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The reform of constitutional law in Hungary after the transition

Published online by Cambridge University Press:  02 January 2018

Gábor Halmai
Gábor Halmai*
Affiliation:
Hungarian Human Rights Information and Documentation Centre
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Extract

In Hungary, a comprehensive amendment to the 1949 Constitution took effect on 23 October 1989. According to the new preamble of the considerably amended Constitution, the revision was needed ‘in order to promote the peaceful political transition into the rule of law realizing the multiparty system, parliamentary democracy and social market economy’. This amendment changed not only the state organisation, but also the regulation of human rights.

The intention of distancing itself from the historical period of the past 40 years is expressed in para 1 of the amended Constitution, which proclaims that Hungary is a republic. With this, Hungarian constitution-making went back to a number of legal institutions incorporated in Act I of 1946 which is on the state form of Hungary adopted by the National Assembly, formed after the frst free elections after the Second World War.

Type
Research Article
Information
Legal Studies , Volume 18 , Issue 2 , June 1998 , pp. 188 - 196
Copyright
Copyright © Society of Legal Scholars 1998

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References

1. On the historical and political background of the Hungarian constitution making, see: Paczolay, P ‘The New Hungarian Constitutional State: Challenges and Perspectives’ in Dick Howard, A E (ed) Constitution Making in Eastern Europe (Washington: Woodrow Wilson Center Press, 1993)Google Scholar.

2. ‘State governed by the rule of law’ is a somewhat infelicitous translation of the Hungarian ‘jogállam’, which corresponds to the German ‘Rechtsstaat’.

3. On judicial review by the Hungarian Constitutional Court see the following papers of E Klingsberg: ‘Judicial Review and Hungary's Transition from Communism to Democracy: The Constitutional Court, the Continuity of Law, and the Redefinition of Property Rights’ (1992) 1 Brigham Young University LR 41–144; ‘Contextualizing the Calculus of Consent: Judicial Review of Legislative Wealth Transfers in a Transition to Democracy and Beyond’ (1994) 27 Cornell International LR 101–140.

4. Resolution No 11/1992 (111 5) AB. Constitutional Court Decision of 1992 p 81. An argument similar to this can be found in János Kis: Reform és forradalom között. (Between reform and revolution) Vilálgosság, 1993/11.

5. Dahrendorf, R Reflections on the Revolution in Europe: In a Letter Intended to Have Been Sent to a Gentleman in Warsaw (New York: Times Books/Random House, 1990)Google Scholar.

6. Resolution No 30/1992 (V 26) AB in Az Alkotmánybíróság hatáozatai 1992 p 167.

7. Resolution No 37/1992 (VI 10) AB in Az Alkotmánybíróság hatáozatai 1992 p 227.

8. Halmai, G ‘The Freedom of Assembly and Association’ in Soltesz, K M (ed) Human Rights in Today's Hungary (Budapest: Mezon, 1990)Google Scholar.

9. See G Halmai ‘Regeneration of Civil Society in Hungary’ (1991) 13 Law and Policy No 2.

10. Ronald Dworkin tried to explain how it was possible that some Supreme Court judges with a reputation for extreme conservatism voted for the liberal position of control of abortion in 1992. See R Dworkin ‘The Center Holds!’ (1992) New York Review of Books, 12 August.

11. See Habermas, J Faktizität und Geltung (Frankfurt: Suhrkamp, 1992) ch VIGoogle Scholar.

12. If we accept the tripartite division of constitutional law theories apparently forwarded by Bruce Ackerman, then Habermas's discourse theory has to be put in the category which refuses both the omnipotence of the majority will and the standpoint of exclusively defending the fundamental rights. Ackerman calls this a conception of dualistic democracy. He opposes this to the believers of monistic democracy - among them the legendary Supreme Court judge Holmes - who put the emphasis on the realisation of the general will and to those who take it as their primary task to defend the fundamental rights, ‘rights foundationalists,’ among whom he includes Ronald Dworkin. For the categorisations, see B Ackerman We the People I: Foundations (Cambridge MA: Belknap Press of Harvard University Press, 1991).

13. Resolution No 2/1993 (I 22) AB in Az Alkotmánybíróság határozatai 1993 p 33.

14. This first appeared in the form of an essay, Fukayama, F ‘The End of History’ (1989) The National Interest, December, later, published as a book, The End of History and the Last Man (New York: Penguin Books, 1992)Google Scholar.

15. See W Osiatynski ‘A Bill of Rights for Poland’ (1992) 1 East European Constitutional Review 3.

16. Ackerman's reasoning is not very convincing on the point about why Poland should ‘take constitutional leadership’ in the process of creating new constitutions. See Ackerman (above n 12) p 56.

17. See S Holmes ‘Back to the Drawing Board’ (Winter, 1993) East European Constitutional Review.