Constitutional imaginaries are internal symbolic constructs of self-constituted positive law and politics which make it possible to imagine and describe functionally differentiated modern society as one polity and distinguish between legal and political legitimacies and illegitimacies in this polity. Imaginaries, therefore, are not limited by the unity of topos-ethnos-nomos and evolve in national as well as supranational and transnational constitutions. In the context of European constitutionalism, general imaginaries of the common market, universal rights and democratic power are thus accompanied by specific imaginaries of European integration through legal pluralism, administrative rationality of calculemus, economic imperium of prosperity and democratically mobilised non-state community. These imaginaries invite constitutional theorists to rethink the juridical concept of constitution and employ sociological and social theoretical perspectives of constitutionalism within and beyond the state. In their specific ways, these imaginaries, which obviously can be detected at national levels but play a particularly important role at transnational levels of European integration, represent the paradox of modern society constituting its unity as difference, yet preserving its imaginary capacity to describe such differentiation as unity. Like any other society, European society thus represents its collective self to itself only through the specific imaginaries spontaneously constituted by its different systems.

This article conceptually and empirically explores the Interwar Era’s variant of the ‘electoral authoritarian’ regime-type, relying on a unique recategorisation of all Central and Eastern European states to systematically classify non-democratic regimes between the two World Wars. Modern electoral authoritarian regimes are notable for combining the ‘standard model’ of electoralist structural features common to contemporary democracy with identifiably authoritarian political orders. Electoralist regimes of the period were distinct from those of today, with a greater emphasis on anti-political dominant parties, the inheritance of 19th century-style parliamentarism in terms of both institutional and political culture, and a reliance on unaccountable apex executives who nevertheless allowed authoritarian forms of multiparty politics. The article also introduces the era’s primary alternative for institutionalized regimes that do not fit the simple label of traditional dictatorship or electoral authoritarianism: the ‘institutional-hierarchical’ model. This characterizes innovations in corporatist-style economic and sectoral representation, as well as explicitly top-down, non-electoralist authoritarian constitutional structures and mobilized, single-party institutions. The article reviews all Interwar regimes in the region, providing alternative regime conceptualizations, exploratory classifications, and an illustrative case-study of Poland’s post-1926 Interwar style electoral authoritarian regime, highlighting both the survival of older electoralist models alongside a growing movement towards both more personalist and institutional-hierarchical formats by the 1930s.

This article is focused on uncovering how authoritarian legal scholars in interwar Poland dealt with the issue of the ‘sovereign’. In most democratic constitutions, the ‘people’ are said to be sovereign. In a monarchy, the monarch is the sovereign. However, in an authoritarian system, the source of power can be much more vague. In the late 1920s and early 1930s, Polish legal scholars and politicians began designing a constitution that would solidify power gained after a 1926 coup d’etat. The ultimate result was a constitution ratified in April 1935 using strong-arm tactics. I argue that the 1935 constitution’s main authors used a unique combination of neo-monarchism and ‘social solidarism’ to justify a legal revolution. The first replaced democratic sovereignty with monarchism, embodied in a president who metaphysically represented the Polish nation. The other justified a socio-political system based on the principle that unity of the whole was more important than individual freedom. Thus they arrived at an authoritarianism that was both legal and ‘legitimate’. At the end of the article, I show the legacies of this thinking in the post-World War II communist era. Stalinist legal scholars in Poland used precisely the same language from the 1930s to justify the introduction of a new constitution in 1952.

In current debates on the constitutional imaginary, different dimensions are stressed in distinct contributions, ranging from philosophical and legal–theoretical, to sociological and socio–legal approaches. To situate Jiří Přibáň’s work in this larger scheme of reflection on the imaginary, this article identifies a number of core angles. Unlike Přibáň’s systems theoretical interpretation of imaginaries, Castoriadis’s philosophy of creative imagination puts emphasis on uniqueness, on historical creation ex nihilo, or the creation of worlds without a precedent in the existing world and without presuming any clear function. This also means that imaginaries relate to forms of meaning that cannot be reduced to binaries, codes, or structural languages (legitimacy – illegitimacy) that keep society together, but rather relate to meaning that can never be fully articulated or theoretically entirely grasped and explained. However, Přibáň does not ultimately fully reduce constitutional imaginaries to functional vehicles as becomes clear in his acknowledgement of the polysemy and polyvalence of functionally differentiated society. From this perspective, the contemporary populist challenge to constitutionalism appears to be based on a struggle between technocratic forces promoting a modern, legal–rational imaginary of constitutionalism, whereas populist forces endorse a constitutional imaginary that is grounded in traditionalism and authenticity. This counter-constitutional populist challenge is not merely about a rejection of liberal democratic orders but regards the questioning of the rational–scientific imagination as such.

