237–68.
G. A. Tóth, “Authoritarianism,” in R. Grote, F. Lachenmann, R. Wolfrum (eds.) Max Planck
Elections April 6, 2014, Warsaw, July 11, 2014.
Lost in Transition
561
Distinctively, the text of the Fundamental Law does not call itself a “con-
stitution,” rather lending this word to the “historical constitution” only. The
Preamble of the text, called “National Avowal” states that:
We honor the achievements of our historical constitution and we honor the
Holy Crown, which embodies the constitutional continuity of Hungary’s
statehood and the unity of the nation. We do not recognize the suspension of
our historical constitution due to foreign occupations.
The Fundamental Law also lays down as a principle that its provisions shall be
interpreted in accordance with, inter alia, the achievements of the historical
constitution. Since there is no clear definition what the “achievements of the
historical constitution” are, this concept, used both in the National Avowal
and in Article R, brings a certain vagueness into constitutional interpretation.
The Venice Commission characterized this as a “lack of clarity and consist-
ency” among the elements of principles of constitutional interpretation.
62
The Fundamental Law suggests that the historical constitution is coupled
with the Holy Crown. The holy crown doctrine was introduced by the scholar
and theologian István Werbo˝czy, who retrospectively codified it in his work
Tripartitum (1517), which was a de facto law-book until 1848. According to his
teaching, the king and the equal noblemen were somehow united in the holy
crown. Thus, the holy crown was the symbol of the community of nobles.
During the nineteenth century the holy crown doctrine served as a protector
of the Throne and the Altar, thus becoming a targeted notion by reformists and
revolutionaries. Late nineteenth-century legal historicism breathed new life
into the doctrine. What law historians declared to be an ancient Hungarian idea
was mostly their intellectual creation: a romantic, nationalist, self-defensive
ideology of the noblemen. In addition, the holy crown doctrine allowed for
“a kingdom without a king,” which legitimized governor Miklós Horthy’s
authoritarian regime between 1920 and 1944. This period added revisionist
significance to the crown, after the Trianon peace treaty reduced the territory
of Hungary to one-third of what it was previously. Consequently, the holy
crown doctrine prefers a mystic “membership” of the ancient territory of the
Hungarian Kingdom to the current borders of the state, and noble privileges
to the republican traditions of 1946 and 1989.
The nation, the very subject of the constitution, is identified in the Preamble
as an “intellectual and spiritual” community. The text insists that there is
“one single Hungarian nation that belongs together,” a nation including all
62
Venice Commission, Opinion No. 621/2011, [28].
562
Gábor Attila Tóth
ethnic Hungarians regardless of their habitual residence and effective link to
the state. At the same time, those resident Hungarian citizens who belong to
national minorities are not included in the category of nation. This concept of
the nation diverges from those European constitutional standards that admit
that modern nation states are multiethnic societies, and thus require the iden-
tification of people with citizens as subjects of the same legal system.
According to the Preamble, the country was, on the one hand, a hero fight-
ing in the defense of Europe over the centuries. On the other hand, the coun-
try was a victim of the occupying German and Soviet forces during and after
the Second World War. Nevertheless, the text does not mention the republi-
can traditions or look back on the tragic failures of the nation. In the sense of
the Preamble, 1989 was a beginning of confusion, and the real revolutionary
year was 2010, because of the results of the parliamentary elections. What can
be read in the text is, as Adam Michnik would put it, that historical narratives
are replaced by myths, ideological agendas, and a sense of victimization.
63
As opposed to the invisible constitution doctrine, the Fundamental Law
refers explicitly to religious foundations. The Preamble reads as follows: “We
are proud that one thousand years ago, our King Saint Stephen established
the Hungarian State on solid foundations, and led our country to become part
of Christian Europe” and “we acknowledge the nation-preserving role of the
Christian faith.” It is noteworthy that the declaration does not simply remem-
ber the historical role of Christianity in founding the state, but expresses
that the constitutionalism present is based upon traditional Christian faith.
Consequently, it identifies itself with the moral and political foundations of
a certain faith, in spite of the fact that Hungarian citizens, like other political
communities in Europe, are divided by ethical and religious disagreements.
In conformity with the premise that the new system is authoritarian, we
can also say that the Court, as the highest interpreting authority, plays a legit-
imizing role instead of fulfilling the task of final guardian of fundamental
rights. Decisions of the constitutional justices, elected according to the will of
the authoritarian leader, contribute to the reinforcement of the regime. Here
Hungary follows Russia, where the altered but not abolished court serves as a
tool of authoritarian imposition.
I think much scholarly research is still needed to understand better the
Hungarian case – and similar systems – where not only the Constitution has
become invisible, but also the Constitutional Court and the constitutional
justice in total.
63
A. Michnik, in Irena Grudzinska Gross (ed.)
The Trouble with History: Morality, Revolution,
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