This chapter intends to explore the roots of the Polish ‘constitutional crisis’ by utilising the concept of constitutional drift. While the Polish 1997 Constitution contains provisions that would enable interpreting it by using the lenses of Sciulli’s societal constitutionalism (which we call the ‘societal imaginary’), such opportunity was disregarded by more dominant liberal and communitarian imaginaries present in the political and constitutional discourse. The latter contributed to fostering a governance structure that strengthened the executive (the cabinet) at the expense of all social actors whose rights are strongly embedded within the Constitution – social partners, civil society and professional self-government organizations. Overall, the processes similar to those happening to the juridical power after 2015 in Poland, had been happening to other competitors to power prior to 2015 and constitutional crisis should be seen as a relatively late phase of the constitutional drift resulting from overlooking possibilities granted by societal imaginary.

The chapter explores how alternative futures were imagined in the late state-socialist system, using Soviet Estonia as a case study during the mid-perestroika period in the Soviet Union. In 1987–1988, Estonian reformist intellectuals and experts envisioned Estonia in multiple scenarios like an economically ‘self-manageable’ republic within a renewed Soviet Union, a socialist ‘sovereign’ republic sharing foreign and defence policies with the centre or an independent republic restored as the interwar state. The chapter explores the Estonian perestroika discourse that opened channels for reform discussions in 1987, especially examining the language and concepts used to produce these futures. It highlights how local reformists innovated economic-political vocabulary, facilitating but simultaneously delimiting the imagination of Estonia’s alternative futures. The chapter demonstrates how the innovations with the perestroika language caused unpredicted scenarios in 1988, as the Estonian Declaration of Sovereignty ignited a series of similar declarations in the union republics in 1989–1990.

The project of constitutional democracy and the rule of law concept served as a powerful unifying platform for political compromise during the liberal democratic transformation after 1989. Today’s challenge to the liberal rule of law calls for re-evaluating our understanding of that period. To provide a deeper historical perspective, this chapter offers a tentative historical typology of the various rule of law understandings of the period of ‘liberal consensus’. First, it outlines the historical roots of the 1989 democratic and constitutional revolutions in ECE, pointing out their major sources, namely the import of Western constitutional theory, dissident human rights activism and the mostly neglected yet critical authoritarian socialist constitutionalism. Second, the chapter analyses the politics of liberal constitutionalism, in the 1990s, from the point of view of its internal diversity, depending on the different political ideas and ideologies behind it. The variety of constitutional imagination sets the stage for the final step, which is the exploration of different rule of law conceptions, namely neoliberal, substantive, positivist and non-liberal. Although transnational in its perspective, the last section, for the sake of concision and clarity, focuses primarily on the Czech context.

Between 2015 and 2023 the Law and Justice government significantly altered the composition of the Polish Constitutional Court, the Supreme Court and the National Council of Judiciary. It has also expanded the power of the executive branch in relation to the courts. This process – which the majority of scholars and legal practitioners saw as a period of deterioration of the rule of law – also had a transitional justice dimension. In this chapter, I claim that the decline of Polish liberal constitutionalism was possible because the Law and Justice party managed to create an alternative constitutional vision – a counter-constitution, to borrow the term from Kim Lane Scheppele – the cornerstone of which was the belief in ‘legal impossibilism’. ‘Legal impossiblism’ was often understood to refer to strict constitutional constraints supposedly preventing the parliamentary majority from introducing crucial reforms. The analysis of the Polish constitutional framework demonstrates that, in the transitional justice domain, ‘legal impossibilism’ perceived this way is a myth. However, I argue that the previous government perceived ‘legal impossibilism’ differently: as restraints upon a radical shake-up in political, social and economic hierarchies. For the Law and Justice party, without such a change the democratic transformation remained incomplete.

