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Abstract

The Hungarian and Polish experiences show how the use of the public law is limited in illiberal constitutional states. This paper claims that certain non-legal reasons for effective successful transformation to an illiberal state, such as the emergence of populist rhetoric and morality, the clear lack of political self-restraint, and the inability or unwillingness of the people to form a strong and capable civil society, or to raise their voice against extreme views or resist an aggressive and clearly unfounded political campaign, have been pre-determined and influenced by the historical and socio-psychological particularities of the nations in question. If this is indeed the case, this may offer another, though obviously non-conclusive, explanation as to why public law measures and mechanisms have failed to preserve liberal democracy. The paper concludes that overturning illiberal constitutionalism by either political or constitutional and legal means, at the present time, seems doubtful, if not impossible. The historically- and psychologically-determined national and constitutional identities of Hungary and Poland are not apt to nurture liberal constitutionalism in the long term.
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© 2018 Akadémiai Kiadó, Budapest
Hungarian Journal of Legal Studies 59, No 4, pp. 338–354 (2018)
DOI: 10.1556/2052.2018.59.4.2
Extra-Legal Particularities and Illiberal Constitutionalism –
The Case of Hungary and Poland
Tímea Drinóczi – agnieszka Bień-kacała*
Abstract. The Hungarian and Polish observations show how the use of the public law is limited in illiberal
constitutional states. This paper claims that certain non-legal reasons for effective successful transformation to an
illiberal state, such as the emergence of populist rhetoric and morality; the clear lack of political self-restraint and
the inability or unwillingness of the people to form a strong and capable civil society or to raise their voice against
extreme views or resist an aggressive and clearly unfounded political campaign, have been pre-determined and
inuenced by the historical and socio-psychological particularities of the nations in question. If this is indeed the
case, this may offer another, though obviously non-conclusive, explanation as to why public law measures and
mechanisms have failed to preserve liberal democracy.
The paper concludes that overturning illiberal constitutionalism by either political or constitutional and legal
means, at the present time, seems doubtful, if not impossible. The historically and psychologically determined
national and constitutional identities of Hungary and Poland are not apt to nurture liberal constitutionalism in the
long term.
Keywords: Hungary, Poland, illiberalism, constitutional identity, national identity, the narrative, narrative
psychology
1. INTRODUCTION
This paper represents the interim stage of a research project on illiberal Hungarian and
Polish constitutionalism. The goal is to understand what has happened to the liberal
constitutionalism of Hungary and Poland over the last 15 and 10 years respectively and
why. Thus, various non-legal reasons for effective transformation to an illiberal state have
been explored, such as the emergence of populist rhetoric and morality; the clear lack of
political self-restraint and the inability or unwillingness of the people to form a strong and
capable civil society, or to raise their voice against extreme views or resist an aggressive
and clearly unfounded political campaign, have been pre-determined and inuenced by
historical and socio-psychological particularities. If it is indeed the case, this may offer
another, though obviously non-conclusive, explanation as to why public law measures and
mechanisms have failed to preserve liberal democracy and are still failing to bring about
any retransformation.
Previous publications have discussed1 how constitutional changes can be
conceptualized in the eld of constitutional law by using the terms ‘illiberal democracy’
and ‘constitutionalism’ and have explained how illiberal constitutionalism has been
established and consolidated in Hungary and Poland by capturing constitutions and
constitutionalism. It has been stressed that the populist political majority, lacking self-
* Tímea Drinóczi, Full Professor, University of Pécs, Hungary, Kenyatta University School of
Law, drinoczi.timea@ajk.pte.hu; Agnieszka Bień-Kacała, Prof UMK, dr hab, Nicolaus Copernicus
University, Toruń, Poland, abien@umk.pl. The research was partly supported by the ÚNKP-17-4-III.-
PTE-5 New National Excellence Programme of the Ministry of Human Capacities and partly by the
grant ‘Illiberal constitutionalism in Poland and Hungary’, National Science Centre, Poland, Opus 15,
2018/29/B/HS5/00232.
1 Drinóczi and Bień-Kacała (2019).
339EXTRA-LEGAL PARTICULARITIES AND ILLIBERAL CONSTITUTIONALISM...
restraint, can develop an illiberal democracy by capturing the constitution and
constitutionalism with legal means such as formal and informal constitutional change and
by packing and paralyzing the constitutional court. Illiberal democracy and illiberal
constitutionalism are built-in states that have already experienced liberal constitutionalism
and are supported by the misunderstood concept of political constitutionalism. These states
also rely heavily on the emotional components of national identity. It is our view that
illiberal constitutionalism is not the opposite of liberal constitutionalism but rather is a state
in which the political power relativizes the rule of law, democracy and human rights
in politically sensitive cases, constitutionalizes populist nationalism and takes advantage
of identity politics, ‘new patrimonialism’, ‘clientelism’ and state-controlled corruption.
Consequently, constitutional democracy still exists but its formal implementation outweighs
its substantial realization. That, in turn, serves the fullment of the populist agenda and
further consolidates the new regime, which creates a vicious circle, escape from which is,
the undoing of this transformation, does not seem plausible, not even in the medium term.
Elsewhere,2 the authors have started to outline their concept of illiberal constitutionalism
as developed in Hungary and Poland. The issue of the misunderstood concept of political
constitutionalism has been addressed by reviewing the recent constitutional histories of
Hungary and Poland and contrasting them with the ideas developed by Bellamy and Hirschl.
It has been argued that the ‘newest’ Hungarian and Polish constitutionalism is neither de
facto nor de iure a political constitutionalism. Furthermore, it has been explained why the
label of ‘juristocracy’ is not applicable when describing the period 1990–2010/2015.
