Rule of Law, Common Values, and Illiberal Constitutionalism: Poland and Hungary within the European Union

Description

This book challenges the idea that the Rule of Law is still a universal European value given its relatively rapid deterioration in Hungary and Poland, and the apparent inability of the European institutions to adequately address the illiberalization of these Member States. The book begins from the general presumption that the Rule of Law, since its emergence, has been a universal European value, a political ideal and legal conception. It also acknowledges that the EU has been struggling in the area of value enforcement, even if the necessary mechanisms are available and, given an innovative outlook and more political commitment, could be successfully used. The authors appreciate the different approaches toward the Rule of Law, both as a concept and as a measurable indicator, and while addressing the core question of the volume, widely rely on them. Ultimately, the book provides a snapshot of how the Rule of Law ideal has been dismantled and offers a theory of the Rule of Law in illiberal constitutionalism. It discusses why voters keep illiberal populist leaders in power when they are undeniably acting contrary to the Rule of Law ideal. The book will be of interest to academics and researchers engaged with the foundational questions of constitutionalism. The structure and nature of the subject matter covered ensure that the book will be a useful addition for comparative and national constitutional law classes. It will also appeal to legal practitioners wondering about the boundaries of the Rule of Law. Cover Half Title Series Page Title Page Copyright Page Table of Contents List of Figures and tables List of Contributors Foreword Preface Acknowledgements Part I Rule of Law: In context Chapter 1 Illiberal constitutionalism and the European Rule of Law 1.1. Framework and problem statement: Contested concepts 1.2. Contested concepts: The Rule of Law 1.3. Contested concepts: Illiberal constitutionalism 1.4. Illiberal constitutionalism and the Rule of Law 1.5. Conclusion Bibliography Part II Rule of Law: A common value Chapter 2 European values and the Rule of Law 2.1. Introduction 2.2. Theories of values 2.3. European culture 2.4. European values 2.5. The Rule of Law as a European value 2.6. European values and European integration 2.7. Conclusion Bibliography Chapter 3 ‘Where the laws do not govern, there is no constitution’ – On the relationship between the Rule of Law and constitutionalism 3.1. Introduction 3.2. The principle of the Rule of Law – Nómos and eunomía as one 3.3. Formalist reduction of the Rule of Law – The Rule of Law as eunomía 3.4. Constitutionalism as the institutionalisation of the Rule of Law – Nómos and eunomía reintegrated 3.5. The Rule of Law as a civic virtue – Praxis of the Rule of Law 3.6. Conclusion Bibliography Part III Rule of Law in national practice: Is it a common value? Chapter 4 The Rule of Law, democracy, and human rights in Hungary: Tendencies from 1989 until 2019 4.1. Introduction 4.2. A short history of Hungarian constitutional law 4.3. The constitutional changes between 2010 and 2012 4.4. Overview of the current constitutional system in light of the most important constitutional principles 4.5. The constitutional system in the context of the legal culture and international, social, and cultural background 4.6. Conclusion Bibliography Chapter 5 The Rule of Law: The Hungarian perspective 5.1. Introduction 5.2. Value level and political ideal – hollowing out the European Rule of Law 5.3. Enforceable legal measure compliance 5.4. Conclusion Bibliography Chapter 6 The Rule of Law: The Polish perspective 6.1. Introduction 6.2. The origins of the Rule of Law in Poland and the specific character of the Polish discussion of the Rule of Law 6.3. The understanding of the Rule of Law in constitutional case-law and legal doctrine 6.4. Current actions dismantling the Rule of Law in Poland 6.5. Conclusion Bibliography Part IV Rule of Law and supranational struggles: Is it a common value? Chapter 7 Rule of Law in Hungary: What can law and politics do? 7.1. To begin with 7.2. Rule of Law and illiberalism 7.3. International criticisms towards the Hungarian Rule of Law 7.4. Rule of Law between law and politics 7.5. Possibilities to strengthen the mechanisms of the Rule of Law Bibliography Chapter 8 Safeguarding the European Union’s core values: The EU Rule of Law mission in Poland 8.1. Introduction 8.2. Functions of Treaty provisions defining the values of the European Union 8.3. Article 7 TEU procedure against Poland 8.4. Infringement proceedings initiated by the Commission against Poland for the breach of the Rule of Law 8.5. Preliminary ruling procedure in case of the breach of the Rule of Law 8.6. Conclusion Bibliography Chapter 9 Are the EU Member States still masters of the Treaties? The European Rule of Law concept as a means of limiting national authorities 9.1. Introduction 9.2. The European Rule of Law and protection of the national identities of the Member States 9.3. Political dialogue between the Commission and the Member State on the basis of the Communication from 2014 9.4. Article 7 TEU mechanism 9.5. Mechanisms for the protection of the European Rule of Law in judicial procedures 9.6. Conclusion Bibliography Part V Illiberal legality vs. European Rule of Law Chapter 10 Illiberal legality 10.1. Introduction 10.2. Construction of illiberal legality and the European Rule of Law 10.3. Legal features of illiberal legality 10.4. Illiberal legality and values 10.5. Consequences of illiberal legality on the European project Bibliography Index