Revue Européenne du Droit
The emergence of illiberal constitutionalism and illiberal legality in Europe: what is happening and what can the EU do about it?
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Issue #3

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Tímea Drinóczi

La Revue européenne du droit, December 2021, n°3

The groundwork of European power

Introduction 1  

The ongoing political events in Poland and Hungary attest to a serious deterioration of the rule of law, which is unsettling for all the supporters of substantive constitutional democracy with all its components: the rule of law, democracy and protection of human rights. As the legal and political debates between the Polish and the Hungarian governments and different actors at the level of the European Union and the Council of Europe have showed, the rule of law is rejected as a fundamental value, which entails the non-compliance with its legal ramifications 2 and the introduction of illiberal legality 3 , which is a mere formalistic and instrumental approach to the law 4 .

It is intriguing to understand why and how this rule of law deterioration could have happened in two member states of the European Union in the last decade. There is indeed an assumption when discussing these issues that illiberal constitutionalism has emerged only recently, and that it could spread to other member states, as well. Therefore, it is even more important to pinpoint the reasons explaining the success of the governments led by Orbán and Kaczynski in pushing an autocratic and illiberal reform agenda. These reasons could be found, partly, in the historical and emotional trajectory of Poles and Hungarians. Because of the possibly contagious nature of illiberal constitutionalism especially in the Central and Eastern European region, due to its shared history and potentially similar emotional trajectories 5 , it is of utmost importance to understand what the European Union can and cannot do with its member states that have already consolidated their illiberal constitutional systems (Hungary and Poland) and those that have just undertaken the path leading to such consolidation.

This remainder of this piece is structured as follows: Section II will briefly explain what illiberal constitutionalism is and how it has emerged in Hungary and Poland. The following Section will answer the main question of this paper, namely, how and why the people supported the illiberal and populistic governments even after having experienced the detrimental effects of their policies. Section IV will analyse the options open to the European Union considering the attitude of local voters. The last Section will attempt to summarize some of the lessons learned from this experience – instead of drawing conclusions.

I. Illiberal constitutionalism 

In a recently published book 6 , I and my co-author develop the concept of ‘illiberal constitutionalism’, taking a holistic view of the regional context, gradualness, methods and content of the changes observed in Hungary and Poland, as well as the tangible differences between the latter and “real authoritarian States”. In our view, illiberal constitutionalism is a stage in the process of ‘authoritarianization’ of EU Member States (‘illiberalization’ of their constitutionalism), mainly in the post-socialist region that has been “hit” by autocrat populist leaders in the second decade of the 21st century. They have brought about the deterioration of constitutional democracy and the hollowing out of its components. The gradualness of the deterioration and the embeddedness of EU law (acquis) and human rights commitments (regardless of their weakness and flaws) in the daily adjudication of law have kept these States from turning into (modern) authoritarianisms. This is one part of the concept of illiberal constitutionalism. On the other hand, we propose that the normative appeal of the regime for the population could find its roots more in an unbalanced constitutional identity that longs for a charismatic leader than in a particular political philosophy. Consequently, it is also suggested that this appeal could be satisfied by the application of a patchwork of ideologies in so far as they can be invoked by a charismatic leader for satisfying the current emotional needs of the polity. 

Briefly, we argue that i) constitutionalism does not necessarily have to be liberal, ii) illiberal constitutionalism is a deterioration of liberal constitutionalism and a step towards authoritarianism, without reaching this latter stage yet, iii) it is a coherent theory in its illiberal and weakly constrained manner, iv) it presupposes an illiberal constitutional identity, in which the liberal and non-liberal or illiberal value orientation of the population can intermittently prevail, as it happens in the Hungarian and Polish cases. 

The constitutional changes in Hungary and Poland since 2010 and 2015 respectively, leads us to give more weight to the disentanglement of liberalism and constitutionalism. “Constitutionalism” could be seen as less of an ideology and more of a constitutional design that could accommodate a variety of political moralities, philosophies or practices, especially in those States in which liberal constitutionalism is already established as a political ideology and a constitutional design. 