This paper argues that to liberal authoritarianism – defined here as a liberal technique of government fusing authoritarianism with liberalism for the purpose of the ‘free market’, following Hermann Heller – corresponds a form of dual constitutionalism or fragmented legality. Dual constitutionalism, originally a colonial technique of governance, relies on a liberal constitution enshrining a state of exception which suspends it on specific matters, territories, and during certain times. It can be either military – called in France the ‘state of siege’, the continental version of the British Martial Law – or civilian – the ‘state of emergency’. In the case of France, liberal authoritarianism has witnessed several declinations since the French Revolution, flourishing in the liberal colonialism of the late 19th century, then the full-fledged liberal authoritarianism of the interwar period, and eventually in the neoliberal authoritarianism of the 4th and 5th republic. Focusing on the relationship between France and its Algerian colony during the Third Republic (1870–1940), one of the most liberal periods ever in French history, it documents how the State of Exception was used to establish a legalised state of dictatorship where all executive, legislative and judicial powers were vested in the hands of a governor, in order to force the creation of markets by breaking down collective land ownership and use and other non-liberal economic customs of the local population, using, in particular, the legal tool of the ‘sequestre’ which allowed the State to forcibly expropriate land and seize assets of the local population without compensation, forced labour and internment camps – all in order to incentivise ‘free enterprise’ by the colonisers. Many of these legal tools and techniques migrated back to the metropolis when the Third Republic officially dissolved into a Nazi State in 1940, through legal means and in accordance with the constitutional procedures of the Third Republic.

In this contribution we ask how Přibáň’s theoretical choices shape the capacity of ‘European constitutional imaginaries’ to account for the ever more necessary work of recognition and redistribution within European society. While ‘European constitutional imaginaries’ reveal the intricate ideologies at play within European law and politics, as well as their power in motivating dominant currents of European political life, the project remains limited in that it accepts essential tenets of functional differentiation in society, obscuring the conditions of possibility for the formation of differentiated systems. Put differently, ‘European constitutional imaginaries’, both as forms of life and analytic concepts, have difficulty in conceiving the frontiers of imaginaries, their beginning and end, their formation and transformation—and in so doing, risk naturalizing their initial differentiation as a priori excluded from political contestation.

Jiří Přibáň’s work deals with constitutional imaginaries, starting from the concept of social imaginaries as entities describing functionally differentiated modern society as one polity. Přibáň’s conception perceives constitutional imaginaries in terms of social systems, representing a socio-legal paradox, since constitutional imaginaries express both the constitution of social unity and its pluralism of values. The aim of this contribution is to explore the link between Přibáň’s work and some aspects of Luhmann and Teubner’s contributions to the theory of social systems. By highlighting these features, the Author tries to argue that contemporary imaginaries can work as constitutional forces that drive contemporary legal pluralistic regimes, including the European one, to the societal unity by warranting a systemic difference.

This article seeks to capture the transformative potential of emergency powers, as a legal–political practice pertaining to liberal legality that ultimately can determine constitutional change, rather than a return to ‘normality’. It does so by providing an analysis of the transition from formal and limited liberal legality in Romania to the series of dictatorships that followed the instauration of the regime of royal dictatorship of King Carol II in 1938. Anchored in a close reading of the archival documents of the trial of the leader of the main far right movement, Corneliu Zelea Codreanu, and the subsequent legal proceedings, the proposed article aims to produce revaluation of the jurisprudential and constitutional status of the regime of King Carol II with a view of understanding the emergency-based dimension of this rule and the particular shift it operated foundational legal categories in criminal and constitutional law. I proceed by examining the current theoretical limitations in addressing the historical role of emergency in relation to constitutional orders. I turn then to exploring the political and legal context of the prorogation of emergency measures in 1938 Romania. Last, I examine the limited status of modern legality in a situation oversaturated by emergency measures.

