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Constitution for a Disunited Nation

Constitution for a Disunited Nation: On Hungary's 2011 Fundamental Law   

Edited by Gábor Attila Tóth
Copyright Date: 2012
Pages: 588
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  • Book Info
    Constitution for a Disunited Nation
    Book Description:

    This collection is the most comprehensive account of the Fundamental Law and its underlying principles. The objective is to analyze this constitutional transition from the perspectives of comparative constitutional law, legal theory and political philosophy. The authors outline and analyze how the current constitutional changes are altering the basic structure of the Hungarian State. The key concepts of the theoretical inquiry are sociological and normative legitimacy, majoritarian and partnership approach to democracy, procedural and substantive elements of constitutionalism. Changes are also examined in the field of human rights, focusing on the principles of equality, dignity, and civil liberties.

    eISBN: 978-615-5225-57-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. I-IV)
  2. Table of Contents
    (pp. V-VIII)
  3. Preface
    (pp. IX-XIV)
    Gábor Attila Tóth
  4. Acknowledgements
    (pp. XV-XVI)
  5. INTRODUCTION: From the 1989 Constitution to the 2011 Fundamental Law
    (pp. 1-22)
    János Kis

    On January 1, 2012 the new constitution of Hungary, called the Fundamental Law, came into effect, and on January 2, the government held a gala in its honor at the Opera House in Budapest. In response, tens of thousands gathered in front of the building to demonstrate their anger at what they saw as a subversion of the democratic constitution of the republic. The guests at the gala decided to leave by the back door. It is hard to imagine a better illustration of the claim implicit in the title of this volume. Democratic constitutions aim to unite the nation...


    • What Is Democracy?
      (pp. 25-34)
      Ronald Dworkin

      I’m going to tell you an imaginary story. And I’m going to ask this question: is the story that I will imagine the triumph of democracy or its ruin?

      The story begins with a country which has painfully emerged from terrible periods of tyranny, established what looks like a path to a mature democracy. It has free elections, with near universal suffrage, it has a free and independent press representing opinions across the range of the political spectrum, it has a constitution which embeds fundamental rights of individuals against the majority, it has constitutional court active, indeed from time to...

    • Regime Change, Revolution, and Legitimacy
      (pp. 35-58)
      Andrew Arato

      Ever since 1989, the question whether the transitions to democracy in Central Europe were revolutions has been an intense subject of debate. Behind this debate lies a rigid alternative between revolution or reform. Since the transformations were not reforms compatible with, or preserving systemic identities, they had to be, supposedly, revolutions—an idea confirmed by the presence of large masses on the scene in some, but only some countries. For a long time I have found a schema introduced by Janos Kis to be the most productive way of transcending the reform-revolution dichotomy, which was extremely misleading for many of...

    • Constitution-Making, Competition, and Cooperation
      (pp. 59-82)
      Zoltán Miklósi

      In April 2010, Fidesz, one of Hungary’s major parties, achieved a decisive victory in free and fair legislative elections. Due mainly to the splintering of the opposition and quirks of the nation’s electoral rules, Fidesz’s sizable advantage at the polls translated into a two-thirds majority in the Parliament, slightly over the qualified majority needed to amend or replace the constitution. In due course, the party announced its plan to adopt a wholly new constitution, and despite the protests of opposition parties and a lukewarm public, it indeed passed the new Fundamental Law on a party-line vote exactly one year after...


    • A Sacred Symbol in a Secular Country: The Holy Crown
      (pp. 85-110)
      Sándor Radnóti

      In his classic work, The English Constitution, Walter Bagehot differentiates between the efficient and dignified parts of the constitution. “Every constitution must first gain authority, and then use authority.” The dignified part of the constitution “excites and preserves the reverence of the population,” while the efficient part “works and rules.”¹

      Bagehot was a conservative liberal, a “Whig” who understood the crown (the queen) and in part the aristocratic House of Lords as the dignified part of the constitution. Although the boundaries are fairly fluid, the efficient part—in Bagehot’s interpretation—is predominantly embodied by the Lower House. The dignified leader...

    • From “We the People” to “We the Nation”
      (pp. 111-140)
      Zsolt Körtvélyesi

      In Hungary, as in the region in general, the distinction between the nation in the political sense and the cultural nation is far from clearcut. While the former describes the community of citizens regardless of their ethnicity, the latter unites those of the same ethnicity or cultural family¹ (most notably those who speak the same language) regardless of their country of residence or citizenship. While the 1989 Constitution mostly used the more neutral notion of “the people,” the Fundamental Law only adds to the confusion around the two understandings. A recent change in the naturalization rules has also significantly supplanted...


    • Human Dignity: Rhetoric, Protection, and Instrumentalisation
      (pp. 143-170)
      Catherine Dupré

      The commitment to constitutional protection of human dignity was a prominent feature of the Hungarian 1989 post-communist constitution, where it was enshrined under Article 54(1), as the first Article of chapter XII on fundamental rights.¹ The 2011 Fundamental Law also enshrines human dignity and does so in several places: it is firstly mentioned in the preamble (“We hold that human existence is based on human dignity”), secondly in Article II, the second provision of the “freedom and responsibility” section (“Human dignity shall be inviolable. Every human being shall have the right to life and human dignity; embryonic and fetal life...

