Bojan Bugaric

• PH D in Law
• Chair at The University of Sheffield

Constitutional engineering is a complicated practice, and much less is known about the relationship between constitutionalism and democracy than many are willing to admit. A cursory look at the political science literature reveals that constitutional design has only a moderate to small impact on the stability of a democratic regime. This is not to...

The EU 'economic constitution' systematically biases EU policy making in a neo-liberal direction. Historically speaking, this was not the intent of the EU founding fathers. The original constitutional settlement of embedded liberalism was significantly redefined in the next major revisions of the Rome Treaty. The neo-liberal foundations of the sing...

There is a tendency in current constitutional thinking to reduce populism to a single set of universal elements. These theories juxtapose populism with constitutionalism and argue that populism is by definition antithetical to constitutionalism.1 Populism, according to this view, undermines the very substance of constitutional (liberal) democracy.2...

This chapter examines the cases of Italy, where a left-wing populist party entered a coalition government; and Austria, where a right-wing party did so. In neither case were the governments themselves anti-constitutional, nor were the constitutional reforms pursued by the parties. Populist parties can act just as “normal” political parties do, at l...

Self-described populist leaders around the world are dismantling their nation’s constitutions. This has led to a widespread view that populism as such is inconsistent with constitutionalism. We disagree. Some forms of populism are inconsistent with constitutionalism, others aren’t. Context and detail matter. We begin with a thin definition of const...

This chapter offers a “thin” definition of constitutionalism, as involving majority rule (usually free and fair elections and sometimes other methods of reliably determining majority preferences), some entrenchment of constitutional provisions, judicial independence, and politicians and political parties as vehicles for organizing public expression...

This chapter reviews scholarly definitions of populism, emphasizing the relation between the assertedly “thin” ideology of populism and the thicker ideologies that give it content, and reviews as well quantitative studies that show the populism in power tends to erode some constitutional basics. It argues that understanding specific populisms and t...

Many populist governments have engaged in programs of judicial reform, sometimes described as court-packing. After laying out the reasons the people have for electing populist governments, including, importantly, a desire to see ambitious policy reforms adopted, the chapter describes the political logic of constitutional reform, including court ref...

Some populists sincerely want to expand the opportunities for ordinary people to govern themselves. Their advocacy for that goal is sometimes met with skepticism. This chapter examines three accounts of why some forms of government other than expanded democracy are desirable: technocracy, representative democracy to the exclusion of direct democrac...

Self-described populist leaders around the world are dismantling their nation’s constitutions. This has led to a widespread view that populism as such is inconsistent with constitutionalism. We disagree. Some forms of populism are inconsistent with constitutionalism, others aren’t. Context and detail matter. We begin with a thin definition of const...

After explaining why populists are not committed in principle to solely plebiscitary democracy, this chapter explores recent innovations in democratic design that allow for expanded participation by the people in their own governance. A thought experiment about direct popular design of responses to the Covid-19 pandemic is followed by a detailed an...

This chapter provides case studies of authoritarianism in Hungary and Poland. After describing the social and economic programs that the populist parties pursued, the chapter examines their constitutional reforms in some detail. Although some of the reforms might in principle be reasonable specifications within thin constitutionalism, in both natio...

When populist leaders become chief executives, it is said, they routinely seek to expand executive power so that they can speak for the people. This chapter examines two forms of expanding executive power—the elimination of presidential term limits and the use of decrees rather than statutes in emergency conditions. After laying out the political l...

Steven Levitsky and Daniel Ziblatt have argued that constitutions are maintained not only by formal institutional mechanisms but by informal “guardrails,” most notably mutual tolerance and forbearance. This chapter interrogates the idea of guardrails and the associated idea of a pro-constitutional culture, both in general and in connection with pop...

Kim Lane Scheppele’s term, “Frankenstate,” signals that looking at constitutional changes one by one might be misleading when the changes cumulate to create a constitutional monster. This chapter examines the mechanisms by which discrete changes become problematic. It identifies problems that occur when changes, not necessarily intrinsically proble...

This chapter examines several themes in populism. Against the claim that framing politics as a struggle between “the people” and “the elites” threatens constitutionalism, it counters those suggestions by observing that casting politics in terms of “us versus them” is quite natural and not distinctively associated with populism, and that the elites...

With all key political institutions firmly in Orban’s hands, and with the electoral rules basically tilted to Orban’s advantage, many observers question whether Orban’s regime can be successfully challenged domestically, from within. As a result, the attention has shifted to the European Union and its role in policing the violations of EU basic val...

Ideological as well as financial bonds between the Slovenian and Hungarian governments lend weight to a concern: Does the current Slovenian government present a threat to constitutional democracy? Lacking a convincing majority in the Parliament and facing other veto points, the Slovenian government uses tactics of constitutional hardball in order t...

Since 2008, Hungary and Poland have developed a distinctive populist economic program, which has begun to spread to other Central and East European Countries (CEECs). This article develops a theory of the political economy of populism in CEECs, arguing that these countries' dependence on foreign capital constrained them to follow (neo)liberal econo...