The best description of the ongoing Hungarian and Polish practices is indeed its reverse
form the judicialization of politics as theorized by Armen Mazmanyan.3 This has been
emerging in the post-2010/2015 era and can never result in ‘juristocracy’ because the
constitutional court (tribunal) judges are not constitution-based and mandated critics but the
servants of the political will.
In a book in which different views of Hungarian and Polish scholars challenges the
idea that the rule of law is still a universal European value, the authors explore whether the
inability of the supranational and international law and politics to sustain a minimum
standard of the substantive rule of law within its member or signatory states leads to the
disappearance of its driving force. They also investigate how the illiberally formal
understanding of the rule of law emerged and how it could corrupt the concept and standards
of the rule of law, relying on the principle of democracy and a misused language and
doctrine of human rights. The question is whether this denuding concept of the rule of law
is sufcient to promote the European project further.
Continuing the analysis of different components of our concept of illiberal
constitutionalism, it was shown how public law mechanisms have failed to provide a
remedy for illiberal Hungary and Poland.4 Mechanisms such as international and
supranational law measures; means of constitutional self-protection (militant democracy,
multi-tiered provisions for amendment and referral to transnational norms and the
application of the doctrine of unconstitutional constitutional amendments) and the
empowerment of citizens have been examined.
2 Drinóczi and Bień-Kacała (2017) 73–108.
3 Mazmanyan (2015) 200–18.
4 Tímea Drinóczi and Agnieszka Bień-Kacała, ‘The DNA of Illiberal Constitutionalism: Failure
of Public Law Mechanisms and an Emotionally Unstable Identity. A Hungarian and Polish Insight’,
Research Group Illiberal Democracy (forthcoming).
340 TÍMEA DRINÓCZI, AGNIESZKA BIEŃ-KACAŁA
The reality that these illiberal regimes have seemingly entrenched themselves in
Hungarian and Polish society is now being experienced. People continue to support these
regimes in elections; viable opposition has diminished and no new opposition has been able
to emerge; the people are adaptive to populism and antagonism and to an autocratic leader
and they do not seem to yearn for a liberal system. There are many explanations, such as
the third wave of the democratization process in 1989 and 1990, the economic and political
crises (2008–10, 2014–15), populist rhetoric and a clear lack of political self-restraint.5
None of them has, however, explored the emotional aspect of national identity nor
investigated whether the need for strong leadership and receptivity to populism may be
explained by emotional particularities that have emerged and been forged during the
histories of these nations. This paper uses the events of the constitutional history of these
states6 and the emotional trajectory of Hungarians and Poles,7 as they appear in narrative
psychology studies.8 In this contribution the possible non-legal reasons for the illiberal
constitutional settings created in Hungary and Poland was explored and it is claimed that
those reasons intrinsically impede the consolidation of a liberal constitutional order and
once the liberal setting is overturned, they preserve the already constituted illiberal system
and prevent any retransformation.
The paper is structured with an ‘Introduction’ (section 1) followed by a presentation of
narrative psychology, history and belles-lettres as a research method in section 2 and a point
of reference in the process of uncovering the social-psychological proles of the Hungarian
(section 3) and Polish (section 4) nations. The paper makes its conclusions in section 5.
2. NARRATIVE PSYCHOLOGY, HISTORY AND BELLES-LETTRES
AS A POINT OF REFERENCE
Narrative psychology provides a dynamic approach to understanding human identity and
the process of making sense of our ever-changing world.9 Thinking in narratives is
everywhere narratives are embedded in social interactions, in the works of professional
authors and in stories of ordinary people. Many branches of psychology, such as cognitive
studies of narratives and hermeneutic studies of narratives, deal with narratives.10 Scientic
narrative psychology presumes a strong relationship between narrative and identity and
focuses on qualitative methods, such as the life story interview. It helps the identication of
inner states and representations of social relations by connecting narrative compositions to
psychological processes in individuals and groups. The interrelations between the
development and shaping of individual identity and the role of the narrative in this process
have also been studied in the context of group identity. Éva Fülöp and her co-authors11 have
proposed not only that individuals have a ‘life trajectory’, which sequentially represents the
5 Blokker (2015), Bugarić (2015), Ruprik (2016) 77–84, Menocal, Fritz, Rakner (2008) 33–35.
6 Drinóczi (2016) 63–98.; Bień-Kacała (2017) 428–43.; Lendvai (2004); Zamoyski (2012).
7 Fülöp et al., link 7. and Vincze-László, link 15.
8 Narrative psychology provides a dynamic approach to understanding human identity and the
process of making sense of our ever-changing world. Popp-Baier (2013); Fülöp et al. link 7. László
(2008); Murray (2003), A version of this methodology and approach has appeared in Kumm (2005).
9 Murray (2003)110.
10 László (2008) 5.
11 They have conducted empirical research with regard to Hungary: see Fülöp et al, http://real.
mtak.hu/20201/3/emotional_elaboration_of_collective_traumas.pdf.
341EXTRA-LEGAL PARTICULARITIES AND ILLIBERAL CONSTITUTIONALISM...
positively or negatively evaluated events of their lives but also that this evaluative sequence
of salient historical events, the ‘historical trajectory’, characterizes the identity of nations,
including their emotional life.12 They also explain that ‘narrative social psychology claims
that states and characteristics of group identity that govern people’s behaviour when they
act as group members as well as the elaboration of traumatic experiences which affect the
group as a whole can be traced objectively, empirically in the narrative composition and
narrative language of different forms of group histories’.13 Group or national identity is thus
assumed to be constructed by a genuinely narrative group history. Group or national identity
construction has three main channels: historiography, collective memory and history
textbooks and historical novels. Fülöp et al. found that if these sources are studied, they can
help ‘empirically operationalize the concept of historical trajectory and explore emotional
aspects of national identity through a narrative analysis of the emotional entailments’ of the
historical trajectory of a group or a nation.14 The history of the group through recurring
experiences makes collectives more sensitive to certain emotions and, as a consequence,
every nation has its own characteristic emotional repertoire and norms of emotional
expression.15
The term ‘achievements of the historical constitution’ appears in the Fundamental Law
of Hungary (2011) (FL)16 and it seems justied to conduct a brief overview of theories on
the Hungarian historical constitution and the nation’s ancient constitutionality.17 The lack of
a similar provision in the Polish Constitution means that such a perspective has not
developed in relation to Polish constitutional history and constitutional research. There have
been, however, several poets, writers and theorists who, in Hungarian and Polish belles
lettres, with their own artistic and scholarly methods, have expressed the Hungarian and the
Polish identities and changes in those identities. By doing so, they also have tried to
interpret and explain these alterations and the underlying emotional attitudes and national
characteristics.
