Hidden rule of law discontinuities: A theoretical framework for studying rule of law backsliding

Abstract

This introduction develops a theoretical framework for understanding authoritarian backsliding against the backdrop of existing historical and European socio-legal scholarship. It introduces a number of key distinctions to better understand socio-legal variance among autocratisation. Specifically, it highlights the distinction between authoritarian backsliding and complete breakdown of judicial independence and human rights

Authoritarian backsliding is an aggravated form of rule of law decay, where functioning of key rule of law institutions comes under direct threat and it is mostly observable in the contemporary Central and Eastern European context. This differs from historical instances of authoritarian turn referring to the complete breakdown of judicial independence and human rights, characterised by the politicisation of courts as a mainly historical phenomenon. The differentiation and their socio-legal implications is crucial for developing a roadmap to identify different forms of autocratisation and their different contexts (actors, institutional and political context) that need to be considered when addressing rule of law decay in Europe, both at the national and supranational levels. Ultimately, this general overview also offers the possibility to identify and address latent discontinuities in rule of law development at both the supranational and national levels. Identification of such latent discontinuities is of importance when assessing the risks involved in the introduction of emergency measures to combat perceived threats to the state and the society.