Sixteen years of rule by Viktor Orbán’s Fidesz party have come to an end in Hungary. During this time, the country received prominence in debates about the rule of law like practically no other. Since winning a two-thirds majority in 2010, Fidesz had significantly altered the Hungarian constitutional system to ensure the persistence of its own power. According to many analysts, this set a blueprint that other right-wing populists around the world have followed. The victory of Peter Magyar’s Tisza-party has brought hope that Hungary will democratize and rebuild the rule of law – something many analysts had almost given up on. Finding the path to achieve this is likely to become challenging. Research has shown that successful returns to democratic governance after an authoritarian period are rare, and pro-democratic politicians who take over after an authoritarian incumbent often turn to authoritarian governance themselves. Yet, euphoria is currently running high in Hungary. Perhaps the public’s participation in constitutional politics indicates the possibility of a genuine constitutional moment that could transcend the old regime.
Gábor Halmai is an emeritus professor of Eötvös Lörand University (ELTE) in Budapest and the European University Institute (EUI) in Florence. Between 2016 and 2022, he acted as Professor and Chair of Comparative Constitutional Law at the Law Department of the EUI. He is teaching global public law at the Law School of LUISS Guido Carli University in Rome. From 1990 to 1996, Prof. Halmai served as chief counsellor to the President of the Hungarian Constitutional Court.
Restoring the Rule of Law in Hungary Today
Konstantin Kipp: While the new Hungarian Prime Minister, Péter Magyar, has himself long been a part of the Fidesz party, there seem to be signs that he is determined to rebuild a Hungarian state that respects standards of democracy, constitutionalism, and the rule of law. This is not least because he promised to bring back funding from the EU, which is bound to Hungary meeting certain standards of the rule of law. Given how much Fidesz has changed the Hungarian system, it is not easy to understand where the most crucial points lie. Could you explain to our readers which, in your view, are the main challenges that the new Tisza government needs to address if it decides to rebuild the rule of law consistently, and what should be its first steps?
Gábor Halmai: Indeed, the Hungarian political system under Viktor Orbán’s 16 years rule has become an electoral autocracy, which even failed to fulfill all the requirements of a competetive authoritarian hybrid regime, because as the International Election Observation Mission of OSCE/ODIHR stated even regarding the 2026 elections, “there was no level playing field, with the ruling party benefitting from systemic advantages that blurred the line between state and party”. The ‘illiberal‘ constitution, called the Fundamental Law, along with other two-thirds majority laws adopted by Fidesz, dismantled the rule of law, the separation of powers, media freedom, and civil society organizations, and introduced a rigged election system. From this, liberal constitutional democracy can be restored in a two-tier process.
Due to the election system that the Orbán government made even more disproportionate than it had been, Tisza, with slightly more than half of the popular votes, has won a constitution-making two-thirds majority of the parliamentary seats. Thus, they will be able to amend and even replace the Fundamental Law. The latter will be a longer process, which needs to exclude the possibility of a constitution-making majority for a future single government party or coalition. The more urgent tasks must be dealt with through amendments to the current constitution. Even this stage of the restoration can have two phases: the adoption of the most urgent changes to the Fundamental Law, and a more systemic repeal of all its ideologically loaded provisions, most importantly in the National Awoval.
On 20 May 2026, the Magyar government has already submitted the first amendment to the Parliament. One of the proposed changes is necessary to unfreeze Hungary’s €10.4 billion share of the EU Recovery and Resilience Facility for the violation of academic freedom through the ‘privatization’ of public universities by Orbán‘s government. For this reason, the proposed amendment aims to reclassify the controversial new forms of those 21 transformed public universities called ‘public interest asset management foundations’ (known as KEKVAs in Hungarian) as part of the ‘national wealth’, transferring them back to the state, and allowing the government to dissolve the foundations altogether.
However, perhaps the most urgent issue is to get rid of public officials who are responsible for the autocratization, remain loyal to the previous government and were entrenched by it for many years, in positions that allow them to block the democratic transition. Those are the Presidents of the Republic, the Constitutional Court, the Supreme Court, the State Audit Office, the National Competition Authority and the Chief State Prosecutor.
