Authoritarian Constitutionalism
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Authoritarian Constitutionalism

Comparative Analysis and Critique

Edited by Helena Alviar García and Günter Frankenberg

The contributions to this book analyse and submit to critique authoritarian constitutionalism as an important phenomenon in its own right, not merely as a deviant of liberal constitutionalism. Accordingly, the fourteen studies cover a variety of authoritarian regimes from Hungary to Apartheid South Africa, from China to Venezuela; from Syria to Argentina, and discuss the renaissance of authoritarian agendas and movements, such as populism, Trumpism, nationalism and xenophobia. From different theoretical perspectives the authors elucidate how authoritarian power is constituted, exercised and transferred in the different configurations of popular participation, economic imperatives, and imaginary community.
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Chapter 8: Authoritarian constitutionalism in liberal democracies

Duncan Kennedy

Abstract

This chapter treats the form of authoritarian constitutionalism prevalent in Europe and the Western Hemisphere as an ideology, in the weak sense; an amalgam of tropes and rhetorics that allude to or evoke in an incoherent way two authoritarian traditions: a reactionary Catholic one and a fascist one. The ideology is one of the factors guiding legal interventions in liberal democratic constitutional orders that are also internally incoherent. Incoherence, along with the existence of conservative and progressive factions within the liberal democratic camp, creates multiple occasions for a hermeneutic of suspicion with respect to contemporary constitutional argument. In this situation, decision among legal alternatives requires a politics. As an example, even ‘court packing’, which is usually treated as a priori authoritarian, may in some circumstances be legally and politically justified in a liberal democratic framework. This approach contrasts with one that treats authoritarianism either as a coherent ideology or as signifying merely violation of liberal democratic norms.

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