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Historicism or Art Nouveau in Constitutional Interpretation? A comment on Zoltán Szente's The Interpretive Practice of the Hungarian Constitutional Court—A Critical View
... In the wake of these debates, in Hungary, the Constitutional Court has also regularly used the concept since 2010. Indeed, when the court, by then packed with judges supporting the regime (Tóth 2013), was asked its opinion on the issue of refugees, it abundantly developed the issue (Constitutional Court of Hungary 2016) -thus framing its justification in the language of EU law. But it made very clear which interpretation it intended to follow: It drew inspiration from the GCT and its claim to be the ultimate guardian of democratic sovereignty (Constitutional Court of Hungary 2016, §60). ...
This paper examines the history of European legal integration through the lens of the Eliasian concept of “(de-)civilizing process” that is, a reversible process of social
pacification and of extension of the sense of belonging to the same commu-
nity. Today, the European union (EU) is generally regarded as the most ad-
vanced attempt at establishing a supranational “rule of law,” i.e., a set of gen-
eral and predictable rules enforced homogeneously across a large territory,
granting rights to its inhabitants, and fostering a slow extension of the “imag-
ined community” of citizens. The construction of this European “rule of law”
is, therefore, often interpreted as a crucial element of a “European civilizing
process” unfolding beyond the nation-states. Critically departing from this
narrative, this paper invites to reconceptualise European legal integration as
a “civilizing offensive” through law. In this light, EU law can be analysed as a
more ambivalent and ambiguous project than suggested by the narrative of
a necessarily unfolding “rule of law.” To that aim, this paper will concentrate
on an issue of particular prominence in the recent debates about EU law: The
“rule of law crisis” in Hungary. Since 2010, it has brought together several im-
portant features of the many recent crises of European integration. On the
basis of legal EU and Hungarian documents, I will argue that, in spite of re-
peated clashes with EU institutions, part of these challenges were made pos-
sible by the ambiguous historical construction of the EU and its legal order:
They also emerge from within – as will be illustrated through the concept of
“constitutional identity” and its uses.
The analysis of constitutional interpretation has received much attention in recent years. This article is a contribution to research using text mining methods to account for markers of constitutional reasoning in big data-sized text corpora. We examine how often the Hungarian Constitutional Court (the HCC) reflected on the various methods of interpretation. For this purpose, we have created a complex corpus covering all HCC decisions and orders between 1990 and 2021. We found evidence that the methodological practice of the HCC is not self-reflexive in general as only 44% of its decisions make a reference to at least one method of interpretation. We also show that the self-reflexive nature is even more prevalent (in fact, ubiquitous) in 100 doctrinally important decisions from the 30 years of jurisprudence in question. While this study is a first step towards the quantitative analysis of the reasoning of the constitutional judiciary, further mixed methods research is needed to account for intertemporal changes in such data and to refine the measurement of constitutional interpretation.
A provision of the Hungarian constitution, adopted in 2011, has renamed the state. The name changed from the Republic of Hungary to Hungary, while the form of the state has remained “republic”. The purpose of this study is to explore the meaning, significance, and several consequences of this provision. The analysis consists of three main parts. The first one gives a general overview of the functions of the names of states. It claims that not only names but also changing or modifying names of states—taking place either by name-giving or by shaping convention—can serve certain functions. The second part focuses on the historical and constitutional details of renaming the Hungarian state, and summarizes the legal context that provided the framework for the 2011 renaming. The third part outlines the arguments for the change, takes a look at the official justification and actual reasons, and reveals some of the consequences of the name change in the past decade. The main contention of the paper is that the renaming of the Hungarian state that took place in 2011 lacked any overt and reasonable justification, and is best explained as an expression of anti-republican sentiment, which indicated, and partly paved the way for the transition into a kind of an authoritarian regime. Finally, the study raises a possible interpretation of the renaming of the Hungarian state in 2011, the point of which is that it adumbrated many later changes in public law and political systems.
More than two decades after the post-communist constitutional transition, Hungary
is in the spotlight again. As a result of the 2010 elections, the governing
majority has two-thirds of the seats in parliament, which makes constitutional
revision exceptionally easy. Th is is not only conjecture, since the Constitution has
been changed ten times within half a year, including a reduction of the Constitutional
Court’s competencies. In April 2011, on the fi rst anniversary of the 2010
election, a brand new constitution was promulgated, named the Basic Law.
Th e objective of this paper is to describe how these changes are altering the
basic structure of the Hungarian State. We fi rst briefl y outline the state structure
based upon the 1989 Constitution. Second, we show how the fl exible Constitution
and the hostile political climate have challenged the constitutional stability. Th ird,
we describe the fl urry of controversial constitutional changes including limitation
of the competencies of the Constitutional Court immediately after the elections.
Fourth, we review the process of the adoption of the new constitution, the Basic
Law. And finally, painting with a broad brush, we introduce the main features of
that new constitution.
This chapter analyzes the events around the 2011 constitution in Hungary, focussing on the struggle between the Orbán government, backed by a super-majority in parliament, and the Hungarian Constitutional Court.