The central argument of this chapter is that the rise of nationalist-populism in CCE is best explained by using a longue durée historical perspective. I argue that the past legacy of derailed attempts to institutionalize a modern form of liberal democracy in this region decisively contributed to the recent surge of nationalist-populism. Nevertheles...

This volume is designed to mark the outstanding legacy of Professor Wojciech Sadurski’s scholarship in the field of comparative constitutional law. It provides a rich palette of chapters that aim to rethink the state of the art in this field, in light of the latest challenges to the foundations of liberal constitutionalism. Edited by former doctora...

Should the US Supreme Court be reformed? How would that be different from what has happened in Poland? BOJAN BUGARIC and MARK TUSHNET on why abstract discussions on constitutional design and "judicial independence" obscure the real stakes.

Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This essay challenges that commentary. We agree that some variants of populism are...

Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are...

Since 2008, Hungary and Poland have developed a distinctive populist economic program, which has begun to spread to other Central and East European Countries (CEECs). This article develops a theory of the political economy of populism in CEECs, arguing that these countries’ dependence on foreign capital constrained them to follow (neo)liberal econo...

Populism is Janus-faced. There is not a single form of populism but rather a variety of different forms, each with profoundly different political consequences. Despite the current hegemony of authoritarian populism, a much different sort of populism is also possible: democratic and antiestablishment populism, which combines elements of liberal and...

The Public–private partnership (PPP) is an important instrument in planning and implementation of public infrastructure projects, including urban projects that influence the dynamics of urban development. Implementation of development oriented urban projects is crucial for raising the quality of life and preserving the competitiveness of cities. Ci...

The article offers an analysis of the particular type of populism that has evolved in Eastern and Central Europe, most notably in Hungary and Poland. The new populism in ECE differs from other populisms because it combines the elements of populism, ethnonationalism, and authoritarianism. Adhering to a similar script, which consists of sustained att...

The intense engagement of populists with constitutionalism—a phenomenon originally related to experiences in Latin America—is increasingly evident in some of the new European Union member states. But the populist phenomenon is clearly not confined to more recently established democracies. Populist constitutionalism stands for a number of distinctiv...

Populism is Janus-faced; simultaneously facing different directions. There is not a single form of populism, but rather a variety of different forms, each with profoundly different political consequences. Despite the current hegemony of authoritarian populism, a much different sort of populism is also possible: Democratic and anti-establishment pop...

Populism is Janus-faced; simultaneously facing different directions. There is not a single form of populism, but rather a variety of different forms, each with profoundly different political consequences. Despite the current hegemony of authoritarian populism, a much different sort of populism is also possible: Democratic and anti-establishment pop...

The European Union is facing an unprecedented political crisis. This club of liberal and democratic countries has been confronted by a nationalist and populist backlash that threatens the core principles at the very heart of the EU. Capitalizing on the European sovereign debt crisis, the backlash against refugees streaming in from the Middle East,...

The European Union is facing an unprecedented political crisis. This club of liberal and democratic countries has been confronted by a nationalist and populist backlash that threatens the core principles at the very heart of the EU. Capitalizing on the European sovereign debt crisis, the backlash against refugees streaming in from the Middle East,...

Thomas Franck's “ emerging ” right to democracy seems to be entering turbulent times, as the current global democratic recession has undermined the optimism of the 1990s. The greatest paradox of the current populist wave is that democracy is being subverted by leaders promising more, not less, democracy—but it is a democracy of a different kind. Po...

What the current surge of populism shows is that the rule of law and liberal democracy find themselves in great danger when the breadth of democratic support for their core principles begins to decrease. Both in Hungary and Poland, the populist forces relatively easily undermined the rule of law and democracy, and steered politics in a dangerous au...

The current surge of populism in ECE demonstrates that constitutional democracy is in great danger when its core principles no longer enjoy wide democratic support. Paradoxically, constitutional democracy can play its “counter-majoritarian” role only when a majority of the people believe that it is the only game in town. But such support cannot be...

Rural, working-class voters are whipped up by an anti-immigrant firebrand who rails against corrupt elites. Sound familiar? Welcome to Austria’s presidential contest

The European Union is facing a political crisis unprecedented in its 59-year history. This club of democratic countries established primarily to promote peace and prosperity in postwar Europe is facing a nationalist and populist surge that threatens the democratic principles at the very heart of the EU. Capitalizing on the European sovereign debt c...

This book provides the definitive reference point on all the issues pertaining to dealing with the 'crisis of the rule of law' in the European Union. Both Member State and EU levels are considered. Particular attention is paid to the analysis of the concrete legal bases and instruments that the EU may avail itself of for enforcing rule of law, and...

In the last 25 years, constitutional courts have been major players in the governance of Central and Eastern Europe, and were arguably the most important defenders of the rule of law in the region. Yet the last few years have exposed the institutional fragility of constitutional courts in the face of illiberal democracy, as several countries have m...

