Zsolt, you recently co-authored a significant article, “The ‘Insecurity Toolbox’ of the Illiberal Regime: Rule by Law and Rule by Exclusion,” that explains the three key securitization mechanisms used by illiberal regimes. This insecurity toolbox has been used by Hungary, particularly on the question of refugees and/or asylum-seekers, since the migration crisis of 2015. Can you give us your perspective as a legal scholar on how the Orbán government built its response to European demands?
The norms of the European Union—with regard to asylum, but also more broadly—were not built with bad-faith actors in mind. For example, many governments apply asylum quotas; the EU–Turkey deal has been criticized for similar restrictions. What the Hungarian government did, however, was to reduce the quota to one person per day. If you add to this the fact that food was often denied to those in the transit zones, it is easy to see that the Hungarian practice was closer to non-compliance (or fake compliance) than compliance with international refugee obligations. The government narrative, however, was able to sell the policy as formally in line with EU requirements. When the highest court of the European Union ultimately ruled that the practice violated EU law, the government responded by completely closing the transit zones, effectively bringing the number of asylees down to zero. We may have to wait for years to get a ruling that declares the new practice to be a blatant violation of refugee law.
It has proved to be a fatal flow of the EU framework that it lacks adequate institutional and procedural safeguards against willful violations by EU Member States. Staying with the asylum law example, under the Dublin regulation, the country of first entry is responsible for processing asylum applications even if asylum-seekers move to other countries in the meantime. However, if this country fails to maintain a compliant asylum regime, the transfer cannot take place. This is a logical rule that seeks to ensure compliance with refugee law requirements. Yet without further elements that are currently missing, this creates perverse incentives. Non-compliant Member States like Hungary see a decrease in asylum cases because other Member States cease to send asylum cases and asylum-seekers back to these countries. For a government that has adopted the rhetoric of a “zero-immigration” policy, this is a clear win.
What the EU needs, and many have recognized as much, is to build checks and procedures attached to what the Treaties call the principle of sincere cooperation, and not only in the field of asylum law. To describe the current situation in a simplified form that is nevertheless not far from the truth, the responses of the European Union are enough to put it in the role of the Enemy to be fought to defend national interests, while these responses fall short of meaningful checks on authoritarian backsliding.
Can we say that in Orbán’s Hungary, the political nation has been replaced with the ethnocultural nation? What does that mean in relation to defining minorities? Have you observed an evolution in discussions of who is part of the nation and who is external to it?
As is often the case with nationalist statements, there is some ambiguity in the terminology, but one thing is clear: there has been a clear shift towards more ethnicized understandings of the nation. As I argued back in 2012, the ethnic concept supplanted the political one, as embodied in the Fundamental Law that the Orbán regime adopted shortly after coming to power. The new vision of the nation rests on the vision of a heteronormative, white, homogenous citizenry that follows a Christian culture (if not necessarily the religion) and supports the true embodiment of the nation, in the form of Orbán and affiliated forces.
As most ethnic-national minorities in Hungary are assimilated, the ethnicizing rhetoric is mainly aimed at the Roma community. Most recently, the government acted to undermine the payment of damages in a school segregation case, with a parallel narrative of similarly undeserving prisoners who got compensation for jail conditions in violation of European standards. The attacks also targeted the lawyers and NGOs who defended these clients and the norms and international obligations that made these suits possible. The attacks on the enemies of the nation included critical parts of civil society (with a Russian-style foreign agent law) and academia.
This means that various groups of citizens have found themselves outside this concept of the nation, starting with the left: Orbán declared after the 2002 electoral loss that the homeland cannot be in opposition, and there has been a campaign against all forces labelled liberal and “mercenaries of George Soros,” who are considered part of an international conspiracy to undermine this imaginary homogeneous nation. Also under attack is the European Union, called “Brussels” in official rhetoric and likened to Soviet-era “Moscow,” which sent its “diktats” to Hungary. The strategy of designating the enemy of the day serves to maintain support for the government among its loyal base; this, together with constant tinkering with election rules, has so far been enough to secure the necessary votes. When support started to shrink in 2015, the refugee crisis came to the rescue, and the new enemy—in the form of the threatening image of migrants—has since dominated official discourse in a country that is anything but a target for immigration. Hundreds of thousands of Hungarians have emigrated, mostly for economic reasons, while asylum-seekers in Hungary have been trying to relocate to countries like Germany and Sweden.
