Tímea and Agnieszka, you will soon be publishing Illiberal Constitutionalism in Poland and Hungary: The Deterioration of Democracy, Misuse of Human Rights and Abuse of the Rule of Law (Routledge). Reading your title makes one wonder: how can constitutionalism be illiberal when the idea of constitutionalism originates in liberalism?
Tímea: You are absolutely right to ask this question. We are quite aware of the resistance to acknowledging any type of constitutionalism that is not liberal constitutionalism. As you said, constitutionalism has traditionally been bound up with liberalism, and one of its main concerns is to prevent the arbitrary use of power. This concept of constitutionalism was not questioned in Western constitutional theory until Fidesz and the PiS came to power in Hungary and Poland, respectively, in 2010 and 2015. The remodeling exercise—including a gradual hollowing-out of democracy, abuse and misuse of the rule of law, and disrespect for individual human rights from the very beginning—has worried many.
Scholars have not, however, been able to reach a consensus as to what to call these new regimes. A plethora of labels and expressions have emerged due to the many perspectives scholars have taken to understand the reasons for and methods of Hungarian and Polish democratic erosion. From the beginning, constitutional scholars tended to see the remodeled Hungarian and Polish constitutional systems as authoritarian. When you think about the last 11 and 6 years, though, you realize that the illiberalization process has been gradual and continuous, and comparably less severe than in those states (Turkey and Russia) with which scholars compare the Hungarian and Polish cases. Nor can you avoid considering the regional context—i.e., the European Union and the Council of Europe—in which Hungary and Poland exist.
This contradiction sparked our interest. We felt that we could consider these factors and improve our understanding of the changes only by disentangling liberalism and constitutionalism. This is not an unprecedented scholarly endeavor either in theory or in practice. Just think about the idea of nonliberal constitutionalism and how scholars describe Israel (semi-liberal constitutionalism), Singapore (authoritarian constitutionalism), and Hong Kong (mixed constitutionalism).
Indeed, we have been witnessing a proliferation of qualifiers of constitutionalism. But what is illiberal constitutionalism, exactly?
Agnieszka: We developed the concept of illiberal constitutionalism by reflecting on the regional context; gradualness, methods and content of changes; and tangible differences between Hungary and Poland and the “real” authoritarian states, as well as by taking a holistic view of different indices. We conceptualize illiberal constitutionalism as the functioning of a public power that upholds the main constitutional structure but somehow lacks a normative domestic commitment to constraints on public power, even while remaining, to a certain extent, within the boundaries set by EU law and politics, as well as international minimum requirements.
You see, illiberal constitutionalism is not the opposite of liberal constitutionalism and does not equate to authoritarianism. Compared to other types of (nonliberal) constitutionalism, it departs from the former and tends toward the latter. Thus, constitutional democracy still exists, but its formal implementation outweighs its substantive realization. All elements of constitutional democracy, such as democracy, the rule of law, and human rights, are still observable but only in a continuously diminishing, hollowed-out manner. Consequently, illiberal constitutionalism encompasses illiberal democracy, illiberal legality (the illiberalized and abused rule of law), and illiberalized human rights protection. This is how the term constitutionalism is “enriched” by its illiberal modifier, even if it means a constitutionalism that is qualitatively less or worse than its liberal counterpart.
Well, you have used another expression, illiberal democracy. Can you elaborate on how a democracy can be illiberal? Do you use the conceptual framework of Fareed Zakaria? I think that you cannot really compare the situation that made Zakaria talk about illiberal democracy with the regimes of Kaczinsky and Orbán, given that you seem to use these expressions to describe different era and events.
