Illiberal Constitutionalization and Scholarly Resistance: The Cases of Israel and Hungary

Abstract

This paper explores the role of constitutional scholars in resisting illiberal constitutionalization attempts or combating existing illiberal constitutional systems. I use Israel as a case study for the former and Hungary for the latter scenario. In Israel, following the initiation of a judicial reform by the new government of Benjamin Netanyahu in early 2023, supported by far-right nationalist and ultra-Orthodox parties with the aim of dismantling the separation of powers and establishing an unbound executive, constitutional scholars, alongside street protesters, voiced their opposition to illiberalism. Since the start of the war in Gaza, triggered by Hamas’ attack on Israel in October 2023, it became evident that the Palestinian issue also calls for a constitutional solution. In stark contrast, Hungary has seen minimal resistance after the enactment of the Fundamental Law in April 2011, Viktor Orbán’s new constitution for an illiberal regime. The paper investigates the role of constitutional scholars in both countries in seizing or missing the constitutional moment.