Author Interview: Illiberal Constitutionalism in Poland and Hungary: The Deterioration of Democracy, Misuse of Human Rights and Abuse of the Rule of Law

Tímea Drinóczi & Agnieszka Bień-Kacała

University of Pécs & Nicolaus Copernicus University

Tell us a little bit about the book.

This book is the end result of our research project on illiberal constitutionalism in Hungary and Poland supported by the National Science Centre, Poland, grant no. 2018/29/B/HS5/00232, ‘Illiberal constitutionalism in Poland and Hungary’. It is published by Routledge and will be available in September 2021.

Our book theorizes illiberal constitutionalism by interrogating the Rule of Law, democratic deterioration, the misuse of the language and relativization of human rights protection, and its widespread emotional and value-oriented effect on the population. We also consider how through the historical trajectory of Hungary and Poland, the emotions and value orientation of their people have been exploited by autocratic populists and facilitated the illiberalisation process.

What inspired you to take up this project? 

Before we started our project on illiberal constitutionalism, we had already worked together in another one supported by the Visegrad Fund, and we found the collaboration very pleasant, amicable, and professional. We found common interests in the democratic decay of our countries, and we realized that we share the same values concerning constitutionalism and our responsibility as Hungarian and Polish scholars whose research interests are constitutional law, constitutional change, and theory could be in these times.

Before the 2010 elections in Hungary, we believed that the fundamentals of constitutional democracy (liberal constitutionalism) were the standard implemented within the Hungarian and Polish societies and in their constitutions. The Hungarian case seemed to be an “accident” in 2010. After the election in Poland in 2015 and the second constitutional majority won by the Fidesz, we realized that the Hungarian deterioration is not an exception. 

We were shocked by the repetitive electoral victory of Fidesz that it achieved despite its demolition of the constitutional system and the first victory of the Law and Justice Party, which followed suit in Poland. We developed an interest basically in two issues. The first was the question of how people could still support these systems. The second was an increasing curiosity in the extent of the deterioration. From the onset of the constitutional remodelling, scholars labelled these states (modern) authoritarianism. We wanted to see if this claim can be supported both quantitatively and qualitatively. That is why we immensely studied the most important indices in our field, such as WJP, Freedom House, V-Dem, and others. Our reason for doing so was that we also detected that the constitutional remodeling happened gradually. Now, based on our research and theoretical study, we could identify and outline a pattern of constitutional conduct in Hungary and Poland that had distanced these states more and more from the constitutional conduct generally expected of constitutional democracy (liberal constitutionalism). We could see a tendency of autocratisation of the system, which had not reached the point of authoritarianism yet. This observation seems to be contrary to the traditional binary view of constitutionalism: it is either a liberal or a non-existent one. Based on our observations, the gradualness of the deterioration process, and its illiberal nature, we decided to call this stage “illiberal constitutionalism”. Events happening since we submitted the book in 2020 support our conceptualization of the constitutional structure, politics, and illiberalism in these two member states of the European Union.

Whose work was influential on you throughout the course of the project?

Our countries have attracted much attention, including blog posts, papers, and books, conferences, and webinars. We have been inspired by excellent Hungarian and Polish scholars, like Gábor Halmai and Wojciech Sadurski, and many others that have shown interest in our region and provided fantastic analyses on constitutional policies and changes (e.g., Kim Lane Scheppele), global democratic decay (e.g., Tom Daly), or other aspects such as abusive judicial review and abusive constitutionalism (e.g., Rosalind Dixon and David Landau). We have also benefited from works about the Hungarian and Polish events from a less constitutional law-oriented perspective. We have relied these works and many more when theorizing illiberal constitutionalism as we decided not to describe the whole story but, instead, build the concept around it.  

There are many fascinating works on constitutionalism, liberal democracy, and the rule of law, and we have used them broadly in the book. The most influential ones were the works of Mark Tushnet and Graham Walker. Using their ideas, we went further in conceptualizing the term illiberal constitutionalism as a reality (and not only as a theoretical possibility as Mark Tushnet does) and elaborate more on its actual implementation (based on Graham Walker) by using qualitative analyses and quantitative data.

