An Analysis of Illiberal Democracies. Towards the End of Law?

Democracy as a concept has often been confronted to a plethora of adjectives that at the same time determine and alter its meaning. The adjectives direct, representative, liberal designate contemporary forms of democracy without being exclusive, cumulative, or accessory the one to another. If it is widely accepted—at least from a legal point of view—that representative democracy is the dominant form of exercising power, we can still find expressions of direct and liberal democracy within national constitutions, namely through mechanisms such as the referendum for the former and the protection of the rule of law for the latter. Nonetheless, a new tendency seeks to affix adjectives to the term “democracy” that would not only alter its meaning but even go beneath the essence of democracy as a political regime, based on the electoral moment and ensuring fundamental rights and the rule of law. Therefore, the terms illiberal democracy, defective democracy, electoral democracy, hybrid democracy indicate a rather not exhaustive list of a regime that obeys formally to the democratic criteria but fails to fulfil the essence of democracy. Whereas legal scholars and political scientists have suggested that we are heading towards the transformation of Law as we know it, others have rather addressed the “end of Law”. Is the phenomenon of illiberal democracies a new constitutional phenomenon or is only part of a more profound process of the transformation of Law?