The election of Trump, the Law and Politics Party winning a majority in Poland in 2015, and Viktor Orbán’s government in Hungary; what they all have in common is not merely a right-wing bend, but a contempt for liberal democracy. So goes the narrative, which has been particularly on display since Trump’s speech in Poland, that “illiberal democracy” is threatening the underpinnings of democracy in the Western world and beyond.
Some of the more conservative-minded would say this argument is the resentment of the losers. Trump, Szydlo, and Orbán won their elections fair and square. Why should they be dismissed just because you disagree with them? “If a democracy now needs to be a tool for spreading liberalism, conservatives are by definition, not democratic,” Sumantra Maitra wrote for Quillette.
Here is the thing: the problem isn’t simply with policy preferences but with the normative structures of democracy itself. These governments are taking actions to solidify their own power, not just to advance ideological interests of the people, but to advance the personal and party-based interests of the leaders or the ruling parties in ways that strike at the legal and moral underpinnings of democracy and rule of law.
A few examples will illustrate what exactly is meant by illiberal democracy. In Poland, the ruling party is trying to enact a measure that would give them control over the composition of the judiciary. As reported by Politico Europe:
Poland’s parliament, under the leadership of the conservative Law and Justice (PiS) party, passed a law dissolving an independent body responsible for the nomination of judges. At the same time, PiS submitted a draft law that would force the entire Supreme Court into retirement and give the country’s justice minister the ability to decide which judges can stay in their current roles.
Currently, Poland’s federal judges are appointed by a professional panel of lawyer. The Law and Justice party attacked the judges as leftists—the party chairman called the judiciary a “stronghold of post-communists”—and it is easy to see how a panel made up of lawyers could be attacked as “elitist” and biased to be more favorable towards political liberalism than the public, due to expected leanings within the field. Perhaps there is a case to be made for having judges appointed by the president, prime minister, parliament, or some combination thereof, as is done in places like the United States and South Korea. Although there are problems with the system in the U.S., which has resulted in the politicization of judicial appointments, there is a case to be made for some level of political accountability in the process.
The problem is that the manner by which Law and Justice is planning to implement this program appears meant to give their party control over the composition of the court