Continuity, Discontinuity and Constitution-Making: A Comparative Account

26 Pages Posted: 28 Aug 2016

See all articles by Zsolt Kortvelyesi

Zsolt Kortvelyesi

Hungarian Academy of Sciences - Institute for Legal Studies, Centre for Social Sciences

Date Written: January 30, 2016

Abstract

This chapter presents a comparative overview of how the formal source of a constitution's authority is present, or misrepresented, in a constitution-making process, and it goes on to analyze the Hungarian case, the adoption of the 2011 Fundamental Law in this light. Questions of continuity and discontinuity at this unique moment in time reveal fundamental elements about the identity project of the constitution-makers who look almighty and fearful at the same time, unconstrained to the extent that this is possible, but at the mercy of social acceptance, the faith of the new system. The selected cases show how an earlier constitutional framework can play into the struggle for legitimacy of the new constitution, in the US, and more recently in Canada. Constitutional arguments seem to be misused more than they are used properly, and this is often to inflate the role of the people in the name of whom the constitution is speaking. This ultimately means that there is a mismatch between arguments and the underlying legal reality. The Hungarian developments will be considered against this background, highlighting the tension between the rhetoric of a revolutionary act, breaking with most of post-1944 Hungarian history (discontinuity) and the formal reliance on the validity of the 1949 Constitution (continuity). The reliance of established amending rules helped the governing majority avoid questions about the role of the people and the involvement of at least their representatives, considering that it is the people, after all, in the name of whom constitutional regimes are founded.

Keywords: legal continuity, constitution making, revolution

Suggested Citation

Kortvelyesi, Zsolt, Continuity, Discontinuity and Constitution-Making: A Comparative Account (January 30, 2016). Available at SSRN: https://ssrn.com/abstract=2826131 or http://dx.doi.org/10.2139/ssrn.2826131

Zsolt Kortvelyesi (Contact Author)

Hungarian Academy of Sciences - Institute for Legal Studies, Centre for Social Sciences ( email )

Orszaghaz u 30.
Budapest, 1015
Hungary

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