Below there is a brief collection of these descriptions from historical sources (reports,
poems and novels) and the empirical results of narrative psychology and, in the case of
Hungary, legal accounts on the historical constitution. Hungary and Poland will be discussed
in separate sections, to emphasise that different historical events can cause different
emotions and features. However, those emotions lead to the same result– the emergence
of various features of illiberal constitutionalism: populist rhetoric and morality, the lack of
12 Poles as a group are described in the scope of societal psychology, social psychology and
narrative psychology by Wojciszke (1995) 5–8.; Doliński, Grzyb (2017); Trzebiński, Drogos, (2005)
149–65. Polish historical and time perspectives are elaborated in Zajenkowska (2016), especially by
Żechowski, (2016) 143–52.; Stolarski, Zimbardo (2016) 227–40. See also Wrzesiński (2004) and
Augustyniak ( 2015).
13 Fülöp et al., link 7.
14 Historiography provides the most canonized form of historical experiences by attempting to
ascertain the objective facts of events and to diminish ambiguities. Collective memory (eg diaries,
family accounts, oral history) tends to represent history in a biased, ie a group-serving, way from the
perspective of the in-group. History textbooks and historical novels represent transitional forms of
memory lying between historiography and collective memory, since in these narratives concrete acts
of history are saturated with the psychological aspects of the episodes (e.g., intentions, perspectives,
evaluations, emotions, agency, etc). See Fülöp et al, link 7.
15 Fülöp et al, link 7.
16 Article R) of the Fundamental Law.
17 Cieger, link 5., Zászkaliczky (2015).
342 TÍMEA DRINÓCZI, AGNIESZKA BIEŃ-KACAŁA
political self-restraint and the inability or unwillingness of the people to form a strong and
capable civil society, or to raise their voice against extreme views or resist an aggressive
and clearly unfounded political campaign.
3. HUNGARIAN NATIONAL IDENTITY – MORE THAN A STEREOTYPE
3.1. Historical Sources: Reports, Poems and Novels
In the light of today’s polemics about European values, commitments and compliance, the
thoughts of Francesco Massaro, Secretary of Venice and many others referred to below,
cannot be more topical. He visited the court of King Matthias as early as 1523 and noted:
Hungarians are the worst kind in the world. They do not like or respect any nation in
the world, nor do they like one another. Everyone thinks of his own comfort, steals
from the public purse and there are few who care about it. The secretly nurtured hatred
and hostility [of Hungarians] against one another are almost unbelievable. Nonetheless,
every day they eat together and one could almost believe they are brothers. There is no
obedience; they are proud and arrogant, they cannot rule or govern but they do not
accept counsel from someone who is an expert. They always boast of their own
achievements, they are ready to swear on anything but they are very slow to act. They
deal with very little other than feasting and robbing the public. These are things in
which they are sedulous.18
This description is supported by historical accounts of Hungarian society in the Middle
Ages. Noblemen (gentry) living in towns are characterized by arrogant, high-minded one-
upmanship, which is viewed as an antecedent of the lifestyles of the communist and socialist
elite during socialism.19 Therefore, wangling (kind of manipulation), sloth and fogydom
(tendency to obscurantism and insistence on outworn ideas) are generally assumed as xed
national characteristics of Hungarians.
These features appear in poems and novels and in various articles as well:20 fogydom
and laziness appear in a poem by Sándor Pető (‘Magyar nemes vagyok’21) and in the
writings of István Széchenyi. Mihály Babits emphasized the persistent tendency of
Hungarians to postpone making decisions, while Sándor Karácsony features them as
representative of the Asian sense of time: no one acts to relieve suffering, other than those
who are the subject of it; there is a tendency to expect to benet without making any effort.
There is dissension and a lack of co-operation and trust. Koestler asserts that being
Hungarian is a collective neurosis. Péter Müller recalls the text of the national hymn, which
blames God for every bad event in Hungarian history.22 Endre Ady, in 1905, viewed
Hungary as a ‘ferry nation, which even in its most formidable dreams only runs between
two shores, from East to West but preferably backshore’.23 According to Ákos Kertész,
18 Translation by the authors.
19 Link 12.
20 Ladányi (2015) 19–23.
21 Pető, link 13.
22 The literal and poetic translation (William N Loew, 1881) can be found at https://en.
wikipedia.org/wiki/Himnusz.
23 Ady (1905). In English see Boyd and Salusinszky (1999); Csordás, link 6.
343EXTRA-LEGAL PARTICULARITIES AND ILLIBERAL CONSTITUTIONALISM...
Hungarians are genetically dependent, feel no guilt for the most grievous historical crimes
and shift the blame on to someone else.
