Can you tell when an illiberal democracy is in the making? An appeal to comparative constitutional scholarship from Hungary

Abstract

As long as the search for the global constitution remains an aspiration of comparative constitutional scholarship, the ability to identify trends and forces that drive constitutions away from commonly accepted minimum standards should be a matter of special concern for practitioners in the field. Recent Hungarian constitutional developments offer a helpful litmus test for reflecting on the difficulties comparative constitutional law analysis faces when tackling the gradual degradation of a constitutional regime. This article argues that routine comparative constitutional law analysis is prone to overlook symptoms of gradual constitutional decline and that strong confirmation bias steers analysis towards seeing dialogue where defiance drives local actors. As a result, comparative analysis may overlook the building of a constitutional regime in which constitutional constraints on the exercise of political power evaporate, signs which point to clear departures from the global fold. The article demonstrates that comparative constitutional analysis has the potential to detect the gradual decline of a constitutional system, provided that its practitioners are keen to reach beyond their traditional comfort zone and engage with local oddities and discord as formative forces in national and supra-national constitutional developments.