Values militancy and the East-West divide: the limits of constitutional tolerance in the EU

One of the arguments voiced against the enforcement of the values listed in Article 2 of TEU is that this infringes the sovereignty of the Member States. This argument is usually given short shrift since it flies in the face of the belief that state sovereignty has lost its relevance within the EU. I shall argue that such impatience precludes us from properly weighing some considerations which do indeed speak against interfering in the affairs of Member States. However unique in character, the EU continues to operate against the background of general international law. Yet the peculiarity of the EU is that it was conceived from the outset as a community of like-minded states. This fact considerably weakens the case for non-intervention, but does not warrant piecing the veil of sovereignty entirely. It both provides a justification for insisting on the uniformity of values in the EU and also sets limits to the level of uniformity that can be demanded.

Hungarian constitutionalism is inseparable from the reconstitution of the political community in response to the communist past. After the so called “1989 constitution“, words of the Fundamental Law show that the political power of Orbán and the two thirds majority in the National Assembly aimed at creating a regime that is formulated against the past in a different manner as it was done between 1990 and 2010. While Hungarian constitutionalism has always been substantially based on the condemnation of the past legal and political order, many of the foundational institutions remained similar in structure, lustration acts were not implemented and some administrative practices and attitudes remained similar. After 2010, Hungarian populist constitutionalism created a centralized political space, following the concept of “central arena of power“. This is a familiar approach to exercise power in Hungary, and the means of influence are equally familiar in certain cases to many citizens.

In response to the rise of authoritarianism in Poland and Hungary, several prominent scholars have called upon the EU to intervene in order to protect its constitutional values. A argument in favour of an intervention is that the EU is a form of transnational ‘militant democracy‘. This paper partly agrees with this assessment. The post-WWII European ‘constitutional imagination‘ is shaped by the interwar collapse of the European legal and political order. This led to the development of a new form of post-fascist constitutionalism founded upon a ‘fear of the people‘. Within post-fascist constitutionalism, ‘Europe‘ promises to save the European peoples from themselves. Nevertheless, this type of constitutionalism is not dominant in all the MS. At least two other varieties of constitutionalism influence the EU MS – ‘evolutionary constitutionalism‘ and ‘post-communist constitutionalism‘ – both of which have an ambiguous, yet intimate, relationship to the project of European integration.

Why is the EU faced with a crisis of common values as it unfolds before our eyes? The idea that the principle of the judiciary‘s independence depends largely on its specific cultural understanding is a mirror image of the argument that the current situation is due to cultural and social backwardness of CEE. By inadequately articulating the origins of the crisis of values, the EU keeps addressing and treating the symptoms of its crises rather than the actual disease. This contribution explores the origins of the crisis of values, tracing the crisis to the phenomena of ressentiment. Moreover, independently of ressentiment, the legal system, when harming some actors under the pretext of common values, itself vitally contributes to their disintegration. Neglect of the real forces of its disintegration prevents a fuller realisation of the Union's immense normative and integrative potential, at best, and leading to its disintegration, at worst.

What is the nature of constitutionalism in the member states that joined the European Union in the XXIst century having lived through a socialist/communist past? Does its post-authoritarian character differ from the post-fascist constitutionalisms? Is it co-defined by the stage that the European integration project was in when these countries (re-)gained their sovereignty and adopted liberal constitutions? A positive answer would assist us in reevaluating the role that sovereignty plays in the value orders of the post-communist constitutional culture, especially as by referring to the European integration project the paper aims to assess not only the EEC/EU, but also the Council of Europe/ECHR. The reason the paper looks into the value order is in the latter‘s implications for the capacity of the European Union to enforce its values against the governments of the Member States with authoritarian traits.