The European Rule of Law and Illiberal Legality in Illiberal Constitutionalism: The Case of Hungary

Abstract

This paper argues that in the illiberal constitutionalism accommodated in Hungary, the approach towards, and theory of, the Rule of Law is conceptually different from the notion of that concept which has emerged in Europe as a common value and principle with a shared heritage. A concept of the European Rule of Law is offered to conceptualise the contested notion of the Rule of Law in a supranational constitutionalism and used to emphasise its distinct nature as compared to the Rule of Law concept that demands universal application. Members States are supposed to accommodate their Rule of Law understanding to the European Rule of Law, which binds them through their constitutional provisions, and their own domestic Rule of Law concept, which is also provided for in their respective constitutions. The Hungarian Rule of Law concept, which has existed since 2010, shows significant and visible unorthodoxy. This paper claims that the term illiberal legality can be used to describe the hollowed-out meaning of the European Rule of Law in Hungary. llliberal legality accentuates the instrumental use of domestic law in both legislation and law application. Another characteristic is the weak constraint that the European Rule of Law poses on the domestic public power as it requires the implementation and application of EU law, i.e., both the values and the acquis. This latter phenomenon, among others, keeps the Hungarian constitutional system within the frames of constitutionalism and supports the claim for an illiberal adjective.

Keywords: rule of law, Hungary, illiberal constitutionalism, illiberal legality