The Crisis of Democracy in Hungary and Romania – Learning from Weimar?

Hungary’s political development under the Orbán government is by now a familiar topic. In April Barroso confirmed the European Commission’s concern that Hungary’s new constitution infringe EU legislation and the rule of law. Indeed, some commentators speak of ‘the corrosion of constitutional democracy’ or even a possible dictatorship in the EU. Romania is another problematic case. Its slide towards authoritarianism has not been (yet) enshrined in a new constitution. But its 2012 political crisis has seen by some as a coup d’état, during which Ponta’s government aimed at removing all checks and balances on its power to impeach President Băsescu.

These developments raise fundamental questions. What is the future of democracy in the EU? Can authoritarianism be kept at bay, especially during crises? Who is the true sovereign and by what right? Who is the guardian of the constitution? What is the role of a constitutional court (CC)? These questions recall the Weimar crisis in the 1930s. Ellen Kennedy writes: ‘in the new democracies of Eastern Europe … the major fault lines of Weimar liberalism have reappeared: emergency powers, the courts as “defenders of the constitution”, mobilization of antiliberal politics, ethnic identity politics, illiberal culture, and contested legitimacy’.

David Dyzenhaus’s Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (1999) analysed the Weimar crisis with an eye to offering solutions to today’s crisis of liberalism. Actually, we can speak of two crises: the crisis of Western pluralism, tolerating social groups whose anti-pluralistic world-views reject the dominant order, and the crisis of legitimacy new democracies face. His book touches more explicitly on the former crisis. But he encourages the application of his analysis to other regions ...

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