehrig (London)

Panel V. Cold War Legacies in Constitutional Law
Moderator: Immo Rebitschek (Jena)

Mateusz Grochowski (Hamburg): Long Shadows and Short Memories. (Mis)conceiving Market Freedom in the Polish Law

Michał Stambulski (Rotterdam) / Wojciech Zomerski (Wrocław): Constitutionalist Orientalism and Cold War Epistemics in Central and Eastern Europe

Michal Kopeček (Prague): Rule of What Law? Legacies of Authoritarian Past and Liberal Constitutional Imagination in Post-Communist East Central Europe

Commentator: Marta Bucholc (Warsaw)

Panel VI: (Neo-) Liberal Constitutionalism and its Legacies in the Post-Liberal Age
Moderator: Florian Peters (Jena)

Bob Roth (London): The Transnational Legality of 'Market Democracy': The Changing Functions of the Rule of Law beyond the State

Przemysław Tacik (Cracow): Legacy of Inoperativeness. On Certain Elective Affinities Between Socialist and Illiberal Legalities

Commentator: Renata Uitz (Budapest)

Notes:
1 See Viktor Orbán’s speech at Băile Tuşnad (Tusnádfürdő) of July 26, 2014, accessible via https://budapestbeacon.com/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/?_sf_s=Viktor+Orb%C3%A1n+speech+at+Baile+Tusnad+&sf_paged=4ed=4 (02.02.2023)
2 See the website of the project: https://il-liberal.uni-jena.de/ (02.02.202)