All discussants of this book symposium on the monograph Constitutional Imaginaries address different aspects of constitutionalism beyond national and international limits and engage with the concepts of transnational law and global society to test and contest the book’s central argument according to which specific European constitutional imaginaries are internally constituted by different social systems and therefore paradoxically represent the unity of European society through their specific semantics. In this rejoinder, I focus on some overlapping themes, namely the process of social differentiation, its impact on both social and legal pluralism, and the paradox of legitimation in societal constitutionalism to respond to their comments and criticisms.

This article examines the process of drafting the authoritarian Portuguese Constitution of 1933, which took place during the military regime. The aim is to identify the powers involved, their objectives and the strategies they developed, and to find insights that shed light on the adoption of constitutions by authoritarianisms. The results suggest that conflict between political forces is endemic to the constitutional process, and that those who hegemonise support and aim to demilitarise the system are able to impose the new constitution even without guaranteeing the existence of democratic political parties. There is also a promising point of analysis: the emergence of an authoritarian constitution is based on path dependence, ie, it has many links with the material constitutionalism that precedes it, where there are already normalised authoritarian elements.

I examine the transformation of Italy during the fascist era and the way in which it was explained by one of the most prominent constitutional lawyers of the time, Costantino Mortati (1891–1985). A member of the Constituent Assembly of 1946–1948 and later a constitutional judge, Mortati had a deep influence on the Italian post-War constitutional thinking. Here I focus on Mortati’s understanding of the state’s transformation after 1922. I show how he conceptualised Italy’s transition from a liberal state to an authoritarian regime as a shift from the parliament to the executive of the power of ‘political direction’, ie, the power of identification of the aims and values of the state. Mortati did not envisage in the Italian transformation the full erasure of the separation of powers, but rather a large reshuffle of political direction moving from the Parliament to the Head of Government, allegedly a process in line with the country’s needs in the 20th century. He read the growth of executive powers as the most enduring constitutional transformation of his time, one destined in his mind to persist even after the downfall of the regime.

Recent scholarship on the post-Habsburg world has highlighted the often ambiguous transitions between nineteenth-century empires and the Central European nation-states of the interwar period such as Czechoslovakia, Poland, Romania, Hungary, and Yugoslavia. In this vein, the article reconsiders how imperial legacies continued to inform the political cultures, administrative practices, and center-periphery relations, in one such contested periphery: Subcarpathian Ruthenia, the easternmost province of interwar Czechoslovakia. By examining Czechoslovak practices and policies toward the region, it interrogates whether Prague’s governance assumed a colonial character, as contemporary observers and strands of recent historiography have contended. Such accusations struck at the heart of Czechoslovakia’s interwar standing as Central Europe’s exemplary democracy. Rather than accepting or dismissing these charges at face value, the article advances an alternative interpretation by conceptualizing Czechoslovak state-building in Subcarpathian Ruthenia as “external democracy promotion”—a concept drawn from contemporary political science. This more differentiated assessment of the achievements and limitations of democratic governance in a nascent state’s periphery, as well as of the declared intentions and concrete practices of the historical actors, permits a more productive dialogue between past and present. It navigates beyond the pitfalls of presentism, but remains critically engaged with enduring questions of power, legitimacy, and democratic praxis regarding interwar Central Europe.

This article draws a legal portrait of President Lenaerts, in an attempt to critically examine both his description of the institution to which he belongs, and his influence upon it. It is based on a comprehensive study of his public and formalised statements (published or on podcasts) since the year of his election in 2015. Based on these research materials, this article examines the contextual elements of Lenaerts’ personality, career path, and the challenges currently facing the European Court of Justice. It also illustrates that Lenaerts is an exceptionally gifted legal mind, educated from his earliest years in Community law, with a career both shaped by and devoted to the Court. The article argues that, although Lenaerts remains publicly discreet about the Court’s internal organization, he nonetheless exerts a significant influence over its functioning and reform process. Furthermore, while Lenaerts publicly defends the idea of law as apolitical, he advances a normative vision of what EU law ought to be and asserts that its current form serves the interests of European citizens. Lenaerts is an influential President who skilfully leverages his scholarly authority to defend the Court and its jurisprudence, presented as coherent. Yet, his position is not without ambiguity, as he frequently shifts roles – scholar, citizen, or President – while defending a specific point. A significant part of his influence lies in the subtle gaps between his professed positions and his concrete actions, as well as between his dual role as scholar and as President—two interstices where institutional power is exercised less visibly, but no less effectively.