Rule of Law Conditionality and Constitutional Democracy Crisis in Europe

Within the global crisis of constitutional democracy, the cases of democratic backsliding in EU member states are peculiar for their systemic impact on the EU integration project as a whole. The existent mechanisms deployed to deal with the crises in Poland and Hungary, including Art.7, have proved to be little effective. In light of these flaws, the Commission put forward in May 2018 a proposal for a Regulation that would allow for the suspension of EU funding in case of ‘generalised deficiencies’ in national rule of law systems. The proposal aims to introducing the tool of conditionality – already used by the EU in the financial assistance and structural funding systems – also within the rule of law field.

Constitutional Democracy in Hungary and Poland

Constitutional democracies in Hungary and Poland have turned into illiberal systems. Certain non-legal reasons for effective successful transformation to an illiberal state, such as the emergence of populist rhetoric and morality, the clear lack of political self-restraint, and the inability or unwillingness of the people to form a strong and capable civil society, or to raise their voice against extreme views or resist an aggressive and clearly unfounded political campaign, could have been pre-determined and influenced by the historical and socio-psychological particularities of the nations in question. The historically- and psychologically-determined national and constitutional identities of Hungarians and Poles might not be apt to nurture liberal constitutionalism in the long term.

“Populist Constitutionalism: A Disease or a Symptom”

There are two prevalent ways of approaching the populist phenomenon. The first, perhaps most widely embraced view, is to perceive populism as a ‘disease’, ‘deviation’, or ‘pathology’ of existing democracy. A second view understands contemporary ‘neo-populisms’ rather as one particular instance of a rather profound, complex, and long-term set of transformations of democracy. Where we stand on this matter is of great importance, as the feasibility and potential success of our responses and solutions depend on our description of the problem. The paper discusses the two positions, their diagnosis of the predicament of constitutional democracy, and the potential solutions endorsed.