Comparativism and the New Hungarian Fundamental Law – Taking Raz Seriously

International and Comparative Law Review, Issue 1, 2017, p. 109-127.

19 Pages Posted: 3 Jun 2016 Last revised: 30 Jan 2018

See all articles by Attila Badó

Attila Badó

University of Szeged

Péter Mezei

Institute of Comparative Law and Legal Theory

Date Written: March 31, 2016

Abstract

Comparative law plays a role both at the time of the creation and interpretation of constitutions. Hungary is not an exception in this respect. The comparative analysis of Hungarian constitutional law is an ordinary one both in terms of quantity and quality. The new Fundamental Law of 2011 as well as the “two-third majority statutes”, however, led to an international scandal. Several studies have suggested that the method of acceptance of the new Fundamental Law and its content are unique in several aspects. The reviews of the Fundamental Law by scholars and international organizations show, however, contradictory opinions. We argue that such opposition is mainly due to differing conceptions of the ideal democratic society. Proponents of the Fundamental Law asserting national sovereignty and the supremacy of legislation accept any constitutional regulation that is backed by the necessary amount of votes. On the other hand, opponents have disliked everything that has happened in Hungarian constitutional law since 2010 on the premises of global constitutional values, the lack of consensus, self-restraint or elegance. The present paper aims to evaluate the Fundamental Law of Hungary through the lens of Joseph Raz’s seven constitutional criteria that might serve as a structured approach to analysis that is acceptable to those who express supportive as well as critical opinions on the Fundamental Law. Indeed, based upon Raz’s criteria we have come to the conclusion that the new constitutional regime does not meet one single criterion that is connected to its acceptance. As the Fundamental Law was accepted rapidly, without any endorsement by the opposing parties or any referendum, it cannot be demonstrated that it mediates general values accepted by the whole society.

Keywords: Fundamental Law, Hungary, constitutionality, Joseph Raz, comparative law

JEL Classification: K10, K19, K33, K40

Suggested Citation

Badó, Attila and Mezei, Péter, Comparativism and the New Hungarian Fundamental Law – Taking Raz Seriously (March 31, 2016). International and Comparative Law Review, Issue 1, 2017, p. 109-127.. Available at SSRN: https://ssrn.com/abstract=2787582 or http://dx.doi.org/10.2139/ssrn.2787582

Attila Badó

University of Szeged ( email )

P.O. Box 652
Szeged, H-6701
Hungary

Péter Mezei (Contact Author)

Institute of Comparative Law and Legal Theory ( email )

Bocskai u. 10-12.
Szeged, H-6721
Hungary
+36-62-546-735 (Phone)

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