Agnieszka: Indeed. We use the term illiberal democracy differently than did Fareed Zakaria in the nineties. Zakaria perceived democracy and liberalism as two separate ideals that are independent of one another but have developed close to each other. Thus, states that first became liberal could easily become democratic. In contrast, states that absorbed democracy first could disregard liberal rights and turn to be illiberal and democratic at the same time. Our point is different. As a result of the democratic transition in 1989-1990, Poland and Hungary created full-fledged constitutional democracies and became liberal and democratic at the same time. After 20 and 25 years, both degraded to something else, becoming less liberal and less democratic at the same time. We maintain the term democracy because democracy has not disappeared—there is still an electoral democracy and the elected parliament participates in the lawmaking process and exercises its oversight functions—but simply become illiberal due to increasing exclusion and inequality.
Tímea: Illiberal democracy is yet another term that usually meets with disapproval in the literature. Let us give you a short definition of illiberal democracy as we see it: it is conceptualized as a formal, manipulated, profoundly majoritarian, and non-inclusive democracy in which constitutional institutions are, to a certain extent, misused, abused, or neglected.
The term illiberal democracy might be rejected because, if I understand you correctly, you detach liberalism and democracy, as well as overemphasizing the illiberal nature of the regimes. At the same time, you say little about its undemocratic nature.
Tímea: We have been reluctant to call Hungarian and Polish democracy straightforwardly undemocratic. They are indeed in much worse shape than before, but they are still supported by people in increasingly unbalanced electoral systems that still facilitate change in ruling parties. Plus, and this was one of the reasons we wanted to do this research, voters did vote for illiberal leaders after 2010, even if they knew what they had done, especially in Hungary between 2010-2014, when electoral rules and media freedom were in better shape.
And we should not blame the propaganda and reforms for the 2018 victory as much as the people. In 2014, without the electoral reform, Fidesz could have achieved only a majority and not a supermajority. But by that time the framework of the system had been completed: the new constitution and the Fourth Amendment had already been adopted, the constitutional court was packed, etc. It was already an arrangement that did not conform entirely to liberal constitutionalism. What they gained with the supermajority after 2014 was a tool for accelerating reforms in an already corrupt system and making them almost impossible to reverse.
Agnieszka: Yes, we could also compare it with Poland: PiS does not have a constitutional majority, but it is attacking the judicial system even more aggressively than Fidesz. The Polish electoral regime and media law have not been changed to the same extent as in Hungary; PiS manipulated the institutional system. In both states, leading parties lost power in the last local elections, and PiS lost Senate in 2019. The opposition parties are “real” political parties, not puppy parties of Fidesz and PiS. We would say that during the time frame of our research, which we started in 2015 and finished in early 2021, illiberal constitutionalism is not undemocratic in the minimalist sense of the word, especially because people feel comfortable with changes and accept or at least do not oppose them.
We might want to reconsider this statement if the Hungarian national elections in 2022 are held according to new electoral rules—or even before then, depending on how the government handles the pandemic and completely unrelated matters in 2021. And let us not forget that V-Dem just a few weeks ago labeled Hungary as an electoral autocracy. Yet we would advise a combined or holistic approach to indexes measuring the rule of law, democracy and human rights around the world. This is what we did in our book: the continuous deterioration in indexes, for us, means that illiberalization is still an ongoing process, and strengthens our argument that, from the perspectives of both qualitative and quantitative analyses and in the regional context informed by their membership in the EU and the Council of Europe, Hungary and Poland have been nurturing illiberal constitutionalism.
So you mean that people in both countries support the rulers?
Tímea: Yes, exactly. People still seem to support—or at least do not oppose—populist autocrats and their policies. But this does not mean that the population, as a whole, is content with the politics of Fidesz and the PiS or that the opposition could not achieve some measure of victory (as indeed it did in the 2019 mayoral elections in Hungary and the 2018 local elections in Poland) or that discontent cannot be expressed. But what is true is that the space for expressing dissent is constantly being reduced. The Hungarian and Polish polities seem susceptible to transformative changes into a less liberal (illiberal) direction (e.g., people are willing to trade off their liberties) by manipulative and populist-nationalist rhetoric expressed by a charismatic leader.
