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1989–2019: From democratic

to abusive constitutional
borrowing

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Rosalind Dixon* and David Landau**

Constitutional borrowing looks very different today than it did thirty years ago: where in
1989, post-Soviet and Eastern European states were looking west for ideas and inspiration,
today they are increasingly looking “eastward”—i.e. to Russia, China, and Singapore—for
models of constitutional government. When they do look west, we argue, they are also doing
so in increasingly “abusive ways”—i.e. in superficial, shallow, acontextual, or anti-purposive
ways designed to use liberal democratic ideas and models not as inspiration but as justification
for the erosion of minimum democratic norms and guarantees. This new mix of East-West
influence is thus distinctly troubling from the perspective of a commitment to constitutional
democracy.

The year 1989 was a time of large-scale political transition worldwide, especially in Eastern
Europe. In November 1989, the fall of the Berlin Wall sparked the beginning of a decade’s
long process of democratic constitutional transition in many former Soviet states.1 A no-
table part of that transition was the extent to which it involved Eastern European political
and legal elites looking westward, toward Western Europe and broader liberal democratic
constitutional models, as a source of inspiration and influence.2 Western liberal democrats,
in turn, self-confidently exported their designs and concepts to the East.
This moment of optimism, alas, did not last. Many of the states in the post-Soviet
world lapsed back into authoritarianism entirely, or got stuck as a hybrid regime type
between democracy and authoritarianism.3 Many Eastern European states joined

* UNSW Faculty of Law. Email: rosalind.dixon@unsw.edu.au.

** Florida State University College of Law. Email: dlandau@law.fsu.edu.
1
See David Mason, Revolution and Transition in East-Central Europe (2d ed., 1996); George Schopflin, The
End of Communism in Europe, 66 Int’l Affairs 3 (1990).
2
See, e.g., R. H. Cox, Creating Welfare States in Czechoslovakia and Hungary: Why Policymakers Borrow Ideas
from the West, 11 Environ. & Planning C: Gov. & Pol’y 349 (1993) (examining patterns of borrowing or
influence in the development of welfare state policies in Czechoslovakia and Hungary).
3
See David R. Cameron & Mitchell A. Orenstein, Post-Soviet Authoritarianism: The Influence of Russia in Its
“Near Abroad,” 28 Post-Soviet Aff. 1 (2012); Steven Levitsky & Lucan A. Way, Competitive Authoritarianism:
Hybrid Regimes After the Cold War (2010).

I•CON (2019), 489–496 doi:10.1093/icon/moz038

490    I•CON (2019), 1–496

the European Union and appeared to be far on the path toward consolidated liberal
democracies. But over the past decade, first Hungary and then Poland have become
focuses of international attention for the potential erosion of liberal democratic con-
stitutionalism, and there are worrying signs elsewhere in the region as well.4 This
article focuses on one key part of this democratic erosion: changes in patterns of con-
stitutional borrowing, or which and how political actors look abroad when designing
and justifying their constitutional systems.

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As compared to 1989, thirty years later in 2019 the direction of comparative con-
stitutional borrowing in troubled Eastern Europe states has changed in two key ways.
First, instead of looking west, the political leaders of countries such as Hungary and
Poland now look “east”—to authoritarian states like Russia, China, and Singapore as
potential models. In this sense, the new Eastern European autocrats are borrowing
from, and learning from, autocratic regimes elsewhere. Second, where they do turn
west, leaders such as Victor Orban and Jarosław Kaczyński are shifting away from
an authentic engagement with liberal democratic norms, and toward an abusive en-
gagement with those norms.5 By abusive, we mean that the engagement aims to use
Western liberal democratic constitutional ideas, norms, and institutions in order to
carry out processes of constitutional change that are actually anti-democratic in na-
ture. Thus, the new autocrats continue to borrow from the West, but they have learned
how to do so in ways that further rather than resist their anti-democratic projects.
This complex pattern of borrowing, where new Eastern European autocrats (and
indeed, autocrats elsewhere around the world) look to new authoritarian models,
while also continuing to lean, albeit abusively, on the West, tells us something about
the moment we are in. We may be on the cusp of a true challenge to liberal democratic
constitutionalism, but a clear alternative has not yet emerged. Authoritarians thus
have begun to build autocrat to autocrat networks of borrowing and legitimation, but
they continue to lean heavily on liberal democratic models even as they seek to subvert
them. At the same time, the ease with which abusive forms of constitutional borrowing
can turn liberal democratic designs, concepts, and doctrines into instruments that un-
dermine liberal democracy must be a wake-up call. It highlights the weaknesses of the
international system, and more deeply of consolidated liberal democracies, and thus
their vulnerability to challenge from alternative political visions.
In this brief article, we map the turn toward two forms of borrowing in Eastern
Europe: overt authoritarian borrowing (Section 1), and abusive engagement with
liberal democracy (Section 2). Section 3 concludes by briefly pondering what these
patterns may mean for the global crisis of liberal democratic constitutionalism.

