Person

HALMAI, Gábor

EUI affiliated iconORCID icon
Profile Picture
Email Address
Birth Date
Research Projects
relationships.isOrgUnitOf
Job Title
Last Name
HALMAI
First Name
Gábor
Name

Filters

2016 - 2019142020 - 202529
Reset filters

Settings

Search Results

Now showing 1 - 10 of 43
  • Thumbnail Image
    Publication
    Open Access
    From liberal democracy to illiberal populist autocracy : possible reasons for Hungary’s autocratization
    (2024, Article) 
    Hague journal on the rule of law, 2024, OnlineFirst
    The paper looks for the main reasons of how was the Hungarian government of the Fidesz Party lead by Prime Minister Viktor Orbán able to within 13 years undermine the independent checks on their power so that it could convert what had looked like a stable but imperfect democracy into an autocracy? After listing the most obvious reasons the paper looks particularly at, how much is the way of a mostly elite-driven democratic transition using the tools of ‚legal constitutionalism‘and ‚undemocratic liberalism‘without real historical traditions of a liberal democratic constitutional culture and with the regionally determined value system is to blame. This also leads to the question, how to allocate the responsibility for the backsliding between the elites and the citizens, infuenced and often manipulated by the leaders.
  • Thumbnail Image
    Publication
    Open Access
    Illiberalism in East-Central Europe
    (2019, Working Paper) 
    EUI LAW; 2019/05
    In the paper I try to answer the question, whether there is a genuine constitutional theory of ‘illiberal constitutionalism,’ recently advocated in some East-Central European member states of the European Union, especially in Hungary and Poland. As I demonstrate, court ideologists of populist autocrats use Carl Schmitt’s concept of political sovereignty and collective identity of the people, or misuse Max Weber’s leader democracy or Richard Bellamy’s or others’ political constitutionalism ideas to legitimize authoritarian aims. I argue that the constitutional concept, which rejects liberalism as a constitutive precondition of democracy, cannot be in compliance with the traditional idea of liberal democratic constitutionalism. This concept has nothing to do with any majoritarian constitutional model based on the separation of power, or with political constitutionalism, or any kind of weak judicial review, and it misuses the concept of constitutional identity. One of the reasons of the illiberal turn has been that there was a lack of consensus about liberal democratic values at the time of the transition. In the beginning of the democratic transitions in these new democracies, preference was given to general economic effectiveness over mass civic and political engagement. According to some authors, the prospects for liberal constitutional democracy in the newly independent states of Central and Eastern Europe following the 1989–90 transition were diminished by a technocratic, judicial control of politics, which blunted the development of civic constitutionalism, civil society, and participatory democratic government as necessary counterpoints to the technocratic machinery of legal constitutionalism. But, there is nothing to suggest that an earlier and more participatory constitution-making process would have prevented the populist turn. Those proponents of participatory constitutionalism do not sufficiently take into account the rise of populism and the lack of civic interest in constitutional matters, due to poor constitutional culture. The recent success of illiberalism in the region seems to indicate that the special historical circumstances require a longer period of time the build up a liberal democratic political and constitutional culture. But the democratic backsliding is not a proof of the failure of liberal democracy altogether, as illiberal leaders and their court ideologists want people to believe.
  • Thumbnail Image
    Publication
    Open Access
    The possibility and desirability of rule of law conditionality
    (2019, Article) 
    Hague journal on the rule of law, 2019, Vol. 11, No. 1, (SI), pp. 171-188
    The paper claims that during the fight over the compliance with the core values of the EU pronounced in Article 2 TEU with backsliding Member States the EU institutions using both the traditional mechanism (infringement procedures and Article 7), and the newly established Rule of Law Framework have proven incapable of enforcing compliance, which considerably undermined not only the legitimacy of the Commission, but also that of the entire rule of law oversight. Hence, new means of value conditionality should also be activated, such as cutting funds for member states that do not comply with certain basic institutional requirements of the rule of law. As the paper argues, this is possible through implementing the Common Provision Regulation, and can be carried out on a case-by-case basis. Putting conditionality into the Multiannual Financial Framework after the 2020 budget period is another potential avenue to enforce compliance with joint values.