The Constitutional Majority
One of the most important debates on transitional constitutionalism after authoritarianism is whether pro-democratic actors can allow themselves to break the rule of law if they aim to rebuild it (for example, by violating legal standards for the dismissal of judges who have themselves been appointed illegally) or whether this should be avoided to prevent setting precedents. While you seem to favor the latter stance in this debate, from my layman’s perspective, it seems that it might perhaps be less decisive in Hungary over the next few years than it was (and is) in Poland. What is your view on this?
The question, whether the principles of the rule of law can be violated in order to restore it, which is a valid concern in Poland ever since the 2023 elections, has also been raised in Hungary before the 2022 parliamentary elections, when there was a chance for the then-united opposition to win against Fidesz, however, only with a simple majority. At that time, the question arose whether a resulting government could free itself from the Fundamental Law, to which there were three main responses. Legal positivists, like András Jakab, rejected any changes that require a two-thirds majority and argued that the new government should only make changes that a simple majority allows for, while aiming for a constitutional majority at the next parliamentary elections. Imre Vörös, a former member of the first Constitutional Court led by László Sólyom, advanced the opposite position. According to him, the newly elected Parliament could have ignored the Fundamental Law even if lacking a two-thirds majority. Many legal scholars participating in the discussion opted for some concessions to the legal positivist approach, aiming for a middle-way between them and ‘revolutionaries’. In a contribution to the discussion, together with Andrew Arato, I also argued that it is necessary to replace the Fundamental Law with a rule of law constitution that restores freedom by a newly established Constituent Assembly. This means that in order to replace an entrenched autocratic constitutional regime, some deviations from the principle of the rule of law, such as the prohibition of retroactive legislation, are allowed. However, these must be exceptional, temporary, serving a legitimate aim of reinstating constitutional democracy, proportionally tailored, and supported by the general public. This was my position in the case of Poland, which you referred to. I agreed with the Venice Commission opinion, which only opposed certain radical solutions, for example, firing more than 2500 judges and abolishing thousands of their judgments with a single law. I argued that any exceptions from the standards of the rule of law must be accompanied by constitutional guarantees, such as, for instance, the right to appeal for the judges concerned. The current Hungarian situation is different, because the achieved two-thirds majority enables the new governing party to adopt an exceptional constitutional amendment and replace the mentioned ‘authoritarian enclaves’ for the sake of restoring the rule of law.
Tisza has won a constitutional majority that should grant it much more leeway in making changes to rebuild democratic institutions – for example, in abolishing the “cardinal laws” adopted by Fidesz – than the current Polish government has. Yet, even against this constitutional majority, there remain “veto players” loyal to Fidesz in the Hungarian system. Installing such veto players is a common strategy employed by competitive authoritarian regimes to undermine the work of their successors. How much room does the constitutional majority give Magyar & co. in bringing swift change? And, then on the other hand, Beáta Bakó has warned that the two-thirds majority “practically means unlimited power in the Hungarian constitutional setup” – something, Bakó argues, one should be wary of. Do you also see a risk in Tisza having such a sweeping majority without any democratic opposition to check on it?
Yes, two structural issues with the currently elected Parliament might cause problems for the future. The first is that the three parties represent the centre-right (Tisza), the far-right (Fidesz), and the neo-Nazis (Mi Hazánk – Our Homeland). There are neither leftist nor liberal voices represented in the current composition. This is the case because during his campaign, Magyar refused any collaboration with the ‘old’ opposition parties, as he felt the need to distance himself from leftist or liberal ideas based on the conviction that his party could only beat Orbán on its own. His calculation to beat Fidesz turned out correct, but one of the first issues that needs to be addressed by the new legislature is restoring political pluralism by changing the disproportional election system constructed by Fidesz. This relates to the problem of the two-thirds majority. Two-thirds majority laws were introduced after 1989 to limit the government’s legislative power in exceptionally important institutional and fundamental rights issues, forcing it to compromise with parts of the opposition. But the institution became superfluous once the governing party/parties earned a two-thirds majority in the Parliament. This first happened between 1994 and 1998 during the Socialist-Liberal coalition, then from 2010 onwards with Fidesz, and now again with Tisza. A future new constitution should provide guarantees against this.
