Incrementalism as a Tool for Politicization. A Contextual Analysis of European Court of Justice Jurisprudence on Democratic Backsliding in Hungary and Poland.

Legal scholarship views the separation between law and politics as a source of legitimacy of judicial decision making (Lenaerts, 2019). This links judicialization of disputes with their de-politicization. In European studies, de-politicization has been the main narrative explaining the relative success of ‘integration through law’ (Burley & Mattli, 1993). In light of an increased polarization trend of European politics, we have observed limits to the power of the European Court of Justice to de-politicize disputes “by the mere force of law” (Blauberger & Martinsen, 2020). This paper investigates the question of politicization of disputes before the ECJ could be viewed as a double movement – de-politicizing them on the micro-level of individual cases and re-embedding in the EU-level political debates through an incremental approach in a line of cases in a particular domain. The question is analyzed based on the jurisprudence regarding democratic backsliding in Hungary and Poland.