Hungary and Poland stand out among the States in democratic decay and are noticeably different from existing (modern) authoritarian regimes. Their deterioration has not, either quantitatively or qualitatively, reached the state of “authoritarianism”. This, however, does not mean that no increasingly authoritarian tendencies can be observed in both countries. Hungary and Poland are still members of the EU, which, notwithstanding its failures, imposes a particular, albeit rather weak, internal constraint on the political leaderships of both countries. The existence of this internal constraint means that they are still constitutionalist systems. At the same time, the deterioration of democracy, misuse of human rights, and abuse of the Rule of Law imply that the Hungarian and Polish constitutionalism can be qualified as “illiberal”, the sign that the development vector of both ideology and constitutional design took a new turn (different from the original idea of liberal constitutionalism that was introduced at the beginning of the 1990s). 

This illiberal constitutionalism relies heavily on the Hungarian and Polish identities that have been molded in such a way that they are prone to accept and support illiberal (non-liberal) visions and ideas, which renders the survival of liberal constitutionalism more difficult – though not impossible. They also enable the illiberal regime to defend and maintain its constitutive elements, as these are not contrary to the unbalanced constitutional identities of Hungarians and Poles. 

There are several indices showing us the dismantling of fair election, independent media, lowering of human rights protection, the vanishing of the independence of the judiciary, etc. Most of these indices categorize Hungary and Poland as hybrid regimes, while the V-Dem labels Hungary an authoritarian system. The dismantling and weakening of the institutional guarantees necessary for a substantive constitutional democracy are apparent. However, what is less obvious is whether the popular support for these governments, especially the Hungarian one, is genuine results from manipulations of the electoral system and biased media. Elsewhere, together with Agnieszka Bień-Kacała and Gábor Mészáros 7 , I argued that regardless of the institutional reforms of this last decade, the policies of both Orbán and Kaczynski enjoyed genuine popular support. Now, the question is why. In one of her public lectures 8 , Kim Lane Scheppele argued 9 that it is the party system and party politics that are to be blamed for the latest autocratization processes, and not necessarily the people that have been captured or badly influenced by populist politicians. Nevertheless, while there are certainly numerous reasons for this kind of democratic decay, it is still the voters that reelected their representatives (in Hungary, 2014 and later in 2018, and in Poland, 2019) – knowing well what they have been doing with the constitutional and political system. 

II. The people

Hungarians and Poles have unstable constitutional identities, which may become more visible at certain historical moments, and which are prone to lead them to opt for a charismatic leader, without any need for coherent ideology or moral philosophy. Collective victimhood, collective narcissism, and the illiberal values of a given society, especially when heavily relied on and triggered by a right-wing populist autocratic leader, contribute to the formation of illiberal constitutionalism and prevent reversion of the system. These factors are not favorable to sustaining liberal constitutionalism, although they do not necessarily reject it, and could be viewed as one of the main reasons for the success of populist politics and the illiberal constitutional remodeling. 

Both Hungarians and Poles seem to share a specific understanding of values, including the Rule of law – despite similarities and differences in their constitutional history, historical particularities, and emotional trajectories. 

Studies from various fields of social sciences 10 , support the assertion that the Hungarian historical trajectory – collective victimhood caused primarily by the Trianon peace treaty in 1920, citizens having been abandoned in their disappointment by all regimes throughout Hungarian history – is not a favorable ground to build an emotionally stable identity upon 11 . Poles are often characterized as a traumatized nation because of their loss of statehood and independence. These particularities were further strengthened during the Soviet era in both States. Schwartz and Bardi’s findings from 1997 on the value priorities in the region after the end of the communist rule, which seem to be supported by the Value research results published in 2019, show that the value profile common in Eastern European countries, which lacks the commitment to egalitarianism and autonomy values, is ill-suited for the development of democracy 12

There are two main observations that are important for us here. The first is that people can gradually acclimate their values to changed circumstances, upgrade the importance of values that become attainable and downgrade the importance of those whose pursuit is no longer sustainable 13 . The second is that there do seem to be distinctive Western European values, not commonly shared in Easter Europe 14 . Apparently, Wester Europeans lend low importance to mastery values, most importance to affective autonomy values and least importance to conservative values. They appreciate more initiative and achievement, and they are keen on tolerance and post-material values, such as freedom and social responsibility. In Eastern Europe, mastery values are even less important, conservativism and hierarchy are paramount 15 . One important question follows: how long does this acclimation take and can it happen at all in a particular society?

