—M. Victoria Kristan, Assistant Professor of Legal Philosophy, University of Bologna
Hungary’s recent elections have produced what many long considered improbable: the defeat of Viktor Orbán. Across Europe, the result has been greeted with a mixture of relief and expectation. Relief, because a government long associated with Rule of law backsliding has been removed through democratic means. Expectation, because electoral turnover is widely assumed to open the path toward constitutional restoration.
That assumption, however, risks repeating a familiar error. It presupposes that Hungary’s Rule of law crisis was primarily political — and therefore correctable through political change. But what Hungary illustrates, perhaps more clearly than any other recent case, is that the problem runs deeper.
The end of a government does not necessarily entail the restoration of the legal order through which that government operated. Hungary’s electoral shift is historic — but political turnover is not institutional transformation. What has been built over years — reshaped legal systems, weakened checks, and power consolidated through law — cannot be undone overnight.
The Persistence of Legal Distortion
The Hungarian case has often been described in terms of violations of the Rule of law. Yet this description captures only part of the phenomenon.
A more accurate account distinguishes between violations, deficiencies, and abuses of the Rule of law. Violations involve non-compliance with legal rules; deficiencies arise from institutional incapacity. Yet the category of violations is both over- and under-inclusive. It is over-inclusive because it groups together heterogeneous forms of non-compliance that may differ significantly in their causes and implications. At the same time, it is under-inclusive because it fails to capture forms of systemic distortion that occur without any formal breach of legal rules. This limitation reflects a deeper issue. The rule of law does not operate through rules alone, but also through the principles that give those rules their direction and justification, in particular the constraint of arbitrary power. Procedures are followed, institutions remain intact, and legality appears continuous. Yet the system is gradually reoriented so that it no longer constrains power in the way the Rule of law requires.
This is why the electoral defeat of an incumbent government does not automatically undo the prior transformation of the legal system—one in which formal legality was preserved while its function was progressively reoriented. The relevant changes were not external to the legal system; they were embedded within it. They persist as part of the legal framework that now binds the incoming government.
Diagnosis Before Reconstruction
For both Hungary and the European Union, the priority now should not simply be to act, but to understand.
As long as the Rule of Law crisis is institutionally framed exclusively in terms of violations, responses will remain misaligned. What the Hungarian case makes visible is not simply the need for a more refined diagnosis, but the consequences of getting that diagnosis wrong: corrective measures risk targeting visible breaches while leaving the underlying structure of legal distortion intact.
Without such conceptual clarity, there is a risk that corrective measures will either prove ineffective or undermine the very principles they seek to restore. Reconstruction depends on understanding how institutions failed, in order to restore them in an effective way.
The broader lesson is straightforward: electoral change is a necessary condition for restoring the Rule of law, but it is not a sufficient one. As recent experience shows, electoral victory is only the entry point to re-establishing the Rule of law.
Hungary now enters the more difficult phase — where the real test is not whether power can change hands, but whether legality can once again constrain it.
From Diagnosis to Remedies — Time, Pace and Accountability
This diagnostic distinction is not merely conceptual. It has direct implications for the design of remedies and for the possibility of accountability. Different pathologies call for different responses. Where there are violations, the appropriate response is enforcement: judicial review, infringement procedures, sanctions. Where there are deficiencies, the response must be supportive: investment, capacity-building, institutional reform. But where the problem is abuse of formal legality, neither enforcement nor support alone is sufficient. The challenge is systemic because the distortion is embedded in the legal framework itself. It requires recalibrating the relationship between legal rules and the principles they are meant to serve. Even where formal pathways of reform—such as a two-thirds majority—are available, legal change alone may not suffice to undo distortions embedded in the operation of those rules, because those distortions are sustained through institutional practices, entrenched personnel, and patterns of interpretation that cannot be fully displaced by formal amendment alone.
This, in turn, raises the question of accountability in a more demanding sense. If the transformation of the system occurred through formally lawful means, accountability cannot be reduced to identifying discrete illegal acts. It must instead address patterns of institutional reconfiguration that, taken individually, complied with the law but collectively undermined it. Without such a differentiated approach, accountability risks collapsing into symbolism — targeting visible breaches while leaving the underlying architecture intact.
At the same time, the problem is not only what reforms are adopted, but also how and when they are implemented. In processes of constitutional reconstruction, time and pace operate as critical constraints on reform. The sequence and speed of changes may be as decisive as their content: reforms adopted too slowly risk entrenching existing distortions, while those adopted too rapidly may undermine legal certainty and invite accusations of arbitrariness. The challenge, therefore, is one of calibration. Reform must be sufficiently rapid to be effective. Urgency cannot collapse into discretion, but procedural caution cannot become a vehicle for inertia.