In United States v. Dickerson the Supreme Court reaffirmed its decision in Miranda v. Arizona, stating that it was a 'constitutional decision' and, thus, not subject to congressional overruling. At the same time, the Dickerson Court reiterated Miranda's "invitation" to "Congress and the States to . . . search for . . . other procedures which are at least as effective" as the Court's prescribed warnings in protecting the suspect's rights. This article uses Dickerson as a lens through which to examine the possibilities of shared constitutional interpretation. After all, the Court that decided Dickerson has, in recent years, been extremely jealous of its prerogative in having the last word as to the Constitution's meaning. What then, does the "invitation" in Miranda and Dickerson really mean? The authors argue that constitutional experimentation is to be applauded, but its success depends upon institutional humility and mutual respect. First, the article explains that Miranda is best understood as establishing a suspect's constitutional right to notice of the right to silence and a constitutional right to procedures adequate to ensure a continuous opportunity to exercise the right to silence. Understanding Miranda's core as a bedrock constitutional rule obviates the need to engage in the familiar debate about "prophylactic" rules. Second, the article uses a series of hypothetical statutes requiring videotaping of confessions and prohibiting the presence of counsel, to examine the shared opportunities and responsibilities of Congress, the States and other government actors in interpreting the meaning of the "Miranda" rule. The authors conclude that notwithstanding the Supreme Court's recent rulings narrowing the scope of congressional power and expanding its own power at the expense of all other constitutional actors, considerable room remains for non-judicial actors to participate in the elaboration of constitutional meaning.
Treating people as equals is one of the main aims of constitutional democracies. Numerous examples prove the adverse effects if a state violates the equality principles relating to ethnic minorities and religious groups. Here is a lesson from Hungary. The Hungarian Constitutional Court (hereinafter: HCC) is not engaged in adjudicating concrete 'cases and controversies', but seemingly reviews the constitutionality of laws. The Constitution lays down the fundamental tenets relating to religious groups, churches, ethnic minorities and the principles of equality in general. Thus, the question is how the problems of religions and minorities are reflected in the constitutional case-law.The main theses of this article are following. First, based on historical facts the HCC provides preferential treatment for so-called historical churches. Second, in cases involving Roma the HCC does not consider the historical facts and social reality thus, the discrimination of Roma does not appear in the jurisprudence. Third, the unequal protection of churches and Roma by the state results in advantages being provided where the constitutional reasons of preferential treatment are absent while the state remains inactive where the promotion of the principles of equality would be most necessary.
This article challenges traditional views of the proper subject matter of clinical psychology, the nature of psychological adjustment and maladjustment, and the roles and functions of clinical psychologists. Toward this end, the article discusses clinical psychologists’conceptions of psychological adjustment and maladjustment and of the difference between psychological adjustment and maladjustment. It describes and challenges the illness ideology that has prevailed in clinical psychology for the past century—an ideology that has been socially constructed rather than scientifically constructed. This ideology consists of not only a set of assumptions about the nature of psychological adjustment and the “territory” of clinical psychology but also a language that influences the way clinical psychologists and others think about the field. It then offers a statement of a new mission for and vision of clinical psychology based on the values of positive psychology.
Cet article interroge l’approche traditionnelle des questions spécifiques à la psychologie clinique, la nature de l’adaptation et de l’inadaptation psychologiques, et les rôles et fonctions des psychologues cliniciens. A cette fin, on examine les conceptions des cliniciens concernant l’adaptation et l’inadaptation psychologiques, ainsi que la différence entre ces deux notions. On décrit et conteste l’idéologie de la maladie qui a prévalu en psychologie clinique au cours du dernier siècle, une idéologie qui a étéélaborée socialement plutôt que scientifiquement. Cette idéologie renvoie non seulement à une série d’affirmations sur la nature de l’adaptation psychologique et le « territoire » de la psychologie clinique, mais aussi à un langage qui influence la façon dont les psychologues cliniciens (et d’autres aussi) abordent ce domaine. On propose ensuite, à partir des valeurs de la psychologie positive, une vision de la psychologie clinique débouchant pour elle sur une nouvelle mission.
Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity
- Dupré Catherine
On the Unconstitutionality of Constitutional Change: An Essay in Honor of László Sólyom
- Scheppele Kim Lane
We are proud that our people have fought in defense of Europe over the centuries and, through their talent and industry
- See A Magyar Köztársaság Alkotmánya
Alkotmánybíróság [AB - Hungarian Constitutional Court
- E G See
The Necessity Test in the Jurisprudence of the Hungarian Constitutional Court and the European Court of Human Rights
- Jeremy Mcbride
Pártok és érdekszervezetek az alkotmányban
- László Sólyom
Opinion on the Fundamental Law of Hungary pt
- Fleck Zoltán
Makwanyane 1995 (3) SA 391 (CC) (S. Afr
- S V
BvL 43/92, 90 Entscheidungen des Bundesverfassungsgericht
- Bundesverfassungsgericht
Hate Speech for Hostile Hungarians, 3 E. Eur
- András Sajó
For a comparative study, see Liav Orgad, The Preamble in Constitutional Interpretation, 8 Int'l