Leonid V. Smorgunov – Illiberal Turn in the Legal Processes of Eastern Europe: Is the Constitutional Transit Over?

Abstract

The destruction of “real socialism” in the late 1980s and early 1990s was accompanied by the assertion of liberal principles of freedom, rule of law, separation of powers, human rights, constitutional control, etc. in the constitutions of Eastern European countries. Institutions created by market and political reforms, together with constitutional foundations, created the conditions, it was believed, for the consolidation of liberal democracy in the region. The accession of these countries to the European Union created additional guarantees for the universalization of constitutional principles and, in general, legal systems on a pan-European basis. However, at the beginning of the second decade of the 2000s, constitutional reforms began in a number of significant countries in the region, leading to an illiberal turn. The constitutional changes that took place in Hungary (2011), Poland (2015), or their attempt in Romania (2015), as well as a number of political trends related to the constitutional basis in Bulgaria, the Czech Republic, and Slovakia, to varying degrees, symbolized the process of forming constitutional identity, questioning or denying the liberal basis. These processes are described in the scientific literature in different ways: “populist constitutionalism,” “constitutional regression,” “autocratic legalism,” “abusive constitutionalism,” “institutionalized cronyism,” “anti-constitutional populist backsliding,” and so on. The chapter describes the ideological tendencies that influenced this turn. It distinguishes between political ideologies and ideologies of constitutionalism. The political ideologies that have influenced this process of illiberal transformation of constitutions are diverse. In a mild form, this is communitarianism, which calls into question the liberal principle of rational individualism and proclaims the primacy of social identity. Traditionalism combined with neoconservatism (patriotism, religion, and traditional family values) came out in a harsher form, directly opposing liberalism. Political populism had a significant impact on the constitutional transformation. All these ideological constructions find synthetic expression in a kind of memory policy related to national historical events, as well as the memory of communism, actualized during the accession to a united Europe. The ideologies of constitutionalism opposed to liberalism have their origins in a number of mental oppositions inherent in the legal consciousness of the constitutional transition. Among them, the oppositions of the ideologies of legal constitutionalism and political constitutionalism, liberal constitutionalism and teleological constitutionalism, constitutional pluralism, and partisanship stand out. The ideological indoctrination of constitutionalism in Eastern Europe leads to the formation of illiberal constitutionalism as a system of instrumental and statutory anti-constitutionalism. The question remains open about the prospects for Eastern European constitutionalism. There are optimistic and pessimistic scenarios for the process. Apparently, it is correct to pose the question that the democratic transition has not yet been completed and the constitutional system still reflects the peculiarities of the political process and the ideas accompanying it.