Fifteen Eighty Four

The twentieth century taught us (at least offered a costly learning opportunity) how to respond to military coups, revolutionary ruptures, and open assaults on democratic government. The twenty-first century presents a different challenge. Increasingly, constitutional democracy is not dismantled outside the legal order but transformed from within. Constitutions are amended, courts are restructured, electoral laws are revised, and independent institutions are gradually brought under political control. Each step may appear formally lawful. Taken together, they may fundamentally alter the constitutional system. In a rule by law world the victim is the rule of law.

The rule of law is traditionally understood as requiring fidelity to existing legal norms, constitutional procedures, and institutional continuity. Yet what if those very norms have become instruments of democratic erosion? Can the rule of law fulfil its promise of constraining arbitrary power if legality itself has been systematically employed to entrench it?

These questions have become particularly acute in populist abuse, as in Venezuela, Turkey, Hungary and Poland. In Hungary since 2010, extensive constitutional reforms have transformed the institutional landscape while largely remaining within the framework of legality. As a result, much of the legal debate has focused not on whether these measures were democratically justified but on whether they were rule of law conform. Beyond the disregard of rule of law requirements of reasonableness and decency, the separation of powers, and most spectacularly judicial independence were undermined. Even after the 2022 parliamentary elections, many commentators argued that a future democratic government would remain legally bound by institutions designed to perpetuate the previous governing majority’s influence, including long-term appointments, constitutional entrenchment, and supermajority requirements. Such constitutional enclaves continue to paralyze the full return to the rule of law in Poland, while in Hungary, where the 2026 elections have enabled major restorative measures, radical steps seem to challenge rule of law fundamentals.

This debate reveals a broader theoretical problem. Contemporary constitutional discourse often equates the rule of law with procedural legality. Such an approach undoubtedly protects legal certainty and institutional stability. At the same time, it risks overlooking the substantive purposes that constitutionalism has historically served: limiting arbitrary power.

Where legality becomes detached from these underlying constitutional objectives, strict formalism may unintentionally reinforce rather than constrain authoritarian governance.

The argument developed in this book is not directed against the rule of law. On the contrary, it seeks to recover its original constitutional function. The rule of law was never intended to preserve every legal arrangement regardless of the political conditions under which it emerged. Rather, it exists to ensure that public power remains compatible with democratic self-government and fundamental rights. Constitutional fidelity therefore requires more than mechanical adherence to enacted norms; it requires careful attention to the constitutional principles that give those norms their legitimacy.

Although Hungary provides the immediate case study, the implications extend well beyond Central Europe. Constitutional democracies increasingly confront governments that rely on legal instruments rather than overt repression to reshape political competition. Similar debates have emerged, in different forms, in Poland, Israel, India, and elsewhere. These developments invite constitutional scholars to reconsider whether existing theories of constitutional continuity and democratic self-defence remain adequate in an era of gradual constitutional transformation.

The challenge is ultimately conceptual rather than merely institutional. If constitutional democracy can be weakened through law, constitutional theory must explain how law can also contribute to democratic restoration without abandoning its own commitment to rule bound public action and certainty. The answer requires a richer understanding of the relationship between legality, legitimacy, and constitutional purpose.

It is this relationship, and the limits of contemporary legal formalism in addressing democratic backsliding, that the book seeks to explore. By bringing together constitutional theory, legal philosophy, and comparative constitutional experience, it aims to contribute to an increasingly important conversation about the future of constitutional democracy under populist pressure.