The Invisible Constitution in Comparative Perspective

19.2.4.  Catholic Natural Law

Now we may understand better the reason behind the Janus-faced constitu-

tional adjudication. The interpretation based upon the invisible constitution 

can be called a variety of moral reading that is not, in itself, either a liberal 

or a conservative scheme. If it were argued that the Court determined the 

abstract principle of dignity in a Kantian or Dworkinian way, the conclusion 

45 

Judgment 22/1997 (IV. 25.) HCC.

46 

András Sajó argued that the 1989 Constitution provided for the separation of the state and 

church, however, the Court’s judgment treated other countries’ (e.g., Austria, Germany)  

century-old compromises as models: A. Sajó, “A ‘kisegyház’ mint alkotmányjogi képtelenség 

[the ‘small church’ as constitutional nonsense]” (1999) 3(2) Fundamentum 96.

47 

Judgment 970/B/1994 HCC. For a critical account, see Kis, Supra note 27, 282.

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556 

Gábor Attila Tóth

after case studies would be that the system is self-contradictory. It is far from 

both coherence and reliable standard, because in many individual cases the 

Court tendentiously reached a conclusion opposite to that which should have 

come from the proper meaning of the abstract principles.

The theoretical basis of the invisible constitution doctrine lies elsewhere. 

The interpretive practice of the Sólyom Court was determined by a Christian 

moral and political worldview; specifically, an alternative conception of the 

Second Vatican Council, a progressive but non-secular Catholic view. This is 

what – of course not entirely – but most closely explains the judicial tenden-

cies of the first Hungarian Constitutional Court.

48

To sum up, establishment of a human dignity-based constitutional con-

cept of freedom and equality, acknowledgment of the separation of state and 

church, respect for freedom of speech, religion and other liberty rights on 

the one hand; and conservative views on the social role of women and fam-

ilies, protecting zealously the life of the embryo and the early fetus, deny-

ing equal respect to same-sex couples, while privileging traditional marriage 

and churches on the other, can be easily associated with the teaching of the 

post-Second Vatican Council Catholic Church.

Probably the most illuminating element of this link can be found in the 

concurring opinion to the Capital Punishment Judgment, which not only 

revealed the idea of the invisible constitution, but also elucidated its “image 

of human being” in order to define the relationship between the right to life 

and dignity. Justice Sólyom argued that at the present time a dual approach 

is predominant: a secularized view of the status of body and soul. “Bodily” 

or biological-physical rights, such as the right to life, are separated from the 

“soul,” the right to dignity. According to Sólyom, the Court is free to reject 

the dualism of life and dignity by adopting a uniform and indivisible image 

of a human being that is to view personality in the unity of its life and dignity.

Accordingly, only the unity of the subjective right to life and to dignity will 

provide the status that is specifically related to the concrete individual: it 

is the untouchability and equality contained in the right to human dignity 

that results in man’s right to life being a specific right to human life (over 

and above animals’ and artificial subjects’ right to being); on the other hand, 

dignity as a fundamental right does not have meaning for the individual if he 

or she is dead.

49

48 

Kis, Supra note 27, 295. See also Tóth, Supra note 38.

49 

Judgment 23/1990 (X. 31.) HCC, concurring opinion by Chief Justice Sólyom.

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