Building democracy by legal means? The contestation of human rights and constitutionalism in East-Central Europe

Abstract

The main argument in the article is that liberal democracy, human rights, and the idea of constitutionalism have remained contested in the transformation processes in East-Central Europe since 1989. The prevalent literature in the legal and political sciences have understood the changes in East-Central Europe since 1989 as a transitional process in which legality, the rule of law, constitutionalism, and human rights became increasingly taken for granted. The liberal-constitutional project did however not find, in fact, widespread adherence. Most conspicuously so in Hungary (since 2010), and also in Poland (since 2015), the post-1989 constitutional-democratic narrative has become an explicit point of reference for conservative ‘counter-constitutional’ projects, which seek to undo some of the key premises of liberal-constitutional democracy. I hence argue that the post-1989 transformations have not ended and continue to be characterized by enduring contestation over constitutionalism, (foundational) norms, and human rights, as well as diverging interpretations of the finalité of the post-communist project of democratic society. A key finding is that the current populist resentment towards post-1989 liberal democratization builds to an important extent on culturally rearticulated legacies of non-liberal and conservative understandings of society.