Abstract: The chapter discusses the theoretical challenges that legal regulation of transitional justice in transitional constitutions raises when it attempts to reconcile past abuses of constitutionalism. The broader implications of the topic are the challenges that transitional constitutionalism faces when it regulates transitional justice measures. But for both transitional constitutionalism in general, and transitional justice in particular, a certain preexisting constitutional culture is required. Hence, before dealing with the specific constitutional regulations of transitional justice, the chapter discusses the role of constitutional culture in transitional constitutionalism in the specific case of transitional justice. The chapter deals with the transitional justice measures, which are the most interesting from the point of view of constitutional theory: criminal prosecutions and the retroactive application of criminal law, since these are closely related to the principle of the rule of law, emphasized in the texts of new transitional constitutions.
The chapter deals with recent deviations from the shared values of constitutionalism towards a kind of ‘illiberal constitutionalism’ introduced either through a brand-new constitution, as is the case in Hungary since 2010, or through legislative changes that ignore the valid liberal constitution, as is the case in Poland since 2015. Both in Hungary and Poland, the system of governance became populist, illiberal and undemocratic. The backsliding has happened through the use of ‘abusive constitutional’ tools: constitutional amendments and even replacements, because both the internal and the external democratic defence mechanisms against the abuse of constitutional tools failed. The internal ones (constitutional courts, judiciary) failed because the new regimes managed to abolish all checks on their power, and the international ones, such as the EU toolkits, mostly due to the lack of a joint political will to use them. In this populist, illiberal system, the institutions of a constitutional state (the constitutional court, ombudsman, judicial or media councils) still exist, but their power is very limited. Also, as in many illiberal regimes, fundamental rights are listed in the constitutions, but the institutional guarantees of these rights are endangered through the lack of an independent judiciary and constitutional court. The chapter explores the elitist nature of the constitution-making process as one possible reason for the backsliding of liberal constitutionalism, but finally concludes that the lack of constitutional culture during the democratic transition made the use of more participatory constitutionalism very difficult to achieve.