Abstract
AbstractThe paper aims to highlight the nature and the relevance of the reference to constitutional traditions in the building of populist constitutionalism, with special regard to the Hungarian case. In Hungary the goals and effects of this reference – especially the references to the achievements of the historical constitution – must be discussed at the level of the constitutional text and with regard to the formation of the new constitutional jurisprudence and, furthermore, to the creation of the constitutional identity. Outstanding political theories have been built about the elements of national populism and all include a political emphasis on a nation's pride in its culture, history and traditions. This paper examines the normative legal consequences of this in a state where the populist political forces have consecutively gained a majority in the Parliament which enables them to adopt and amend a constitution and decide on the personal make up of the constitutional court. It examines the role of the reference to constitutional traditions in the transformation of the constitutional system. The illustrative case studies from Hungary show one element of the alternative to mainstream liberal constitutional democracy: a constitutional perception of the sovereign people with a strong common constitutional heritage, this latter to be respected by all state organs and by domestic, European and international law. The paper offers an understanding of this constitutional concept and assembles disclaimers and serious legal concerns that must be taken into account, at least in Hungary, but probably in many other national populist regimes as well.
Highlights
Populist constitutionalism, Hungarian constitutionalism, the Fundamental Law of Hungary, the historical constitution, the achievements of the historical constitution, constitutional identity
This paper examines the normative legal consequences of this in a state where the populist political forces have consecutively gained a majority in the Parliament which enables them to adopt and amend a constitution and decide on the personal make up of the constitutional court
In the second section (II.), I will describe the references in the Fundamental Law to constitutional culture and history, with special regard to the role of the achievements of the historical constitution and the related case law (2.1), before turning to the Seventh amendment concerning the introduction of the constitutional identity and to the description of the related case law of the Hungarian Constitutional Court (2.2)
Summary
Authoritarian populisms have become so powerful worldwide? asked Bojan Bugaric, one of the leading scholars of populism, in the German Law Journal in 2019. I explain the Hungarian case and review the literature proving that the constitutional change that started in 2010 – which produced the Fundamental Law and has so far seen nine amendments to it – is a populist political change with constitutional (and other legal) consequences (1.2). In the second section (II.), I will describe the references in the Fundamental Law to constitutional culture and history, with special regard to the role of the achievements of the historical constitution and the related case law (2.1), before turning to the Seventh amendment concerning the introduction of the constitutional identity and to the description of the related case law of the Hungarian Constitutional Court (2.2). Throughout the second part of the paper I will continuously reflect on the literature that examines the original, historical content of the special notions used in the language of the new constitution, the 2011 Fundamental Law
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