Thus, people accept illiberal practices connected to human rights, such as a communitarian vision, a less egalitarian perspective, the prioritization of the rights of the community (majority) over minority rights, and the conditioning of human rights on the fulfillment of civic duties. Even if the Hungarian and Polish remodeling has not made them into polities where, as Thio describes, “the community plays a role in forming personal identity and moral choice,” this is what populist autocratic leaders intend to introduce in a top-down manner. Or, rather, they intend to appeal to, enlarge, and trigger an existing orientation toward illiberal values. It seems, therefore, that the conceptualization of illiberal constitutionalism is supported by the population’s value preferences for hierarchical structures and autocratic leadership.
Agnieszka: You can express opposing views and considerations, but they are not welcome: the will of the majority—representing the “sovereign” state and the “sovereign people (nation),” which includes only “real Poles” or “real Hungarians”—prevails. In the political narrative, “the nation” comprises those who represent the traditional vision of family and are Christian (in Hungary) and Catholic (in Poland). Such a narrative cuts against the constitutional perception that the nation consists of all citizens, regardless of their nationality, and values human dignity and equality.
It seems that in both countries, though at different levels, the Catholic Church supports and legitimates the illiberal governments. What insights do you have into this?
Agnieszka: The Church is traditionally more influential in Polish life. Nevertheless, its role in assisting the development of illiberal constitutionalism seems to be overstated. The fact is that the Catholic Church in Poland is not as united in its support for the PiS Government as it might seem at first sight. There are pro-government and pro-opposition voices, as well as voices demanding neutrality. After the 2020 presidential election, analyses linked support for PiS to the religiosity of voters: PiS voters are recruited from villages and from among people in their 50s and above; these people are said to be more religious than others. The narratives of both the Catholic Church and the PiS are directed toward these people. One of the most influential radio and television broadcasters is led by the powerful clergyman Tadeusz Rydzyk, who supports the PiS and has a strong connection to the government, including financial ties.
It is, however, questionable if this connection has anything to do with the remodeling of the constitutional system, as the support and political engagement of some clergy does not translate into a (constitutional) majority in Poland, where about 90% of the people declare themselves to be Roman Catholic. What might do more to bolster government endeavors are those politically active priests who use their masses to call for support for the government (mobilization by clergy). This is not a uniquely Polish phenomenon; it has been done in Hungary too.
Tímea: Indeed. Lately, the Government has embraced Christianity as a constitutional identity, and it fights against migration, sexual minorities, and non-traditional families in its name. However, just over half the population of Hungary profess to be Christians, the majority of whom are Catholic. Most of them acknowledge that their religious identity is largely a matter of national culture or family tradition; only around one in ten attend the obligatory weekly mass. So it might be safe to assume that, in Hungary, there are likely to be factors other than religion behind political support for rulers. Like PiS supporters in Poland, the typical Fidesz voter is a conservative right-winger who does not live in the big cities or the capital.
You took a contextual approach when assessing the constitutionalist state of Hungary and Poland. What does the current situation tell us about the EU and its enforcement mechanisms when there seems to be a fundamental disagreement among states about the core values of European integration? Considering the legal opportunities, there do not seem to be many possibilities. What do you think the EU can do with these states?
Agnieszka: You are absolutely right. Without a doubt, the existing legal environment cannot really address the illiberalization process that brings these states closer and closer to undemocratic and authoritarian regimes. We need to realize that as far as certain values—such as, for instance, the European Rule of Law—are concerned, both Poland and Hungary have distanced themselves from other EU members; they have positioned themselves outside the “group.” The only withdrawal force is the weak constraint that the remnants of European Rule of Law can exert on Hungarian and Polish public power. The question is when the European legal community—the EU, and Hungary and Poland themselves—will realize this 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 the resolution methods of another “reality.” The sooner the European political community and leaders realize this, the better they will be able to promote the universality of the principle of the Rule of Law within the European Union, as a European Rule of Law, and productively advance the European project. Unfortunately, this would be detrimental to Hungarian and Polish citizens, who are more pro-EU than not, and a legal background that would make it possible does not seem to exist.
