This article is part of the Reshaping European Democracy project, an initiative of Carnegie’s Democracy, Conflict, and Governance Program and Carnegie Europe.
Countless news reports and analytical commentaries suggest that Europe is experiencing a rise of illiberal democracy. According to them, populist parties are espousing a highly majoritarian form of democracy, while chipping away at liberal checks and balances. However, in countries like Hungary and Poland, governments are not really forging an illiberal or hyper-majoritarian democracy so much as undermining democracy altogether. If the opposition was to win a future election, the incumbent ruling parties would undoubtedly leverage their control of state institutions to work against the majority will. Their so-called majoritarianism is a temporary illusion.
The Hungarian Civic Alliance (Fidesz) party, under the leadership of Prime Minister Viktor Orbán, has drastically altered the country’s constitutional framework since the party’s electoral victory in 2010. Among other measures, it has changed Hungary’s constitution six times; replaced many judges with its own appointees; taken control of the state media; enacted repressive NGO laws; and enshrined policies in constitutional law, which makes it difficult to reverse them even if the government changes.
Similarly, Poland’s ruling Law and Justice (PiS) party has—over a period of just two years—adopted thirteen laws that completely change the structure of the justice system. The European Commission has noted that these laws “put at serious risk the independence of the judiciary and the separation of powers in Poland.” The party’s current leader and former prime minister, Jaroslaw Kaczyński, claims that these measures address what he calls “legal impossibilism”—the belief that governments have little margin of manoeuvre in making policy due to legal constraints. Therefore, courts need to be brought under control of the government and parliament.
The Hungarian and Polish governments insist that their reforms adhere to democratic standards. Orbán asserted in his 2014 speech that “a democracy is not necessarily liberal. Just because something is not liberal, it still can be a democracy.” This line of thinking is attractive in offering basic oppositions—“democracy” puts a premium on executing the majority will through a powerful, unhindered executive branch of government and “liberalism” puts a premium on checking the power of the executive through, for example, judicial protections enacted by independent courts.
Many analysts have adopted a similar conceptual frame. In the words of the researcher and writer Jacques Rupnik, “Illiberal democracy . . . seeks a strong executive power and sees checks and balances, constitutional courts, and other presumably politically neutral institutions as imposing undue constraints on the sovereignty of the people. ‘Legal impossibilism,’ to use Kaczynski’s phrase, is the enemy.” In a similar vein, Ivan Krastev, a well-known commentator on European affairs, states that “the new populists are not fascists. . . . But they are indifferent to liberal checks and balances and do not see the need for constitutional constraints on the power of the majority.”
But the idea of separating checks and balances (liberalism) and majority will (democracy) as two completely distinct concepts creates a false choice that actually undermines democracy. The discussion distracts from what is at its core an undemocratic trend and weakens the resolve to resist anti-democratic parties; after all, it is difficult for democrats to take issue with democratic parties.1 The debate over illiberal democracy presents what is essentially an autocratic power grab as a genuinely ideological struggle. The concept of democracy is certainly not static, but there are red lines that, if overstepped, move a country toward authoritarianism.
Votes vs. Rights
Yascha Mounk’s widely discussed book, The People vs. Democracy, is structured around a separation of democracy and liberalism. The book has gained significant traction with the claim that states today tend to be characterized either by illiberal democracy or nondemocratic liberalism. According to Mounk, even core political rights like freedom of speech, freedom of association, and freedom of the media are expressions of liberalism, not of democracy. He claims that democracy is possible without them and that it is enough to have “a set of binding electoral institutions that effectively translates popular views into public policy” through free and fair elections.
But the problem is this: How can elections be free and fair without free speech, a free media, and freedom of association? If the media do not allow a debate and voters and candidates cannot express themselves freely and organize into parties, how can popular views be translated into public policy? Communists and Nazis have held elections without guaranteeing these rights, but they are characterized as dictators, not illiberals.
In Hungary, the OSCE has stressed that elections are far from being entirely free and fair. Its mission to the 2018 parliamentary elections pointed out that, among other shortcomings, there was a “pervasive overlap between state and ruling party resources, undermining contestants’ ability to compete on an equal basis” and the public broadcaster’s “newscasts and editorial outputs clearly favoured the ruling coalition, at odds with international standards.” If these subtler shortcomings are considered democracy concerns, then it does not make sense to consider more obvious violations, such as imprisoning journalists or opposition candidates, as matters pertaining to liberalism only.
