Liquid Separation of Powers and Politics in Central Europe

The concept of separation of powers (SoP) is notoriously vague as well as contested. Usually, we realize what SoP is only when we lost it, as evidenced by recent efforts by ruling parties in Hungary, Poland and Turkey to remove all institutional barriers to pursuing their will. At the same time, several legal scholars and political philosophers have argued that the traditional “liberal” understanding of SoP not only misrepresents the real world functioning of constitutional democracies, but also blocks urgent reforms of SoP in response to the changing environment of the 21st century. We aim to contribute to this debate by focusing on the conceptualization of SoP in Central Europe. This region provides particularly useful material for advancing our understanding of SoP due to: (1) the rise and actions of political leaders such as Viktor Orbán and Jarosław Kaczyński; (2) different historical-political trajectories that have left lasting legacies in areas such as dependence on the state or weak institutionalization of political parties; and (3) specific “SoP problems”, such as the rise of populism (Müller) and unelected institutions (Vibert, Kosař). For these three reasons transplantation of standard theories developed in Western political thought to the Central European context is problematic. We argue that in order to tackle these problems, it is critical to acknowledge both the enabling and restricting functions of SoP (Bognetti) and to differentiate between several components of SoP: (1) separation of institutions, (2) separation of functions, (3) personal incompatibility, and (4) the principle of checks and balances (Waldron, Möllers). We show that these “subprinciples” were not sufficiently distinguished in Central Europe. Against this backdrop, we focus on two contradictory challenges to SoP. On the one hand, Paul Blokker has criticized the pre-eminence of legal constitutionalism in these countries and called for a “more democratic, or civic constitutionalism” as a way out of the current crisis. On the other hand, Central Europe has also witnessed unprecedented rise of unelected bodies of governance. The latter trend has been supported by theorists who criticize the participative and deliberative ethos of contemporary democratic theory (Vibert) or call for a complex “post-representative democracy” (Keane). We show that, given the institutional and mental path-dependence and the rise of populism in CEE, the restricting function of SoP (above all protection of individual rights and barriers to a “tyranny of the majority”) is critical for Central European democracies. Finally, we put forth three broader arguments. First, we need a more profound theoretical and conceptual elaboration of the four subprinciples of SoP and the rationales underlying them. Second, since there is inevitable path-dependence in understanding of SoP, individual countries may need to recalibrate the relationship of the components of SoP vis-à-vis new challenges and emphasize those that fit best their situation. We may thus talk of “liquid separation of powers”. Third, it is impossible to distinguish the enabling function of SoP (or positive SoP) from normative political theory, to the effect that it becomes a political theory of justice, equality, freedom and other key values.