István Bibó characterized Hungarians as a nation with a ‘distorted mentality’.24
He studied the period between 1848 and 1948 and found that during this 100-year
timeframe, the xations of the Old World, such as a hierarchal view of society, the obsession
with ranks in society, the prevalence of control over service in the exercise of power, had
become endemic. These xations pervaded the whole of society and no political and
personal changes could obliterate them. This situation was seen to compromise the
transformation of society. Bibó also asserted that since the end of the 19th century,
Hungarian society and the political elite had been unable to form a clear vision of their own
position and possibilities, or to adopt adequate policies. Society was unable to nd and
empower those leaders who could recognize its needs and identify the measures necessary
to face the challenges. He added that other nations had instinctively acted in a more proper
manner. At historical moments, the French and British chose to turn, to a certain extent,
against their previous orientation as communities and commenced a different national
endeavour. Here Bibó was referring to the French Revolution and to the Reformation and
the emergence of Puritanism in England. Both nations experienced the abandonment of
their previous national arrangements. For Bibó, it proved that the French and the British
had something different in their national characteristics or identity,25 which resulted in
different collective behaviour from that attributed to Hungarians.26
3.2. The Legal Conceptualization of the ‘Historical’ in the Term ‘Historical
Constitution’
Hungary did not have a written constitution before the Communist Constitution adopted
in 1949. The previous era was governed by the concept of the ‘historical constitution’.
Márton Zászkaliczky is of the opinion that historical constitutionalism, through reforms,
was not able to form the basis and direct antecedent of modern democracy, because it was
not facilitated by historical development (the medieval structure of the political power
remained and historical discontinuity was experienced). If, following András Cieger, the
notion he called ‘ancient constitutionality’ can be identied which became a central issue in
the constitutional struggles of the 18th century, with the ‘historical constitution’, the results
reached are confusing but supported by the descriptions of poets and novelists and social
scientists (above) and those of social psychology studies (below). At that time, the reference
to ancient constitutionality was signicant, because it meant that the country had a system
of customs that formed the uniformly and steadily developing 900 and, later, 1000 year-old
unwritten constitution, of which Hungarians are so proud. This constitutional development
was identical to the history of the nation but at that time, ‘the nation’ meant the nobility.
Consequently, the protection and preservation of constitutional customs, rights and
privileges were both obligations and basic conditions of national existence.
Throughout history, reference to the country’s ancient constitutionality was used to
achieve different and sometimes conicting goals.27 In the second half of the 19th century,
24 Bibó, link 2.
25 Though he never used identity in his work cited.
26 Bibó, link 2.
27 E.g., medieval order relations v. liberal programme of extension of rights, freedom ghts
against Vienna v. compromise with Vienna in 1867. Cieger, link 5.
344 TÍMEA DRINÓCZI, AGNIESZKA BIEŃ-KACAŁA
the cult of constitutionality reached a certain degree of maturity. However, its content
became meaningless, because the establishment of constitutional institutions and the pursuit
of European standards fell short and national traditions dominated.28 The Hungarian Soviet
Republic (Hungarian Republic of Councils, 1919), presented a sharp break with the
preceding interpretation of constitutionality during its existence of less than 6 months.
Compared to this, the restoration of civilian constitutionality in the Horthy era between the
two World Wars, although incapable of developing constitutional consciousness, again
came as a novelty. The general identity crisis of this era had an impact on the legal and
political system, the constitutionality and interpretation of the past. In the 1930s, the
reference to constitutional traditions increasingly provided arguments29 for the restriction
of equality before the law and parliamentarism. The 1949 Communist Constitution, by
establishing that Hungarian constitutionality started with the liberation of the country
by Soviet troops, meant another rupture with earlier constitutionality. So, does the
constitutional amendment of 1972, which refers once more to Hungary’s 1000 year-old
history and rejects the former understanding of historical events. Against this background,
it is not surprising that concurrent interpretations of the past exist from after the democratic
transition; a new constitutional patriotism could not emerge and a chaotic mixture of
traditions and values could be observed.30 The Fundamental Law (2011) also represents a
total repudiation of the former 20 years. This controversy may also be problematic as,
according to social psychology studies, the remembered past becomes social and cultural
knowledge and practice, which creates an identity.31
3.3. Narrative Psychology and other Interpretations
Scientic narrative psychology, as already mentioned, supports the emotional attitude
displayed in reports, novels and poems. Orsolya Vincze and János László, when studying
history textbooks for students in high schools between 1900 and 2006, found that in those
volumes, fear, hope, enthusiasm and disappointment were the feelings used to describe the
emotional characteristics of the Hungarian nation. They also asserted that during negative
historical events, Hungarians were portrayed as inefcient actors.32 Éva Fülöp, Bernadette
Péley and János László identied the typical emotional patterns in four historical novels
written by authors of different times as fear, hope, enthusiasm, disappointment and sadness.
Depressive types of feeling were dominant, with some self-criticism, such as shame and
guilt towards the in-group. In out-group relations, these emotions were more critical
and included anger and disdain.33
All these results point to the depressive dynamics of the Hungarian national identity.34
From the perspective of narrative psychology,35 in the Hungarian collective memory,
positively evaluated events belong to the medieval period. This is especially true regarding
28 Cieger, link 5.
29 Democratic liberalism and Europe’s ceasing to be a world power, Parliament’s negotiating at
too much length and too much, and liberal achievements (as of 1848) are incompatible with the
constitutional traditions of the Hungarian nation, etc. Cieger, link 5.
