The workshop explores continuous presence of historical narratives in Hungarian constitutionalism. It analyzes this problem by mapping the historical roots of political and legal thinking about these narratives, including constitutional debates of 18th and 19th centuries, and the emergence of the concept of Hungary’s historical constitution. The presentation further delve into the historical events of the 20th century and their impact on national constitutional thinking, such as the Treaty of Trianon, Hungary’s communist regime and the democratic transition. Finally, it examines how history appears in the Hungarian Fundamental Law and the decisions of the Constitutional Court, connecting it to the country’s current democratic situation.

 

Introduction

Bán Marina, Postdoctoral Researcher, iCourts, University of Copenhagen

 

Panel 1: Historical Journey to the 19th Century

Historical narratives in the debate over the Nationality Act of 1868
Nagy Noémi, Assistant Professor, University of Public Service

The presence of historical narratives, historicization, and reference to historical law have traditionally been part of Hungarian constitutional (public law) thinking – suffice it to recall the debates surrounding the Austro-Hungarian Compromise of 1867. Our current Fundamental Law also states respect for the achievements of the historical constitution, making it a fundamental duty of the state to protect our identity rooted in the historical constitution, and stipulates that the provisions of the Fundamental Law must be interpreted in accordance with the acquis of the historical constitution (Constitutional Court 22/2016. (XII. 5.)) It is obvious from the decision of Constitutional Court that “the protection of the nationalities living with us” belongs to the constitutional identity of Hungary and at the same time to the achievements of the historical constitution. The roots of the regulation of national rights in Hungary go back to the resolution of the House of Representatives in 1849, then to the XLIV Act, the legal framework governing the era of dualism – and beyond – in the article of law.

In this paper, I examine how historical narratives appeared in the discourses surrounding the preparation and adoption of the Nationality Law (especially in the general debate in the House of Representatives on November 24-28, 1868) and how the final form of regulation was determined. The liberal Hungarian political elite, living under the spell of the idea of ​​historical law, accepted the concept of a French-style nation-state based on the liberal principle of civil equality as a fundamental principle, pushing other considerations governing the issue of nationality into the background.

The unified and indivisible Hungarian political nation, as a political unit based on public law and history, actually appeared as a modern version of the Hungarian noble nation, natio Hungarica, with the essential difference that the latter was an equal member of all nobles, in both cases, regardless of nationality. The stubborn adherence of the liberal majority to the status quo in state law did not allow the law to recognize nationalities as political communities and confer collective rights on them, so it could not be expected to be welcomed among nationalities despite the unique freedom to use languages ​​in the era.

The Pragmatic Sanction as the Foundation of the Austro-Hungarian Compromise of 1867
Schwarczwölder Ádám, Research Fellow, Veritas Institute, Budapest

In 1867, Ferenc Deák openly admitted that he had derived the entire common system of the dualist Austro-Hungarian Monarchy, which reorganized the Habsburg Empire, from two clauses in the Pragmatic Sanction of 1723. Found in both the Prologue (“[…] that the compromise with our neighboring hereditary lands should endure against external violence in all cases […]”) and Article I (“[…] and with the neighboring hereditary lands and provinces in every contingency, a united front against external violence […]”), Hungary would defend against external enemies collectively with the other countries ruled by the king. Hence, instead of the oft-repeated three common matters between Hungary and Cisleithania in the Dual Monarchy, there was in reality but one: a mandatory community for providing defense. According to the explanation provided by Deák and his fellow travelers, it nonetheless involved two things: diplomacy in peacetime and the army in wartime.

On the one hand, Lajos Kossuth’s criticism of the compromise was unfounded from several points of view. On the other hand, he could offer nothing that bettered Deák’s proposal. Kossuth’s observation that the Pragmatic Sanction was not a rediscovered element of the historical constitution was nonetheless accurate. He, Deák and the other members of the Batthyány government had already become familiar with its content by 1848. According to Kossuth, Deák was guilty of “reinterpreting” the Pragmatic Sanction in 1867 and likewise made it the ultimate authority in Hungarian public law (overriding, for example, legislation enacted in 1791 and April 1848).