This chapter explores the transforming constitutional imaginary of the Scandinavian welfare states. Suggesting that the Nordic countries shared a distinctive interpretation of the democratic ideals during the heydays of the social democratic welfare state, the chapter argues that the breakthrough of neoliberalism has fundamentally transformed the Nordic constitutional imaginary. No longer connected to national and popular sovereignty, public participation, labour market arrangements or economic and social equality, Nordic democracy is today increasingly associated with rule of law, individual and human rights, as well as economic freedom. The chapter connects Nordic developments to the recent literature on the constitutional theories in neoliberal thought. Scholars like Samuel Moyn, Quinn Slobodian and Jessica Whyte have amply shown that many leading neoliberals strove to restrict or replace democratic procedures with constitutionally protected market arrangements. In a Nordic context, these ideas were put forward in the debates particularly in the 1980s, but more often than not connected to the processes of globalisation and Europeanisation since the 1990s. As a result, the Nordics ceased to represent a democratic alternative but conformed to the neoliberal mainstream that emerged with the End of History.

This chapter aims to analyse the Polish ‘integration clause’: Article 90 of the Constitution as an element of the Polish constitutional imaginary. The notion of constitutional imaginary as formulated by Martin Loughlin will provide the theoretical framework for these considerations. Perceived through the lens of Louglin’s constitutional imaginary concept, Article 90 turns out to be the provision that shapes intricate relations of two big ineffable ideas: sovereignty and European integration. The latter has been perceived in the constitutional practice as both the ineffable aspiration and the object of serious concerns. Since Poland’s accession to the EU, for a long time, constitutional practice with regard to the EU was a syncretic collection of cautious friendliness towards EU law, emphasis on (formal) constitutional supremacy and narrowing down the interpretation of ‘the conferral of competences’. Nevertheless, until recently, the constitutional text had tended to be interpreted as facilitating rather than limiting Poland’s participation in European integration. Therefore, the recent Eurosceptic turn after 2015 was not justified either in the sphere of thought or in the constitutional text. It disturbed the existing balance between ideology and utopia.

Contrary to the widespread narrative, Polish constitutional law theory played a crucial role in the transition from authoritarian socialism to constitutional democracy. This chapter examines the evolution of Polish constitutional law within the political and legal context of the Polish People’s Republic (1944–1989). It argues that the discourse surrounding constitutional law evolved from being merely a façade to becoming a solid foundation for democracy, largely due to the development of a scholarly doctrine of constitutional review in the late 1960s. This doctrine allowed political elites, under both internal and external pressures, to initiate institutional changes, most notably the establishment of the Constitutional Tribunal. Poland became the only Warsaw Pact country with a constitutional court, and the Tribunal played a pivotal role in the country’s democratic transition. Consequently, the reforms of the 1980s can be seen as an institutionalization rather than a rejection of Polish constitutional law theory. Finally, this evolution helps in understanding the Central Eastern European constitutionalism, including the recent debate on the origins of the rule-of-law crisis.

Throughout history, reference to the historical constitution of Hungary was used to achieve different and sometimes conflicting goals. Since 2012, it has become a constitutional concept after decades of abandonment. It appears in the Fundamental Law of Hungary (2012) and the jurisprudence of the Hungarian Constitutional Court (HCC) – linking it to the concept of constitutional identity. This chapter claims that the narrative of the Hungarian historical constitution as a constitutional concept is conducive to illiberalism. This is because political and constitutional actors have used it to oppose liberal values. Two arguments justify this claim. First, the contemporary claims on continuity and rights expansion cannot be verified when we contrast the contemporary narratives on the two most important constitutive components of the historical constitution, that is, continuity and rights expansion with legal measures introduced in the second part of the nineteenth and the first half of the twentieth centuries. Second, the relevant jurisprudence of the HCC suggests that the finality of introducing the historical constitution into the constitutional text and their subsequent linking to the concept of constitutional identity was to secure the traditional Westphalian understanding of ethnic-national sovereignty, mainly against the rule of law, that is, EU obligations and globalization.

The traditional narratives of Austrian constitutional law are evolving. Long decried by scholars and practitioners to be ‘in ruins’, the Austrian Constitution has recently been lauded as ‘elegant and beautiful’ by Austria’s President, thus attempting a paradigm shift in the Austrian public’s perception of its constitution. While some textbooks claim it (still) is a merely formal, ‘value neutral constitution of game rules’ much in the spirit of Hans Kelsen, the Austrian Constitution and its interpretation show more and more signs of converging into a principled, value-oriented and purposive approach common in many other countries. The multinational legal legacy of the Habsburg Empire and its potential for understanding the European integration have been recognized as an asset, just as the ensuing creation of the world’s first constitutional court is of pride and the Austrian Constitution’s leading export.