These different values, and the results of scientific narrative psychology and other social psychological empirical studies, support our hypothesis that the emotional attitudes of the people and the community underpin the illiberal transformation and the degree of tolerance of the disrespect of the Rule of Law. Regardless of the 20 or 25 years of liberal constitutionalism in Hungary and Poland, what we seem to have today  (but possibly to differing degrees) is as follows: lack of respect for others; compromised self-confidence; the feeling of being a victim, and all the attached feelings of inferiority; the need for a strong leader; prioritizing values of conservativism and hierarchy; and reluctance regarding, or controversial attitudes towards the values of liberal constitutional democracy or open society, such as intellectual autonomy, individual liberty, and responsibility. All of these identity-related phenomena, which have apparently already been internalized, eventually combine to form a national and constitutional identity. This type of group identity, at certain historical moments, seemed and still seems to be fertile soil for populist leaders who have an illiberal vision of society and State. Nevertheless, it does not offer the best conditions for developing the civic virtues necessary for upholding a substantive constitutional democracy. 

Recent research on collective narcissism has shown that a connection can be identified between this kind of value orientation (nationalism, authoritarianism, hierarchy, social dominance orientation, homogeneity) and populism. These values and attitudes overlap with collective narcissism 16 . Collective narcissism is defined as ‘a belief that one’s own group (the ingroup) is exceptional and entitled to privileged treatment, but others do not sufficiently recognize it. Thus, central to collective narcissism is resentment that the ingroup’s exceptionality is not sufficiently externally appreciated’ 17 . As such, collective narcissism is a core source of political choices that undermine liberal democracy. In particular, it is linked to intergroup hostility and aggression, voting behaviour, political conservatism, and conspiratorial thinking. It is related to the biased perception of intergroup reality, in which events are selectively seen and remembered in the service of the ingroup’s image and linked to a divisive social identity 18 . It is also linked to collective victimhood. As a result, the victimized collective memory, with perceived historic wrongs remaining unresolved, and the intense feeling of exceptionality shared by Poles and Hungarians create an environment that is prone to illiberal transformation and the emergence of a particular understanding of the Rule of Law – i.e., illiberal legality. 

It seems that Hungarians and Poles share these emotional background, which underpins their political demands. In both countries, there is always the feeling that someone else is ultimately responsible for collective failure, or that someone does not recognize or admire the Hungarians and Poles enough. These specific emotional and historical trajectories, value orientations, and attitudes of Hungarians and Poles are not only seriously aggravated by populism, but also overlap with collective narcissism, including conspiratorial thinking. Collective narcissism is associated with the (fictional) idea of an aggression from outgroups, which leads in turn to actual physical aggression against members of the outgroup (e.g., attacks on people of color, including physical attacks or spitting on them) because they speak differently and look different, or are associated with opposing political positions. In Hungary, it is clearly present in the hate campaign against György Soros, the NGOs, LGBTQI people, and those supporting and promoting human rights and diversity. In Poland, it was clear in relation to the Smoleńsk plane crash in 2010, when many claimed that former Prime Minister Donald Tusk and Russia were to blame. 

Voters in both Hungary and Poland care little about the realization, implementation, and especially the value-content of the Rule of Law, which is quite unfortunate. As the Venice Commission noted, ‘[t]he Rule of Law can only flourish in a country whose inhabitants feel collectively responsible for the implementation of the concept, making it an integral part of their own legal, political and social culture.’ 19 Collective responsibility can hardly be nurtured when the Rule of Law is surrounded by nationalistic and political interpretations. It takes the concept out of context, especially when claiming that the Rule of Law is itself a fluid, mainly political concept, ill-fitted or inadequate for use as an objective measure in an official legal procedure (such as on Article 7 TEU or the Rule of Law conditionality). It disregards the co-existence of two considerations, and, thus, misguides the debate: even though legal procedures can be politically assessed, criticized, or even praised, they should still be thought of as belonging to the realm of the law, and as such informed by legal approaches, guarantees, processes, and legal arguments. Nevertheless, this approach enjoys continuous support from the voters. 