4
See, e.g., Peter Kreko & Zsolt Enyedi, Explaining Eastern Europe: Orban’s Laboratory of Illiberalism, 29 J.
Democracy 39 (2018); Jacques Rupnik, Surging Illiberalism in the East, 27 J. Democracy 77 (2016); Ivan
Krastev, Eastern Europe’s Illiberal Revolution: The Long Road to Democratic Decline, Foreign Affairs, May/
June 2008, at https://www.foreignaffairs.com/articles/hungary/2018-04-16/eastern-europes-illiberal-
revolution; Danielle Abertazzi & Sean Mueller, Populism and Liberal Democracy: Populists in Government in
Austria, Italy, Poland and Switzerland, 48 Gov’t & Opposition 343 (2013).

5
See Rosalind Dixon & David Landau, Abusive Constitutional Borrowing (manuscript in progress, 2018).
 From democratic to abusive constitutional borrowing    491

1.  Turning east: Overt authoritarianism

One of the startling changes in Eastern Europe in recent years has been the (at one
time inconceivable) turn back to Russia. Hungary in 2019 has strong ties with Russia:
Orbán personally meets with Putin several times a year, and he has openly praised
Russia as a model to emulate.6 The Fidesz government has signed a number of major
public contracts with Russian energy firms, including the “Paks II” agreement for a
$10 billion nuclear power facility, and the contract for Budapest’s third rail line.7 And

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in 2017, a Hungarian public university awarded Putin an honorary degree.8
The contrast with 1989 is quite stark: Orbán himself gave a speech in 1989 calling
for Soviet withdrawal. And in the 1990s, most Eastern European elites were openly
hostile to Russia—and viewed it as a former occupying power, whose political and ec-
onomic ideology had been decisively rejected by a majority of voters. Some left-leaning
leaders in the 2000s experimented with a more reconciliatory approach, and sought
to develop deeper ties with Putin. But the experiment was just that: a limited trial of an
approach quite different from the prevailing background norm.
This is part of a broader trend of the Hungarian regime relying explicitly on non-
Western models to emulate. Perhaps the best-known example is Orbán’s famous July
2014 speech arguing that the new Hungarian state would be “illiberal,” where he
cited China, Singapore, Turkey, and Russia as key examples. The speech argued that
liberal democratic states had failed economically and politically, called for the re-
construction of the state on more nationalist foundations, and denounced NGOs as
representing fringe foreign interests rather than the authentic views of citizens.9
What explains the reliance of the Hungarian regime on overtly authoritarian
models? Four potential factors seem relevant, if one focuses on the particular relation-
ship between Russia and Hungary. One is the benefits to Orbán of subjecting the EU
and other Western allies to a form of increased competition for influence: the not very
veiled threat from Orbán to European leaders is that if they put too much pressure
on Budapest to adhere to Brussels’ norms, Hungary will simply turn further toward
Moscow—and help increase Putin’s influence within Europe.
Second, Orbán has gained economically from the alliance with Putin: while the EU
has continued to emphasize policies such as environmental policy, and investment in

