|
Lost in Transition
557
This view fully corresponds to the understanding of the Catholic Church
according to which human beings consist of the physical body and the soul,
and the two are inseparably joined. I think the reasoning would hardly survive
the test either of the separation principle, or that of the religious neutrality of
the state and of the ban on religious discrimination.
It is worth adding that, as the concurring opinion’s wording expressed,
“beyond the Constitution” we found a natural law concept of constitutional-
ism, which is an obvious difference between the conceptions of Sólyom and
Tribe. In his Invisible Constitution, Tribe argues that there are principles
and requirements (e.g., rule of law, prohibition of torture, judicial review, and
anti-secession principles) which cannot be said to follow from the very text
of the United States Constitution. For him, these principles constituting the
invisible constitution “are far too historically contingent and institutionally
specialized to count as serious candidates for ‘natural law’ canonization.”
50
Antje Wiener also uses the phrase “invisible constitution” in a different sense.
According to her, the constitution also entails an informal dimension, organ-
izational, cultural, social practices, and these remain institutionally invisible
by definition.
51
Finally, I add two remarks on the extension of this theory. First, the judica-
ture was far from coherent also in the sense that in cases of transitional justice –
specifically the retroactive punishment of previous political crimes – the
Court positioned itself as strictly positivist. A famous phrase from the lead-
ing judgment says: “Legal certainty based on formal and objective principles
[of the rule of law] is more important than necessarily partial and subjective
justice.”
52
With the help of an entirely formalistic concept of rule of law, the
Court was presumably trying to prevent a political and legal witch-hunt. From
a comparative perspective, it did not adopt the German Constitutional Court’s
reception of the Radbruch Formula (in cases connected to Nazi crimes),
which says, in short, that “legal norms lose their legal validity when they are
extremely unjust.” In this way the Court preferred the apparently value-neu-
tral category of the rule of law to justice as a matter of value judgment. This
approach, however crucial and advantageous it was during the early years of
the rule of law in Hungary, did not fit the objectivism that the Court consti-
tuted in most of its other leading judgments.
50
L. H. Tribe, The Invisible Constitution (Oxford: Oxford University Press, 2008), 30.
51
A. Wiener, The Invisible Constitution of Politics: Contested Norms and International Encoun-
ters (Cambridge: Cambridge University Press, 2008), 16.
52
Judgment 11/1992 (III. 5).
558
Gábor Attila Tóth
Second, after the initial three or four years of its jurisdiction, the Court
became much more self-restrained.
53
The period when it was willing to extend
the scope of fundamental rights in the name of human dignity was over after
a short time. The Court became very active again between 2006 and 2010,
almost paralyzing the legislature by declaring an unprecedented number of
newly adopted acts unconstitutional and void. During this period the Head of
the State (László Sólyom) vetoed as many acts as his predecessors did in the
previous one-and-a-half decades. As an apparent result, citizens witnessed a
constitutional system which did not work at all. This period saw the downfall
of constitutional democracy based upon the 1989 Constitution.
19.3. 2011 Fundamental Law: A Semantic Construction
along with a Mythical Constitution
The judicial approach performed in the name of the invisible constitution by
the Court during its inceptive years faced two substantive rivals. One of them
also favored the equal dignity-based judicial activity, but insisted on secular
foundations. Moreover, this rival approach did not welcome the Court’s role
as substitute constitution maker, and advised the symbolic completion of the
democratic transition by a new constitution instead.
The other rival attitude can be called reactionary: it drew a dark picture of
fragile constitutional democracy in Hungary, arguing that the political tran-
sition was unfinished or had not even started, because conventional moral
values expressing religious and national prominence appeared neither in
the 1989 Constitution, nor the case law of the Court preferring individual
rights and freedoms. This side envisaged a new constitution that would not
be a symbolic fulfillment of the democratic transition started in 1989; rather
it appealed for a recovery of national sovereignty, priority of national interests
to cosmopolitanism, for the rule of “real people” instead of the legalistic elite;
denounced “juristocracy,” both constitutional adjudication at national level
and human rights justice at supranational level; and required traditional reli-
gious values rather than “empty,” neutral principles.
In the 2010 general elections, the then-opposition party Fidesz won a land-
slide majority of 68 percent of the seats with 53 percent of the votes. It was
a majority sufficiently large enough to amend the Constitution or rewrite it
totally. In the first one-and-a-half years of its term, the ruling party adopted
a range of amendments to the 1989 Constitution regulating inter alia the
53
Bruce Ackerman foresaw this: Ackerman, Supra note 30, 110.
Do'stlaringiz bilan baham: | 