Polish and Hungarian voters show similar value attitudes: majoritarian understanding of democracy 20 ; strong desire for stability, which is the reason why they are willing to trade off liberal and democratic values; tendency towards conservativism and authoritarianism; prioritizing hierarchy as a primordial value, as opposed to egalitarianism, intellectual and affective autonomy, and mastery 21 . Therefore, it is still the people who tolerate, accept, and even support these changes in the constitutional system and populist politics. It seems that people want, or at least do not substantially oppose, the remodeling of the Hungarian and Polish constitutionalism. 

This being said, recent election results, in the autumn of 2019, in Poland and Hungary, could bring a healthier vertical division of power and more quality in legislation in the Hungarian and Polish illiberalism which could recalibrate the degree of the Rule of Law compliance. These election results show, first, that the Hungarian opposition could organize itself to support one common candidate against a Fidesz candidate, leading to some satisfying results at the local level 22 . Second, Poles still support the illiberal turn of the ruling Law and Justice (Prawo i Sprawiedliwość) party but, at the same time, they do not fully accept further reduction of pluralism 23 . Nevertheless, the foundations of the illiberal regime are still intact. The local levels’ autonomy is limited, Hungarian local governments and the Polish Senate, which cannot significantly influence legislative content and avert any informal (and usually unconstitutional) constitutional change, still need to work within the national, and thus illiberal, framework, which can easily be changed if needed. 

III. What can and cannot be done?

It is now a fact that the EU cannot resolve its legal differences with Hungary and Poland. There are two alternative implications of a situation in which a legal and cultural community is not able to maintain and enforce its legal regime. Either the shared nature of its legal values and political ideals and principles can be justifiably questioned, or the country whose actions raise doubts about the universality of these principles has already ceased to be the part of that community. This is why it is suggested to think of the Rule of Law implementation in Hungary and Poland as an instance of ‘illiberal legality’. Legal actions taken by the ‘outside group’ cannot be effective against illiberal legality, insofar as illiberalism and all of its implications are also symptoms of what is going on with the society as a whole, which not only does not and/or cannot revolt forcefully but supports the regime and applauds its actions.

In the most pessimistic assessment, Hungary and Poland seem to already be outside of the ‘community’, as attested by the weak constraint power the remnants of the EU law can have on the Hungarian and Polish public authorities. The question is when the European legal community, i.e., EU, and Hungary and Poland themselves, will realize it and what measures they will take. Wielders of the political power of Hungary and Poland cannot be disciplined by the usual ‘in-group’ measures, because these are dispute resolution methods belonging to another ‘reality.’ The sooner the European political community and leaders realize this, the better they can promote the universality of the principle of the Rule of Law within the European Union, and productively advance the European project further. 

An optimistic version would propose or refer to an enforcement mechanism through which the EU could successfully enforce its values. Regrettably, prevention seems to be more important than dealing with the renegade States – which is understandable, for the actors do not speak the same ‘language’. This approach does not help to resolve the differences at all, but, instead, either brings us back to the most pessimistic scenario or demands a more realistic one. A more realistically appealing assessment would project a formation of a longer-term game between the EU and Hungary and Poland, until the point when the illiberal constitutionalism is overturned, or when the EU membership of Hungary and Poland will politically, economically and emotionally be undesirable for other Member States and the EU herself. The synergy of these three factors is, however, improbable to occur at the same time. Neither does the overturning of the regime seem feasible. 

