The Illiberal Challenge to the Rule of Law Principle: The Neglected Procedural Aspect (With Special Focus on Hungary)

Abstract

After its landslide victory in 2010, the Fidesz-KDNP coalition in Hungary adopted an overly self-confident and uncompromising attitude which left its mark on parliamentary legislation. Their revolutionary zeal led to the radical instrumentalization of parliamentary law-making serving the aim of building an illiberal political regime. This paper argues that irregularities in the legislative process can lead to the violation of the rule of law which is an inherent principle of constitutionalism. In addition, the circumstances of the law-making process and its compliance with the rule of law doctrine can serve as a useful indicator of significant departure from the model of liberal constitutional democracy. Judicial review of the legislative process can be regarded as a potentially effective means to prevent or stop certain types of abuses in respect of parliamentary law-making employed by illiberal political majorities. To examine the plausibility of this argument, the paper briefly analyses some cases from the recent jurisprudence of the Hungarian Constitutional Court.

Keywords: Illiberalism, procedural aspect of the rule of law, irregularities in the legislative process, judicial review of the legislative process, Hungary, Fidesz government, Constitutional Court of Hungary