Beyond Legal Restoration

After Poland’s recent election of president Nawrocki, worries over its re-democratization have reemerged. Beyond concrete political conflicts and institutional constraints, there is a deeper concern about how a constitutional order can be restored after enduring years of authoritarian populism. A recently published proposal by former Constitutional Court judge Béla Pokol, appearing in the pro-government newspaper Magyar Nemzet, suggests introducing a new emergency regime designed to defend Hungary’s illiberal system against potential re-democratization efforts by a future government. Together with international criticism of Poland’s judicial reform in its process of democratic renewal, this reveals a profound dilemma: traditional legal formalism may no longer serve the needs of constitutional recovery. This post advocates for a post-formalist approach to democratic reconstruction.

By post-formalist constitutionalism, I mean a principled approach to rebuilding democracy when legal forms have been captured or degraded, one that treats legality not as an end in itself, but as a tool to restore public reason, representation, and democratic legitimacy. Without such a turn in legal and political imagination, efforts at renewal risk reinforcing the very structures that enabled democratic decline, both domestically and through international legal inertia.

A constitutional pretext for emergency override

Recently – and less than a year before the next parliamentary elections – Hungary’s pro-government newspaper published a proposal to amend the Fundamental Law, allowing for a “special constitutional order”, that is, a parallel emergency regime that could be activated to prevent a newly elected government from governing effectively and dismantling illiberal institutions. In an opinion piece, Béla Pokol, former Constitutional Court judge and legal theorist affiliated with Hungary’s governing circles, warns of a potential “constitutional coup” in post-2026 Hungary, should the opposition win and attempt to govern without adhering to the current constitutional framework, the Fundamental Law. Since 2010, the Fidesz government has used its constitutional supermajority to adopt a new constitution, restructure and occupy the judiciary (including the Constitutional Court and the Kúria), and introduce two-thirds majority requirements for key areas such as taxation, pensions, education, and media. It also entrenched loyalists in long-term posts, such as the Constitutional Court, Budget Council, Media Council, and Public Prosecutor positions, supported by a two-thirds majority. Even if Fidesz were voted out of power, these structural entrenchments will remain.

Pokol remarks that some in the opposition and civil society are already openly considering bypassing or suspending the Fundamental Law, as a preparation for an opposition win in next year’s elections. He characterizes the ideas as unconstitutional usurpation, even if done in the name of restoring democracy. As a preemptive defense, he proposes amending the constitution to establish a “special constitutional order”. It is a quasi-emergency regime that would allow key institutional actors, including the President, heads of the judiciary, and the Chief Prosecutor, to declare a “constitutional protection situation” if the government or Parliament governs by simple majority in areas where a qualified (two-thirds) majority is formally required under the Fundamental Law. Once declared, Parliament is suspended, the government is dissolved, and power is transferred to a Constitutional Protection Council consisting of unelected institutional elites (head of state, president of the Constitutional Court, president of the Kúria, Prosecutor General, President of the Court of Audits) – all of them (in today’s Hungary) are closely aligned with the current ruling party. This Council assumes temporary executive authority, oversees the transition to a new government, and can call for new elections if Parliament is unable to elect a new prime minister within 90 days following the declaration of a “constitutional protection situation”.

Embedding this mechanism in the Fundamental Law is currently feasible and, from a purely formal perspective, legally coherent – in the illiberal context. Reversing the illiberal system and the Fundamental Law to restore democracy in a formally correct manner, would require a new supermajority or innovative steps that violate the constitutional procedures now in force. Pokol’s proposal aims to make the latter formally impossible. Formalism becomes a vehicle for entrenching authoritarianism under the guise of constitutional order. Whether labeled autocratic legalism, abusive constitutionalism, or illiberal legality, the effect is the same: democratic transitions are preempted by legal design. If you cannot secure the necessary supermajority due to uneven electoral playing fields or a genuine lack of this size of support, and you want to rebuild constitutionalism, you are trapped. The proposal exemplifies, in particularly stark form, the pitfalls that hyper-formalism can produce.