What challenges did you face in writing the book? 

We could talk about many challenges, for example, differences between Hungary and Poland that could have compromised the comparison and make it useless for the new concept. We could also indicate the variety of the literature on constitutional democracy and the rule of law that discuss almost everything in detail. Nevertheless, the most challenging was the theoretical approach towards the entanglement of constitutionalism and liberalism. There seems to be a dichotomy in the scholarly literature, which is heavily influenced by the answer to the question of whether constitutionalism is intrinsically liberal or not. We have found powerful arguments on both sides, but the constitutional changes in Hungary and Poland since 2010 and 2015, respectively, led us to give more weight to the disentanglement of liberalism and constitutionalism. We propose that “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 has already been present as a political ideology and a constitutional design.

Nevertheless, these are just the usual challenges of scholarly work. The most challenging part, both personally and professionally, has always been how to explain best the complexity of the Hungarian and Polish illiberal constitutionalism and its causes in a given timeframe offered by the organizers of conferences and webinars - without having doubts on whether or not we have been perceived as supporters of these autocratic, populist and illiberal governments. 

It was also a challenge to overcome our disappointments when one of our reviewers gave a negative opinion on our book proposal. They claimed that what we say in our book has already been said in the literature. We are grateful for their opinion because it made us work even harder and express our arguments more clearly and profoundly, and comprehensively. At this point in our project, we got incredible support from the series editors of Comparative Constitutional Change (Xenophon Contiades, Thomas Fleiner, Alkmene Fotiadou, Richard Albert), who invited us to submit a revised proposal. We are grateful for the wonderful opportunity they gave us and for the possibility of working with the fantastic editors at Routledge. 

What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

We think that the book fits into the series of efforts by the scholarly community to offer strategies and constitutional designs to save constitutional democracy and to assist in the fight against further deterioration, democratic decay, and illiberalization. This is so, even if we are more pessimistic but – at the same time– more realistic than other proponents of constitutional democracy and liberal constitutionalism. It is so mostly because we base our theory on our respective nations’ historical and emotional trajectories and past and current value orientations. With this unique and, without doubt, subjective approach, we mean to refresh the discussion on constitutionalism and offer new insights into the Hungarian and Polish models. 

We hope to create a rudimentary link between two disciplines, comparative public law, and social psychology, to understand better the current constitutional changes in Europe and worldwide.

We also hope that scholars will engage in dialogue with us to enrich the debate further as well as our understanding of detrimental constitutional changes.

What’s next?

The publication of our book does not mean at all that we will stop collaborating. Right now, we are both involved in the same projects about gender and constitutionalism, abortion law and illiberal courts, illiberal legislative regimes and tendencies, and academic freedom and universities. We are also flirting with the idea of making comparative studies on the role of the youth in transformative constitutionalism.

We are still thinking about a new big research project, but there is so much to study. What is certain is that we would like to keep working with the topic of authoritarianization, illiberalization, and constitutional change. We are also interested in the interaction between constitutional and national identity in this process. 

We are quite pessimistic as to the retransformation of constitutionalism in Poland and Hungary. Yet, we still hope that the time will come when we can investigate the more positive side of the constitutional and national identity of Hungarians and Poles, and, thus, the actual and feasible possibilities of returning to a more substantive constitutional democracy. 

Tímea Drinóczi is a Visiting Professor at the Faculty of Law at Federal University of Minas Gerais, Brazil, and a Professor of the University of Pécs, Hungary. 

Agnieszka Bień-Kacała is a Professor within the Department of Constitutional Law, Faculty of Law and Administration at Nicolaus Copernicus University in Toruń, Poland. 

Together, Professors Drinóczi and Bień-Kacała have presented papers at several conferences all over Europe, and in Hong Kong and Santiago de Chile.