Last autumn there was a discussion among lawyers and politicians whether the opposition could create a new constitution with only a simple majority.
The debate was so heated that at times it seemed like there were more experts on the constitution than the pandemic. As expected, it degenerated into legalism, wishful thinking, and then the Facebook warriors moved on to new topics. It was the same level intellectually as the notion that the Orbán dictatorship will be defeated through democratic elections. Not surprisingly, as the participants were almost the same in both cases.
This legalistic attitude can be traced back to 1989-1990 at the foundation of the Hungarian republic after end of communism. Many of the founding fathers were lawyers, among them a young Viktor Orbán.
This mentality that if it is legal then it is right has dominated the political thinking ever since.
Following rules and procedures are crucial in a liberal democracy or a Rechtsstaat – but damaging in an autocracy.
Following rules blindly in a country where lawmaking is cynically exploited by the regime to its own advantage can be the most harmful. It’s like the Christian resistance fighters during the Second World War who refused to lie even to the Gestapo, because they believed that lying was wrong. These people may have been principled and brave but they were not cut out to fight Nazis.
Just because it’s a law, it doesn’t necessarily make it right, not even in a democracy. The persecution of gays didn’t end with fascism in Western Europe, it continued for a long time after the war. In Switzerland women didn’t have the right to vote in federal elections until 1971, and the last canton to grant women suffrage waited until 1990.
When it was revealed that the Pegasus software was used to bug not only suspected terrorists and criminals but businessmen, journalists, and other individuals suspicious in Fidesz’ eyes, the government response was (after denial) that everything was legal. And it may have been.
If there is law authorizing the government to put anyone under surveillance without reasonable suspicion, it may be legal, but it still wrong. Just the way it is wrong to jail gay people and to deny women the right to vote. Not surprisingly the opposition quickly gave up on this issue, too. But not before demanding that the Minister of Justice resign, demonstrating the total lack of knowledge of the system they are supposedly fighting.
Some are pointing out the negotiated settlement between the then opposition and the Hungarian communist regime in 1989, which laid the foundations for the Hungarian democracy after 1990, as an example. But what was the legal foundation for the changes in 1989?
The participants of these negotiations were not elected by anyone. The regime was created by the Soviet Union after it put down the uprising in 1956. The opposition figures were academics and activists who, talented as they may have been, owed their position to being at the right place at the right time. Law had nothing to do with it, and legitimacy was everything. They may have not been elected, but society decided in the end that they were its legitimate representatives.
In 1989 the regime was bankrupt both morally and financially. The changes were accepted by the international community as well as a great majority of Hungarian society. It was a regime change masked in legalistic forms.
In neighboring Romania, after an uprising, the dictator was shot by his former men after a show trial. From the international community’s point of view, this was no less legitimate than the Hungarian constitutional changes. Even though the same international community welcomed Ceausescu as a recognized statesman for decades before his fall.
It may be inconvenient for legalistic minds, but legitimacy trumps the law.
When a great majority of society decides that something is not legitimate, it will force a change. That’s bad news for Orbán’s opposition, assuming they want to win in April, and not just secure themselves cushy, well-paid jobs for another four years.
Orbán has not only captured the state during the last twelve years in power, but also secured a cult-like following inside his party, and among many of his voters.
A big part of the electorate supports Orbán’s policies, which in the current election system is all he needs to stay in power. The regime’s legitimacy rests on the notion that there is no alternative to Orbán, and that the fact that the opposition still participates in the rigged election. The relative stability under his rule is preferred by many to the supposed chaos that would follow a change in government.
Sadly, the incompetent opposition plays right into Orbán’s hands. Their prime ministerial candidate is prone to making gaffes, and turned out not be the game changer many were hoping for. The opposition may have been looking for a Macron but ended up with the Hungarian Sarah Palin. The opposition also promised to keep some of Orbán’s most popular and but financially harebrained schemes. They seem to promise Orbánism without Orbán.
Two years ago, I wrote that “Hungarian history teaches us that regime changes were caused by external factors, mainly a war or a financial crisis. As long as the European Union is willing to finance this corrupt regime, and a majority of voters believe that they are better off with a devil they know, Orbán’s position is safe for now. Unless there is a black swan event, do not expect anything to change in 2022.”
Is the war in Ukraine such a black swan event? It’s too early to tell, but in time of crisis people tend to look to the government. Orbán can also blame the war for the financial troubles his election spending is causing. And the EU, which has tolerated Orbán for twelve years will have bigger fish to fry in the coming months and years. If I were a betting man, I would place my money on Orbán’s legitimacy for the coming year. But I confess, it’s a bet I would love to lose.