The reimagined nation also includes new citizens: ethnic Hungarians in neighboring countries. Many of these co-ethnics do not naturalize and many of those who naturalize do not vote. This self-selection, combined with their sense of gratitude to Orbán personally, means that virtually all of those who vote give their votes to Orbán. Even if one were to think (unlike most people in Hungary, including many in the targeted communities) that these votes are legitimate, this selectivity makes the expansion of the nation yet another tool for undermining a democratic change of government. Compounding the problem, the new rules allow these citizens to vote by mail, an option denied to emigrés who live in European countries and elsewhere in great numbers and who are assumed to be more critical of the regime.
Hungary finds itself under threat of more EU sanctions for not respecting Art. 2 of the Treaty of the EU. How should the EU react to what you call the anti-constitutionalist challenge? Should all deviations from Art. 2 values automatically trigger responses from EU institutions? Do you consider Hungary and Central Europe more globally to have certain post-colonial sensitivities that the EU needs to take into consideration?
I take great interest in thinking about where to draw the line: where recognition for pluralism in the form of Member State deviation should give way to enforcing a universal vision of Article 2 values. It is clear, however, that the current illiberal challenge coming from Hungary does not raise these questions. The violations are so basic and so obviously at odds with the very functioning of the EU that they hardly present an intellectual dilemma. In many other cases where the Hungarian government raises the issue of illegitimate imposition, like some areas of asylum law, it goes against not the Treaties or some legalistic values, but political decisions by elected representatives, including other Member State governments with democratic legitimacy. This raises the fundamental question of membership, akin to Brexit: there is one obvious solution when a government regularly finds itself at odds with the majority in the EU (since it lacks veto rights under the supranational setup). Luckily, for the time being, despite government campaigns, there is still strong commitment to EU membership in Hungary. One can only wonder to what extent this is the shallow commitment of the 1990s and could dissipate with a considerable decline in EU money transfers.
As for European responses to illiberalism, ceasing to fund the regime without meaningful oversight would be a good start. This would simply mean making good on the promises of the Treaties. The procedure should be clear, transparent, and impartial. While responses to anti-constitutionalist tendencies are naturally motivated by Hungarian and Polish developments, the EU should pay particular attention to making the principles and related procedures fair—and also to making them look fair. When constraints on minority protection in the interwar period were applied to countries like Poland but not to countries like France, that undermined the legitimacy of the entire setup, and we all know how that ended.
To be principled in action is also good strategically. Illiberal governments are quick to label any criticism as ideologically driven or even as a form of post-colonial imperialism. This plays on a ressentiment fueled by disillusionment with the process and promise of “catching up to the West.” The latter had been securing domestic support for liberal democratic reforms instead of a principled democratic consensus. Once the appeal of Europeanization collapsed, this problem resurfaced. It is only logical that this includes renewed support for the rejection of the West, going back to at least Oswald Spengler, and a sense of Western colonization in forms ranging from imposed norms to favors to multinational corporations. The government’s political slogan that “we won’t be a colony” could resonate with many supporters of the Orbán regime.
The past decade was not favorable to critical thinking and the idea that democratic guarantees are not simply bureaucratic nuisances. The process teaches what we knew from the start: that a critical mass of democratically minded citizens are needed for a functioning democracy (as prominently stated by Hungarian thinker István Bibó) and constitutional, institutional transplants are not genuine alternatives. In designing responses, we should aim to support domestic democratic processes, acknowledging the role of education broadly understood, including the role of the media, instead of shortcuts by easy and easy-to-revert changes. Domestic institutional factors can also be important, including remedying the disproportionate electoral system and the lack of meaningful checks on the resulting two-third majority in the Hungarian case. Here, domestic political opposition will play a key role. At the same time, parallel developments show that this is a global phenomenon and that any action, including by the EU or the current U.S. administration, should keep in mind the danger of the dissemination of illiberal practices.
On a more political note, how do you think liberalism should engage with illiberalism? What room should be given to those who do not share liberal commitments to pluralism?
This points to a liberal dilemma, the limits of toleration, that has been with us for centuries and one that Jacob T. Levy argues cannot be solved: we either err on the side of universal values or on the side of pluralism. I take a more optimistic approach and explore, building on Will Kymlicka’s liberal multiculturalist theory, when liberal interference can be justified.
