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<p>The article analyses the identity jurisprudence of the Constitutional Courts of Romania, Hungary and Poland. Identity expressions formulated by the constitutional courts in the three juridictions were for a long period of time analogised, perceived as interchangeable expressions of RoL backsliding. As we claim, these analogies were, particularly as regards Romania, false. By the same token, due to the capillarity and crosshybridization of supranational and international legal standards, the legal and political implications of false analogies are not jurisdictionally contained.</p><p>In Romania, opposition to the EU institutions was for a long time accidental-coincidental and unsystematic. This specificity was due in turn, as we show, to the specific conditionalities applicable to this country, the specificity of the constitutional framework, and the protracted application of anticorruption conditionalities under the CVM long after the EU accession on January 1st, 2007. However, more recent forays of the Constitutional Court of Romania into the terrain of identity, notwithstanding their declared purposes, raise similar concerns of instrumentalism as in Hungary and Poland.</p><p>We argue therefore that, notwithstanding the initial divergence between the jurisdictions and longstanding false analogies made between them, they all converged in the end, the common denominator being identity instrumentalism. In so arguing, we also make a more foundational yet implicit claim regarding the conditions of possibility for constitutionalism in the European Union.</p>

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False Analogies? Rule of Law ‘Backsliding’ and Identitarian Claims in Hungary, Poland, and Romania

  • 期刊论文

  • 发表日期：

    2025年10月21日

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  • Bogdan Iancu,
  • Ștefan Deaconu

摘要

The article analyses the identity jurisprudence of the Constitutional Courts of Romania, Hungary and Poland. Identity expressions formulated by the constitutional courts in the three juridictions were for a long period of time analogised, perceived as interchangeable expressions of RoL backsliding. As we claim, these analogies were, particularly as regards Romania, false. By the same token, due to the capillarity and crosshybridization of supranational and international legal standards, the legal and political implications of false analogies are not jurisdictionally contained.

In Romania, opposition to the EU institutions was for a long time accidental-coincidental and unsystematic. This specificity was due in turn, as we show, to the specific conditionalities applicable to this country, the specificity of the constitutional framework, and the protracted application of anticorruption conditionalities under the CVM long after the EU accession on January 1st, 2007. However, more recent forays of the Constitutional Court of Romania into the terrain of identity, notwithstanding their declared purposes, raise similar concerns of instrumentalism as in Hungary and Poland.

We argue therefore that, notwithstanding the initial divergence between the jurisdictions and longstanding false analogies made between them, they all converged in the end, the common denominator being identity instrumentalism. In so arguing, we also make a more foundational yet implicit claim regarding the conditions of possibility for constitutionalism in the European Union.