6
See Daniel Hegedus, The Kremlin’s Influence in Hungary: Are Russian Vested Interests Wearing Hungarian
National Colors?, 8 DGAPkompakt 1 (Feb. 2016); Dariusz Kalem, Hungary in the Grip of a Bear Hug, Eur.
Council on Foreign Relations, May 5, 2016, available at ecfr.eu; Peter Kreko & Lorant Gyori, Hungary: A State
Captured by Russia, Heinrich Boll Stiftung, Oct. 11, 2017; Angela Dewan & Boglarka Kosztolanyi, Hungary
Is Starting to Look a Bit Like Russia. Here’s Why, CNN, Apr. 6, 2018; Zsuzsanna Vegh, Hungary’s “Eastern
Opening” Policy Toward Russia: Ties That Bind?, 24 Int’l Issues & Slovak Foreign Pol’y Aff. 47 (2015).
7
Hegedus, supra note 6.
8
Kreko & Gyori, supra note 6.
9
Csaba Toth, Full Text of Viktor Orban’s Speech at Baile Tusnad (Tusnadfurdo) of 26 July 2014, The Budapest
Beacon, Jul. 29, 2014, at https://budapestbeacon.com/full-text-of-viktor-orbans-speech-at-baile-tusnad-
tusnadfurdo-of-26-july-2014/. See also Viktor Orbán’s Illiberal World, Financial Times, Jul. 29, 2014, at
https://www.ft.com/content/bbdb6b6f-c12a-3b38-95d2-0244260ce753; Arch Puddington, Breaking
Down Democracy: Goals, Strategies, and Methods of Modern Authoritarians ch. 5 (2017).
492    I•CON (2019), 1–496

renewable energy, Russian firms have increased supply and reduced the cost of natural
gas supply to Hungary, thereby allowing Fidesz to deliver on one of its key 2010 elec-
tion promises—i.e. the promise of preventing any further increase in energy costs.10
Third, Putin himself may be exerting considerable pressure to deepen ties with
Russia: it is widely believed that Russia has been funding and supporting Jobbik, the
main (and even more conservative) opposition party in Hungary.11 While Orbán has
announced a go-slow on projects such as Pak II, Putin has also publicly announced

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that Russia plans strictly to enforce the terms of the contract. Putin and Orbán also
have many overlapping business ties, which likely give Putin a range of economic and
personal levers over Orbán (including perhaps the threat of revealing “corruption” in
business undertakings).
Overlaid with these pragmatic explanations, however, is a fourth more ideological
explanation—the desire of figures such as Orbán (or Jarosław Kaczyński in Poland)
to diminish the popular appeal of liberal democratic constitutional ideals and norms,
and to appear to be constructing an alternative.
In Hungary, as is now well-known, the Fidesz party regime headed by Orbán
first amended and then replaced the existing constitution, in each case making a
series of moves to consolidate power and repress the opposition. These included
packing the courts, weakening other independent institutions designed to check
Fidesz’s power and oversee sensitive institutions such as the media, and redrafting
electoral laws and districts.12 In Poland, in contrast, the regime has lacked the
seats to make formal constitutional changes, but has nonetheless carried out a
very similar project through a combination of subconstitutional legislation and
aggressive reinterpretations of the constitution through a judiciary backed by the
ruling party.13
These moves have been challenged on the grounds that they undermined liberal
democratic commitments. In turn, leaders like Orbán and Kaczyński have sought to
develop alternative, rival narratives capable of justifying their actions—such as the
concept of “illiberal democracy.”
Something similar has occurred in the Andean region of Venezuela, where leaders
such as Chavez and Maduro (Venezuela), Correa (Ecuador), and Morales (Bolivia)

10
See Hegedus, supra note 6.
11
See Andrew Higgins, Intent on Unsettling E.U., Russia Taps Foot Soldiers from the Fringe, N.Y. Times,
Dec. 24, 2016, https://www.nytimes.com/2016/12/24/world/europe/intent-on-unsettling-eu-
russia-taps-foot-soldiers-from-the-fringe.html?module=inline; Marton Dunai & Gergely Szakacs,
Hungary Charges Jobbik MEP with Spying on EU for Russia, Reuters, Dec. 6, 2017, https://www.
reuters.com/article/us-hungary-jobbik-prosecution/hungary-charges-jobbik-mep-with-spying-
on-eu-for-russia-idUSKBN1E01CH.
12
See Attila Agh, The Decline of Democracy in Eastern Europe, 63 Problems of Post-Communism 277, 280 (2016);
Agnes Batory, Populists in Government? Hungary’s “System of National Cooperation,” 23 Democratization
283, 294 (2016); Kim Lane Scheppele, Worst Practices and the Transnational Legal Order (or How to
Build a Constitutional ‘Democratorship’ in Plain Sight), Lecture at the University of Toronto (Nov. 2016).
13
Wojciech Sadurski, How Democracy Dies (in Poland): A  Case Study of Anti-Constitutional Populist
Backsliding (2018) (unpublished manuscript).
 From democratic to abusive constitutional borrowing    493

