Extra-Legal Particularities and Illiberal Constitutionalism – The Case of Hungary and Poland

Abstract

The Hungarian and Polish observations show how the use of the public law is limited in illiberal constitutional states. This paper claims that certain non-legal reasons for effective successful transformation to an illiberal state, such as the emergence of populist rhetoric and morality; the clear lack of political self-restraint and the inability or unwillingness of the people to form a strong and capable civil society or to raise their voice against extreme views or resist an aggressive and clearly unfounded political campaign, have been pre-determined and influenced by the historical and socio-psychological particularities of the nations in question. If this is indeed the case, this may offer another, though obviously non-conclusive, explanation as to why public law measures and mechanisms have failed to preserve liberal democracy. The paper concludes that overturning illiberal constitutionalism by either political or constitutional and legal means, at the present time, seems doubtful, if not impossible. The historically and psychologically determined national and constitutional identities of Hungary and Poland are not apt to nurture liberal constitutionalism in the long term.