What the proposal is really about

The published proposal reframes democratic transition as a constitutional threat. If an opposition government attempts reform through ordinary legal means, it could be accused of “violating” constitutional thresholds and removed. It hands veto power to entrenched loyalists. Key constitutional actors aligned with Fidesz could unilaterally trigger the process. It suspends constitutional democracy to “protect” it – more precisely, to protect its illiberal version. This is not protection against a real coup, it is a formalistic pretext to forestall political change (democracy) by weaponizing legality (the rule of law). In doing so, it entrenches the current regime beyond the possibility of electoral defeat. Even if the opposition wins in 2026, any attempt to restore democratic governance could be delegitimized and overturned through this Council. What is proposed to be attacked is not the election itself, but the effort to govern. It is illiberal legality, a system that retains formal legality while systematically undermining the substantive components of the European, thick concept of the Rule of Law, which is elevated to the highest constitutional principle in illiberalism.

The mere publication of this proposal makes the threat real. It underscores the urgency of rethinking how democracy, constitutionalism, and the rule of law can be restored, and how to navigate the trap they present. Follow the illiberal constitution, and you remain stuck. Break it, and you undermine your own claim to constitutionalism.

Reviving a stalled debate

A similar debate on how to escape Hungary’s constitutional trap took place ahead of the 2022 election, when analysts believed that the opposition coalition had a real chance to defeat Fidesz. The central question was how to restore constitutionalism without a two-thirds majority, and whether the tools of formal legality would be enough. That conversation quietly faded after the election delivered yet another constitutional majority to the governing coalition.

Pokol’s recent proposal revitalizes that debate but in a profoundly different context: Hungary in 2025 no longer resembles the political and legal environment of late 2021/early 2022. First, a newly emerged political party and its leader now leads in the polls, and, if they are allowed to run, they may well win. If that happens with a simple majority, the same constitutional dilemmas will resurface: how to reform an entrenched illiberal system without breaching its formal rules. Second, in the past three and a half years, the quality of the rule of law, democracy, and human rights protections has further deteriorated. Renewing democratic governance under these conditions will likely require new ideas and different solutions. Lastly, unlike in 2022, we now have a real-time laboratory: Poland. There, a democratic government is attempting to undo the legal legacy of its illiberal predecessor and has already lost the presidential election in the process. The Polish case demonstrates how innovative approaches – such as recalibrated or preventive models of transitional justice – can be defeated by a traditional, more formalistic approach to constitutionalism and the rule of law. To illustrate this dynamic, I turn to Poland’s attempt to restore judicial independence.

Poland’s attempt to restore judicial independence

During its time in office, the PiS government, lacking a constitutional majority, resorted to legal warfare: it packed the Constitutional Tribunal, employed instrumental interpretations of statutes, withheld the publication of court judgments, and established parallel judicial bodies. Following the 2023 opposition victory, the new government has faced the immense challenge of rebuilding judicial independence while still constrained by personnel and legal rules designed to prevent such change.

The government began rebuilding judicial independence without a constitutional majority, while consulting the Venice Commission. It proposed fully renewing the captured Constitutional Tribunal – a body deeply compromised in function. While the effort aimed to restore the rule of law, the Venice Commission rejected the proposal, arguing that replacing all judges, even those elected via procedurally correct but politically manipulated processes, violated formal constitutional rules. As the Commission put it: “All the criticism that can be levelled at the Constitutional Tribunal… does not change the fact that 12 out of the 15 current judges… have been elected in accordance with the constitutionally prescribed procedure.”

This clash illustrates how formalist frameworks can constrain democratic recovery, even when driven by democratic mandates. It often cannot accommodate the consequences of prolonged democratic erosion – but freeze illiberal and autocratic structures through formal legality. But without confronting the institutional rot that made capture possible and illiberalism survive, democratic revival risks being legally constrained by the very forms that facilitated decay. As it stands, the application of international law to support constitutional renewal remains limited. What we are seeing with Poland today may very well await Hungary (and beyond) tomorrow.

A three-pillar path to democratic reconstruction

Therefore, democratic revival cannot rely solely on formal legal restoration. Restoring the “pre” status quo may be impossible, or even undesirable, if the old rules have been hollowed out. What is needed instead is a post-formalist constitutionalism grounded in three mutually reinforcing strategies: constitutional courage, strategic institutional design, and a principled reckoning with legal forms.