However, Deák and his supporters primarily wanted to find a practical solution to the public law problem that had plagued Hungary since 1849, a remedy that both met the requirements of Hungarian constitutionality and served the grand interests of the empire, thereby reaching Franz Joseph’s threshold of acceptability. Thus was born Article XII / 1867: “On the relations of common interest between the Lands of the Hungarian Crown and the other countries under His Majesty’s rule, and the manner of their management” (italics mine: Á. Sch.). How did the interpretation of the Pragmatic Sanction change between 1848 and 1867? What were the historical circumstances that led Deák to “reinterpret” it?

The Origins, Development, and Meaning of the Term “Austro-Hungarian Empire”
Szabó Szilárd, Professor, University of Debrecen

Originally, the term Austrian Empire referred to the territories owned by the House of Austria in the sense of which states fell under the sovereignty of the dynasty, and not to any specific geographical unit. The term was created in 1804 after Emperor Franz, the head of the Holy Roman Empire, took the title through a royal patent.

The name of the Monarchy remained unclear during the Austrian-Hungarian negotiations toward agreement on state union in 1867. The Hungarians debated the use of the title Emperor for the lands under the Hungarian crown. In 1868, Franz Josef introduced the term the Austro-Hungarian Monarchy by royal decree.

After the Austro-Hungarian agreement, Hungary did not consider the idea of a unified empire to be sustainable. To the contrary, Hungarians consequently stove to have Hungary’s sovereignty reflected in the name of the Monarchy.

Panel 2: Constitutional Debates of the 20th Century

Legitimacy and Legality in the Writings of János Zlinszky, Carl Schmitt and Álvaro D’Ors
El Beheiri Nadja, Professor, Department of Roman Law, Pázmány Péter Catholic University

The Constitutional Court of Hungary set up in 1990, following the agreement reached during the Round Table Talks, adopted the view that the political change in Hungary should be carried out on the basis of legality. Despite the fact that from a political point of view changes of 1989 had a revolutionary character, the Court decided that the legislation of the former political order should remain in force. The Constitutional Court saw its most important task in bringing the law of the former order into line with the new constitutional approach rooted in the spirit of the rule of law (cf. AB 11/1992). One of the first five judges of the Constitutional Court was János Zlinszky (1928-2005). He was the only judge who could look back to an extensive experience as an attorney during the former regime and the only one who was a legal historian. For Zlinszky the rule of law was intimately connected to a set of values, which the Hungarian author traced back to the Historical Constitution. It was this set values entrenched in the Historical Constitution, which – according to Zlinszky – conferred legitimacy to the new system. In my paper I will first compare the approach of Zlinszky with to „conservative” thinkers connected one to each other: Carl Schmitt and Álvaro D’Ors. The two authors were engaged in an intensive dialogue on questions concerning legal theory (cf. Montserrat Herrero hg. Carl Schmitt und Álvaro D’Ors, Briefwechsel). In a further step, I will contrast their understanding of legitimacy and legality with the views of János Zlinszky. In the spirit of the conference, I would like to carry out a further comparison with some results highlighted by Joseph Weiler (cf. Europe in Crisis – on „Political Messianism”, Legitimacy” and the „Rule of Law”. This comparison might be also interesting as Weiler holds a Doctorate Honoris Causa by the University of Navarre the home institution of Álvaro D’Ors.  

The Public Law Afterlife of the 1946/I Act on the Republic of Hungary
Schweitzer Gábor, Senior Research Fellow, Centre of Social Sciences Institute for Legal Studies, Hungarian Academy of Sciences

The presentation reviews the 1946/I Act, declaring the state form of the republic and regulating the legal status of the President of the Republic, as well as its afterlife in public law. This act stayed in force for only three and a half years, however its significance re-emerged during the period of the change of regime in 1989, the so-called opposition roundtable talks. As the 60th anniversary of the adoption of the law approached in 2006, the current government wanted to pay tribute to the republican form of government and the republican values ​​by creating a new memory law. However, due to the lack of the necessary consensus, the bill was withdrawn following a general debate. There was no consensus among the coalition partners at the time on the need to pass a law on remembrance. In honor of the proclamation of the republic on February 1, 1946, this day was finally declared a day of remembrance. At the same time, during the period of drafting the Fundamental Law, it emerged in the form of a motion of the deputies that the Fundamental Law should commemorate Act I of 1946 among the antecedents of the constitution, but in the absence of sufficient support, this proposal was not incorporated into the Fundamental Law. What could be the explanation for overall presence of the 1946/I Act in public law for decades after its inception? Ultimately, the presentation seeks to answer this question.

