Abstract
AbstractThis Article argues that, as far as Hungary and Poland are concerned, the use of term “illiberal constitutionalism” is justified. It also claims that, without denying that other states could also be considered illiberal democracies, Hungary and Poland display unique and distinctive features. These features include populist politics, which lead to the relativization of the rule of law and democracy principles, and human rights protection, which captured the constitution and constitutionalism by constitutionalizing populist nationalism, constitutional identity, and created new patrionalism and clientelism. All these features are supported by the ideological indoctrination of political constitutionalism. In the course of this process, formal and informal constitutional amendments are used, and a formal sense of constitutional democracy is maintained. Overturning these illiberal democracies by constitutional and legal means, at this time, seems doubtful, if not impossible.
Highlights
This Article argues that, as far as Hungary and Poland are concerned, the use of term “illiberal constitutionalism” is justified
Without denying that other states could be considered illiberal democracies, Hungary and Poland display unique and distinctive features. These features include populist politics, which lead to the relativization of the rule of law and democracy principles, and human rights protection, which captured the constitution and constitutionalism by constitutionalizing populist nationalism, constitutional identity, and created new patrionalism and clientelism
Poland and in Hungary, there is an established illiberal constitutionalism. This seems to be stable, and in a short or even mid-term, its re-transformation does not seem plausible through legal means. In this Article, we discuss how constitutional changes can be conceptualized in the field of constitutional law by using the terms “illiberal democracy” and “constitutionalism.” In our view, a populist political majority lacking self-restraint can develop an illiberal democracy, and transform a liberal constitutionalism to an illiberal one, by capturing the constitution and constitutionalism with legal means such as formal and informal constitutional change and packing and paralyzing the constitutional court
Summary
One may ask why we consider Hungary and Poland together for this Article, especially when there are well-known differences, captured recently by, for instance, Wojciech Sadurski, András Bozoki, and Dániel Hegedűs. the most significant differences between the Hungarian and Polish constitutional developments of the last couple of years are the following: Hungary has a new illiberal constitution; Poland does not, but the constitutional system being created seems to be supported by the population. The most significant differences between the Hungarian and Polish constitutional developments of the last couple of years are the following: Hungary has a new illiberal constitution; Poland does not, but the constitutional system being created seems to be supported by the population. The transformative power of these changes may be found in the historical and emotional trajectory of the people, as it is still the people who tolerate, accept, and even support the changes and populist politics It seems that people want, or at least do not substantially oppose, the new system developing in Hungary and Poland. Hungary and Poland emerged from a troubled history, which left its mark on the emotional trajectory of their populations This state of emotions, with strong resentment beneath, could be intensified and exploited by today’s populist leaders.. The unfortunate coincidence and synergy of these factors make Hungary and Poland, notwithstanding the differences, comparable, and forces them together to the category of illiberal constitutionalism
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