Tímea: As a more realistically appealing assessment, we could project the formation of a longer-term game between the EU and Hungary and Poland that will last until either illiberal constitutionalism is overturned or Hungary and Poland’s EU membership becomes politically, economically, and emotionally undesirable for the other Member States and the EU. The synergy of the three-factor is, however, unlikely to occur at the same time. Neither the overturning of Kaczinsky’s nor Orbán’s regime seems feasible.
We actually already summarized this in our other book, Rule of Law, Common Values, and Illiberal Constitutionalism, also published by Routledge. In this edited volume, we asked whether the Rule of Law is still a common value in the EU. At the end of the book, we concluded that 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. The first is that the universality of its legal values and principles can justifiably be questioned, even if there is no common understanding of the definition of the Rule of Law. Alternatively, the country whose actions challenge the universality of a principle and value has already ceased to be part of that community. It is an “either/or” issue; there should be no in-between. If there is, we call it illiberal constitutionalism and, in the field of the Rule of Law, illiberal legality.
How nice it is that we could circle back to the definition of illiberal constitutionalism. I really hope that, as Rosalind Dixon writes in the Foreword, this book will indeed encourage the ongoing debate about both the terminology it uses and the causal explanatory variables to which it points. Debate makes sense if it emerges from methodologically sound research and can rely on some permanence. Yet you focus on only two EU Member States—Poland and Hungary—despite the differences between them.
Tímea: Indeed, we hope that despite their initial hesitance to use our terms, scholars will engage in dialogue with us so that we can further enrich the debate and our understanding of detrimental constitutional changes. It is what moves us, scholars, forward and could help others to recognize the first steps in the illiberalization process in time to prevent the total dismantling of their constitutionalist state or build in new protection mechanisms. Fortunately for others, unfortunately for us, illiberal constitutionalism is found today only in Hungary and Poland. Its seeds have, however, been noted from time to time in other Member States, including Romania and the Czech Republic.
Agnieszka: Of course, we are aware that there is a difference between Hungary and Poland. Just think about the constitutional system of government, the role of presidents, the characteristics of the opposition, and civil society. Yes, at first glance one might think that these differences in starting point render the comparison unbalanced. When, however, we take a deeper look at the essence of these differences and how they are present in the current regimes, we reach another conclusion. These differences have not in fact had a significant impact either on the emergence of the current political and legal situation or on its apparent stability in either country. That is, these differences do not really matter when it comes to illiberal constitutional remodeling, making Hungary and Poland comparable.
May we welcome and encourage you to read about it more in our book.
Tímea Drinóczi is a Full Professor at the Department of Constitutional Law, Faculty of Law, University of Pécs. She will be a Visiting Professor at the Faculty of Law, Federal University of Minas Gerais, Brazil. She served as a Professor at Kenyatta University School of Law, Kenya in 2018-2019. Her research interest covers comparative constitutional change, illiberal constitutionalism, constitutional identity and the theory and practise of legislation. She provides expertise to OSCE ODIHR in constitutional and legislative matters. Her previous, co-edited (with Agnieszka Bien-Kacalai) book Rule of Law, Common Values, and Illiberal Constitutionalism Poland and Hungary within the European Union was also published by Routledge (2021).
Agnieszka Bień-Kacała is an Associate Professor of constitutional law at the Faculty of Law and Administration, Nicolaus Copernicus University in Toruń, Poland. Her research expertise covers liberal and illiberal constitutionalism, constitutional changes, Polish and comparative constitutional law. She provides expertise to the Marshal of the Polish Senat. Her new, co-edited (with Timea Drinóczi) book Rule of Law, Common Values, and Illiberal Constitutionalism Poland and Hungary within the European Union has been published by Routledge (2021).