Constitutional restoration in hybrid regimes
The case of Hungary and beyond
Keywords:constitutional restoration, Hungary, Radbruch, rule of law
The essay provides an overview of a debate that has been taking place primarily on the columns of a blog symposium on the prestigious constitutional law blog Verfassungsblog on constitutional restoration in Hungary. Given that Hungary is the poster child for hybrid, illiberal regimes, the discussion transcends Hungary and gives insightful additions to the illiberalism literature, targeting an audience beyond legal scholars. The starting point of the debate pertains to the classic dilemma of legal positivism vs. natural law, and in particular whether constitutional rules of dubious democratic nature can be replaced in violation of legality, for example in an extra-parliamentary democratic process. ‘Hybrid regimes’, or ‘elective autocracies’ and the phenomenon on of ‘abusive constitutionalism’ provide the framework and specific context of the constitutional restoration debate, as it is placed in regimes institutionalize ‘hegemonic preservation’, ‘authoritarian enclaves’ and ‘bionic appointments’ hijacking the vocabulary and imagination of constitutional democracy and entrenching legal provisions which remain beyond the reach of constitutional politics. The first part provides an assessment of the Hungarian institutional and political scene. The second part first distinguishes between three dimensions of the constitutional restoration-debate: theoretical, political and procedural, and subsequently discusses two focal points of the symposium: the role of constitutions in illiberal regimes and in constitutional resurrection, and the role of international and EU law as a tool for a legal revolution.
Authors who publish with this journal agree to the following terms:
Authors retain copyright and grant the journal right of first publication, with the work three months after publication simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgement of the work's authorship and initial publication in this journal.
Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in this journal. This acknowledgement is not automatic, it should be asked from the editors and can usually be obtained one year after its first publication in the journal.