The Crisis of Democracy in East Central Europe: The ‘New Constitutionalism’ in Hungary

'Above all, being a democrat means not being afraid; not being afraid of people with different opinions, different mother tongues, or people from different races…not being afraid of all those imaginary fears which are only made real by our fear of them.'

István Bibó, The Misery of the Small States of Eastern Europe (1946)

Drawing on the work of the twentieth century Hungarian political scientist, István Bibó, this article offers a critical examination of Hungary's new Constitution, or Fundamental Law, which entered into force in January 2012. Hungary's Fundamental Law and various associated legal texts have been heavily criticized by the European Union (EU) Parliament, the Organization for Security and Cooperation in Europe (OSCE), the Council of Europe's Venice Commission, the US State Department, major human rights NGOs and foreign as well as Hungarian scholars. This article argues that the constitutional regime that operated in Hungary from the end of communist rule until January 2012 represented a broadly satisfactory framework for the consolidation of liberal democracy, the rule of law and the protection of human and minority rights. By contrast, the Fundamental Law, related legal instruments and various policies of the present government have diluted or threatened essential democratic freedoms and have resulted in the removal of many of the checks and balances that previously operated within the Hungarian constitutional system. These regressive measures suggest that elements of what István Bibó described as the 'deformed' political culture of pre-World War II Hungary have reasserted themselves.