Systemic infringement action: an effective solution or rather part of the problem?

Kim Lane Scheppele suggests a comprehensive, holistic approach to deal with prominent challenges to the basic principles of the European Union. I very much sympathize with this idea, but believe a purely legal approach in itself is not sufficient (and might even be counter-productive). I should start with the premise that as a political sociologist rather than a lawyer or legal scholar, I might interpret some of the dimensions of the Hungarian problem as well as the relation between European integration and democracy in a different manner than some legal scholars would. On the one hand, I share most if not all the worries about ‘democratic backsliding’ in Hungary and equally have concerns about other countries in the region (e.g. Romania) (see my New Democracies in Crisis?). I tend to agree wholeheartedly with the view that democracy and the main principles on which it is based need to be vigorously endorsed and – even better – expanded within the context of the EU. On the other hand, I lack an unconditional faith in the role of legal-technocratic institutions, expertise, and EU law in single-handedly supporting or even saving democracy (a concern that some legal scholars – e.g. Wojciech Sadurski or Floris de Witte – admittedly share). Most of my observations below will therefore engage with the nature of the idea of a ‘systemic infringement procedure and the extent to which it addresses underlying, more structural problems of democracy in the European context. Below, I will first relate the idea of a systemic infringement procedure to a legalistic approach, and then question whether a legalistic cure is sufficient to address profound democratic problems of member states. I then relate Hungarian constitutional populism to legal resentment and a structural problems of contemporary democracy and conclude that the Hungarian disease is part of a wider European disease ...

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