Liberalism vs. Majoritarianism
Other authors, such as Cas Mudde and Takis Pappas, take more nuanced positions. They do not believe that democracy, even in its illiberal variant, can dispense with core political rights. For them, a democracy is liberal when it has checks and balances, such as independent courts, and illiberal when it does not. Takis Pappas, a leading scholar on populism, says that illiberal parties are “inclined toward raw majoritarianism”—they participate “in competitive elections” and “offer allegiance to [a] representative pluralist democracy” but are “impatient with institutional legalities.”
It is possible to conceive of a raw majoritarian democracy with a governance system that translates a majority’s electoral preferences into policies with as little distortion as possible. Some democracies indeed give more margin of manoeuvre to the elected executive than others, such as the United Kingdom. But such executives do not act in purely majoritarian ways. They commonly enact policies that are unpopular or that they did not announce before the elections.
It is also possible to imagine a raw majoritarian democracy that employs a simple electoral system to represent majorities without distortion. For example, the Netherlands uses a proportional system, in which the whole country is one electoral district. A party that gains 15 percent of the votes will get 15 percent of the seats. But on this criterion, Hungary and Poland are certainly not raw majoritarian democracies. Hungary’s electoral system produces the least proportional results in the entire EU. In the last elections, Fidesz won 49 percent of the votes but gained 67 percent of the seats in parliament. And Poland’s system produces the third least proportional results. In the last elections, PiS won 38 percent of the votes but gained 51 percent of the seats in parliament.
Referenda could also conceivably be a main feature of raw majoritarianism. Indeed, Swiss referenda have resulted in hard clashes between the majority will and human rights guarantees—as exhibited by the 2009 vote to ban the construction of new mosque minarets (towers) in the country. It is noteworthy, however, that the Swiss system contains one of the most complex systems of checks and balances as a counterweight.
In theory, the above features could be combined to create a system that has no constitutional court, a straightforward proportional electoral system, and a strong, centralized executive that holds regular referenda. Such a system would not obviously violate the assumptions of a “minimalistic” democracy if it held regular free and fair elections (or a “competitive struggle for the people’s vote” in the words of Joseph Schumpeter). However, such a concentration of power is likely to corrupt the government, creating many temptations to undermine the idea of democratic elections in order to rule perpetually. Such a system cannot uphold a democracy for long, if it is not underpinned by legally enshrined rights and checks and balances.
Majoritarianism vs. Authoritarianism
Even if raw majoritarianism is theoretically possible, this is not where Hungary and Poland are headed. The developments in these countries rather indicate a slide toward authoritarianism under the guise of majoritarianism. Contrary to what is widely claimed, Fidesz and PiS are not removing checks and balances to create political systems in which the majority will is represented with few constraints. They are pretending to apply a majoritarian logic while they colonize the institutions of checks and balances and try to control them as much as possible. For now, it means the majority can rule without constraints. Tomorrow, it means they can thwart another majority by using their control of the judiciary and state media.
In Poland, the previous parliament made an illegal attempt to appoint two new judges to the country’s constitutional court quickly before losing the 2015 elections. The constitutional court annulled that decision. The rule of law worked. But after the elections, PiS replaced not only these two judges but three properly appointed ones as well. By June 2017, the ruling party had managed to pack the court of fifteen judges with nine of its appointees. Under a normal process, it could have only appointed a majority of the judges toward the end of its term in 2019. It wanted complete control of the court instantly and ignored the court’s judgements in order to install its own judges. PiS won a peaceful election in a functioning democracy, but it talks and acts like a revolutionary movement that needs to take over all institutions.
Neither Poland nor Hungary have started allowing more referenda. Indeed, the supposedly majoritarian Fidesz did not even put its 2011 constitution to a public vote. The Fidesz government has only held one referendum since being elected (on the EU’s asylum quotas), and it posed a question that was more about building political momentum than giving people a voice.
The strongest indicator that Fidesz is not actually promoting raw majoritarianism is the constitutional framework it has created. Many matters that parliaments usually decide with a simple majority are regulated in cardinal laws that require a two-thirds majority to be adopted or changed. The Council of Europe’s Venice Commission noted,
“The more policy issues are transferred beyond the powers of simple majority, the less significance will future elections have and the more possibilities does a two-third majority have of cementing its political preferences and the country’s legal order. Elections . . . would become meaningless if the legislator would not be able to change important aspects of the legislation that should have been enacted with a simple majority. When not only the fundamental principles but also very specific and ‘detailed rules’ on certain issues will be enacted in cardinal laws, the principle of democracy itself is at risk.”
In other words, Fidesz is creating real “legal impossibilism” for any future government that may have another program. Rhetorically, Orbán professes to be a robust democrat who fights in the market place of public opinion. In reality, he has barricaded himself behind a dense network of unchangeable laws, pliant courts, and tax-funded public media channels that are spreading propaganda instead of pluralistic information.
