The sources of legitimisation: negotiated transitions and constitutional courts
by Kamil Jonski
International Journal of Human Rights and Constitutional Studies (IJHRCS), Vol. 9, No. 4, 2022

Abstract: The article attempts to shed light to the following puzzle: how, despite the chaos of political and economic transition, Hungarian and Polish Constitutional Courts managed to build up legitimacy, sufficient to underpin the level of activism that impressed legal scholars at home and abroad? And how they managed to lose their positions during the period of unprecedented stability, reinforced by the EU membership? To this end, it explores the origins of the 'third wave' of democratisation - namely the negotiated nature of the transition. It argues that de facto position of the constitutional courts in such democracies was defined by the structure of the political landscape. As long as political contest involved ex-dissidents and former supporters of ancient regime (the very sides of the historical compromise), political elites perceived the constitutional courts as mutually beneficial arbiters - thereby they were capable (sometimes even eager) to accept quite far-reaching activism. As new generation of politicians (like V. Orban of Hungary, and D. Tusk and J. Kaczynski of Poland) entered the scene, such genuine demand for arbitration evaporated, enabling constitutional crisis and hollowing out of these institutions.

Online publication date: Fri, 14-Oct-2022

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