Legal preconditions for majoritarian democracy: The case of Hungary

Abstract

The Constitution of Hungary promulgated in 2011 and officially called the Fundamental law thoroughly altered the Hungarian constitutional system. Scholars encounter difficulties when attempting to label the new system. While some typologies maintain that despite its illiberalism and populism the new system meets the formal criteria of legality and democracy, others insist that it represents an abuse of democratic constitutionalism. In what follows, I put two rival conceptions of democracy into the main focus to better understand the nature of the Hungarian constitutional system and the competing scholarly positions. First, I briefly introduce the contrast between the majoritarian and what I call the complex conception of democracy. My aim is to demonstrate that even if one subscribes to a majoritarian conception of democracy, certain legal and constitutional preconditions must be fulfilled. In the following sections, I examine the case of Hungary within this theoretical framework. The Hungarian constitutional system presents itself as a winner-takes-all majoritarian democracy. Nevertheless, an analysis of the legal preconditions of democracy - constitutional text, electoral system, legal institutions, fundamental rights, and the rule of law - can demonstrate that in this system, legal mechanisms do not serve to govern the formation of a legitimate majority rule. They create instead an autocratic system, the key attribute of which is the pretence of majoritarian democracy.