have also attacked liberal democratic models as failures, and have sought similar ties
with authoritarian regimes elsewhere in the world, to varying degrees.14
The turn eastward clearly would not work unless there was a substantial domestic
constituency responsive to the argument. Constituencies of this kind may arise for
a variety of different reasons in various countries. But a common factor may be if
leaders can point to a perceived set of failures of past liberal democratic constitution-
alism in their respective countries: inability to reduce socioeconomic inequality and

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to build social inclusion, or inability to build a sufficiently defined sense of national
identity, for example, or sense of control over national borders and immigration.15
These perceived failures make the domestic population receptive to more muscular,
less constrained models of the state, and stronger definitions of the political commu-
nity, than are seen as possible in a liberal democratic constitutional system.

2.  Abusive constitutional borrowing from the West

But it is also striking that the new would-be Eastern European autocrats continue to
use Western liberal democratic models both as inspiration and justification for their
actions. They make extensive use of liberal democratic constitutional designs and
concepts, including in the justification of their actions as legitimate and appropriate.
However, they deploy these concepts for anti-democratic rather than pro-democratic
ends, which we refer to as abusive constitutional borrowing.
Take Orbán’s defense of changes to media law in 2014, which gave a new govern-
ment body broad power to regulate print, broadcast, and Internet-based media. The
law was seen by many as posing a clear threat to freedom of expression, a free press, and
indeed constitutional democracy itself. But Orbán defended it as in line with compar-
ative practices in other liberal democracies, such as France and Germany: he rejected
criticisms of the law by the EU, suggesting that there was not “one single paragraph in
the media act that you cannot find in the law of another European country” and thus
that any attempts by European institutions to block or amend the law would be “dis-
criminatory.”16 Orbán’s regime has formulated similar responses to other key regime

14
See, e.g., The Ills of Latin American Democracy, The Economist, Feb. 8, 2018, https://www.economist.com/
the-americas/2018/02/08/the-ills-of-latin-american-democracy; Zeeshan Aleem, How Venezuela Went
from a Rich Democracy to a Dictatorship on the Brink of Collapse, Vox, Sept. 19, 2017, https://www.vox.
com/world/2017/9/19/16189742/venezuela-maduro-dictator-chavez-collapse; Carlos de la Torre &
Andres Ortiz-Lemos, Populist Polarization and the Slow Death of Democracy in Ecuador, 23 Democratization
221 (2015); Santiago Anria, Evo Morales Wants to Change the Law So He Can Remain President. Is
Bolivia’s Democracy in Danger?, Wash. Post, Nov. 28, 2017, https://www.washingtonpost.com/news/
monkey-cage/wp/2017/11/28/bolivias-president-thinks-hes-irreplaceable-what-does-this-mean-for-
democracy-there/?noredirect=on&utm_term=.b66aea681412; Julio F. Carrion, Democracy and Populism
in the Andes, in Latin American Democracy: Emerging Reality or Endangered Species (Richard L.  Millett,
Jennifer S. Holmes, & Orlando J. Perez eds., 2d ed., 2015).
15
See, e.g., David Landau, Populist Constitutions, 85 Chi. L. Rev. 521 (2018); Rosalind Dixon & Julie Suk,
Liberal Constitutionalism and Economic Inequality, 85 Chi. L. Rev. 369 (2018).
16
Jennifer Rankin, Orban Defends Media Law, Politico, Jan. 1, 2011, https://www.politico.eu/article/
orban-defends-media-law/.
494    I•CON (2019), 1–496

actions: gerrymandering and malapportionment under the new constitution, for ex-
ample, were likewise defended as being standard practice in other liberal democracies
such as Germany and the United States. The same was done with changes to the ap-
pointment and removal processes, as well as powers, for the Constitutional Court and
the rest of the judiciary.17
Comparison of this kind is both selective and acontextual. The references to the new
media law, for example, take some of the powers granted to media bodies in other