The right to health protection, building socialism and the Hungarian constitution: a means to an end and/or an end itself?
Varju Marton, Central European University and Senior Research Fellow, Centre of Social Sciences Institute for Legal Studies, Hungarian Academy of Sciences
Sándor Judit, Professor, Central European University

The fundamental political promise of the socialist regime in Hungary – certainly in its early and in its so-called classical period – to provide and sustain access for everyone to individual and collective goods, such as human health and a healthy living and natural environment. The protection of human health as a social good and as a corresponding responsibility and task of the state formed part of the broader political agenda in Hungarian socialism of guaranteeing economic and social development and convergence towards developed nations in a historically underdeveloped country. The regime regarded the constitution and its actual (legal and non-legal) implementation as an important instrument in realising these ideologically-based political promises, and it used the constitution as an agenda-setting as well as a direct implementation tool. In constitutional ideology and doctrine, the centrally located constitutional provision of the right to health protection and its implementation had the dual role of serving as a fundamental precondition of material socialist transformation, and as a key manifestation of the perceived socio-economic benefits of socialism. However, in the same way as the building of socialism itself, the constitutionally recognised and guaranteed protection of human health could not completely materialise in the social and the individual reality of the period.

The Roots of the 1972 Hungarian Constitutional Reform
Völgyesi Levente, Associate Professor, Pázmány Péter Catholic University

Hungary’s constitution had a historical component until the end of the Second World War. This arc was broken by the constitutional charter imported in 1949, which broke with the Hungarian tradition and featured the Soviet Stalinist constitution of 1936. The model outlined that could only be fully valid during the Rákosi era, and the need to rework and fine-tune it soon became apparent, which was reflected in both the events of 1956 and the subsequent consolidation during so-called reform communist movement. Given that even in the state-socialist system, it is not only politics that determines the economy, but this effect is reciprocal, the so-called the introduction of a new economic mechanism, the indirect economic governance system, also involved the modernization of the legal environment. The 1960s thus sought not only to ensure the sustainable development of the system, but also to establish its constitutional foundations. The culmination of nearly a decade of work has been met with mixed reception. The international events of the 1960s also had a strong impact on shaping Hungarian public law thinking. Conservative and reformist voices were able to assert their interests with varying intensity, as a result of which, at the time of the constitutional amendment in 1972, we witnessed an intensification of the conservative, Moscow-influenced movement, which could dampen the bolder attempts at reform. The strongest, almost symbolic indicator of the stagnation was that the reform of the Civil Code, which provided the legal background for the economic recovery, could only be completed by 1977. In the course of the analysis of the reformed Stalinist constitution, we can observe not only the further over-dimensioning of ideological features but also the display of Hungarian historical traditions, without, of course, substantially affecting the internationalist nature of power. This presentation outlines the ideological background, debates and dilemmas of the 1972 constitutional amendment.

 Panel 3: Historical Memory and Identity after 2010

 

The Constitutionalised Image of Enemy: Examining the Negative Identity Elements of the Hungarian Fundamental Law in Historical and Contemporary Perspectives
Antal Attila, Senior lecturer (Eötvös Loránd University Faculty of Law Institute of Political Science); coordinator (Institute of Political History Social Theory Research Group)

The defining characteristic of the Hungarian Fundamental Law is its strong constitutional identity: the political identity of the supermajority has become constitutionalized. This identity image has a number of positive elements (i.e., elements that have been defined as desirable, a kind of fundamental characteristic of the public law system). These include Christianity, active memory politics, national cohesion, various aspects of sustainability. In this paper, I argue that, in addition to the explicitly strong positive constitutional identity elements, the constitutional power intended that negative identity elements should be at least as strong as the positive ones (in many ways even stronger and more important in the daily political struggles relying constitutional identity). These are the pillars of constitutional identity that separate us from others in Laclauian and Schmittian sense, define boundaries and political fault lines.

