2.1 normative underpinning2.2 jurisprudential aspects; 2.3 case studies; the constitutionalization of international law: international human rights before domestic courts; 3 the universal jurisdiction in criminal law; 3.1 international law; 3.2 national legislation; 3.3 leading cases; 4 universal jurisdiction for civil litigation; 4.1 liability of private actors; 4.2 jurisdiction over states; 5 future directions; epilogue: towards global constitutionalism?; bibliography.
Abstract The paper discusses the reactions of different political and constitutional systems reactions to the pandemic and also the impact of COVID to populism, constitutionalism, and autocracy. Beyond the choice between economic and health considerations also applied in liberal democratic countries, which have lead either to "under-" or "overreaction" to the pandemic, certain illiberal regimes used the crisis situation as a pretext to strengthen the autocratic character of their systems. In some cases, this needed an "underreach," like in Poland to insist on the presidential election, which has been important to entrench the power of the governing party's incumbent, elsewhere "overreach," like in Hungary, where an unlimited emergency power of government has been introduced after the very first cases of contagion. These autocratic "overreactions" have breached the formerly used authoritarian legalistic approaches by openly violating their own illiberal constitutions. New "conservative" theories on "common good constitutionalism" emerged to legitimize the necessity of authoritative rule by the executive power. The paper concludes that one possibility to overcome authoritarian populism and restore constitutionalism in crisis situation such as the COVID-19 pandemic would be to rely on the involvement of the well informed public, one that is capable to understand and assess the advice of the meritocratic elite. This kind of participation would also help build up a constitutional culture necessary to preserve the values of constitutionalism.
First published online: 31 January 2021 ; The paper deals with constitutional theories as foundations of illiberal system in Europe. The first part tries to answer the question, whether there is a genuine constitutional theory of 'illiberal' or 'nonliberal constitutionalism'? The paper argues that the constitutional concept, which rejects liberalism as a constitutive precondition of democracy, cannot be in compliance with the traditional idea of liberal democratic constitutionalism. The second part discusses different attempts to legitimize 'illiberal constitutionalism' arguing that this concept has nothing to do with any majoritarian constitutional model based on the separation of power, or with political constitutionalism, or any kind of weak judicial review, and it misuses the concept of constitutional identity.
Abstract The Article discusses the democratic backsliding after 2010 in Hungary, and how it affected the state of human rights in the country, a Member State of the European Union. The main argument of the Article is that paradoxically the non-legitimate 1989 constitution provided full-fledged protection of fundamental rights, while the procedurally legitimate 2011 constitution-making resulted in curtailment of rights and their constitutional guarantees. The Article first describes the democratic transition that occurred in 1989–1990 as a rights revolution and the results of the 2011 "illiberal" constitution, called Fundamental Law, as counter-revolution. The second part of the Article illustrates the constitutional and statutory regulation of human rights protection after this "rule of law revolution," and the activist jurisprudence of the first Constitutional Court using the concept of an "invisible constitution" to protect human rights. The third part discusses the rights provisions of the new Fundamental Law and several statutes dismantling the guarantees of human rights, with special attention to the decreased possibilities of state institutions, such as the Constitutional Court, the ordinary judiciary and ombudsmen, as well as civil society organizations to effectively protect fundamental rights. The fourth part assesses the efforts of European institutions to force the Hungarian government to comply with the human rights standards laid down in the European Convention of Human Rights and in the Treaty of the European Union. The Article concludes that neither internal nor external challenges could prevent the development of a new authoritarian regime with no guaranteed human rights.