  • Thumbnail Image
    Publication
    From ‘illiberal democracy’ to autocracy : how Covid-19 helped to destroy the remnants of democracy in Hungary
    (2021, Contribution to book) 
    Jakub URBANIK and Adam BODNAR (eds), Periménodas tous varvárous ; law in a time of constitutional crisis : studies offered to Mirosław Wyrzykowski, Warszawa : C.H. Beck, 2021, Księgi pamiątkowe, pp. 227-239
    The main aim of this paper is to describes how the illiberal government of Hungary introduced autocratic measures as a reaction to the Corona virus. Even the less destructive nature of the first wave of the COVID-19 in Hungary provided a pretext for the Orbán government to dismantle the remnants of democratic character of its already ‘illiberal’ state by introducing almost unlimited emergency power of the executive. The misuse of crisis situation again raise the question, whether ‘illiberal democracy’ is the proper conceptual frameworks to describe the perils of new authoritarianism, and also whether the transnational responses, for instance that of the European Union towards its backsliding Member States can adequately cope with them.
  • Thumbnail Image
    Publication
    Open Access
    Aufstieg und Niedergang verfassungsrechtlicher Normenkontrolle in Ungarn und Polen
    (2021, Contribution to book) 
    Christian SCHMIDT and Benno ZABEL (eds), Politik im Rechtsstaat, Baden-Baden : Nomos, 2021, pp. 217-238
    Durch die Vergrößerung des Verfassungsgerichts und erhebliche Beschneidung seiner Kontrollrechte entfernte sich Ungarn in jüngerer Zeit von den allgemein geteilten Prinzipien des Konstitutionalismus. Bevor ich dies detailliert ausführe, möchte ich jedoch kurz beschreiben, wie 1989 im Zuge des Übergangs zur Demokratie das ungarischen Verfassungsgericht entstand und welche tragende Rolle dabei Kelsens Idee eines eigenständigen Verfassungsgerichtshofes spielte. Sowohl die weitreichende Zuständigkeit des Gerichts als auch dessen Aktivismus gingen dabei weit über Kelsens Vorstellungen hinaus und machten das ungarische Verfassungsgericht in den neunziger Jahren des zwanzigsten Jahrhunderts zum mächtigsten und aktivsten Verfassungsgericht weltweit. Das war auch der Grund, weshalb die autoritäre Regierung von Victor Orbáns Fidesz Partei die verfassungsrechtliche Normenkontrolle mit der 2011 in Kraft gesetzten Verfassung demontierte. Diese Demontage hatte bereits unmittelbar nach dem Wahlsieg von Fidesz 2010 eingesetzt und fand ihren Abschluss 2013 mit dem vierten Zusatz zum ungarischen Grundgesetz. Angesichts des Schicksals, dass die verfassungsrechtlicher Normenkontrolle in Ungarn ereilte, will ich dann versuchen, das Konzept einer richterlichen Normenkontrolle sowohl von schwächeren Varianten als auch vom politischen Konstitutionalismus abzugrenzen, wobei ich Carl Schmitts Ablehnung der verfassungsrechtlichen Normenkontrolle diskutiere.
  • Thumbnail Image
    Publication
    Open Access
    The possibility and desirability of economic sanction : rule of law conditionality requirements against illiberal EU Member States
    (2018, Working Paper) 
    EUI LAW; 2018/06
    The paper deals with the ways in which the European Union can and should cope with recent deviations from the shared values of rule of law, democracy, and fundamental rights, especially in some of the new Member States in East-Central Europe, such as Hungary and Poland, but also elsewhere. The paper first discusses the traditional legal tools, like infrigment procedures, which seemed to be ineffective, including the Article 7 procedure, finally triggered against Poland. As all of these tools, as well as the EU Framework to strengthen the Rule of Law proved to be ineffective, suggestions were made to link receipt of EU cohesion funds to respect for democratic principles. The paper assesses the legal possibilities and effectiveness of economic sanctions, and concludes that EU law does not exclude such conditionality and it can be desirable for the protection of the rule of law, democracy, and fundamental rights in Members States, which are non-compliant with basic values of the EU.
  • Thumbnail Image
    Publication
    Open Access
    Is there such thing as 'populist constitutionalism'? : the case of Hungary
    (2018, Article) 
    Fudan journal of the humanities and social sciences, 2018, Vol. 11, No. 3, pp. 323-339
