Until recently, the model of “constitutional tolerance” that allowed for a plurality of constitutional traditions within EU was understood as a strength. Not anymore. The constitutional transformation of Hungary and Poland towards authoritarian regimes in recent years has undermined the belief that there is a constitutional core shared by all member states, which allowed for the mediation of conflicts while preserving the basic shared principles and values of EU as liberal democratic community. Today this diversity of constitutional orders is instead seen as a possible existential threat to the EU and even to liberal democracy in Europe.
This conference aims to rethink the so-called ‘dark legacies’ of past illiberal legal systems in Europe and their implications for the present day. During the heights of the liberal consensus after 1989, fascist/Nazi and communist law were collectively conceived primarily as a negative foil to the construction of the democratic order as envisioned and constructed by liberal constitutionalism. The recent rise of anti-pluralistic populism and illiberalism in ECE has not only prompted skepticism regarding the supposed inevitability of the liberal consensus, but it has also raised questions regarding the long-term traces of both state socialist and fascist legal orders given the strikingly similar practices and conceptual underpinnings. As under past authoritarian regimes, current illiberal projects also promote notions such as the supremacy of political will, the constitution as embodiment of popular sovereignty, and the rejection of judicial checks on legislative or executive power as violations of minority rights. In the scholarly literature, this has prompted efforts to delineate a typology of post-fascist, evolutionary and post-communist constitutionalism in terms of their relationship to pluralistic democracy as a fundamental value of the constitutional order.
This conference aims to challenge the perception of fascist/Nazi and communist law as systems existing only in the past and severed in theory and practice from the authoritarian challenges of today. We aim to bring together scholars working on the substantive analysis of authoritarian law in 20th c. Europe--its conceptual background, political materialization and institutionalization, and especially its practices and effects--and the reflections of this legacy in the era of post-authoritarian democratization. Through an integration of post-fascist and post-communist histories, we intend to expand the scope of existing constitutionalism studies and put into dialogue the history of Eastern, Western and Southern states, which have experienced authoritarian legal regimes in the past. In doing so, we aim to de-exceptionalize post-communist Eastern Europe as a region and to grapple with the implications of its dictatorial past in the illiberal moment of the present, but also to highlight the examples of states which have experienced multiple forms of authoritarian constitutional regimes from both sides of the political spectrum.
Our project intends to go beyond the normative condemnation of the authoritarian/totalitarian Unrechtsstaat to offer a more nuanced reading of current developments based on the reconstruction of historical European constitutional diversity beyond liberal democracy. In this way, we do not want to simply redefine communist or fascist rule as illiberal (which it was, by definition), but instead analyze the social-cultural embeddedness of the recent illiberal rise and its constitutional project in a longer-term historical perspective.
The conference intentionally refers to a noted project and its publication, Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions edited by Christian Joerges and Navraj Singh Ghaleigh and published in 2003. We are therefore extremely pleased that, Prof. Christian Joerges, has accepted our invitation to give a key-note speech at the conference, in which he will reflect on the former project on "dark legacies" in terms of developments in European law and politics over the last two decades.
The conference is a part of the Volkswagen-Stiftung funded project “Towards Illiberal Constitutionalism in East Central Europe: Historical Analysis in Comparative and Transnational Frame/Perspective” This project aims to enhance historical, interdisciplinary, and comparative perspectives in scholarly engagement with illiberal and authoritarian challenges to constitutional democracy in ECE situating the present-day conflicts in the longer history of the ebb and flow of constitutionalism, democracy, legality and pluralism in the region. Focusing primarily on the era of late state socialism, the post-communist liberal transformation, and into the current illiberal challenge to constitutional democracy, the project situates these regional developments within broader European and global transnational perspectives.
We very strongly encourage contributions from scholars focusing on Western and Southern Europe. Particular themes of interest include:
- Regimes of Legality and Varieties of Constitutionalism in 20th Century Europe
- Lawyers, Judges and the Judiciary in Authoritarian and Post-Authoritarian Orders
- Positivism and Anti-Positivism in Authoritarian Legal Thought
- Constitution-Making Under Authoritarian Regimes and Its Legacies
- Secularism, Religion and Clericalism in Authoritarian Legal Thought
- History, Memory and the Construction of Illiberal Legal Orders
- Civil Rights and Democracy Activists and the Turn to Illiberalism
The deadline to submit abstracts is 15 July, 2022. Please send them to revisiting.darklegacies@uni-jena.de.
If you have any questions regarding the conference, please contact Michal Kopeček (kopecek@usd.cas.cz) or Ned Richardson-Little (ned.richardson-little@uni-erfurt.de)