In the paper I try to answer the question, whether there is a genuine constitutional theory of 'illiberal constitutionalism,' recently advocated in some East-Central European member states of the European Union, especially in Hungary and Poland. As I demonstrate, court ideologists of populist autocrats use Carl Schmitt's concept of political sovereignty and collective identity of the people, or misuse Max Weber's leader democracy or Richard Bellamy's or others' political constitutionalism ideas to legitimize authoritarian aims. I argue that the constitutional concept, which rejects liberalism as a constitutive precondition of democracy, cannot be in compliance with the traditional idea of liberal democratic constitutionalism. This concept has nothing to do with any majoritarian constitutional model based on the separation of power, or with political constitutionalism, or any kind of weak judicial review, and it misuses the concept of constitutional identity. One of the reasons of the illiberal turn has been that there was a lack of consensus about liberal democratic values at the time of the transition. In the beginning of the democratic transitions in these new democracies, preference was given to general economic effectiveness over mass civic and political engagement. According to some authors, the prospects for liberal constitutional democracy in the newly independent states of Central and Eastern Europe following the 1989–90 transition were diminished by a technocratic, judicial control of politics, which blunted the development of civic constitutionalism, civil society, and participatory democratic government as necessary counterpoints to the technocratic machinery of legal constitutionalism. But, there is nothing to suggest that an earlier and more participatory constitution-making process would have prevented the populist turn. Those proponents of participatory constitutionalism do not sufficiently take into account the rise of populism and the lack of civic interest in constitutional matters, due to poor constitutional culture. The recent success of illiberalism in the region seems to indicate that the special historical circumstances require a longer period of time the build up a liberal democratic political and constitutional culture. But the democratic backsliding is not a proof of the failure of liberal democracy altogether, as illiberal leaders and their court ideologists want people to believe.
After the 1989-90 democratic transition, Poland and Hungary were the first to introduce the institutional framework of constitutional democracy and of transitional justice. For a number of reasons, including a lack of democratic traditions and constitutional culture, after the 2010 parliamentary elections, liberal constitutionalism became a victim of the authoritarian efforts of Viktor Orbán's Fidesz party. In April 2013, the government as part of the Fourth Amendment to the Fundamental Law adopted Article U, which supplements detailed provisions on the country's communist past and the statute of limitations in the body text of the constitution.
First online: 06 February 2018 ; The paper deals with recent deviations from the shared values of constitutionalism towards a kind of 'populist, illiberal constitutionalism' introduced by Hungary's new constitution in 2011. The populism of FIDESZ was directed against all elites, including the ones that designed the 1989 constitutional system (in which FIDESZ also participated), claiming that it was time for a new revolution. This is why PM Viktor Orban characterized the results of the 2010 elections as a 'revolution of the ballot boxes'. His intention with this revolution was to eliminate all checks and balances, and even the parliamentary rotation of governing parties. His vision for a new constitutional order-one in which his political party occupies the centre stage of Hungarian political life and puts an end to debates over values-has now been entrenched in the new constitution. The paper argues that this current Hungarian constitutional system was made possible by FIDESZ' anti-pluralist nationalist populism, but is not necessarily based on a true commitment to expressing the will of the people via 'illiberal constitutionalism'. The populist government rather misuses the country's lack of constitutional culture. Adherence to constitutional patriotism would mean that FIDESZ would have to endorse what John Rawls once called 'constitutional essentials'. The core of this kind of constitutional patriotism is a constitutional culture centred on universalist liberal democratic norms and values. Instead, the current Hungarian constitutional system is confronted with unconstitutional patriotism, a kind of nationalism that violates constitutional essentials in the name of 'national constitutional identity'.
Published online: 28 February 2018 ; This paper discusses a decision of the Hungarian Constitutional Court issued in December 2016, in which the judges refer to the country's constitutional identity to justify the government's refusal to apply the EU'S refugee relocation scheme in Hungary. The paper concludes that this abuse of constitutional identity for merely nationalistic political purposes discredits every genuine and legitimate reference to national constitutional identity claims, and strengthens calls for an end to constitutional pluralism in the EU altogether.
The paper deals with the ways in which the European Union can and should cope with recent deviations from the shared values of rule of law, democracy, and fundamental rights, especially in some of the new Member States in East-Central Europe, such as Hungary and Poland, but also elsewhere. The paper first discusses the traditional legal tools, like infrigment procedures, which seemed to be ineffective, including the Article 7 procedure, finally triggered against Poland. As all of these tools, as well as the EU Framework to strengthen the Rule of Law proved to be ineffective, suggestions were made to link receipt of EU cohesion funds to respect for democratic principles. The paper assesses the legal possibilities and effectiveness of economic sanctions, and concludes that EU law does not exclude such conditionality and it can be desirable for the protection of the rule of law, democracy, and fundamental rights in Members States, which are non-compliant with basic values of the EU.
