Abstract In European countries that are still considered liberal democracies such as The Netherlands and Belgium, one finds multiple cases of authorities executing policies targeting migrants that are manifestly illegal. The measures are illegal because they typically lack sufficient statutory basis or violate higher legal norms. The illegality is manifest because legal advisors of the government or courts have already found the measures illegal. The measures constitute autocratic policy tools within the meaning proposed by the editors of this special issue, because they deliberately exceed the legal limits set by treaty law, constitutional law and ordinary legislation, concentrating public power in the hands of the executive. According to the legal literature on autocratic rule, a typical feature of autocratic policy tools is the use of legal instruments enabling governments to portray their policies as in compliance with the law in order to get legal legitimacy, which in turn helps them win the support of the population and international actors. But when it comes to manifestly illegal measures the prospect of a legality bonus is absent. By the same token the manifestly illegal measures constitute a deployment of law, albeit in an unobvious way. But why do authorities cast the manifestly illegal measures in a legal form if they cannot benefit from the legality bonus? Why not simply operate completely outside the law? What kind of law can cope with measures that are overtly illegal? How can authorities afford to operate without legal legitimacy? The answer is bureaucratic law.

Abstract Autocratic policy tools are often associated with democratic backsliding and the erosion of checks and balances. Yet their use is not confined to illiberal regimes. This article examines whether, and in what sense, royal decree-laws in Spain can be understood as autocratic policy tools within a consolidated democracy. Although constitutionally designed for situations of extraordinary and urgent necessity, royal decree-laws temporarily concentrate law-making authority in the executive and limit or compress ordinary parliamentary deliberation, thereby reshaping the institutional balance of powers. Analysing their deployment in migration governance across three policy domains: healthcare access, labour protections for domestic workers, and unaccompanied minor, the article shows that these instruments are not only crisis-driven but can also be used strategically in politically constrained environments. Moreover, their use does not map neatly onto restrictive policy outcomes: royal decree-laws have been employed both to curtail and to expand migrant rights, and in some instances have not been used despite objective crisis conditions. The findings complicate assumptions that equate autocratic tools with illiberal content and instead highlight their procedural logic and ambivalent role within democratic systems. By reassessing the concept through the Spanish experience, the article contributes to debates on executive power, accountability, and migration governance in contemporary democracies.

Abstract This paper suggests that the conservative-populist backlash that liberal democracies are facing can be understood as part of heterodox protest movements which react to the liberal-legal hegemony, and, in alliance with populist movements and parties, move into the political centre. Here, I understand the illiberal, or better anti-liberal, reaction to liberal democracy, constitutionalism, and human rights as the result of a long-term mobilization of different counterforces around a dissensus on liberal democracy and its main constitutional and legal approach and mindset. In recent years, an initially rather marginal or peripheral, but now forceful, set of protest and protest movements has been able to move to the political centre, attacking the liberal-constitutional hegemony head on. The paper will discuss the heterodox critique of the liberal-legal consensus, subsequently identifying five key components (including the sacred and the profane, leadership, intolerance, impure universalism, and a turn to the past), particularly derived from Eisenstadt’s analysis of sectarian and heterodox movements. In the second part, I will apply these components to, first, a discussion of intellectual, theoretical justifications for the conservative-heterodox project, to then turn to more practically oriented documents, using a similar analysis of the five components. I conclude by arguing that the heterodox project contains a strong totalizing dimension, by combining a range of positions of charismatisation, closure, and fundamentalism, and which prioritizes the primordial and the sacred, to the detriment of the civic.

Abstract The Chinese Communist Party under Xi Jinping has spent the past 13 years creating an “intraparty regulatory system,” or what this article calls “Party law.” Scholars ascribe different meanings to this system and its implications for Chinese law and governance. This article submits the novel claim that Party law has its own internal logic characterized by six features which distinguish it sharply from “thin rule of law.” These six features, summarized through systematic analysis of central-level Party regulations and supplemented with fieldwork, combine to forge the logic of Party law. They include: the regulation of thought, active and tailored application, an open system design (as opposed to a closed, self-sufficient loop), porously bounded jurisdiction, pre-emptive punishments, and a common—arguably sometimes selective—absence of clarity. The article submits that rather than developing a system which is more consistent with thin rule of law criteria of generality, promulgation, prospectivity, clarity, consistency, and so on, the rise of Party law means an emboldening of “Party law logic” and its potential to seep into state law.

