Two Eras of Hungarian Constitutionalism: From the Rule of Law to Rule by Law

Abstract

Developments in Hungarian constitutional law after 2010 suggest that the era in Hungarian constitutionalism characterized by a commitment to the rule of law has been replaced by an era where the law is regarded as an instrument available to government to rule. Under the new Fundamental Law, which places alike the 1989 Constitution the rule of law at the centre of the constitutional order, the constraints which follow from the rule of law have been habitually overridden or ignored by the government acting in parliament. The Constitutional Court’s attempts to continue the legacy of pre-2010 constitutionalism were reproached by the government delimiting the powers of the Court or overruling its decisions in formal amendments of the constitutional text. In the domain of economic regulation, the differences in how the Constitutional Court and European judicial fora assess the legal measures which have restructured entire markets give a clear indication that the rule of law in Hungary has lost its previous enjoyed position in the Hungarian constitutional order.