The other main claim of this paper is that the negative constitutional identity has been presented in the original constitutional conception, which started to unfold in 2010, but also since 2015 (embedded in the amendments to the Fundamental Law) the constitutional enemy formation pervades public law and political debates. The main theme of this analyses is therefore to examine the hostile elements of negative constitutional identity. Three basic strands of Constitutionalised Image of Enemy (CIE) have emerged (and this reflects the constitution-power’s view of history and the past): (1) anti-communism framed in actual political framework; (2) anti-immigration; (3) opposition to non-heterosexual forms of coexistence.

The analysis will focus on the following approaches to CIEs: the “Communist Constitution of 1949” and its declared invalidity; the responsibility of “political organisations that gained legal recognition during the democratic transition as legal successors of the Hungarian Socialist Workers’ Party”; the various aspects of anti-immigration that have been raised to constitutional level (police involvement in preventing illegal immigration; the terrorist threat; the amendment of the constitutional clause on accession to the EU with regard to the inalienable right of disposal of the territorial unit, population, form of government and organisation of the state); the definition of marriage and the constitutionalising of the biological sex of the mother and father.

The main analytical focus of the paper is on how the public enemy formation of the mention CIEs predominates in the Hungarian society, what are the main political and moral effects and how these may have an impact on the constitutional identity itself as enshrined in the Fundamental Law.

The vision the historical constitution of Hungary can offer: illiberalism and authoritarian rules and practices
Drinóczi Tímea, Visiting Professor, Federal University of Minas Gerais, Brazília, az MTA doktora

Hungary did not have a long-lasting written constitution until the adoption of the communist constitution in 1949, which ended the uncodified Hungarian historical constitution. The post-communist constitution of Hungary did not contain any reference to the historical constitution, neither did the jurisprudence of the Constitutional Court. The Fundamental Law, the illiberal constitution replacing the post-communist one, requires that the constitution must be interpreted in accordance with the historical constitution and that the constitutional identity of Hungary rooted in the historical constitution must be protected by all.

Throughout history, reference to the country’s historical constitution was used to achieve different and sometimes conflicting goals. It was used to maintain medieval order relations v. liberal program of extension of rights or freedom-fights against Vienna v. compromise with Vienna in 1867. It led to the expansion of freedoms and equality in 1848, Horthy and his conservative authoritarian rule regime, and collaboration with Nazi Germany. In the second decade of the 21st century, it is used to reestablish legal continuity, on the one hand. On the other hand, it is instrumentally used in the constitutional court’s decisions and against the politically unwanted application of EU law and values.

The paper investigates the following major components of the historical constitution from a historical perspective, and it will study how they appear in the 21st century: the nation, which is viewed as the embodiment of the national soul; strong feeling about national sovereignty; observance of the rule of law, which historically manifested in the idea of the Saint Crown doctrine embodying the constraints of the power of the monarch and the involvement of the polity as interpreted more and more inclusively over time and entailing legal certainty and continuity as well as restrictions of rights in the interwar period; expansion of freedoms, historically in accordance with European constitutional changes; and Christianity.

Against this background, the central claim of this paper is that employing the narrative of the historical constitution as a constitutional concept leads to illiberal and authoritarian rule, which is historically speaking and having a look at the constitutional development of Hungary in the past decade, is not a constitutional imaginary but a constitutional reality. A constitutional narrative based on the historical constitution of Hungary tends to lead to an illiberal, exclusionary vision embracing inequality. In contrast, a constitutional approach not based on a historical constitution can offer the nation a more liberal, inclusionary vision that draws on dignity and equality, and a more future-looking perspective. This vision fits more in the European project, and while it can be accepted that the EU is characterized by a fundamental constitutional asymmetry, an illiberal constitutional vision for a member state is not compatible with this project.

The Politics of the Historical Constitution
Pócza Kálmán, Professor, University of Public Service and MCC Center for Constitutional Politics

