The Rule of Law and Legitimacy in Emerging Illiberal Democracies

The current legal changes in Eastern and Central Europe leading to illiberal regimes are raising fundamental questions about the nature of the legitimacy of these regimes. While constitutional democracies rely on legitimacy originating from the observance of the rule of law, the rule of law is challenged in countries like Hungary, Poland and progeny. This article analyses, in particular, the lack of clear standards in illiberal regimes, especially where the cultural traits that underlie and animate the rule of law, in particular fairness, are not part of the “folklore”. It then thoroughly outlines the transformation of the judiciary in an illiberal state, followed by an analysis of the demise of the rule of law beyond the attack on the judiciary, and the use of legality in an illiberal state. The article concludes that governments, while relying on certain aspects of the rule of law in protecting their own position and their own assets, nevertheless do not see value in following the rules of reason and fairness for the reasons that the rule of law is valued. They rather see it as a smoke screen for their activities that may justify them to some, and hide them from others.