Band 20, Heft 1 - Special Issue: Constitutional Perspectives on Populism and on the Crisis of Democracy; Issue Editors: Yaniv Roznai and Cristina Fasone

Constitutional law faces unprecedented challenges from populist movements that threaten the longstanding relationship between legitimacy of law and democracy. This paper examines populism through a contextual perspective, focusing specifically on Latin America’s distinctive features and its over two hundred years of constitutional experiences. Rather than coining a universal concept, we argue that populism is manifold and context-dependent, requiring careful attention to historical and geographical particularities. Latin America, with its 155 regime changes between 1900 and 2000, represents an indispensable source for understanding populism globally. Drawing on the theoretical frameworks of Müller, Laclau, Landau, Scheppele, and Mouffe, we explore how Latin American populisms diverge from patterns elsewhere, particularly through their emphasis on centralization of power rather than nationalism, and their fluid movement across the political spectrum. We examine institutional mechanisms commonly proposed to counterbalance authoritarianism, demonstrating that blind faith in institutions proves insufficient in contexts of weak institutionalization. The paper concludes that constitutional theory must adopt a comprehensive approach, one that values both institutional and non-institutional dimensions, while remaining highly open to inputs from the socio-cultural world, ultimately questioning which constitutionalism and which institutions should be defended.

In recent years, Israel has joined countries that are experiencing democratic backsliding, which has reached its peak in the government presenting its ‘2023 legal reform’, mobilizing a frontal constitutional change, and the constitutional crisis that followed. This event symbolizes the culmination of the Israeli Counter-Revolution, one that developed in the decades before 2023, and which aspires to replace the constitutional order established since the mid-1990s, known as the (first) Constitutional Revolution. To date, scholarship has so far failed to account for the underlying socio-political origins of this counter-revolution. This article will focus of the Israeli ‘2023 legal reform’ in order to present five positive socio-political explanations to this Israeli Second Constitutional Revolution. According to the first explanation, Israel is going through a Constitutional Moment, a public rising to an unusual reformative republican moment, in which the public takes part in raising an unusual civil voice for constitutional change. According to the second explanation, the government’s move should be explained as a deception and a mistake. The ‘2023 legal reform’ was a radical and anti-democratic departure only as a deception move. Its initiators did not anticipate the public and political backlash. According to the third explanation, the changes we see should be explained as elite cooperation, a compromise (and not a struggle) between elites in Israel. According to the fourth explanation, the ‘2023 legal reform’ is a smoke-screen for a deeper administrative change and has characteristics of Autocratic Legalism. Informal constitutional change is actually deeper; and in some realms of the Israeli administrative state – a deeper anti-democratic change is already taking place. The fifth explanation sees the ‘2023 legal reform’ as a preventive insurance counter-move of political and ideological distress of its conservative perpetrators and as a ‘hegemonic preservation’ effort. The government’s steps should be explained as a ’preventive insurance move’ whose purpose is to prevent a deeper progressive constitutional change from the opposite political side.

The EU is facing a dilemma. Any outside interference of the EU to protect constitutional democracy in Member states might strengthen populist movements that are challenging constitutional democracy itself in those Member states. Not surprisingly the principle of the rule of law in Member states is protected in the EU through mechanisms which are essentially political. However, the non-use of those political mechanisms has contributed to the failure of the European Union to protect constitutional democracy in those Member states. Therefore, the dilemma is whether the EU should use only mechanisms of political control (such as those under Article 7 TEU) or also mechanisms of legality control (such as infringement proceedings or the ‘rule of law conditionality’) to face such constitutional challenges. The hypothesis which will be demonstrated here is that constitutional democracy in the EU Member states should be protected (also) via legality control, notwithstanding the risk of strengthening populism there. In particular, the positive outcomes achieved by using the ‘rule of law conditionality mechanism’, when it comes to Poland in April 2024, will be underlined; as well as the partial failure in December 2023 of some of the related mechanisms, when it comes to Hungary. It will be also demonstrated that this failure was due to the veto that Hungary is able to play within the EU decision-making procedures. Therefore, this demonstrates that it is time to strengthen the governance of the European Union itself, so as to avoid veto played by authoritarian populists within the EU.

On March 27, 2025, Israel’s legislature passed a major revision in the Basic Law: the Judiciary, which revolutionized the system for the selection of judges in Israel. This revision will come into force after the next parliamentary elections. This Article describes the legislative revision in judicial selection and argues that it is intended to increase the weight of political considerations in the selection of judges, namely to politicize the process. In other words, it will bring to the forefront political considerations in judicial selection and will diminish the weight of professional considerations, and thus may have severe consequences for the rule of law in Israel. The purpose of the legislation as described by its promoters as well as its practical implications contravene some of the principles that stand at the basis of judicial selection, particularly professionality and preservation of judicial independence. The legislation also runs counter to trends in judicial selection in other democracies. Against the backdrop of the problematic checks and balances system in Israel, as well as the current feeble protection of judicial independence and other governmental attacks against it, the legislation undermines the ability of the courts to uphold the rule of law and protect human rights.

The fall of Sheikh Hasina’s long-ruling Awami League government in August 2024 has sparked the debate on whether Bangladesh’s government was fascist, authoritarian, populist, or a hybrid of all three. This article re-evaluates that inquiry through a comparative and postcolonial lens. It utilises established theories of fascism and contemporary reinterpretations that examine fascism’s morphological persistence in modern authoritarian populism. Simultaneously, it interacts with the extensive regime-type literature concerning populism as both ideology and style, as well as hybrid or competitive authoritarianism. This study suggests that Hasina’s Bangladesh represented a fascist–authoritarian–populist amalgamation: a civilian autocracy maintained through emotional mobilisation, developmental nationalism, and digital coercion. It contextualises the Bangladeshi case within the political modernity of the global South. Also, through analyses of legal changes and co-optation of the judiciary, this paper shows the total control that the Hasina regime was able to exercise on the state institutions, which were hollowed out but still kept up in a performative capacity to keep up a ‘democratic’ veneer. The research concludes that the Hasina regime cannot be readily categorised within a singular typology; rather, it reflects a postcolonial form of authoritarian populism characterised by fascist characteristics.

This article investigates the constitutional narratives on freedom of expression employed by digital populist movements in the United States and Italy to oppose fact checking on social media platforms, which is where much of their political propaganda circulates. It argues that the platformisation of the public sphere has created a disintermediated media environment ideally suited to populist disinformation and post-truth discourse. Building on existing scholarship that characterises the populist constitutional approach as ‘mimetic’ and ‘parasitic’, the paper explores how digital populism exploits freedom of expression clauses to resist measures – whether public or private – aimed at countering disinformation on social media. Using prototypical cases from the United States and the European Union, it compares constitutional frameworks, populist strategies concerning platform regulation, and efforts to combat online disinformation, ultimately concluding that digital populists – an expression of media populism – employ constitutional rhetoric to shield social media spaces from any intermediation grounded in fact-based politics.