30 Cieger, link 5.
31 Fülöp et al., link 7.
32 Fülöp et al, link 8., Vincze and László, link 15.
33 Fülöp et al., link 7.
34 Fülöp et al, link 8.
35 Fülöp et al, link 7. For more about Hungarian history in English, see Lendvai (2004).
345EXTRA-LEGAL PARTICULARITIES AND ILLIBERAL CONSTITUTIONALISM...
the defence of Christian Europe against the Ottoman Turks, which seems to be part of the
national ideology and identity.36 Historical events occurring in later centuries, for example
wars of independence and revolutions (1703, 1848, 195637), were always followed by
defeat and repression. The pattern recurred in the World Wars with both wars were lost
by Hungary and this loss is preserved in the collective memory.38 Passive resistance featured
in the period after 1849, which also seems to be integrated into the collective memory,39
as was implemented after the Revolution of 1956.40 Collective victimhood,41 mainly due
to oppression by the Turks in the Middle Ages, by the Habsburgs later on, by the Soviets in
the 20th century, under the Trianon peace treaty42 and, as György Spiró explains, as a result
of the recurring and experienced disloyalty of the state mainly in the 20th century,43 also
seems to be an integrated part of the national identity.44 People thus have continuously been
disappointed in the efciency of state institutions and their operation. Citizens were
abandoned in their disappointment by all regimes throughout Hungarian history. This has
led to the attraction of an autocratic leader, which also may have been integrated into the
national identity.45
Psychologists found collective victimhood to be a strong Hungarian emotion.
The sense of collective victimhood immunizes the group, just as it does abused persons. For
Zsolt Szabó, it explains why Hungary is not a host nation.46 It was also Hungary that
adopted the rst legal measures against the Jewish population based on Nazi examples and
Hungary that actively collaborated with Nazi Germany in implementing their policies.47
These events caused collective guilt, which triggered varying degrees of amnesia and an
36 This appears even in the preamble to the Fundamental Law.
37 Rákóczi’s War of Independence (1703–11) was the rst signicant attempt to overthrow the
Habsburgs. The insurrection was unsuccessful, but the Hungarian nobility still managed to partially
satisfy Hungarian interests. The Hungarian Revolution of 1848 was closely linked to other revolutions
of that year in the Habsburg territories, and grew into a war for independence from the Austrian
Empire. The repression of the war was followed by a consolidation period, called passive resistance,
which ended with the Austro-Hungarian Compromise of 1867. The Hungarian Revolution of 1956
was a nationwide revolt against the Socialist Government and its Soviet-imposed policies. Soviet
troops put an end to the Revolution, which was followed by great retaliation.
38 Fülöp et al, link 7.
39 This is what Sándor Karácsony mentions as well.
40 Spiró (2007) 7.
41 Collective victimhood is more likely to arise when people feel the sense of victimhood not
because of the harm experienced by themselves, but because of the loss or suffering of their group.
Victimization in the history of a group can cause substantive changes in group identity. Fülöp et al,
link 7. A magyar identitás [The Hungarian Identity], link 1.
42 The Treaty of Trianon was the peace agreement of 1920 to formally end World War I, between
most of the Allies and the Kingdom of Hungary, which was at that time, until 1946, a ‘monarchy
without a monarch’. Around two-thirds of the territory of the country was allocated to neighbouring
countries, along with its population; one-third of Hungarians were left outside post-Trianon Hungary.
43 The Hungarian Soviet Republic (1919), by its own nature, betrayed its citizens based on their
social class background. In the 1940s, the state betrayed all those citizens it claimed to be Jewish, ie
10% of its population; the socialist regime betrayed all its people except the nomenclature (protégées
of the system). Spiró, n 41, 10.
44 Fülöp et al, link 7, Spiró (2007) 6, 10.
45 Spiró (2007) 5.
46 Link 1.
47 In return, revision of the Trianon peace treaty was hoped for.
346 TÍMEA DRINÓCZI, AGNIESZKA BIEŃ-KACAŁA
urge for self-justication.48 Furthermore, anti-Jewish laws were criticized at that time,
amongst others reasons, on the ground that they would justify the position that no hard
work and personal responsibility were needed to acquire goods. It may have amplied the
xed national characteristics featured in the literature – laziness and wangling, etc.49
4. NATIONAL IDENTITY AND POLAND
4.1. Brief Historical Overview
In the case of Poland, the national trauma is connected to the loss of statehood and freedom.
However, freedom is perceived more in relation to state sovereignty and independence than
in relation to individuals.
Since the beginning of its statehood in the 10th century and the adoption of Western
Christianity by Mieszko I in AD 966 (baptism), Poland has constantly developed and
expanded, especially in the 14th–17th centuries. During the Jagiellonian dynasty, Poland
established the Polish-Lithuanian Commonwealth with the Grand Duchy of Lithuania in
1569. During this period a unique form of political system, noble democracy (republican
monarchy, monarchia mixta),50 was created. The most important values were freedom,free
election of the king and liberum veto.51 In reference to the Res Publica (First Polish
Republic). Republicanism was strongly developed during the era of romanticism, especially
by the poet, dramatist and essayist Adam Mickiewicz.52
However, starting from the end of the 17th century, Poland faced a period of decline
caused by devastating wars and the deterioration of the political system, especially because
of the active use of the liberum veto. The most traumatic event in Polish history was the
First Partition in 1772. The desperate attempt to save and strengthen the Commonwealth
resulted in the Constitution of 3 May 1791 (3 May Constitution)53 but it could not prevent
the Second (1793) and the Third (1795) Partitions of Poland by the Russian Empire, the
Kingdom of Prussia and the Austrian Habsburg monarchy. In consequence, the great nation
that was Poland was ruined by neighbouring empires, with the assistance of certain Polish
noblemen who opposed the 3 May Constitution. This period can be characterized by the
feelings of loss (statehood, sovereignty and independence) and betrayal from both inside
(by various Polish noblemen) and outside (by the neighbouring empires). This is why the
3 May Constitution is a strong Polish myth and symbolises the unfullled dream of a
liberated Poland.54 The feeling of collective victimhood was born55 as Poles have been the
victims of the political actions of their neighbouring states (especially Germany and Russia)
and has grown systematically as a result of subsequent unsuccessful uprisings,56 as well as
during and after World War II.
48 Spiró (2007) 5.
49 Spiró (2007) 7.
50 Tarnowska (2016) 233.
51 Liberum veto was a parliamentary device in the Polish–Lithuanian Commonwealth. It was a
form of the legal right of each member of the Sejm to defeat by his vote alone any measure under
consideration, or to dissolve the Sejm and nullify all acts passed during its session.