Although Tisza has a qualified majority allowing it to fire Orbán’s loyalists, it is disputed whether this can be done with retroactive effect. The Orbán government did the same in 2010 when it expelled the President of the Supreme Court and the members of the National Election Commission, including myself, by simply changing the names of their institutions to Kúria and Hungarian Election Commission, respectively. While Orbán’s acts served to undermine the rule of law, the current government aims to restore it with these moves. Therefore, in my view, such an exceptional, temporary constitutional amendment would serve a legitimate aim. Needless to say, the newly elected public officials cannot be people loyal to the current government. They must be independent, autonomous personalities.
Legal Accountability
Discourse on the restoration of the rule of law often focuses on rebuilding institutions or undoing constitutional change. Perhaps an equally, if not more important, component is ensuring legal accountability to rebuild people’s trust in laws applying to everyone. Accountability for outgoing authoritarians also deters future governments from attacking democracy. Writing from the U.S. context, political philosopher Olúfẹ́mi O. Táíwò has recently argued that one of the most crucial objects of our time is to prove elites “that they actually are in the same game and bound by the same rules as common people by enacting harsh civil, criminal, and social penalties on those who have orchestrated our present political moment.” Orbán and his circle have not only hoarded power, but also amassed millions of euros of private wealth while the country fell into an economic crisis. How important is it for the new government to ensure these people are held accountable? How do you assess the chances of considerable accountability taking place?
Besides the discussed political description of the Orbán regime as a semi-competitive electoral autocracy, it is equally important to emphasize the special role of corruption in this system, which positioned Viktor Orbán, the charismatic political leader of the political system, as the head of a ‚mafia state‘ or family corruption business. The sociologist, Bálint Magyar, in his seminal book on the Hungarian ‚Post-Communist Mafia State,‘ asserts that not only the governing party Fidesz and the Hungarian state were placed under the control of a single individual, but the entire economy as well. Orbán and his political family, Fidesz, employed mafia methods and concentrated wealth in the hands of a small group of insiders. While the traditional mafia usually channels wealth and economic players into its spheres of influence by means of direct coercion, Orbán’s mafia state did the same by means of parliamentary legislation, legal prosecution, tax authority, police forces, and the secret service. David Jancsics, a corruption researcher, describes a system of National Cooperation in which political power, the distribution of state resources, and economic accumulation were not separate spheres, but closely intertwined along a stable organizing principle – family relations. Orbán’s large family, including the families of his children, and also his childhood friend and later gas-fitter, who has become the richest person in the country nominally, are not merely the beneficiaries of his power. Instead, the political power itself has systematically been transformed into their intergenerational private property. This distinguishes the phenomenon from simple corruption and makes the crimes they‘ve committed organized ones. If they won’t be brought to justice, the huge masses supporting the new government will be disappointed. Hence, the Magyar government shall not repeat the mistake of the first democratic governments after 1989, of not responding to the demands for transitional justice. In contrast to that time, the current government does not even face the constitutional problems of retroactivity or statute of limitations.
I am sure that Péter Magyar, the former Fidesz guy, who in his first coming-out interview harshly criticized the party, except Orbán, understands by now that in this ‘leader democracy,’ as some apologists called the regime, everything happened according to the will of the dear leader. Therefore, criminal accountability must start with him.
The Rule of Law Beyond Legalism?
There are many different conceptions of what the rule of law is or should be, and many have argued that it is important not to adopt a legalistic understanding of the concept. There might be reasons to argue that precisely such a legalistic understanding of the rule of law in the international context allowed Viktor Orbán to fly under the radar for some time without receiving strong criticism from the EU or other countries. Grappling with the concept of the rule of law and its failures, Martin Krygier has argued that it is important to refocus on the problem that the rule of law was traditionally intended to solve: arbitrary power. Krygier argues that while law might have a role to play in tempering power and thus preventing arbitrariness, it should be regarded “not as the always-necessary centerpiece of power-tempering policy to which other measures are inferior or supplementary addenda, but as one implement among several, (…) dependent for its success on many other things.” From your perspective, to what extent is the project of rebuilding a Hungarian state that does not govern arbitrarily and can resist future authoritarian threats predominantly an issue to be solved via legal change? What options does the government have to rebuild a context or public culture that is supportive of the rule of law beyond new laws or constitutional amendments?
