With some constitutional courts (CCs) in the post-communist Europe failing to prevent the rise of non-democratic regimes, this article shows that, during critical moments, the Hungarian constitutional court did not perceive itself as responsible for Hungarian democracy, which resulted in its self-marginalisation. The Slovak constitutional court was largely spared from similarly critical moments, which, however, facilitated particular self-perceptions of its responsibility (or lack thereof).
Author
Max Steuer, Associate Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India; Department of Political Science, Comenius University in Bratislava, Bratislava, Slovakia.
Summary
The study of constitutional courts (CCs) of post-communist Europe typically entailed the belief in CCs’ transformative potential for the consolidation of democracy. Recently, this belief has been questioned, albeit the knowledge of why at least some CCs in the region failed to prevent the rise of non-democratic regimes remains limited. This article addresses this gap via the cases of Hungary and Slovakia, which have taken a different trajectory post-2010: the Slovak CC (SCC) remains an independent institution, while the Hungarian CC (HCC) has been packed by the executive.
By combining contextual case law analysis of judgments referring to democracy and semi-structured interviews, the article shows that, during critical moments, the HCC did not perceive itself as responsible for Hungarian democracy, which resulted in its self-marginalisation. The SCC was largely spared from similarly critical moments, which, however, facilitated particular self-perceptions of its responsibility (or lack thereof).
These findings offer empirical support for institutionalist scholarship that emphasizes the impact of ideas in calibrating the self-perceptions of political institutions and their positioning in the political system. Constitutional courts remain inseparable from the political regimes they are located in.
Published in: European Politics and Society
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