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Gábor Attila Tóth
along with the postapartheid South African Constitutional Court, from the
early 1990s.
15
In Hungary, the 1990 starting point for constitutional jurisdiction meant,
on the one hand, that neither domestic precedents nor a doctrinal framework
elaborated by academics guided the Court; on the other, the Chief Justice,
based on his distinguished expertise and striking judicial ambition, had a
chance to dominate the inceptive period of the adjudication. The declaration
on the invisible constitution can be seen as the best manifestation of his credo.
As another presentation of the strong belief in the groundbreaking mission,
a per curiam judgment expressed that the Court
has to fulfill its task embedded in history. The Constitutional Court is the
repository of the paradox of the “revolution under the rule of law”: in the pro -
cess of the peaceful transition, beginning with the new Constitution, the
Constitutional Court must, within its competences, in all cases uncondition-
ally guarantee the conformity of the legislative power with the Constitution.
16
19.2.1. Imported Universal Standards
The Court seemed to be the most important institutional guarantee of consti-
tutionalism, on account of its decisions favoring human rights and principles
of the rule of law.
17
The Sólyom-lead court promptly realized that constitu-
tional principles of freedom and equality are interpretive concepts. They are
at the core of the text of the Constitution, and the basis of the jurisdiction of
the Court. The way in which the case law of the Court affects the meaning
of the phrases of the Constitution is determined by values and principles that
explain why interpretation should have that role. With only mild exaggera-
tion, we could say that under the guidelines of the invisible constitution, the
early reading of the text of the Constitution gave rise to applied theories of
justice and dignity in Hungarian constitutional jurisdiction.
15
For the case of Hungary, see C. Dupré, Importing the Law in Post-Communist Transitions: The
Hungarian Constitutional Court and the Right to Human Dignity (Portland, OR: Hart Pub-
lishing, 2003) and L. Sólyom and G. Brunner, Constitutional Judiciary in a New Democracy:
The Hungarian Constitutional Court (Ann Arbor, MI: The University of Michigan Press,
2000).
16
Judgment 11/1992 (III. 5.) HCC. See also G. A. Tóth, “The Bitter Pills of Political Transition,”
in A. Jakab, P. Takács and A. Tatham (eds.) The Transformation of the Hungarian Legal Order
1985–2005 (Alphen aan de Rijn: Kluwer Law International, 2007), 281–6.
17
S. Zifcak, “Hungary’s Remarkable, Radical, Constitutional Court” (1996) 3 Journal of Consti-
tutional Law in Eastern and Central Europe 1; Dupré, Supra note 15.
Lost in Transition
547
As Dworkinian and some other conceptions advise, the Court placed
human dignity at the center of its judicature. In the Capital Punishment Case,
the Chief Justice emphasized that the constitutional concept of human dig-
nity is more than a declaration of moral value; it is a value a priori and beyond
law, a source of rights; therefore the Court’s task is to transform many of its
aspects into a true right. The reasoning went on with the idea that
[t]he right to human dignity has two functions. On the one hand, it means
that there is an absolute limit which may not be transgressed either by the
State or by the coercive power of other people – i.e., it is a seed of autonomy
and individual self-determination withdrawn from the control of anybody
else by virtue of which, according to the classical wording, man may remain
an individual and will not be changed into a tool or object . . . The other
function of the right to dignity is to ensure equality.
18
As to the latter function, under the human dignity-based conception of equal-
ity, everyone has a right to equal respect and treatment (as Dworkin said,
“treatment as an equal”). The Court elaborated its standard of prohibition
of discrimination according to which all people must be treated as equal, as
persons with equal dignity; the right to human dignity may not be impaired by
law; and the criteria for the distribution of the entitlements and benefits shall
be determined with the same respect and prudence, and with the same degree
of consideration of individual interests.
19
We can call this a comparative stand-
ard: individuals and members of particular groups have certain rights because
others, in a comparative situation, also enjoy them.
The Court connected the requirement of preferential treatment to this
principle. The right to equal personal dignity requires that goods and opportu-
nities must be distributed with equal concern to everyone. If, however, a just
social purpose may only be achieved if equality in the narrower sense cannot
be realized, then a preferential treatment shall not be declared unconstitu-
tional. The limitation upon preferential treatment is either the prohibition
of discrimination in its broader meaning, i.e., respecting equal dignity, or the
protection of the fundamental rights expressed in the Constitution (Family
Protection Case).
20
As to the former, the counterpart of the dignity-based conception of equality,
dignity-based individual freedom means that the scope of rights is independent
18
Judgment 23/1990 (X. 31.) HCC, concurring opinion by Chief Justice Sólyom.
19
Judgment 9/1990 (IV. 25.) HCC.
20
Judgment 9/1990 (IV. 25.) HCC. For the theoretical foundation, see R. Dworkin, Sovereign
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