(iPoster) Analysing Judicial Backsliding before It Happens

• In Event: Poster Sessions: Law and Courts & Elections and Voter Behavior
  In Poster Session: Poster Session: Law and Courts

Abstract

How might populist-authoritarian actors go about undermining judicial independence in Germany? How resilient are German courts to such strategies? While a growing literature examines how courts are undermined and captured during processes of democratic backsliding, we know far less about how such assaults can be anticipated and analysed in advance. Drawing on Verfassungsblog’s Judicial Resilience Project, this paper addresses that gap by developing and applying a novel scenario-based approach to the study of judicial backsliding. Building on the concept of “autocratic legalism”, we reconstruct plausible pathways through which elected authoritarian actors could weaken or capture the judiciary while formally operating within existing legal frameworks. The scenarios trace potential authoritarian strategies forward and map conditions of vulnerability and resilience embedded in the current legal-institutional design. The findings highlight several underappreciated weaknesses in the German judicial system that could be exploited despite its reputation for strong rule-of-law institutions. At the same time, the analysis identifies institutional safeguards that enhance judicial resilience and increase the political costs of authoritarian intervention. By making these dynamics visible ex ante, the paper contributes to debates on how legal institutions and judicial actors shape democratic maintenance and renewal. More broadly, the paper offers an innovative methodological contribution to the law and courts literature by demonstrating how scenario analysis can be used to anticipate authoritarian strategies and judicial resilience before democratic backsliding sets in.

Author

• Friedrich Zillessen, University of Oxford