To be absolutely clear: there are two alternative implications of a situation in which a legal and cultural community is not able to maintain and enforce its legal regime: either the universality of its legal values and principles can justifiably be questioned, even if there is no common understanding concerning the definition of the Rule of Law; or the country whose actions challenge the universality of a principle and value has already ceased to be the part of that community. It is an “either/or” issue; there should be no in-between.  

The EU leaders and the leaders of Hungary and Poland live in different realities. It just follows that what the EU can do is not to reverse the changes, not even to improve the already lost judicial independence or increase compliance with the rule of law and human rights commitments. Rather, revising procedures, strengthening the protection of the values of the EU, and trying to increase their enforceability are forward-looking, aimed at preventing the rise of future-to-be autocratic leaders. This being said, as I have argued elsewhere 24 , I do not see how even these new political and legal mechanisms could help if these future-to-be autocratic leaders do follow the Polish (and Hungarian) example: gradually transforming their systems through (formal and) informal constitutional changes, based on democratic legitimacy won in (the first) fair and competitive and free election(s); abusively invoking national sovereignty arguments (or their constitutional identity) at both political and legal levels; maintaining their support with right-wing populistic rhetoric; always being one step ahead of the reactions to their wrongdoings. 

Moreover, political measures coming from the EU would be counterproductive. These would be decried as attacks from Brussels and would trigger more severe defenses relying on national sovereignty or constitutional identity narratives (as it happened in the EU-Polish “dialogue” on the judicial reform). Legal measures would be ineffective, too: the “value-oriented” EU law infringements will not be rectified by these governments but could result in the same political response: non-compliance and pushing the limits even further. 

Economic measures could help but we lack meaningful precedents in this area – maybe the daily penalty Poland must pay for non-compliance will inform us about the efficiency of this kind of measure. As for the Rule of Law conditionality mechanism 25 , the original plan has been softened, and especially the Hungarian government has other resources, e.g., Chinese financing and governmental bonds – insofar as the government only cares about its short term goals and the enrichment of oligarchs rather than long-term well-being.

A more effective way constitutionalists could contribute to the fight against even more illiberalization and autocratization of Hungary and Poland would be to help the resilient factors within these countries so that Hungarians and Poles could help themselves. For that, a more Western-oriented identity and value-orientation of the voters should prevail in the next election, even if society, to a certain extent, has gotten used to or even welcomes governments’ illiberal visions. There seems to be a powerful discontent about the Polish abortion decision 26 and the Hungarian anti-LGBTQ law 27 , which brought people to the streets. Tusk returns to Polish politics, and Hungarian opposition is more than less united and, according to the latest polls, half of the voters supports them 28 , regardless of how Fidesz tries to divide them, for instance over the anti-LGBTQ law. Nevertheless, Hungarians, as of the end of September 2021, have not yet seen a coherent program of how exactly the opposition wishes to govern and exactly what they have to offer to the people (besides that they want Orbán out) if they won the election next Spring – in a way, that is acceptable in a constitutional democracy. 

However, as already explained, we should also be realistic: reformed mechanisms at the EU level could only be helpful against those who feel like following the example of Hungary and Poland if they are caught “red-handed” during their very first actions against EU values and principles – the determination of which is not only challenging but tricky, too. 

IV. Instead of conclusion: lessons learned

What the Hungarian and Polish examples and, mostly, the lack of success of the strategies against them teach us, is that constitutional democracies that still retain their substantive status, States taking the first steps towards their democratic decay, or EU Member States on their first steps towards illiberal constitutionalism, still have multiple choices and possibilities. But they must heed the warning signs and strengthen their own defense mechanisms, be that through a reinforcement of their constitutional design or by raising public awareness, especially among children and the youth, about the values of respect, autonomy, liberty, freedom, responsibility, dignity and diversity; and they must meaningfully involve all who are affected in the decision-making processes. Finally, they have to take good care of the institutions and values they already have, in light of what the future might bring. This is especially true for the EU, whose actions are yet to show whether the whole is indeed greater than its parts or, on the contrary, the chain is no stronger than its weakest link.