Abstract This article examines two pivotal judgments of the Polish Constitutional Court on abortion, issued in 1997 and 2020, to explore the evolving role of constitutional adjudication in the erosion of reproductive rights. Through a comparative analysis of legal reasoning, socio-political context, academic critique, and dissenting opinions, the study reveals the argumentative continuity between the judgment despite significant differences in judicial legitimacy. While the 2020 judgment - widely criticized for its procedural flaws, court-packing, and populist influences - was delivered by a politicized bench, its legal foundation was laid in the earlier 1997 judgment, which also framed fetal life as constitutionally protected from conception. Moreover, the analysis highlights how abstract, decontextualized adjudication, detached from real-life implications, have been used to obscure the active engagement of non-state actors, particularly the Catholic Church, in legal mobilization. Drawing on legal texts, dissenting opinions, and socio-legal scholarship, the article challenges the notion that democratic backsliding began only after the populist surge, arguing instead that earlier judgments already exhibited exclusionary reasoning and a disregard for women’s lived experiences. By interrogating the symbolic authority of constitutional actors within a populist framework, the study contributes to broader debates on judicial neutrality, right-wing legal mobilization, and the instrumental use of constitutional courts as ideological enforcers. It concludes that restoring prior adjudicative standards alone will not suffice to protect reproductive rights or reverse democratic decline, calling instead for inclusive, context-sensitive approaches to constitutional justice.

Abstract The advancement of constitutional review in 2018 marks a significant constitutional development in China under Xi Jinping. This article examines cases since then and reveals the dual dynamics of Chinese constitutional review: promoting the rule of law and upholding the leadership of the Chinese Communist Party (CCP). On one hand, constitutional review has emerged as an additional channel for protecting human rights, enhancing legislative consistency and improving government accountability. On the other hand, it is deeply politically embedded, as reflected in the determination of priority according to the CCP’s policies, the examination of legislation according to the CCP’s directives, and the enshrinement of Xi’s thoughts and Party’s leadership as fundamental principles of constitutional review. When tensions arise between the CCP’s policies and the constitution or laws, the former often prevails. This article suggests that these dual dynamics of Chinese constitutional review are best understood through the lens of Chinese rule of law, which features a duality: upholding the rule by the Party while safeguarding the authority and autonomy of law. It argues that neither dynamic should be overlooked or overstated. Views that reduce constitutional review to be a mere tool of the CCP’s rule neglect the autonomy of various actors in this process and undermine the rationality and value of constitutional review in regulating modern China. Yet, an independent constitutional review, as entrenched in the Western conception of the rule of law, is unlikely to take root in China owing to the imperative to uphold the CCP’s leadership.

Abstract The Venice Commission is known to differentiate its constitutional advice depending on whether a state is considered a ‘new’ or an ‘established’ democracy. This article gives an account of the distinction between new and established democracies in the Venice Commission’s work and links the distinction to the Commission’s conception of ‘European constitutional heritage’, which confines the sources of that heritage to states with an established democratic tradition. The result is a mental map of European constitutionalism that draws sharp contrasts between ‘core’ states with and ‘peripheral’ states without such traditions, as well as contingent institutional development and rational institutional design. The resulting hierarchies of knowledge and agency between Europe’s western core and eastern periphery have not only become a foil for backlash against European standards but also become entangled in contradictions and paradoxes that need to be critically questioned.

Abstract The conditionality mechanism was built on an assumption that complex legal and societal relationships can be reduced to formal institutional indicators, and if these are adopted the Rule of Law can be reinstated. Using the example of Hungary, the present article demonstrates why this mentality of ticking boxes cannot capture the big picture. It will show three practical examples of implemented milestones and how the Hungarian government managed to circumvent them by informal networks, patronage politics and other means resulting in a non-progressive progression. Based on these insights, it highlights that several elements of legal culture affect how legal norms work. Because of their informal nature, they cannot be easily amended, challenged or objected to. Therefore, the European Commission often accepts measures and reforms at face value, without taking into account the particularities of a constitutional system. This is partly due to the fact that the centre and the periphery in Europe are culturally divided. The paper also tries to pinpoint the difference between a legal and political mindset, by introducing a Gramscian aspect, and showing how individual measures can add up to a long march through the institutions.