In the case of an entity like the EU, it is possible to make a relatively straightforward functionalist justification: the system rests on mutual recognition that assumes a functioning democracy with human rights and the rule of law. An authoritarian turn can, and in fact does, undermine the independence of domestic courts that play a preeminent role in enforcing EU law. Such a turn also undermines the democratic credentials of those representatives who make the most important decisions in the EU, including the Council and the Parliament. Let me mention here one other practical criticism: the EU has been effectively financing authoritarian regime-building with sums comparable to the Marshall Plan. On this reading, constitutional democratic conditions attached to EU funds are not only a possible addition but a necessity to make up for the disadvantages that domestic challengers of the regime suffer as a result.
I agree with accounts that see the key as being to address the root causes of antiliberal dissatisfaction, including rising inequality and a sense of powerlessness due to a complex set of factors. Here, a lot depends on national contexts. In Central and Eastern Europe, the great danger is that “Europeanization,” which includes democratic guarantees, human rights, and the rule of law, is seen by a growing share of the population as something external and imposed by foreign (or “foreign-minded”) liberal elites. In Hungary, other elements—like the impoverished media landscape and the increasingly domesticated academic sphere—make it hard to counterbalance the constant blame game. Democratic commitment could play an important role, boosting not only civic political activism (which has been low since well before 2010), but also commitment to basic constitutionalist values.
Let me offer a short fable from the Hungarian context to show that there is hope. The strongest post-2010 challenger to the regime was not the left but Jobbik, another right-wing party. They played not only on nationalist sentiments, but also on anti-Semitic views, and in fact became the strongest opposition party by pursuing a racist agenda centered on “gypsy criminality.” The party started out as a loyal opposition but soon realized that the government’s adoption of the Jobbik program would pose an existential threat to them, combined with government attacks in the form of smear campaigns and politically motivated investigations and sanctions.
The party has since switched places with Fidesz and moved toward the center, apologizing for its extreme views and starting to talk about the importance of constitutional checks on power, at odds with its earlier anti-institutionalist positions. While one may doubt the sincerity of these changes and to what extent this trickles down to voters, their very rejection of anti-democratic views and practices may be a great service to Hungarian democracy in the longer run. The fate of Jobbik may make the practical importance of democracy, political freedoms, and the rule of law tangible to right-wing voters. I think this is the ultimate idea of constitutionalism: do not unto others while in power what you would not want to be done to you when in opposition. The great advantage of older democracies is that there are relatable stories with exactly this moral.
And last but not least, a terminological question, as our program is called the Illiberalism Studies Program. Could you define your use of illiberalism? Do you see the new concept as bringing something new to our understanding or do you use it as a kind of synonym for national or right-wing populism?
My research focuses on the transformation of public law in Hungary and European responses. In this context, illiberalism means a fundamental opposition to the idea of liberal or constitutional democracy, with human rights guarantees and the rule of law. I like to call it anti-constitutionalism for the same reason. Abusive constitutionalism sounds like a good candidate, especially because government rhetoric and action often feel like they came from an abusive head of the family, but what this really amounts to is going against the idea of constitutionalism, so it can simply be labelled anti-constitutionalist.
Illiberalism—which is, we should note, the self-description of the regime—captures this idea more broadly: the view that any constraints on the elected government are illegitimate. We are well aware, however, that this approach goes from undermining the rule of law to dismantling democratic guarantees. That is why I find alternative notions like populism or illiberal democracy misleading: they often fail to capture the authoritarian tendency that is essential to understanding the functioning of a regime like the Hungarian one. Here, democratic credentials are undermined by rules that tilt the playing field. Opposition referendum initiatives are thwarted, at times by physical force, while an unconstitutional government initiative (even according to their own standards) is let through by a Constitutional Court that is one only in name. This makes it misleading to talk about a regime defined by democratic and popular or populist elements, especially when contrasted to liberal democracies.
Populism, to my mind, has nothing to do with the inherent power grab that logically undermines democracy. On the contrary, it should invoke ideas to reinvigorate democracies and renew efforts to make good on democratic promises: that power serves the people and people can participate in the shaping of politics. As a public lawyer, I see a sustained role for constitutionalism in that endeavor.
Zsolt Körtvélyesi is researcher and assistant professor based in Budapest, at the Institute for Legal Studies, Centre for Social Sciences (Hungarian Academy of Sciences), and at the Institute of Political and International Studies, ELTE University. He holds a law degree (University of Szeged) with specialization in French Law (University of Paris Nanterre) and European Studies (University of Szeged), a Nationalism Studies MA (Central European University), an LL.M. (Harvard Law School, on Fulbright Scholarship), and an S.J.D. (Central European University). He has research experience in questions of nationalism and comparative constitutional law, regarding issues of citizenship and minority protection in particular, and human rights in the EU in the pre- and post-accession context.