Leaving Poland and Hungary behind would be the best for the EU, its values, and integrity but it would be the worst for Poles and Hungarians as for now, they are pro-European and do not want to be abandoned by the European nations yet again (as they believe to have been abandoned throughout history). The European Union is not only about values and harmonized or unified legal measures but also about economic interests and investments accompanied by political considerations. The EU should decide which is more important for it, which direction it wants to evolve towards. Once this is figured out, it can start looking for the best political and legal tools to achieve its objectives.

Notes

  1. This research is supported by the National Science Centre, Poland (2018/29/B/HS5/00232, ‘Illiberal constitutionalism in Poland and Hungary’
  2. Such as independent judiciary and compliance with the decisions of the CJEU.
  3.  Kim Lane Scheppele calls the phenomenon autocratic legalism. See, Kim Scheppele, ‘Autocratic Legalism’ (2018) 85 University of Chicago Law Review.
  4.  Tímea Drinóczi and Agnieszka Bień-Kacała, ‘Illiberal Legality’ in Tímea Drinóczi and Agnieszka Bień-Kacała (eds), Rule of Law, Common Values, and Illiberal Constitutionalism: Poland and Hungary within the European Union (Routledge).
  5.  Tímea Drinóczi and Agnieszka Bień-Kacała, ‘Extra-Legal Particularities and Illiberal Constitutionalism – The Case of Hungary and Poland’ (2018) 59 Hungarian Journal of Legal Studies 338.
  6.  Tímea Drinóczi and Agnieszka Bień-Kacała, Illiberal Constitutionalism in Poland and Hungary: The Deterioration of Democracy, Misuse of Human Rights and Abuse of the Rule of Law [Electronic Resource] (Routledge 2021). This paper is based mainly on the findings of this book, and the co-edited one we have published earlier (Tímea Drinóczi and Agnieszka Bień-Kacała (eds), Rule of Law, Common Values, and Illiberal Constitutionalism: Poland and Hungary within the European Union (Routledge 2021).) and a piece published on Verfassungsblog (Tímea Drinóczi, ‘The EU Cannot Save Us: Why Poland and Hungary need resilience, not future-oriented reforms of EU enforcement mechanisms’, VerfBlog, 2021/7/07, available at https://verfassungsblog.de/the-eu-cannot-save-us/).
  7.  Drinóczi and Bień-Kacała, ‘Illiberal Legality’ (n 4); Tímea Drinóczi and Gábor Mészáros, ‘Hungary: An Abusive Neo-Militant Democracy’ in Joanna Rak and Roman Bâcker (eds), Neo-militant Democracies in the Post-communist Member States of the European Union (Routledge 2022). 
  8. UFMG Seminar Series in Constitutionalism and Democracy, 22 September, 2021, https://www.youtube.com/watch?v=jz4EODT42JY
  9. Kim Lane Scheppele, ‘The Party’s Over’ in Mark A Graber, Sanford Levinson and Mark Tushnet (eds), Constitutional Democracy in Crisis? (Oxford University Press 2018).
  10. See e.g., Éva Fülöp and others, ‘Emotional Elaboration of Collective Traumas in Historical Narratives’ in Joseph P Forgas, Orsolya Vincze and János László (eds), Social Cognition and Communication (Psychology Press 2013); Anna Tarnowska, ‘The Sovereignty Issue in the Public Discussion in the Era of the Polish 3rd May Constitution (1788–1792)’ in Ulrike Müßig (ed), Reconsidering Constitutional Formation I National Sovereignty: A Comparative Analysis of the Juridification by Constitution (Springer International Publishing 2016).
  11. Fülöp and others (n 10).
  12.  Shalom H Schwartz and Anat Bardi, ‘Influences of Adaptation to Communist Rule on Value Priorities in Eastern Europe’ (1997) 18 Political psychology 385. Similarly, G Skąpska, ‘Law and society in a natural laboratory: the case of Poland in the broader context of East-Central Europe’ in Max Kaase and others, Three Social Science Disciplines in Central and Eastern Europe: Handbook on Economics, Political Science and Sociology (1989-2001) (GESIS/Social Science Information Centre IZ ; Collegium Budapest Institute for Advanced Study 2002).
  13.  Schwartz and Bardi (n 12) 394.