Remedies aimed at reversing systemic distortions thus confront not only the limits of ordinary legality, but also the constraints of timing and sequencing. Measures designed to restore judicial independence, rebalance constitutional review, or neutralize captured institutions may not always be achievable within the very framework that enabled their distortion — nor at a pace that is normatively neutral.
This is where the debate about exceptional corrective measures — and their justification — becomes unavoidable. In this context, the legitimacy of reconstruction is inseparable from the quality of the lawmaking process through which it is pursued. Where corrective measures depart from ordinary legality, their justification cannot rest on outcomes alone but must also be grounded in procedures that reflect the very principles the Rule of Law seeks to secure. The question is no longer simply how to enforce the law, but how to restore the conditions under which law can meaningfully constrain power — and how to do so within a temporally constrained and politically contested process.
A Two-Thirds Majority: Necessary, but Not Sufficient
Much of the immediate post-electoral debate in Hungary has focused on constitutional arithmetic. The question is whether the new government can secure a two-thirds majority — the threshold required to amend cardinal laws and reshape key institutional arrangements. That question matters. But it risks overstating what such a majority can achieve. A supermajority may be necessary to unlock formal pathways of reform. It is not sufficient to restore the Rule of law. Whatever the institutional pathway chosen; the legitimacy of reconstruction cannot be reduced to the mere existence of a two-thirds majority. This is particularly so where reconstruction involves departures from existing legal rules: precisely because such measures deviate from ordinary legality, their justification cannot rest on formal authorization alone. In light of the scale of democratic authorization—and the demands of constitutional reconstruction—procedural legitimacy must extend beyond formal thresholds to encompass how power is exercised in the process of reform.
Orbán’s system was not built solely through constitutional amendments. Over more than a decade, it was consolidated through a dense web of institutional transformations: the strategic occupation of courts and prosecutorial offices, the restructuring of media oversight, the redesign of public procurement, and the gradual neutralization of accountability mechanisms. This is why the Polish experience is instructive. The electoral defeat of an illiberal government in 2023 did not translate into immediate restoration. Instead, the process has unfolded incrementally — judge by judge, chamber by chamber, media outlet by media outlet. There is little reason to expect Hungary to be different. Even with a two-thirds majority, strict adherence to existing legality may end up preserving the effects of its prior manipulation.
The Question of “Rule Departures”
If the Rule of law crisis has been produced through the violation and, particularly, abuse of formal legality, its restoration may require unorthodox legal solutions — carefully justified deviations from existing rules aimed at restoring the legal principles those rules were meant to serve. This may also involve recourse to other forms of response, including militant rule of law, constitutional courage or even democratic frontsliding. Rule departures do not imply abandoning legality but rethinking its operation under conditions of systemic distortion. The difficulty lies precisely in the fact that, in such contexts, strict adherence to existing rules may perpetuate the very arbitrariness those rules were meant to prevent. Where legality has been instrumentalized, fidelity to its form may come at the expense of its purpose.
From this perspective, rule departures can be understood as the inverse of abuses of formal legality. In cases of abuse, rules are followed while the principles that justify them are undermined. In cases of departure, rules are set aside in order to restore those principles. The relevant question is therefore not simply whether legality is respected in a formal sense, but whether it continues to perform its core function: constraining the arbitrary exercise of power. This, however, sets a demanding threshold. These conditions are not indeterminate. Normative requirements grounded in constitutional democratic reconstruction provide a framework for assessing when such departures can be justified. They orient the use of exceptional measures toward restoring the conditions under which legality can once again function as a constraint on power, rather than as an instrument of its exercise. Rule departures can only be justified under strict conditions — where compliance with existing legality would sustain arbitrariness, and where deviation is necessary and proportionate to restore the underlying principles of the Rule of law, in particular non-arbitrariness.
Making the Rule of law more robust — and its restoration effective — therefore requires precisely this kind of conceptual and institutional innovation. The challenge is not only political or constitutional, but jurisprudential: to articulate when, and under what conditions, departures from formal legality can be reconciled with fidelity to the Rule of law itself, rather than undermining it.
April 12 began “the day after” for another broken democratic polity. Hungary’s electoral shift is historic, but the central lesson is this: without a precise diagnosis, there can be no effective remedy—nor any sense of appropriate timing or pace. The breakdown of the Rule of law is not a monolithic phenomenon. Violations, abuses, and deficiencies are distinct deviations from the ideal, and they demand distinct responses. What follows is not a return to normalcy, but the beginning of a demanding process of reconstruction — one that depends on understanding how institutions failed, in order to restore them in a principled and effective way.
Suggested citation: M. Victoria Kristan, “The Day After” for Another Broken Democratic Polity, Int’l J. Const. L Blog, Apr. 26, 2026, at: http://www.iconnectblog.com/the-day-after-for-another-broken-democratic-polity/