Martin Krygier’s new book, ‘Tempering Power: Beyond the Rule of Law‘ (CUP, 2026), also discusses the question of how society and institutions can restrain the abuse of power. It is also a finding of recent research I conducted with colleagues on the resilience and resistance of constitutional courts to and against autocratization in nine different jurisdictions and transnationally (Global Jurist, Special Issue 2/2025) that strengthening the institutional factors of resistance isn’t enough. Equally important are the structural ones, such as constitutional culture, legal education, and the role of civil society, which also impacts the agentic element, the autonomy and courage of judges to resist autocrats. In the early 1990s, during the exciting times of the democratic transition, when I had the previlege to work at the – at that time – world’s most activist Constitutional Court, as the chief advisor to its first President, László Sólyom we believed in our committment to constitutionalism, but maybe did not do enough to convince people that without strong separation of powers, and judicial review not only democracy, but as it happened at the end of the Orbán era also the economy will collapse. I am sure that the people who stood up against the autocratic regime understand this now and will force the new government to enhance legal and constitutional education.
A New Constitution?
Orbán & co. adopted a new Fundamental Law for Hungary in 2011. Tisza could now also adopt a new Fundamental Law. Given the level to which the Hungarian legal and political system has been transformed, one could think that such a complete restart is needed. You recently argued that the current Fundamental Law, which was highly problematic when adopted in 2011, became even considerably more autocratic through various amendments over the past fifteen years. Nonetheless, scholars have warned against adopting a new constitution, because if this is done unilaterally by Tisza and without a “thorough and inclusive” constitution-making process, the new Fundamental Law could become an easy target for the opposition. Yet, one could also say that one of the biggest threats to a persisting democratic future in Hungary is the strong division that seems to be present in the electorate – almost 40% of voters still opted for Fidesz, and more than 5% gave their vote to the extreme right party Mi Hazánk. Perhaps an inclusive constitution-building process might help establish a dialogue between such groups and Tisza voters. Partisan polarization poses a serious threat to democracy. Concerning Poland, scholars have argued that preventing another drift toward authoritarianism requires a new constitutional settlement that balances the interests of different groups. Would you say that the Hungarian situation calls for a comparable project to prevent future governments from undermining democracy again? What is your view on the question of a new constitution?
The journey to restore liberal democracy in Hungary has to conclude with a new constitution. The 1989 democratic transition’s post-sovereign constitution-making process began with a comprehensive amendment to the country’s 1949 constitution, based on the Round Table discussions between the Communist Party and the new opposition forces, which substantively transformed it into a constitutionalist document, but did not alter its Stalinist title. The failure to adopt a final constitution in 1996, when the Socialist—liberal coalition government of the time had the necessary two-thirds majority, made it easy for Viktor Orbán to claim his proudly announced ‘illiberal’ Fundamental Law is the product of the real democratic transition.
Although with different outcomes, both the 1989 and the 2010 constitution-making processes were elitist, lacking social participation and support, which may have contributed to the fall of liberal democracy. Therefore, to achieve legitimacy for a future constitution, the new government should start a cooperative effort by creating a diverse constituent power to draft a new constitution that emphasizes inclusivity over a mere two-thirds majority.
This deliberative constitution-making process can contribute to transforming the current europhoria in the country into ‚constitutional enthusiasm‘. As we know from Bruce Ackerman, this forms the basis for a constitutional moment, which is a point in history when constitutional changes are fostered by a particular mobilization and engagement of the demos, representing a transformative expression of popular sovereignty in a self-conscious consent of a majority of ordinary citizens. As András Sajó has argued, after 1989, there has not been such a moment in Hungary, because there was no ‘constitutional enthusiasm’ of the people, who first and foremost expected from the transition a speedy increase in living standards. Orbán’s counter-revolution in 2010 was facilitated by the fact that they had been disappointed in this. I hope that this dark side of Hungarian history won’t repeat itself.