The supposed majoritarian agenda of Fidesz or PiS is a temporary optical illusion that will end the moment that another party gains power with a different majority. PiS and Fidesz would use the institutions that they control to thwart the new government’s agenda. If accepting the frame of “illiberal democracy,” one should anticipate that these parties would become staunch liberals overnight by insisting on the checks and balances that they erected.
The real story here is the damaging of democracy, not the building of some sort of illiberal majoritarian system. Various democracy indexes all indicate that Hungary and Poland are sliding downward in core areas of democracy, such as electoral integrity and political participation.2 Further, the European body most intimately involved in watching over the legal arrangements that should safeguard democracy—the Council of Europe’s Venice Commission—has consistently warned of serious risks to democracy in Hungary and Poland and to a lesser degree in Romania. It has not issued such serious warnings about other EU member states.
Implications of a Wrong Narrative
How political arrangements are defined and characterized matters for the general debate and for policy. As the political scientist and leading populism scholar Jan-Werner Müller observed, “The designation ‘democracy’ still remains the most coveted political prize around the world.” If experts describe governments that concentrate power as illiberal or majoritarian, they risk transforming a debate that should be about the damage to democracy into a debate about party programs.
The dominance of the illiberalism discussion in relation to Hungary and Poland has been problematic for actual policymaking. In response to the developments in Poland, the EU has only insisted that the ruling government uphold the rule of law, without mentioning the other core values under Article 2 of the EU treaty, namely democracy and human rights. There is a logic in insisting on the rule of law. As long as independent courts function, one can assume that they will stop governments’ attempts to dismantle the democratic state. It is no coincidence that the PiS government, once sworn in, instantly started attacking the country’s constitutional court. But by prioritizing only one of the three core values of Article 2, the EU implied that the rule of law is the primary line of defense when democracy and human rights are attacked. This is a miscalculation because, especially in Hungary, the rule of law battle has already been lost. Fidesz has appointed almost all of Hungary’s constitutional judges, and its overtaking of democratic institutions has gone unchecked.
The problem with focusing only on the rule of law will become more apparent if the opposition wins a future election. The European Commission would have trouble dealing with the inevitable situation: one in which a democratically elected government faces a legal system that is completely stacked in favor of the previous government. Suddenly, Fidesz would talk about defending the rule of law, while the EU would be rightly pressed into defending the new government’s ability to effectively determine policy. The EU would then need a democracy instrument, rather than a rule of law instrument, to address the issue. The Venice Commission consistently, and rightly, points out that the policies in Hungary and Poland endanger all three values at once: democracy, the rule of law, and human rights.3 The EU should follow this holistic approach.
Democracy, human rights, and the rule of law represent a triangle that is not identical in all democracies. Some emphasize one side more than the other. Indeed, in all democracies, the rules of the game are constantly assessed and often changed. Sometimes they become less democratic, and sometimes they enhance democracy. However, the ebb and flow of democratic rules cannot be equated with the attempt of one party to appropriate the state apparatus. The red lines of democracy are manifestly overstepped when one party takes over all institutions and merges party and state interests.
The misuse of terms has a real impact: defending democracy is becoming more difficult because in public discourse being liberal is associated with liberal social or economic policies and less with a form of government. Many people believe in democracy, but some do not like liberal social or economic policies, and they do not have to. Focusing on supposed illiberalism rather than the attack on democracy means losing these constituencies.
Clearly, democracy faces many challenges across all EU member states, not just in Poland or Hungary. But it is important to maintain clarity where democracy’s red lines are crossed—and, in that regard, these two countries for the moment stand apart.
Michael Meyer-Resende is the executive director at Democracy Reporting International.
Notes
1Consequently, scholars like Yascha Mounk believe there is a dilemma; see Yascha Mounk, “The Undemocratic Dilemma,” Journal of Democracy 29, no. 2 (2018): 98.
2See, for example, the Economist Intelligence Unit’s Democracy Index (https://infographics.economist.com/2018/DemocracyIndex/), the V-Dem dataset (https://www.v-dem.net/en/data/data-version-8/), and the voice and accountability dimension of the World Bank Governance Indicators (http://info.worldbank.org/governance/wgi/#home).
3One of several examples would be the Venice Commission’s conclusion on Hungary’s fourth constitutional amendment of 2013: “The limitation of the role of the Constitutional Court leads to a risk that it may negatively affect all three pillars of the Council of Europe: the separation of powers as an essential tenet of democracy, the protection of human rights and the rule of law,” 32, http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2013)012-e.
