Democratic Backsliding and Comparative Constitutional Soul-Searching in Europe

After more than a decade of sustained interest in the topic of democratic backsliding, the time is ripe to take stock of how this work reflects on comparative constitutional scholarship. The article focuses on developments in several Central and Eastern European constitutional orders and identifies two broad scholarly camps, which it terms ‘legalistic reinforcement’ and ‘material critique.’ The first frames the contemporary backsliding problem as one of abuse of established norms and practices and, indeed, of constitutionalism itself. The second identifies the roots of the backsliding in the elitist and neoliberal foundations of constitutional projects nationally and at the European level, in the persistent inequalities they support, and in the lack of a redistributive answer to the backsliding challenge. The article argues that methodological and normative assumptions and blind spots persist in both camps. Whether extrapolating from limited case studies, insufficient contextualism, poor interdisciplinary engagement, and a purported value neutrality which ignores central categories of analysis such as gender, these shortcomings risk being reproduced in the so-called “transition 2.0” scholarship on restoring constitutional democracy in the region. The enduring pathologizing view of the ‘backwards East,’ the return of the transitology paradigm, and the false choice between defense and critique of the liberal constitutional project demand reflection, not elision. They are all topics for comparative constitutional law soul-searching in Europe today.