In August 1914, when the First World War broke out in Europe, the Indian Branch of the St. John Ambulance Association (ISJAA) immediately started to organise relief provisions for the British Indian Army troops. With the sizable expansion of its pre-war ambulance and first aid agenda during the war, this non-state organisation ventured into various fields of humanitarian war work in the following four years; these fields were usually linked to, or seen as, ‘Red Cross work’. In colonial India, where until 1920 no ‘national’ Red Cross society formally existed, the ISJAA strikingly decided to fill the void. In 1914, it identified itself as the Red Cross representative in India.

This chapter shifts the focus to the humanitarian work undertaken by the ISJAA, calling for a more nuanced examination of the historical contexts surrounding the so-called Red Cross humanitarianism. Existing research has emphasised the global reach and significant impact of the Red Cross movement during the First World War, while often failing to acknowledge the contributions of other humanitarian actors who played a crucial role in providing relief.1 Historian Rebecca Gill has powerfully reminded us to ‘acknowledge the relevance of a multi-levelled history of the local, national, imperial, and international’ when it comes to understanding humanitarianism. However, she erroneously refers to the war participation of a Red Cross society in India when she actually means the ISJAA.2 By focusing on the latter's relief work, the chapter illustrates the existence of alternative humanitarian actors of significance in the provision of relief to soldiers during wartime in the British Empire.

State of the Art

The global Second World War caused major humanitarian catastrophes that necessitated relief for soldiers, military and civilian prisoners of war, as well as for other victims of the war, including refugees and displaced persons in Europe and in non-European war zones, particularly in Asia. To assist the ever-increasing needs of these diverse groups became a major task for established humanitarian actors, such as the International Committee of the Red Cross (ICRC), various national Red Cross Societies, the American Jewish Joint Distribution Committee and the Quakers. They could resort to organisational knowledge and experienced staff, and professionalised more and more their war-related relief work in the course of the ongoing conflict. However, just like during, and in the aftermath of, the First World War, the present global conflagration also saw the emergence of new humanitarian organisations, such as Oxfam and the Catholic Relief Service, that mobilised for special concerns or helped to facilitate potential political alliances. Regardless of whether the humanitarian organisation was an established or a new one, non-state relief agencies entered into close, often co-dependent relationships with states during the war. States understood aid as significant due to moral concerns, but also to safeguard their political, economic and strategic interests, and hence strove to control, guide and coordinate humanitarian activities during and in the aftermath of the war

After almost three months of providing medical relief work, shortly before their departure from the country in August 1946, Rajabali Jumabhoy (1898–1998), a prominent businessperson and philanthropist of Indian origin, praised the Congress Medical Mission at a tea party in Singapore for being a promoter of Indo-Asian unity. One year later, a book titled Congress Mission to Malaya was published by C. Siva Rama Sastry, one of the mission's members. The Indian National Congress (INC) politician and mission organiser Bidhan Chandra Roy (1882–1962) provided the foreword. Roy stated, ‘We the people of India, feel proud of their [the mission members’] achievement and appreciate with gratitude the services they rendered in the name of the Congress.’ In both instances, the work of the Congress Medical Mission to Malaya was presented as successful; this success was based partly, but not exclusively, on the mission's effective promotion of domestic and foreign policy objectives of the INC.

In the history of humanitarianism, the Congress Medical Mission to Malaya has been forgotten. It does not figure in the research on the transitional period between the end of the global Second World War, late colonial rule, and early decolonisation in South Asia, nor does it figure in the standard accounts of Indian nationalism, although it is at times mentioned in passing in the histories of Malaysia. Nevertheless, examining the humanitarian undertaking of the INC, the anticolonial organisation that would soon become the party leading India's postcolonial government, is crucial, as the mission represents the last instance of Indian non-state nationalist humanitarian aid provided to civilians in need outside the South Asian subcontinent during the period of colonial rule.