52 Miłosz (1993) 263–64.
53 Notably by abolishment of Liberum veto and the confederate right: Tarnowska (2016) 34.
54 Tarnowska (2016) 218.
55 Bar-Tal, Chernyak-Hai, Schori and Gundar (2009) 237.
56 E.g., 1794: Kościuszko’s; and in November 1830 and January 1863.
347EXTRA-LEGAL PARTICULARITIES AND ILLIBERAL CONSTITUTIONALISM...
Poland did not exist as an independent state between 1795 and 1918. In 1918, the
Second Polish Republic was established. The young state was multi-ethnic but anti-
semitism was widespread in society. At this time, Poland was trying to rebuild its statehood
and its identity. Circumstances were not favourable, however, Poland was surrounded by
totalitarian ideologies (Nazi, Fascist and Soviet) and experienced its own autocratic period
(especially after the coup of 192657 and under the 1935 Constitution58). Obviously, Poland
was not prepared for another traumatic defeat, which eventually happened in September
1939 when Germany (1 September) and the Soviet Union (17 September) occupied its
territory. During World War II, Poles witnessed the Holocaust but they did not collaborate
institutionally like Hungary. The Soviet Union also caused unthinkable harm in Katyń in
1940.59
The feeling of collective victimhood was strengthened by the events of the 20th
century. Poland remained under Soviet inuence until 1989 and, like the Hungarians in
1956, felt betrayed by Western Europe. During socialism, several mass demonstrations
were organized and bloodily repressed (1956, 1968,60 1970 and 1980). These protests were
more economically than politically driven, but still, in 1981, even martial law was
introduced to defend the socialist regime. The martial law proclamation was explained as
being to prevent Soviet ‘help’ in ghting against the demonstrators, as happened in Hungary
in 1956 when Soviet troops ‘came to assist’. It is viewed as a betrayal of Poles and Poland
by Poles in the national collective memory.
The Third Polish Republic was founded in 1989. The decision to organize the Round
Table Talks was made in September 1988 by the Opposition and the Government. It made
the transition to (liberal constitutional) democracy possible. One of the demands of the
Round Table Agreement was to amend the Constitution of 1952. The rst amendment was
adopted on 7 April 198961 but it was the second innovation of 29 December 1989 that had a
transformative effect,62 e.g., the rule of law and political pluralism were incorporated.
4.2. Historical and Other Sources – Explanations of the Emotional Trajectory
of Poles
Collective victimhood based on the loss of statehood, defeat and the trauma of war is
specically preserved in the literature of romanticism and connected to messianism (‘Poland
is a messiah of nations’, said Mickiewicz in ‘Dziady’).63 This results in the claim that Poles
deserve better has been constantly and strongly heard. The notion of messianism has been
strengthened and developed by Catholicism and the Catholic Church, which has played the
57 It was a coup d’état carried out by Marshal Józef Piłsudski between 12 and 14 May 1926.
The coup provided authoritarian means to restore moral ‘health’ to public life. The weakness of Polish
parliamentary system was the background to the 1926 events.
58 It introduced a presidential system with certain elements of authoritarianism.
59 The Katyń massacre was a series of mass executions of Polish nationals (about 22,000,
mainly ofcers and police ofcers) carried out by the NKVD (‘People’s Commissariat for Internal
Affairs’, the Soviet Secret Police) in April and May 1940.
60 See the events of March 1968 (or ‘the March events’): a major series of protests against the
Government by students, intellectuals and others. They were also connected to the mass emigration of
Polish citizens of Jewish origin as a consequence of an anti-semitic campaign.
61 Szmyt (2010) 61.
62 Sokolewicz (1990) 12–14; Chmaj (1996) 81.
63 Miłosz (1993) 263–64.
348 TÍMEA DRINÓCZI, AGNIESZKA BIEŃ-KACAŁA
role of a consolidating institution for the Polish nation and for preserving its culture,
especially during partition. As a historical background, the defence of Christian Europe
against the Ottoman Turks is used to highlight the relevance of Poles in European history
and culture. Poles view themselves, just like the Hungarians, as the ‘defenders of Europe’
and strongly embrace this myth. Obviously, ‘messianism’ refers not only to the nation as a
messiah. Such a fate also demands a messiah who would lead the state against adversity.
This romantic vision of the independent Poles and Poland as the messiah of nations
was, however, not the only one developed at that time. The second concept was the hard
work required to promote the well-being of individual Poles, which was seized upon by
Polish positivism as a reaction to the failure of the uprisings.64 These two movements
(romanticism and Polish positivism) created a double identity for Poles and are connected
with the co-existence of contradicting features, aspirations and concepts.
This becomes clear when considering how the Polish nation was born. During the
period of partition (at the end of the 18th century and throughout the 19th century), a general
concept of the Polish nation and its sovereignty was developed. The concept was founded,
rstly, on the pre-revolutionary noble-based community.65 Nobles were familiar with
revolutionary ideas, such as the American concept of ‘independence’ and the French
concept of ‘equality’. The idea of independence in particular was developed by Polish
revolutionaries e.g., Tadeusz Kościuszko,66 as well as by the romantic poets e.g., Juliusz
Słowacki.67 However, the modern (based on equality) Polish nation emerged under foreign
oppression when there was no independent state.68 Therefore, the struggle for freedom and
equality was combined with the ght for an independent state. In consequence, Poles are
constantly torn between the importance of the community, an independent Poland – the
Motherland, the Polish nation as ideals of romanticism. and the value of hard work for
personal freedom and happiness, associated with Polish positivism.
