Two Eras of Hungarian Constitutionalism: From the Rule of Law to Rule by Law

Abstract

150-250Developments in Hungarian constitutional law after 2010 suggest that the era in Hungarian constitutionalism characterized by a commitment to the rule of law has been replaced by an era where the law is regarded as an instrument available to government to rule. Under the new Fundamental Law, which places alike the 1989 Constitution the rule of law at the centre of the constitutional order, the constraints which follow from the rule of law have been habitually overridden or ignored by the government acting in parliament. The Constitutional Court's attempts to continue the legacy of pre-2010 constitutionalism were reproached by the government delimiting the powers of the Court or overruling its decisions in formal amendments of the constitutional text. In the domain of economic regulation, the differences in how the Constitutional Court and European judicial fora assess the legal measures which have restructured entire markets give a clear indication that the rule of law in Hungary has lost its previous enjoyed position in the Hungarian constitutional order.

Constitutional identity as a normative constitutional concept

“…Whereas constitutional identity, according to the Fundamental Law of 2011, is based on the historical constitution, whose main characteristic was that its principles and institutions were not created but have evolved continuously over centuries, some specific elements of constitutional identity were created by the constituent power on an occasional basis: the Christian values in the Fundamental Law and the ban on the immigration of foreigners suddenly became part of For some of the vast literature on the dismantling of the rule of law, see for example Chronowski and Varju (2016); Chronowski and Varju (2015); Szente (2017); Halmai (2018); Pap (2018); Szente (2022).…”

Talking Past Each Other: On Common Misperceptions in the Rule of Law Debate

“…11 The right-wing government of Orbán is often-and not without justification-blamed for arbitrariness and lacking respect for constitutional institutions. This instrumental use of the law, 12 a rule by the law and not that of the law (Chronowski and Varju 2016), is often connoted with legislative measures adopted in order to appoint the right (politically suitable) "chap" for the right job (The Economist 2019), such as packing the Constitutional Court, 13 the premature termination of the mandate of the President of the former Supreme Court of Hungary (Vincze 2015;Kosař and Šipulová 2018), or that of the Data Protection Ombudsman 14 by amending the constitutional provisions (see also Chapter 10). Nonetheless, this kind of meddling with independent institutions was not alien to the former socialist governments of 2002-2010 either (Vincze 2018a).…”

The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law

“…13 Ever since the right-wing party, Fidesz, came to power after the April 2010 election, the constitutional system witnessed a series of swift reforms which gradually strengthened parliamentary sovereignty and weakened its constraints and counterweights. 14 The coalition of Fidesz and the Christian Democrats, a satellite party of Fidesz, 15 won a two-thirds majority in the Parliament, allowing them to push through fundamental legislative changes, culminating in 2011 with the adoption of a new constitution-the Fundamental Law.…”