Illiberal constitutionalism and the European Rule of Law

Abstract

The constitutional development of both Hungary and Poland shows that they have nurtured the Western understanding of the Rule of Law until they started to dismantle it, which has proven to be a continuous process; nevertheless, they are still the Member States of the European Union. There seems to be a conflict here, which prompted us to ask the core question of this book: given the severe Rule of Law deterioration in Hungary and Poland, can the Rule of Law still be viewed as a common or universal European value? This chapter offers a context for the discussion by introducing two notions: the European Rule of Law, which is considered to be the universal value in Europe, and illiberal legality, which is a twisted and hollowed-out version of the European Rule of Law, employed in Hungary and Poland. Their co-existence explains why the use of the adjective illiberal and the term constitutionalism can be used to describe the Hungarian and Polish remodelled constitutionalism. For a more explicit elucidation, and because of the contested nature of the most important notions, such as the Rule of Law and constitutionalism, this chapter also brings some clarity to the terminological confusion. It explains why, for this book, the thick version of the Rule of Law, i.e., the European Rule of Law, should be preferred to its many different versions, notions, and approaches (Section II). A description of illiberal constitutionalism follows (Section III), which provides the factual and theoretical background within which the chapters of this book can analyse the Polish and the Hungarian Rule of Law situation and conceptualise it as illiberal legality. Section IV connects illiberal constitutionalism and the Rule of Law, and, by putting Hungary and Poland in a comparative context, explores how the constraint on domestic public power (the European Rule of Law) is present in this kind of constitutional setting. Conclusion follows.