Neoliberalism represents the revival of economic liberalism that has been taking place since the late 1970s. Its main premise is that the market is morally and practically superior to government and any form of political control intended to improve on market outcomes. Central and Eastern European countries (CEEs) were global leaders in the adoption...

One of the key problems of transitional constitutionalism in Central and Eastern Europe has been relatively weak support for rule-of-law institutions from citizens of the new democracies. Without appropriate ‘owners’, new institutions are of little use. A crucial task currently facing CEE democracies is therefore the formulation of politics and str...

Twenty-five years after the fall of the Berlin wall the process of building the rule of law in post-Communist Europe is facing serious challenges. The analysis of this period clearly shows that organizing free and democratic elections is easier than creating constitutional democracy based on the rule of law. Rule-of-law institutions are often weak...

The Berlin Wall collapsed a quarter of a century ago. This anniversary led to publication of studies about the success of Central and East European transformation. Some of them maintain that the region became 'normal,' and nearer to their Western neighbors. In reality, the region still belongs to the periphery of Europe with a mostly dual economy a...

Slovenia, until recently a "success story" of the transition from communism to democracy and the rule of law, is experiencing its biggest constitutional and political crisis since its independence in 1991. The Slovenian constitutional model is currently facing a simultaneous economic and political crisis. The article argues that there are two princ...

Just ten years after their triumphant “return to Europe” in 2004, Central and Eastern European (CEE) countries are facing a very serious crisis of constitutional democracy. This crisis—which coincides with the Eurozone crisis—has a specific origin. This article will show that the rule-of-law institutions in these countries are less robust than in W...

Sodelovanje javnosti pri pripravi in sprejemanju predpisov vsebuje bodisi pravico oziroma dejansko možnost državljanov, da izrazijo svoja mnenja ali stališča o predlaganem predpisu. Med primerjalnimi ureditvami obstajajo precejšnje razlike glede pravne (ne)urejenosti takšnega postopka. Ponekod je postopek pravno oziroma zakonsko urejen, drugod je u...

Evropski model upravnega prava doživlja veliko pomembnih sprememb. Vplivi, ki povzročajo te spremembe, so zelo raznoliki. Med najpomembnejše sodijo globalizacija, razvoj posebne upravne strukture v Evropski uniji in razcvet informacijske tehnologije. Zaradi vseh teh vplivov naj bi se evropski (kontinentalni) model upravnega prava v zadnjih dvajseti...

In 1960, there were 101 middle-income countries. By 2008, only thirteen of these had become high-income countries. Why do so many middle-income countries fail to develop after a promising start, becoming mired in the so-called middle-income trap? This interdisciplinary volume addresses the special challenges that middle-income countries confront fr...

After the fall of the Berlin Wall and the collapse of communist regimes, many Central and East European countries successfully managed a ‘return to Europe’. For many observers, the ‘return to Europe’ signaled the ultimate victory of democracy and rule of law over the legacy of totalitarianism in these countries. In contrast to this optimistic view,...

Constitutions usually don't discriminate among different political ideologies. While constitutions of nation-states impose certain limits on legislative politics, primarily through the protection of constitutional rights, it can hardly be argued that, on balance, they privilege one or another political ideology. The EU economic constitution is, in...

The Washington Consensus (WC), which dominated the development world for over two decades, has been called into question on both theoretical and empirical grounds. Those countries that adhered most closely to the WC failed to achieve sustained growth, while the East Asian Tigers that rejected the WC and followed their own development path achieved...

The European Union is facing a unique historical situation: a political club of democratic regimes established primarily to prevent war and promote peace in post-World War II Europe is confronted with the first EU member state ever sliding into an authoritarian illiberal political regime. Namely, on April 25, 2011, the new Fundamental law was promu...

The EU »economic constitution« systematically biases EU policy making in a neo-liberal direction. Historically speaking, this was not the intent of the EU founding fathers. The original constitutional settlement of embedded liberalism was significantly redefined in the next major revisions of the Rome Treaty. The neo-liberal foundations of the sing...

In the first part of the article, I describe the origins of neoliberal developmental states in CEE. I start with the outline of administrative reforms during the age of the Washington consensus and examine how the neo-liberal legal policies and theories affected the administrative structures built in that period. I try to show that under the influe...

In the article on the EU Fiscal Compact we are trying to show that the Fiscal Compact as adopted in its current form does not necessarily lead to the improved quality of fiscal policy in the Eurozone. At the same time it disproportionally interfers with the autonomous fiscal policies of the member states and with their constitutional arrangements....

Populism is on the rise in Central and Eastern Europe (CEE). Persistent attacks on legal institutions of liberal democracy represent the most troubling aspect of the rising populism in CEE. The democracies in CEE are not about to collapse because of the rise of populism, yet the populist challenge to liberal democracy has to be taken seriously. Whi...

Computer-produced typeface. Thesis (S.J.D.)--University of Wisconsin-Madison, 1997. Includes bibliographical references. Microfiche.