However, historical events have shown that Poles could not establish a strong
independent state and the reforms undertaken could not bring individual well-being. The
failure on these two grounds has created the feeling of national weakness. In order to deal
with this weakness, two visions of Poland are identied by sociologists.69 The rst is
a conservative vision, which is related to retreating to ‘ourness’, whereas the second is a
liberal and left-wing approach. The latter recommends openness and the adoption of ideas
from abroad to counter the weakness of the reforms undertaken. However, psychologists
have identied an obstacle to such openness.70 According to their ndings, Poles represent a
strong negative auto-stereotype (exhibiting a low level of pride in political and societal
achievements) but at the same time they display a high level of positive identication with
the national in-group (a high level of pride in being Polish). Such a psychological prole
creates specic simultaneous feelings. Poles, on the one hand, need to reform and change
the country and on the other hand, they want to live within an imagined, idealistic and great
Poland. The grounds for polarization and two divergent visions of Poland can be seen here.
64 The Polish positivism is the period in philosophy and literature 1863–late 19th century. The
main Polish propagators of hard work and the economic development of the Polish nation were Maria
Konopnicka, Bolesław Prus and Henryk Sienkiewicz (he also propagated patriotism).
65 Tarnowska (2016) 29–34.
66 Tarnowska (2016) 216.
67 Miłosz (1993) 281–82.
68 Wojciechowski (1936) 20–21.
69 Leszczyński (2017) 255–64.
70 Bilewicz (2008) 43–47.
349EXTRA-LEGAL PARTICULARITIES AND ILLIBERAL CONSTITUTIONALISM...
In such a situation, dialogue and consensus cannot be achieved among Poles, as it was at
the Round Table in 1989, the latter event being a singular moment of national unity.
In the context of the transition from and to democracy, Poland is depicted ‘as pure and
innocent a victim of historical circumstances dictated and imposed by foreign rulers.’71
Such a perception strongly affects the sense of common identity, even if involvement in the
Communist state has never been disputed. Therefore, the description of Poles as
collaborators with the Nazi regime or as perpetrators encounters a very strong reaction,72
even if it presented as an artistic view.73 Nowadays, certain intellectuals and artists are
referred to as being ‘anti-Polish’. In such emotional circumstances, the need for the ‘defence
of the honour of Poland and the Poles’ arises and is promoted, especially by right-wing
politicians and their milieu.74 In 2006, a new crime of ‘defamation of the Polish Nation’
(‘lex Gross’) was introduced but it was annulled by the Constitutional Tribunal in 2008.75
Ten years later Poles faced the same emotional rollercoaster.76 The Law on the Institute of
National Remembrance was enacted on 26 January 2018. In consequence, a new version
of the previous offence was introduced.77 Again, the new provision was questioned.78
The ofcial message was that Poles can only act in a positive way. Therefore, the enactment
may be linked to Poles’ willingness to save a positive perception of themselves. This
situation triggered a sharp reaction from Israel. In consequence, the provision was repealed
on 27 June 2018. From sociological and psychological points of view, two extreme attitudes
may be observed in reaction to an historical crime: a reduction of nationalism and openness
to strangers or an increase in nationalism and a retreat from openness.79 It can therefore
be concluded that in Poland there are two visions of the nation (homogeneous or
heterogeneous). They have been shaped by historical events and, depending on the events,
one takes precedence over the other. The aforementioned offence designated the Polish
nation as a homogeneous entity consisting of only good people. Such an approach is directly
connected to the narrative of the education of Polish history, which promotes an idealised
vision of the Poles.80
71 Gliszczyńska-Grabias et al, link 9.
72 Gross (2001), (2006), (2011).
73 See the strong reaction to the lm Ida and to the winning of an Oscar in 2015.
74 Gliszczyńska-Grabias et al, link 9.
75 CT judgment of 8 September 2008, K 5/07.
76 See the amendment to the Law on the Institute of National Remembrance, Dz.U. 2018 poz.
369, and the Polish-Israeli crisis. The background to the provision is the homogeneous perception of
the Polish nation, which also includes the view that during the Holocaust, Poles were saviours not
perpetrators. The amendment also caused a crisis in relation to the difcult Polish-Ukrainian history
connected to the Volyn tragedy: Alina Cherviatsova, link 4.
77 Article 55 a: Whoever publicly and contrary to the facts attributes to the Polish Nation or to
the Polish State responsibility or co-responsibility for the Nazi crimes committed by the German
Third Reich, as specied in Article 6 of the Charter of the International Military Tribunal – Annex to
the Agreement for the prosecution and punishment of the major war criminals of the European Axis,
executed in London on 8 August 1945 (Journal of Laws of 1947, item 367), or for any other offences
constituting crimes against peace, humanity or war crimes, or otherwise grossly diminishes the
responsibility of the actual perpetrators of these crimes, shall be liable to a ne or deprivation of
liberty for up to 3 years. The judgment shall be communicated to the public.
78 Sadurski, link 13.
79 Leszczyński (2017) 252–54.
80 Bilewicz (2018) 1–8.
350 TÍMEA DRINÓCZI, AGNIESZKA BIEŃ-KACAŁA
Parochialism and a folwark-like81 societal structure are also to be seen.82 As a result,
Poles organize themselves by establishing a hierarchy,83 thus, a democratic method of
decision making is almost impossible. Consequently, Poles need a type of strong leader, or,
better, a ‘messiah’, who will tell them what is good or bad and what they deserve e.g.,
mythological persons and similar gures, such as Józef Piłsudski and Lech Kaczyński.
Every decision of such a leader is acceptable and undisputable. Reasoning is not needed
because of the people’s strong belief in the leader‘s infallibility.
5. SUMMARY AND CONCLUSIONS
In our opinion, in an illiberal democracy, legal arguments and the opinions of others do not
matter but emotions are important for the populist and illiberal leader. There is no strong
and capable civil society, probably because people are ignorant and if it is not the case then
the civil organizations are legally obstructed. Behind these failures of public law, the
emotional attitudes of non-respect for others, compromised self-condence, the need for a
leader and reluctance to liberal democracy and its values can be found. These non-legal
aspects of Hungarian and Polish illiberalism, which seem to be embedded in their
constructions of national identity, nd support in different elds of social sciences and
belles lettres.
