Authors:Agnieszka Bień-Kacała, Anna Tarnowska and Wojciech Włoch
This paper presents results of research on legislative delegation in representative democracy which points to the existence of a bond between a nation (demos) and a constitution. Consequently, we claim that the meaning of constitutional institutions may change, depending on the understanding of the concept of nation. We refer to a homogeneous and to a heterogeneous concept of nation and their coexistence in Polish societal space and analyse the Second (1918–1939) Polish Republic's constitutions and practice to exemplify the friction of two concepts of the nation. Furthermore, the Third (since 1989) Republic's regulations and practice are explored to show how a homogeneous concept of the nation affects the openness of 1997 Constitution. A heterogeneous nation is reflected in the Polish constitutions and their values whilst at the same time, a constitutional practice has been developed under influence of the homogeneity of the nation.
The Hungarian and Polish observations show how the use of the public law is limited in illiberal constitutional states. This paper claims that certain non-legal reasons for effective successful transformation to an illiberal state, such as the emergence of populist rhetoric and morality; the clear lack of political self-restraint and the inability or unwillingness of the people to form a strong and capable civil society or to raise their voice against extreme views or resist an aggressive and clearly unfounded political campaign, have been pre-determined and influenced by the historical and socio-psychological particularities of the nations in question. If this is indeed the case, this may offer another, though obviously non-conclusive, explanation as to why public law measures and mechanisms have failed to preserve liberal democracy.
The paper concludes that overturning illiberal constitutionalism by either political or constitutional and legal means, at the present time, seems doubtful, if not impossible. The historically and psychologically determined national and constitutional identities of Hungary and Poland are not apt to nurture liberal constitutionalism in the long term.