    • Equality: The Missing Link
      (pp. 171-196)
      Kriszta Kovács

      A constitution is much more than a fundamental legal document. It is the basic charter of the political community, which draws on the experience of the past and expresses hopes for the future to create a set of principles that are beyond the power of ordinary legislative majorities to change. The 1989 Constitution of Hungary was a good example of this. It had the potential to facilitate democracy and free markets and to ensure equal protection to all persons. In April 2011 a brand new constitution was promulgated, named the Fundamental Law. It changes the characteristics of Hungarian constitutionalism, abandoning...

    • Freedom of Religion and Churches: Archeology in a Constitution-making Assembly
      (pp. 197-234)
      Renáta Uitz

      Many aspects of the new Hungarian constitution are difficult to assess, as its key provisions need to be entrenched by further statutes, the so-called cardinal laws, to be passed by a qualified majority in Parliament.¹ This means that Parliament could delay strategic decisions concerning the content and details of most key constitutional provisions, and this delay also allows for some fine tuning of key details, thus essentially extending the constitution-making process: the Hungarian parliament passing legislation with qualified majority is essentially a vastly expanded constitution-making assembly. By the end of 2011, i.e. before the Fundamental Law’s entry into force, most...


    • From Separation of Powers to a Government without Checks: Hungary’s Old and New Constitutions
      (pp. 237-268)
      Miklós Bánkuti, Gábor Halmai and Kim Lane Scheppele

      On April 24, 2011, Hungary adopted a new constitution that entered into effect on January 1, 2012. With a great deal of public fanfare,¹ symbolic flourish² and even a new iPad App,³ the new Fundamental Law promised to end the Hungarian transition begun in 1989 by completely replacing the constitution established at that time.⁴ The new government, led by the center-right political party Fidesz,⁵ won a constitution-making majority in parliamentary elections in 2010, and they decided to use all of the power that they had to completely remake the Hungarian political order.

      A closer look at the 2011 Fundamental Law,...

    • Between Revolution and Constitution: The Roles of the Hungarian Constitutional Court
      (pp. 269-300)
      Oliver W. Lembcke and Christian Boulanger

      There are questions which are themselves more important than their answers. In some cases, answers may even be downright undesirable, at least if they possess a definitive character. Such a case may be represented by the question ascribed to the Roman poet Juvenal: Quis custodiet ipsos custodes? (“Who will guard the guards themselves?”) The aphorism comes from the Satires, where it refers to the problem of how the virtuousness of women can possibly be protected if the guardians of their virtue are themselves corrupt.¹ It has since gained significance in a political context. Today it represents first and foremost a...

    • Governance, Accountability, and the Market
      (pp. 301-332)
      Márton Varju

      This chapter investigates the provisions of the new Hungarian Fundamental Law on governance, accountability and the market. Its main contention is that the Fundamental Law largely failed to reflect on the changes experienced by European states, including Hungary, in the past decades affecting the relationship between the state and individuals, the modes and mechanisms of accountability, and the relationship between the state and the market. These changes emanated from processes, such as the emergence of the regulatory state following periods of deregulation, privatization and marketization,¹ the decline of government by control in delivering public policy and the parallel emergence of...


    • No New(s), Good News? The Fundamental Law and the European Law
      (pp. 335-358)
      András Bragyova

      This paper intends to examine the effect of the Fundamental Law to the relationship between European Law (now Union law)¹ and Hungarian law. First, I would like to make a rather obvious but important distinction. The relationship of European law and Hungarian law includes two separate questions which should be carefully distinguished: first, the relationship of European law to Hungarian law; and second the relationship of Hungarian law to European law. These two questions are in no way symmetrical. The first is a question of European law, thus independent form Hungarian law, while the second is a question of Hungarian...

    • Trees in the Wood: The Fundamental Law and the European Court of Human Rights
      (pp. 359-376)
      Jeremy McBride

      Many of the constitutional changes found in Hungary’s new Fundamental Law relate—whether directly or indirectly—to rights and freedoms guaranteed by the European Convention on Human Rights (“the European Convention”). This chapter considers those changes from the perspective of the mandate given to the European Court of Human Rights (“the European Court”) by the European Convention. Pursuant to this mandate, the European Court has a decisive role in the interpretation and application of all the rights and freedoms set out in Section I of the European Convention, as well as those in any Protocols ratified, which High Contracting Parties...


    • The Fundamental Law of Hungary
      (pp. 379-432)
    • Transitional Provisions of the Fundamental Law
      (pp. 433-448)
    • First Amendment of the Fundamental Law
      (pp. 449-450)
    • Bill on the Second Amendment of the Fundamental Law
      (pp. 451-454)
    • Opinion on the Fundamental Law of Hungary (Amicus Brief)
      (pp. 455-490)
      Zoltán Fleck, Gábor Gadó, Gábor Halmai, Szabolcs Hegyi, Gábor Juhász, János Kis, Zsolt Körtvélyesi, Balázs Majtényi and Gábor Attila Tóth
    • Opinion on the New Constitution of Hungary European Commission for Democracy Through Law (Venice Commission)
      (pp. 491-536)
  12. Bibliography
    (pp. 537-550)
  13. Table of Cases
    (pp. 551-556)
  14. Contributors
    (pp. 557-560)
  15. Index
    (pp. 561-570)
  16. Back Matter
    (pp. 571-571)