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.

Part I. Introduction - Ambitions and Comparison

I. Ambitions

II. Why Hungary and Poland

III. Insight into the book

Part II. Terms - Constitutionalism, illiberal(ism), and constitutional democracy

I. Constitutionalism in the term "illiberal constitutionalism"

II. Illiberal(ism)

III. Constitutional democracy

Part III. Identity - Unbalanced constitutional identity: emotions and values

I. Historical and emotional trajectory

II. Post-communist past and beyond

III. Possible root cause: the combination of the above

Part IV. Limits - Comparative perspective

I. The Emergence of llliberal Constitutionalism

II. A comparative perspective – looking for constraints

III. Contextualization: the European Rule of Law as a constraint on public power

Part V. Limits - Constraints in constitutional design and identity

I. Illiberal legality

II. Illiberal Democracy

III. Illiberalization of Human Rights

Part VI. Stability - How "illiberal limits" emerge and work

I. Capturing constitutions and constitutionalism, and creating invisible constitution

II. Illiberal judicialization of politics

III. Pushing the limits and bouncing back

IV. Defeating exit strategies from the hollowed-out constitutional democracy

Part VI. Conclusions

1. 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 ...