Inventing Constitutional Identity in Hungary

Abstract

Constitutional traditions can play an important role in the identity of states. A modern version of social integration can be based on constitutional identity. Hungary's public law history has few elements that are compatible with modern constitutional values. Our public law tradition is mostly one of affirming the prerogatives of the feudal estates rather than of parliamentarism and respect for individual rights. After 2010, the ruling party made a sharp break with the ideals of regime change and declared a new beginning. To do so, it invented the Hungarian historical constitution and the doctrine of the Holy Crown, which originally aimed to restore the territorial unity of the country between the two world wars. In addition to nationalist identification, this political and ideological turn was also a way of supporting the topos of the decline of the West and serving as a shield against European critics who were calling the destruction of the rule of law to account. However, the values of the “historical constitution” are not just political ideology, but a legal interpretation enshrined in the Fundamental Law, which binds those who apply the law. The Constitutional Court, which has lost its independence, has done this job by interpreting the Preamble to the Fundamental Law. The full series: The Crisis of the Rule of Law, Democracy and Fundamental Rights in Hungary (Paper I: 2022/4) – Tactics Against Criticism of Autocratization. The Hungarian Government and the EU’s Prolonged Toleration (Paper II: 2022/5) – Inventing Constitutional Identity in Hungary (Paper III: 2022/6) – The Hungarian Constitutional Court and the Abusive Constitutionalism (Paper IV: 2022/7) – Is the EU Toothless? An Assessment of the Rule of Law Enforcement Toolkit (Paper V: 2022/8) – The CJEU and the ECtHR – High Hopes or Wishful Thinking? (Paper VI: forthcoming) – The Changes Undermining the Functioning of a Constitutional Democracy (Paper VII: 2022/9).