The new Fundamental Law of Hungary adopted in 2011 has undoubtedly provoked fierce criticism. One of the main objections concerned the revival of the so called “historical constitution” of Hungary, a bunch of written and unwritten laws which served as the basis of the Hungarian political system for centuries. Certainly, the new Fundamental Law of Hungary denies that Hungary’s constitution is simply a product of a single constitutional moment. Instead, it implicitly and explicitly indicates that the text of the Fundamental Law is only one part of the Hungarian constitution. In fact, the text of the Fundamental Law explicitly refers to the uncodified historical constitution of Hungary which it describes as an integral part of the present-day Hungarian constitution. In the legal scholarship, however, these references have provoked intense debate, or they have been simply ignored as irrelevant to constitutional interpretation. The present paper seeks to answer the question of whether the historical constitution can be revived on theoretical grounds. The paper relies primarily on arguments from political and constitutional theory. The critics justify the impossibility of the revival of the historical constitution by relying on four basic arguments. First, I will introduce these arguments based on the notions of formal indeterminacy, substantive indeterminacy, incompatibility and discontinuity, and then draw attention to the four basic assumptions that implicitly underlie these arguments. In order to refute these arguments, I will then examine the definition of the concept of constitution and address the question of why there is no substantive (only incremental) difference between codified and historical constitutions.  The paper will then develop a theoretical rebuttal of the arguments against the revival of the historical constitution. Focusing on two theoretical counter-arguments, I will show that neither the formal nor the substantive indeterminacy argument holds water, while I will also provide some empirical examples on the basis of which the incompatibility and the discontinuity arguments can be refuted. The conclusion of the paper is that the revival of the historical constitution is not an impossible mission, neither theoretically nor in practice, but the desirability and success of the revival depends on several factors.

Constitutional identity and supranational cooperation
Varga Zs. András, Professor, Associate Professor, Pázmány Péter Catholic University, President of the Supreme Court of Hungary

At the beginning of the 21st century, the correlation between the world order based on Westphalia-sovereignty and the transnational cooperation processes called globalization is a major challenge and requires long-term coordination. This process, which requires answering not only political-theoretical, but at least as much constitutional questions, raises the need for the identity of each actor, and the development of relevant new doctrines is probably inevitable. The power exercised by the state and the way in which it is exercised is particularly complex within the framework of the European Union.

It is important, therefore – and the Hungarian Basic Law explicitly allows this – that Hungary emphasizes, that Hungarian constitutionality does not exist due to its recognition by an international institution created of its own will or at least with its consent, but Hungarian constitutionality exists because it do have been existed for centuries.

One doctrinal basis for this is the recognition that without state sovereignty, only institutional authority remains. And that institutional authority can be easily changed, as has been the case several times over the past five-ten-fifteen years. Institutional authority based on infinitely variable foundations runs the risk that the constitution and constitutionality will eventually disappear as a result of the constant constraint of alignment (but at least it will be relegated to the background behind self-verifying reasoning in line with current expectations).

Relying on the historical roots of constitutionality and emphasizing historical constitutional identity serves as a strong tool against this. In addition, it has a “connection point” in the Treaty on European Union – Article 4. The normative connection of constitutional identity, the actual constitutionality with the historical constitution that accompanies Hungary’s state existence, and the emphasis on constitutional continuity of the state, and ultimately even a reworded Holy Crown Doctrine, are tools suitable for defending sovereignty in a multilateral international institutional environment.

Panel 4: History, Constitution, Politics, Minorities

 Impact of Historical Traditions on the Regulation and Practice of Preferential Naturalization in Hungary
Ganczer Mónika, research fellow, Centre of Social Sciences Institute for Legal Studies; associate professor, vice-dean for academic and international affairs,
Széchenyi István University Deák Ferenc Faculty of Law and Political Sciences

The study presents the impact of historical traditions on the making and application of law through a specific example. The regulation of nationality, a pivotal field of constitutional law, is considered a sovereign right of the Hungarian state, which is exercised in line with Article G) of the Fundamental Law and Act LV of 1993 on Hungarian Citizenship. Hungarian naturalization practice, however, significantly changed in the wake of the amendment of the act concerned: Hungarians living outside the borders are entitled to preferential naturalization since 2011. This legislative action, which remarkably followed the designation of the day of conclusion of the Trianon Peace Treaty as the Day of National Unity in the previous year, was obviously influenced by historical considerations. The primary objective of preferential naturalization was to grant Hungarian nationality to persons of Hungarian origin whose ancestors had lost their Hungarian nationality in the aftermath of historical events involving the transfer of territories to neighbouring states. The study’s point of departure is the Trianon Peace Treaty, the first major instrument that had a profound effect on the lives and nationality of millions of Hungarians. The study explores the peculiar interpretation and application of treaty provisions relating to territorial changes, and reveals the flaws of legal regulation which further contributed to the formation of a large community of Hungarians living outside the borders. Having surveyed the historical background, the analysis proceeds to examine the impact of historical traditions on the underling motives and current domestic regulation of preferential naturalization. Evidence includes the broad scope of eligible persons, the wide range of documents accepted to prove descent, the verification of required command of language, and the practical implementation of the procedure of naturalization. Research findings convincingly display the far-reaching effects of historical traditions on the regulation and practice of preferential naturalization in Hungary.

