II: Constitutional interpretation and populism in Europe

5 Formalism and judicial self-restraint as tools against populism?

Formalism and judicial self-restraint as tools against populism?: Considerations regarding recent developments of the Austrian Constitutional Court

Konrad Lachmayer

Introduction

Populism is not a new phenomenon of the last decade in Austria but can be traced back to the 1990s. The developments of the last 30 years have challenged the Austrian constitutional order in many ways, but they also have affected the Austrian Constitutional Court (hereinafter ACC). The Austrian Constitutional Court - celebrating its 100th anniversary in 2020 - is one of the oldest centralized and specialized constitutional courts in the world. Until the 1970s the Court was renowned as a formalist and restrained Court, but has become more activist - especially with regard to human rights - since the 1980s. The interrelation of populist movements and constitutional interpretation has not so far been analysed in a general approach, but examined only with regard to concrete case law.

The following study brings together the different perspectives on the topic over the last few decades and proposes the following hypotheses. First, the Austrian Constitutional Court’s methodological approach has changed over time, but these changes do not relate to populism. Second, the Court has shifted in the last ten years from a rights-promoting approach to a rights-pro-tccting approach and once again has become more self-restrained. Third, the Constitutional Court was confronted with different waves of populism. Fourth, the Court maintained its overall methodological approach when it was confronted with populism.

Regarding the analysis of these hypotheses, the study will first focus on the development of populism in Austria. Discussing the question of what can be understood by populism in the Austrian context, the analysis focuses on the rise of the populist Freedom Party in Austria and follows the traces of populism to the New People’s Party (since 2017). In a second step, the different approaches adopted by the courts towards populism will be examined

1

See Anna Gamper, ‘Constitutional Borrowing from Austria? Einflüsse des B-VG auf ausländische Verfassungen’ (2020) Zeitschrift für Öffentliches Recht 99.

and applied to the Constitutional Court’s methodological approaches and its reaction to populism. In a third and final step, conclusions will be drawn.

 
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