While there is a substantial volume of scholarship on democratic backsliding in Hungary and Poland, one aspect of this process which remains curiously understudied is the dismantling of power-sharing. In these two countries, nationalist populist parties have been in power for quite a long time now and have undertaken profound constitutional changes, a development which has deeply affected the separation of powers. This is easy to understand, for the very essence of this principle is to prevent autocracy—and autocracy is exactly what nationalist-populist forces seek to achieve.

In this article, we ask how it has been possible for the governments of Hungary and Poland to strengthen and consolidate their power to the present extent without abolishing the constitutional principle of separation of powers or the existence of neutral controlling bodies. We also examine whether and how the typical challenges to the separation of powers in modern democracies—such as the rise of the administrative state, the expansion of judicial power vis-à-vis democratically elected representative bodies, and the development of multi-level constitutionalism—are being addressed in these countries.

We argue that despite a number of similarities that often prompt legal scholars to put Hungary and Poland into the same basket, their paths to a common destination have not been identical. The most significant difference between Hungary and Poland appears to be the manner in which the constitutional change has been delivered, owing to the number of parliamentary seats secured by the winning party. In Hungary, the constitution-making majority enabled Fidesz to transform the system of government in the desired direction, thus accelerating the process of departing from constitutional democracy. In Poland, where Law and Justice has never even come close to securing a constitutional majority in parliament, the authoritarian drift only became possible through tricks and subterfuge, biased legal interpretations, and unconstitutional amendments to ordinary laws. Another important difference is that while the Hungarian parliament has been effectively disabled and put at the service of the government, there has been no similar shift in Poland.

We also believe that these two countries are not primarily facing the same challenges that emerge in consolidated democracies. Some of the latter are also present here, but perhaps in different contexts and together with some other issues. It may also be that the developments in Poland and Hungary have been driven precisely by the fear of such challenges, even before these countries were actually confronted with them.