The National Assembly’s opportunities of strengthening the role of the historical method in legal interpretation
Gera Anna, Research Fellow, Centre of Social Sciences Institute for Legal Studies, Hungarian Academy of Sciences
Szentgáli Tóth Boldizsár, Research Fellow, Centre of Social Sciences Institute for Legal Studies, Hungarian Academy of Sciences

Although the examination of the current legal role of the historical constitution typically focuses on the analysis of the practice of the Constitutional Court, it is equally important to pay attention to the activities of the National Assembly. Article R) of the Fundamental Law lays the foundations for this on two points: first, in interpretation rule contained in paragraph (3) referring to the achievements of the historical constitution, and second in paragraph (4), making it mandatory for all bodies of the state to protect the constitutional identity of Hungary, which, as stated in the National Avowal and 22/2016. (XII. 5.) decision of the Constitutional Court, roots in the historical constitution.

Thus, we can see how the two provisions of the Fundamental Law establish the obligation of the parliament to examine the development of the historical constitution. In our view, this obligation is broader than an examination of individual legislation in itself, involving a comprehensive overview of all historical developments, taking into account not only the content of the legislation but also the circumstances of its birth, its special meaning in each historical period and the extent to which it has changed or, where appropriate, to what extent it has gained strength. This complex examination is justified by the resolution of dogmatic anomalies created by the reference to the historical constitution and by the promotion of the historical dimension.

In our presentation, we examine how the concept of the achievements of the historical constitution has emerged in the course of the legislative activity of the parliament, and how the room for maneuver of the parliament relates to the room for maneuver of the Constitutional Court and ordinary courts in this area. We believe that, in addition to the historical approach to the historical dimension, it is currently worth focusing on the legal instruments that may be suitable in the practice of the parliament to reflect the legislative approach to the acquis communautaire, rather than on substantive issues. We examine some elements of the legislative process (the committee discussion, the impact assessment of the legislation, and the possible perspectives of the second chamber in this direction), as well as some relevant content elements (preambles, legislative justifications and parliamentary resolutions). Our main goal is to focus on the importance of the room for maneuver of other bodies, especially the National Assembly, instead of the analysis of the problem, which has so far focused mainly on the Constitutional Court.

 

Hungarian constitutional identity and the Hungarian minorities in the neighboring countries
Nagy Csongor István, research chair, ELKH Center for Social Sciences and professor of law, University of Szeged

Hungarian constitutional and public thinking has been fundamentally affected by the status of and the relations with the Hungarian minorities living in the neighboring countries. This phenomenon is nourished by a peculiar historical plight, where one third of Hungarians lives in the adjacent countries. In addition to the constitutional responsibility in relation to these Hungarian communities, specified by Hungary’s Fundamental Law, the foregoing situation also impacted on the constitutional self-definition and identity in Hungary. A result of this can be perceived as to the definition of Hungarian statehood (nation-state versus ethnically neutral state), the regulation and status of the national and ethnic minorities in Hungary and the definition of the nation in the sense of constitutional law. These developments have been highly affected by the idea that the borders of the Hungarian state and of the Hungarian nation do not coincide. The public law relationship to the Hungarian communities in the adjacent countries is also a special Hungarian constitutional trait. This relationship started out with granting a special status to ethnic Hungarians of foreign citizenship (Status Law), and ended in the accelerated nationalization of ethnic Hungarians, which discarded the requirement of domestic domicile. These aspects of Hungarian constitutional thinking entail a peculiar Hungarian approach in the current rule-of-law debate, given that Hungarian constitutional traditions and identity calls for a heightened protection for ethnic minorities, while the European main-stream and the European Commission appear to side-line this issue, as inter-ethnic conflicts are no longer perceived as a security threat in the EU.