    The paper deals with recent deviations from the shared values of constitutionalism towards a kind of 'populist, illiberal constitutionalism' introduced by Hungary's new constitution in 2011. The populism of FIDESZ was directed against all elites, including the ones that designed the 1989 constitutional system (in which FIDESZ also participated), claiming that it was time for a new revolution. This is why PM Viktor Orban characterized the results of the 2010 elections as a 'revolution of the ballot boxes'. His intention with this revolution was to eliminate all checks and balances, and even the parliamentary rotation of governing parties. His vision for a new constitutional order-one in which his political party occupies the centre stage of Hungarian political life and puts an end to debates over values-has now been entrenched in the new constitution. The paper argues that this current Hungarian constitutional system was made possible by FIDESZ' anti-pluralist nationalist populism, but is not necessarily based on a true commitment to expressing the will of the people via 'illiberal constitutionalism'. The populist government rather misuses the country's lack of constitutional culture. Adherence to constitutional patriotism would mean that FIDESZ would have to endorse what John Rawls once called 'constitutional essentials'. The core of this kind of constitutional patriotism is a constitutional culture centred on universalist liberal democratic norms and values. Instead, the current Hungarian constitutional system is confronted with unconstitutional patriotism, a kind of nationalism that violates constitutional essentials in the name of 'national constitutional identity'.
  • Thumbnail Image
    Publication
    Open Access
    National(ist) constitutional identity? : Hungary’s road to abuse constitutional pluralism
    (2017, Working Paper) 
    EUI LAW; 2017/08
    This paper discusses a decision of the Hungarian Constitutional Court issued in December 2016, in which the judges refer to the country’s constitutional identityto justify the government’s refusal to apply the EU’s refugee relocation scheme in Hungary. The misuse of constitutional identity, the paper argues cannot be derived from the previous jurisprudence of the Court. Right before and after the EU accession of the country the Court followed a mild approach of limited EU law primacy approach, which did not change immediately after Viktor Orbán’s government introduced an illiberal constitutional system and packed the Constitutional Court after 2010. The reason for change has been the government’s anti-migration policy, and the Court was instrumental to justify the government’s desire to exclude refugees from Hungary and to evade its obligations under European law. The paper concludes that this abuse of constitutional identity for merely nationalistic political purposes discredits every genuine and legitimate reference to national constitutional identity claims, and strengthens the calls for an end of constitutional pluralism in the EU altogether.
  • Thumbnail Image
    Publication
    Open Access
    Restoring constitutionalism in Hungary
    (2021, Article) 
    Verfassungsdebate, 2021, Restoring constitutionalism, OnlineOnly
    The question this contribution attempts to answer is how a future democratic government can recreate constitutional democracy after more than a decade of authoritarian constitutional politics in case the united opposition beats Fidesz during the 2022 parliamentary election. Even if this will happen, it is very unlikely that the new governing parties will reach the two-third majority which according to the current rules is necessary to enact a brand new constitution or even to amend Fidesz’s ‘illiberal’ constitution. So the question may arise whether there is an alternative to either breaking the legality by repealing the Fundamental Law with a single majority, an approach represented by Péter Márky-Zay, the Prime Minister candidate of the oppositional alliance, as well as by some constitutional scholars, or to doing nothing about the ‘authoritarian enclave’ (copyright Andrew Arato) of the 2011 Fundamental Law.
  • Thumbnail Image
    Publication
    Open Access
    Silence of transitional constitutions : the 'invisible constitution' concept of the Hungarian constitutional court
    (2018, Article) 
    International journal of constitutional law, 2018, Vol. 16, No. 3, pp. 969-984
    This article first discusses transitional constitutionalism in East-Central Europe, which is represented in provisional constitutions as opposed to the conventional understanding of constitutionalism. The main part of the article deals with the activist jurisprudence of the Hungarian Constitutional Court in the early 1990s, filling the gap caused by silence of the 1989 transitional constitution. This part elaborates the concept of an " invisible constitution," which complements the text of the Hungarian transitional Constitution of 1989. Finally, the article tries to answer the question whether the concept of the invisible constitution of the first Constitutional Court contributed to the entrenchment of a constitutional culture or, as an element of elitist legal constitutionalism, prevented the establishment of participatory constitutionalism, and this way contributed to the backsliding of constitutionalism in Hungary. The article concludes that the invisible constitutional concept had no genuine effect on the constitutional culture of the country, but there wouldn't have been any other quick way to build up constitutionalism other than from above by the elite.