Illiberal Constitutionalism in Poland and Hungary

Tímea Drinóczi is Visiting Professor at the Faculty of Law at Federal University of Minas Gerais, Brazil. Since 2017, she has also been a Doctor of the Academy of Sciences of Hungary. Professor Drinóczi has been a visiting professor in law schools in Plzen, Brno, Cologne, Graz, Istanbul, and Osijek, and has presented papers at several conferences all over Europe, in Hong Kong, Nanjing, Seoul, and Santiago. She served as a professor at the University of Pécs, Faculty of Law, Hungary, and Kenyatta University School of Law, Nairobi, Kenya.Agnieszka Bień-Kacała is Professor within the Department of Constitutional Law, Faculty of Law and Administration at Nicolaus Copernicus University in Toruń, Poland. Professor Bień-Kacała has been a visiting professor in law schools in Athens, Prague, and Maastricht. Together, Professors Drinóczi and Bień-Kacała have presented papers at several conferences all over Europe, and in Hong Kong and Santiago de Chile.

"A powerful analysis of one of the most worrying political phenomena of the 21stCentury, which the authors describe as ‘illiberalism’. No lawyer or political analyst concerned with democracy and the rule of law can be indifferent to the processes and tensions described in this book, which teaches a lot about democracy and how a political community can fail to engage with it."Thomas Bustamante, Federal University of Minas Gerais, Brazil."For all their differences – well displayed in this remarkable book – Hungary and Poland remain in many ways "sick men/women of Europe". As two eminent constitutional scholars from these countries show, these states have reached a status which they dub "illiberal constitutionalism", a rather sorry condition between liberal democracy and outright autocracy. The analysis in this book is as disturbing as it is impressive, covering a very broad range of issues, including those not often tackled in traditional constitutionalism (such as the role of emotions in shaping constitutional values). I recommend this book unreservedly."Wojciech Sadurski, Challis Professor of Jurisprudence in the University of Sydney, and Professor in the Center for Europe at University of Warsaw."In 1989, the Communist period ended in Hungary and Poland and there was great hope for their renewed participation in the family of democratic states. By the 2010's both countries exhibited features that, from a distance, seemed autocratic and difficult to explain. Drinóczi and Bień-Kacała pinpoint the meaning of the "illiberal" qualifier of both democracy and constitutionalism. They synthesize others' analysis and add their own, necessary for understanding this phenomenon, half-way between traditional, liberal, constitutionalism and authoritarian government. They also explain how illiberalism has affected their two countries, which, although profoundly changed, still remain within the fold of European states. The core of this change is the struggle between the substantial realization of the rule of law, constitutionalism and democracy on one side, versus self-perceived national identity, charismatic leadership and governmental stubbornness on the other. The real question posed by this read is whether illiberalism is a detour toward a more perfectible democracy or a path in the direction of a unique brand of authoritarianism. In sum, this book is important in understanding current strains in democracy."Gregory Tardi, DJur., Executive Director, Institute of Parliamentary and Political Law."Rejecting Tolstoy's aphorism that 'each unhappy family is unhappy in its own way,' Drinoczi Timea and Agnieszka Bien-Kacala demonstrate that two regimes in Eastern Europe are both suffering from 'illiberal democracy.'" Their analysis of illiberal democracy and charismatic leadership provides vital insights into Polish and Hungarian constitutional politics, and provides in an important window into a too possible future for constitutional democracies throughout the world."Mark A. Graber, Regents Professor, University of Maryland Carey School of Law.

• Part I. Introduction - Ambitions and ComparisonI. AmbitionsII. Why Hungary and PolandIII. Insight into the book Part II. Terms - Constitutionalism, illiberal(ism), and constitutional democracyI. Constitutionalism in the term "illiberal constitutionalism" II. Illiberal(ism)III. Constitutional democracyPart III. Identity - Unbalanced constitutional identity: emotions and valuesI. Historical and emotional trajectory II. Post-communist past and beyond III. Possible root cause: the combination of the abovePart IV. Limits - Comparative perspectiveI. The Emergence of llliberal Constitutionalism II. A comparative perspective – looking for constraintsIII. Contextualization: the European Rule of Law as a constraint on public power Part V. Limits - Constraints in constitutional design and identityI. Illiberal legality II. Illiberal Democracy III. Illiberalization of Human Rights Part VI. Stability - How "illiberal limits" emerge and workI. Capturing constitutions and constitutionalism, and creating invisible constitutionII. Illiberal judicialization of politics III. Pushing the limits and bouncing back IV. Defeating exit strategies from the hollowed-out constitutional democracyPart VI. Conclusions1. Constitutionalism does not necessarily have to be liberal 2. Illiberal constitutionalism is a deterioration from liberal constitutionalism towards authoritarianism but has not reached that point yet 3. In an illiberal constitutional identity, the liberal and non-liberal or illiberal value orientation of the population can intermittently prevail 4. Illiberal constitutionalism is a coherent theory in its illiberal and weakly constrained manner 5. Lessons learned, mostly, for others ...