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Gábor Attila Tóth
of egalitarian, distributive principles. Individuals have fundamental rights and
freedoms not because others, in a comparative situation, enjoy them, but
because as human beings they deserve certain treatment.
In its initial landmark decisions, the Court established that from freedom
of speech to the right to privacy, each liberty right originates from the notion
of human dignity. As an example, the Court clarified all the relevant notions
concerning personal freedom of religion. “The individual freedom of con-
science and religion acknowledges that the person’s conviction, and, within
this, in a given case, religion, is a part of human dignity, so their freedom is a
pre-condition for the free development of personality.”
21
In general, a not far from Rawlsian conception of justice was echoed in
giving priority to each person’s equal right to basic liberties, including liberty
of conscience compatible with the similar liberty of others. The relationship
between basic liberties and equality of opportunity was also read through the
lens of Rawls.
22
In addition to this, the Court’s concept concerning the neutral-
ity of the state originates from the notion of equal liberty of conscience. The
requirement of religious neutrality of the state means separation of the state
from churches. This separation means that the state must not be institution-
ally attached to any church or churches; that the state must not identify itself
with the teachings of any church; that it must not interfere with the internal
working of any church, and especially that it must not take a stance in matters
of religious truth. From this it follows that the state must treat all churches
equally (Churches Case I).
23
Beyond principles borrowed from theories, the Sólyom Court also took
international and foreign standards of judicial review as precedents. The Court
protected fundamental rights effectively with the help of the proportionality
principle, and the allgemeine Handlungsfreiheit imported from Strasbourg
and Karlsruhe (General Personality Right Case),
24
as well as the clear and
present danger scrutiny derived from the United States constitutional adjudi-
cation (Hate Speech Case I).
25
It may seem reasonable to conclude that the strong aspiration of the Chief
Justice and the majority that took shape around him has been fulfilled: the
“invisible constitution” provided the theoretical bases for the 1989 constitu-
tion. The Court took a decisive part in developing a coherent constitutional
21
Judgment 4/1993 (II. 12.) HCC.
22
J. Rawls,
A Theory of Justice (Cambridge, MA: The Belknap Press of Harvard University Press,
1971), 60–1.
23
Judgment 4/1993 (II. 12.) HCC. Rawls, Supra note 22, 205–11.
24
Judgment 8/1990 (IV. 23.) HCC.
25
Judgment 30/1992 (V. 26.) HCC.
Lost in Transition
549
system and fundamental rights included in it on the basis of the invisible
constitution. This extra-textual constitutional framework, at first glance, may
seem to be close to a Dworkinian account of constitutional law. Substantively,
as introduced above, the Court initiated to create from case to case a coherent
system of fundamental rights. Methodologically, as Sólyom acknowledged in
one of his interviews, the Court undertook the moral reading of the underly-
ing principles of the Constitution. Reading the invisible constitution contrib-
uted to explicating the internal relations of constitutional values and phrases.
In all likelihood the leading role of the Court in democratic transition, as
well as some of its landmark judgments on fundamental rights stemming from
Rawlsian and Dworkinian theoretical roots, led to the widespread understand-
ing that the Court could be characterized ideologically as liberal. As a current
example, Bojan Bugaricˇ and Tom Ginsburg refer to the initial achievements
in terms of how the Court “under the strong leadership of liberal Chief Justice
Sólyom, issued a series of decisions that established its reputation as the key
protector of political and social rights in Hungary.”
26
I think, however, neither Dworkinism nor liberalism is the best explana -
tion of the invisible constitution doctrine of the early Hungarian Constitutional
Court.
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