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liberal democracies, but implement them without the accompanying safeguards that
exist in those democracies. It likewise takes powers given to bodies that in their re-
spective national constitutions have true independence, and ignores the importance
of this context of independence to understanding. Similarly, the changes to the judi-
ciary compare individual institutional elements (a particular mode of selection, for
example), without considering how the various institutional and cultural elements
work together in their home systems to define the degree of judicial independence as
a package.
Abusive constitutional borrowing usually depends on a decoupling of the form and
substance of a design or legal rule. In some cases, leaders adopt some liberal demo-
cratic institution, such as a constitutional right, as a mere sham, importing the label
without any intention of giving it real effect.18 In other cases, as we have noted above
with Orbán’s justifications, liberal democratic ideas are imported outside the context
in which they normally function, or in a highly selective way, by bringing in only part
of a legal rule.19
Finally, and perhaps most interestingly, in certain cases leaders rely on an institu-
tion or legal rule in order to invert its normal purpose within the liberal democratic
order. This inversion of purpose has become common, in both Eastern Europe and else-
where, with respect to independent accountability institutions. Institutions designed
to protect media pluralism can instead be made into instruments to repress opposition
media; those aimed at protecting a level electoral playing field are instead used to tilt
it; and ombudspersons or commissions tasked with protecting human rights are in-
stead tasked with repressing vulnerable minorities. In Poland, for example, recent work
has argued that the National Institute of Freedom: Centre for the Development of Civil
Society has played a key role in limiting political dissent by punishing opposition and
liberal democratic NGOs through limiting their access to funding.20 The frequency of
this kind of inversion of purpose should be a reminder of the ways in which institutions,
doctrines, and concepts seen as key to protecting liberal democracy, like judicial review
and constitutional rights, can instead be reforged into instruments to destroy it.
Abusive borrowing depends in part on vulnerabilities in the existing liberal dem-
ocratic order. While close inspection of abusive forms of borrowing may reveal their

17
See Scheppele, supra note 12.
18
See David S. Law & Mila Versteeg, Sham Constitutions, 101 Cal. L. Rev. 863 (2013) (developing a measure
of the sham-like qualities of constitutions by comparing what they promise in the text versus enjoyment
of rights on the ground).
19
Compare David E. Pozen, Constitutional Bad Faith, 129 Harv. L. Rev. 885 (2016).
20
See Sadurski, supra note 13.
 From democratic to abusive constitutional borrowing    495

nature, borrowing of this kind may still provide some form of legitimacy in the eyes of
some members of the domestic and international communities. Many regime actions
that would face extremely hostile responses if carried out through openly authori-
tarian means like the use of troops on the streets may receive a more muted reaction
if instead carried out through institutional means, such as courts, that are typical of
liberal democratic orders.21
A related benefit of abusive constitutional borrowing to would-be authoritarians

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is that it may make it more difficult for the international community to detect and ef-
fectively respond to instances of abusive constitutional change. The kind of bad-faith
comparison described here is not going to fool everybody in the international and do-
mestic communities. But it may help build some support for the measures. Perhaps
more important, it may make it more difficult for the international community to for-
mulate a response, by opening them up to charges of hypocrisy.
Many scholars have noted the fairly halting, cautious responses of the European
Union and Council of Europe to a pretty clear authoritarian threat.22 When the EU
has acted, it has often been indirectly through economic principles rather than by
invoking the rule of law—this was the case with Commission challenges to both the
forced retirement of judges and the closing of Central European University, for in-
stance.23 Until quite recently, European institutions have been unwilling to invoke the
rule of law directly—and even now they do so hesitantly.

3. Conclusion
It is at least facially puzzling that the new autocrats rely both on overt appeals to au-
thoritarian models and abusive use of liberal democratic ones. Logically, there is a ten-
sion between the call to emulate Russia and the claim that Hungary is simply doing
what France and Germany, or a host of other European countries, do. One possibility
is that the language of illiberal democracy is aimed at a domestic audience, while the
language of (albeit shallow, formalistic) liberal democratic continuity is aimed at an

