It has become a commonplace to say that the rule of law is under attack globally. But what is the rule of law anyway? Is it the same as constitutionalism? Can it legitimately be contested and what exactly is its relationship to democracy? We revisit these fundamental theoretical questions, but also ask about meaningful national differences when it comes to “rule by law and not by men.” We also then analyze the repertoire of techniques that has developed in the past few decades to undermine or outright destroy the rule of law. Aspiring authoritarians have become more subtle and sophisticated; they often stick to existing legal procedures (capturing rather than abolishing constitutions), and engage in bad-faith exercises in comparative constitutional law (justifying measures by their existence in democracies that are above suspicion); however, older techniques like court-packing also remain popular. Finally, the seminar asks how the ideals of the rule of law can be made a matter of lived experience: if citizens perceive courts as inherently alien and “elitist,” and if the goals of the rule of law remain highly abstract, people are unlikely to defend the judiciary (or so many observers worry).

This interdisciplinary course is part of the Princeton-Humboldt-Partnership Program “Constitutionalism und Stress“ (CONSTRESS). Please note that it will be organized in two parts: After some weekly sessions in April and May, the second half of the seminar will be taught in a block session (June 22-24, 2024) together with students from Princeton University as well as HU law students, collaborating on common presentations. Further details will be explained during the first session on April 21, 2023.

Semester: SoSe 2024