From an historical perspective, as a result of actions and interactions, it would be hard
to dene the Hungarian constitutional identity in the Jacobsohnian sense since there is
always such tension that the previous constitutional order always gets destroyed and is
replaced by something radically new. It only happens on the surface however, because the
new order always seeks some kind of continuity with the past. The construction of the
Hungarian constitutional identity, however, seems to be in line with the formation of the
Rosenfeldian constitutional identity: the paradox is realized, a new quality is created by
constitutional amendment; the former concept is negated, metaphor and metonomy are
applied. It is almost true for the constitutional development of Hungary but the underlying
national or Hungarian characteristics, as described by the above-mentioned sources,
apparently have remained the same. This is apparent from the continuous reference to the
past, the appraisal of the achievements of the historical constitution of Hungary and the
mentality of the people, who are usually characterized as lazy and seeking rapid results
without any effort and who are still attracted to rank and position, relying on the advantages
of nepotism and clientelism, etc.84
Nevertheless, all the above-mentioned characteristics of Hungarians and the Hungarian
nation are not decisive. Zsolt Szabó explains that there are no Hungarians who can be
viewed and feature as a homogeneous entity.85 This applies to Poles as well. All empirically
81 A folwark was a primarily serfdom-based farm and agricultural enterprise. Folwarks
originated as land belonging to a feudal lord and not rented out to peasants but worked by his own
hired labour. The peasants toiled on the lots they rented from the lord, but in addition were obliged to
provide complimentary labour for the lord on his folwark.
82 Michalik and Santorski (2016).
83 Bień-Kacała (2018) 17–30.
84 Consider the high corruption rate in Hungary, which, to a certain extent, proves the
immutability of the above-mentioned behavioural patterns. See OLAF Report, https://ec.europa.eu/
anti-fraud/sites/antifraud/les/olaf_report_2017_en.pdf
85 Link 1.
351EXTRA-LEGAL PARTICULARITIES AND ILLIBERAL CONSTITUTIONALISM...
and scientically unsupported descriptions are thus exaggerations and stereotypical. It does,
however, seem to be accurate that the Hungarian historical trajectory is not favourable
ground on which to build an emotionally stable identity;86 and that the resultant unstable
and vulnerable identity longs for stability, which is found in an autocratic leader from
the right wing.87 With the aim of providing a more legally oriented conclusion, based on
the recent case law in Europe about the applicability of constitutional identity, we claim88
that while Germany adopts a ‘confrontational with EU law’ model89 and Italy utilizes a
‘cooperation with embedded identity’ model,90 Hungary clings to a ‘confrontational
individualistic detachedness’ model.91 Germany and Italy show a clear EU-friendly attitude
when identity is in question while Hungary takes an antagonistic approach.92 This,
unfortunately, seems to be in line with the national identity and, to a certain extent with the
still stereotypical emotional characteristics of the Hungarian nation.
Polish characteristics, national identity and emotional attributes, like those of their
Hungarian counterparts, have been shaped throughout history.93 Poles have developed some
specic national features, such as bravery or readiness to ght and a strong tendency to
favour resistance. Poles strongly relate to freedom. However, freedom is misunderstood,
as are state sovereignty and independence. Personal freedom and happiness is said to be
achieved within a strong, capable and independent Poland. Therefore, the state must be
efcient and well-managed. The resolution of the crisis in Europe and in Poland requires
decisive action, taken by a strong leader. A focus on hard work for personal well-being,
popularized during the era of positivism in the late 19th century, is no longer valued because
it could not bring about sovereignty for Poland and freedom for Poles. Consequently, Poles
are full of dreams about the Great Poland with its mythical 3 May Constitution, which had
only formal importance and never came into force in its entirety and which could not
prevent the loss of independence and the betrayal of Poland by Poles and foreigners. There
is strong resentment, along with the common opinion that Poles deserve better. These
feelings are based on the notion of collective victimhood. In addition, a confrontational
attitude towards the European Union, other international organizations and rational voices
from outside and inside Poland has arisen.94 National consolidation in the perception of
constitutional identity is clearly visible, especially when we consider the reform of the
judiciary in Poland and the Polish reaction to EU actions.95
It seems, therefore, in conclusion, that the need for strong autocratic leadership and
receptivity to populism may be inuenced by historical particularities and emotional
86 Fülöp et al, link 7.
87 Link 1.
88 Drinóczi (2016).
89 Lisbon decision (BVerfG, Judgment of the Second Senate of 30 June 2009, 2 BvE 2/08);
OMT reference decision (BVerfG, Jan 14. 2014, 2 BvR 2728/13).
90 N 24/2017 of the ICC triggered by CJEU decision in Case C-105/14; Case C-42/17 is the
Taricco II decision of the CJEU.
91 22/2016 (XII.5) decision of the Hungarian CC; Dissenting Opinion to 23/2015 (VII.7)
decision of the Hungarian CC.
92 Drinóczi (2016).
93 Wrzesiński (2004) 38.
94 A Bień-Kacała (2017).
95 Latest motion of the Prosecutor General to the Constitutional Tribunal is described by Biernat
and Kawczyńska, link 3.
352 TÍMEA DRINÓCZI, AGNIESZKA BIEŃ-KACAŁA
trajectories. If this is indeed the case, it may be suggested that constitutional identity is built
in a way that, to a certain extent, has been pre-determined and has led to the current
situation. If this is true, it also means that the retransformation of the current regimes will
prove to be extremely difcult, if not impossible, as, unlike politicians, the people cannot
be dismissed.
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