Constitutional courage means using the democratic mandate, whether based on a constitutional or simple majority, to confront institutions that are legally intact but normatively compromised by the standards of a fully-fledged constitutional democracy. Courage is especially critical when democratic leaders face systems that were deliberately engineered to resist change. It requires principled action, particularly when the necessary and available tools deviate from traditional legalism. Poland’s effort to restore judicial independence – ultimately criticized by the Venice Commission – exemplifies this effort. It also requires determination to push for the reforms voters have supported as soon as possible, while being aware of the potential political costs in a highly polarized society. Poland’s presidential election serves as a notable example.

Strategic institutional design looks beyond restoration. It requires rethinking the architecture of constitutional democracy to build resilience against future capture. Beyond addressing the non-legal preconditions of democracy, this may involve reconstituting entire institutional frameworks, from judicial appointments to legislative procedures and monitoring mechanisms, to insulate democracy from future manipulation. Proposals such as court unpacking, “good” court packing, rotating Constitutional Court terms, responsive judicial review once independence is restored, and a political and lawmaking process designs grounded in the substantive rule-of-law principles, including public justification, inclusive deliberation, transparency, proportionality, and meaningful  judicial and non-judicial monitoring – may all be part of this redesign logic. Processes designed or implemented in this manner aim to re-ground legal reform actions in a substantive commitment to the democratic rule of law, especially when existing procedures are complicit in systemic decay.

Reckoning with legal forms means facing the uncomfortable reality that some traditional approaches and inherited legal structures, especially those entrenched during democratic decline, may need to be reinterpreted, revised, or even replaced. This is not a call for legal rupture, but for the employment of a rigorous rule-of-law-based legislative process that prioritizes democratic renewal over the defense of illiberal legality. This differs from legal formalism, which treats legality as an end in itself, because when incorporating formal procedures and legality, it anchors them in democratic values that should be inherent in any political process, including public justification, inclusive deliberation, transparency, proportionality, and meaningful oversight. Transitional justice approaches, both recalibrated and preventive, may support this process – for example, through temporary legal exceptions such as sunset clauses or bypass mechanisms – provided they are embedded in this kind of principled, democratically anchored political and legislative processes.

Together, these three dimensions form the core of post-formalist constitutionalism: a path of principled reconstruction for democracies seeking not to return to the past, but to build institutions worthy of their future.

Preconditions to the three-pillar path

Democratic revival is not about nostalgia – it is about courageous, forward-looking design rooted in democratic values. Illiberal leaders and ideas challenge us daily. They do it by maintaining their stronghold in Hungary and coming up, and testing us, with previously unimaginable new autocratic ideas. Or, by resisting institutional repair, as we can see it in Poland. Reforms must go hand in hand with a renewal in legal and political culture as well. A renewed belief that the law can again serve justice, a deeper understanding of what dignity, equality, and mutual collaboration truly mean. This is not a matter of institutional design alone. It requires a broader discursive shift, one that reclaims democratic language from technocratic formalism and re-centers lawmaking as a practice of public justification and shared democratic commitment. There must be the will to think outside of the box, confront new challenges, and reshape and reorient our vocabulary. M. Victoria Kristan has suggested viewing the Polish government’s intention to completely renew the Tribunal’s membership through a lens that differentiates between “violating” and “departing” from formal legality. This “departure” is necessary to actively rebuild the rule of law; therefore, it violates neither legality nor the rule of law. The real work must thus come from within: from lawyers, judges, civil society, and citizens committed to rebuilding constitutionalism with both vision and integrity. In this process, international actors can offer support and exert pressure. However, those very international actors may also need to re-examine their frameworks: traditional legal formalism, even when well-intentioned, can inadvertently protect captured institutions rather than help dismantle them.

Unless we break with formalistic orthodoxy and adopt a more courageous, forward-looking legal imagination, attempts to renew constitutional democracy will remain trapped, reinforcing rather than overcoming the very legacies they aim to dismantle.