21
Compare Ozan O. Varol, Stealth Authoritarianism, 100 Iowa L. Rev. 1673 (2014); William J. Dobson, The
Dictator’s Learning Curve: Tyranny and Democracy in the Modern World (2013); Scheppele, supra note 12.
22
See, e.g., Nicole Orttung, Hungary’s Slide into Authoritarianism, and Europe’s Toothless Response, Wilson Q.,
July 1, 2015, https://wilsonquarterly.com/stories/hungarys-slide-into-authoritarianism-and-europes-
toothless-response/; Maurits Meijers & Harmen van der Veer, Hungary’s Government Is Increasingly
Autocratic: What Is the European Parliament Doing About It?, Wash. Post, May 3, 2017, https://www.
washingtonpost.com/news/monkey-cage/wp/2017/05/03/hungary-is-backsliding-what-is-the-
european-parliament-doing-about-this/?utm_term=.51ef868f49c3; Bilge Yabanci & Kerem Oktem, What
Could and Should the EU Do with Turkey?, Open Democracy, Nov. 4, 2016, https://www.opendemocracy.net/
bilge-yabanci-kerem-oktem/what-could-and-should-eu-do-with-turkey-s-authoritarian-consolidation.
23
Griff Witte, Europe’s Top Court Orders Poland to Halt a Law Forcing Supreme Court Judges into Retirement,
Wash. Post, Oct. 19, 2018, https://www.washingtonpost.com/world/europe/europes-top-court-orders-
poland-to-halt-a-law-forcing-supreme-court-judges-into-retirement/2018/10/19/f16eb8ee-d39e-
11e8-b2d2-f397227b43f0_story.html?noredirect=on&utm_term=.2cdff993faf9; Lydia Gall, Central
European University Forced to Leave Hungary, Human Rights Watch, Dec. 4, 2018, https://www.hrw.org/
news/2018/12/04/central-european-university-forced-leave-hungary.
496    I•CON (2019), 1–496

international audience. A  defining feature of abusive change, in countries such as

Hungary and Poland, has in fact been the ability to exploit a gap between domestic
and international audiences.
A second possibility is that the inherent tension between Eastern and abusive
Western comparison embodies a form of schizophrenia—or “gaslighting”—that is it-
self a hallmark of abusive forms of behavior.24 In a personal or individual context,
a pattern of lies and inconsistent actions can cause listeners to doubt themselves in

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ways that strengthen the grip or power of the abuser. In politics, gaslighting of this
kind could be seen as a way to reduce opposition to authoritarian actions by making
domestic actors less certain of the basic empirical foundations of their own beliefs.
The more fundamental question is what the two forms of borrowing tell us about
the state of liberal democratic constitutionalism. At one level, it may suggest that
while liberal democratic values appear to be in retreat in many countries worldwide,
in many regions no clear challenger to the liberal democratic model has yet emerged.
Authoritarian regimes not just in Eastern Europe but also in Latin America, Asia, and
Africa often continue to cloak their actions by using the language and concepts of
liberal democratic constitutionalism. New forms of authoritarian-authoritarian bor-
rowing have clearly developed, both globally and regionally, but for the most part
these constitute only an incipient ideological challenge. Orbán’s concept of “illiberal
democracy,” which lumps together a hodgepodge of illiberal and undemocratic states
such as Russia, Singapore, Turkey, and China—is an example of this sort of confusion.
Would-be authoritarians are clearly playing off of popular discontent with existing
strains of liberal democratic constitutionalism, but they have yet to offer a fully formed
alternative.
The prevalence of abusive forms of borrowing by authoritarian regimes also tells
us something distinctive about the current crisis of liberal democracy. Abusive bor-
rowing works by pointing back to the weak points in established liberal democratic
orders, and by borrowing institutions from those orders selectively and acontextually.
Liberal democratic practices used in this way can become powerful tools to undermine
democracy. Abusive borrowing thus shines a new light on problematic practices in
established liberal democracies—gerrymandering in the United States, emergency in
France, for example—by showing the damage they can do not just domestically but
also internationally.
At the same time, the resulting fear of hypocrisy or double standards may cause
transnational actors to be too quick to accept pretextual arguments about liberal
democratic faith, and to underenforce substantive commitments to liberal democ-
racy. A  recognition of the serious imperfections in established liberal democracies,
something that may have been lacking at the end of the Cold War, is important to
combatting the rot in liberal democratic constitutionalism. But so too is the self-confi-
dence of the international community to stand up for liberal democratic values when
threatened abroad, even while admitting those imperfections.

We are indebted to Erin Delaney for suggesting this possibility to us.

24