  14.  From a different perspective, see Max Weber, The Protestant Ethic and the Spirit of Capitalism (Allen & Unwin 1930). See also, Wojciech Wrzesiński, Charakter narodowy Polaków. Z rozważań historyka [National character of Poles. From the historian’s reflections] (Uniwersytet Wrocławski 2004).
  15.  Schwartz and Bardi (n 12) 406. Similarly see e.g., Martin Krygier, ‘The Challenge of Institutionalisation: Post-Communist “Transitions”, Populism, and the Rule of Law’ (2019) 15 European constitutional law review 544.
  16.  Agnieszka Golec de Zavala, Karolina Dyduch‐Hazar and Dorottya Lantos, ‘Collective Narcissism: Political Consequences of Investing Self‐Worth in the Ingroup’s Image’ (2019) 40 Political psychology 37; Aleksandra Cichocka and Aleksandra Cislak, ‘Nationalism as Collective Narcissism’ (2020) 34 Current opinion in behavioral sciences 69.
  17.  Golec de Zavala, Dyduch‐Hazar and Lantos (n 16) 37–38.Ibid. 37–38.
  18.  ibid 39, 42, 44.
  19.  Rule of Law Checklist (Adopted by the Venice Commission at its 106th Plenary Session (Venice, 11–12 March 2016).
  20.  Jan Eichhorn and others, How European publics and Policy actors values an open society. Key insight across countries’ (Open Society European Policy Institute 2019), available at http://voicesonvalues.dpart.org/images/finalreports/OSI-019-18-Key-Insights_v5.pdf
  21.  Schwartz and Bardi (n 12) 398.
  22.  Editor’s note: most notably, in the 2019 Hungarian local elections, Gergely Karácsony was elected mayor of Budapest, defeating the incumbent Fidesz candidate István Tarlós who had been in office since 2010.
  23. Editor’s note: during the 2019 Polish parliamentary elections, the ruling Law and Justice party retained its majority in the Sejm, but lost its majority in the Senate to the opposition. With 43.6% of the popular vote, Law and Justice received the highest vote share by any party since Poland returned to democracy in 1989.
  24.  Drinóczi and Bień-Kacała, ‘Illiberal Legality’ (n 4).
  25. Editor’s note: for instance, Regulation (EU, Euratom) 2020/2092 on a general regime of conditionality for the protection of the Union budget, setting up a new mechanism in the long-term budget 2021–2027 to protect the EU budget against breaches in the implementation of jointly agreed rules and regulations, and allowing the EU to suspend, reduce or restrict access to EU funding in a manner proportionate to the nature, gravity and scope of the breaches. 
  26. Editor’s note: on 22 October 2020, the Polish Constitutional Tribunal found that abortion in the case of severe fetal defects is inconsistent with Article 38 of the Polish Constitution. The chief justice, Julia Przyłębska, said in a ruling that existing legislation – one of Europe’s most restrictive – that allows for the abortion of malformed fetuses was incompatible with the constitution. Following the ruling, abortion is only permissible in Poland in the case of rape, incest or a threat to the mother’s health and life, which make up only about 2% of legal terminations conducted in recent years.
  27. Editor’s note: on 15 June 2021, the Hungarian Parliament approved with a 157 – 1 vote certain amendments to the Child Protection Act, the Family Protection Act, the Act on Business Advertising Activity, the Media Act and the Public Education Act, with the aim, in particular, to ban sharing information with minors that are considered to be promoting homosexuality or gender reassignment and to restrict LGBT representation in the media by banning content depicting LGBT topics from daytime television and prohibiting companies from running campaigns in solidarity with the LGBT community. In addition, it also declared that only individuals and organizations listed in an official register can provide sexual education classes in schools.
  28.  Závecz Research, 13–20 Sept 2021, http://www.zaveczresearch.hu/
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Tímea Drinóczi, The emergence of illiberal constitutionalism and illiberal legality in Europe: what is happening and what can the EU do about it?, Dec 2021,

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