This book explores the relationship between populism or populist regimes and constitutional interpretation used in those regimes. The volume discusses the question of whether contemporary populist ...governments and movements have developed, or encouraged new and specific constitutional theories, doctrines and methods of interpretation, or whether their constitutional and other high courts continue to use the old, traditional interpretative tools in constitutional adjudication. The book is divided into four parts. Part I contains three chapters elaborating the theoretical basis for the discussion. Part II examines the topic from a comparative perspective, representing those European countries where populism is most prevalent, including Austria, Croatia, the Czech Republic, Greece, Hungary, Italy, Poland, Romania, Spain, and the United Kingdom. Part III extends the focus to the United States, reflecting how American jurisprudence and academia have produced the most important contributions to the theory of constitutional interpretation, and how recent political developments in that country might challenge the traditional understanding of judicial review. This section also includes a general overview on Latin America, where there are also some populist governments and strong populist movements. Finally, the editors’ closing study analyses the outcomes of the comparative research, summarizing the conclusions of the book. Written by renowned national constitutional scholars, the book will be essential reading for students, academics and researchers working in Constitutional Law and Politics.
Abstract The starting point of the paper is that the early constitutional changes after the populist transformation of Hungarian majority state politics (from 2010) and the application of the new ...Fundamental Law (since 2012) have created difficulty in achieving constitutional justice by judicial means. The fundamental populist constitutional transformation and, within this, the transformation of the regulation of the Constitutional Court have created great challenges for constitutional adjudication. Scholarship on the transformation of the Hungarian Constitutional Court regards the change of jurisprudence as a consequence of the constitutional environment, which ended up in institutional state capture. Basing my arguments on the classic competence-related issues of constitutional justice, activism and deference, I argue here that for constitutional courts, there is always a limited room for manoeuvre by interpretation except for in a ‘hard’ dictatorship. Populist Hungarian jurisprudence is, therefore, not only a consequence of constitutional change but a contribution per se—a cause of the construction of a populist constitution. This job has been done by constitutional interpretation in an activist or deferent manner with regard to specific politically sensitive issues. EU- and emergency-related constitutional conflicts are used here as examples to explain the proposed assessment criteria. The conclusion is that either the Court is activist or deferent, it contributes actively to the populist construction by constitutional interpretation.
The birth and spread of the term 'populist constitutionalism' shows that one of the distinctive features of modern populism is that it has specific constitutional ambitions insofar as it seeks to ...achieve its political goals through constitutional means. The constitutional ambitions of populist politicians, which are considered by many scholars as a feature of modern populism, often make it inevitable for courts to respond, in the course of constitutional review, to challenges to traditional constitutional values and institutions. Courts can respond to these claims in different ways. For example, they can engage in an activist stance, resisting the attempts that endanger the established constitutional order, they can defer to the changing constitutional policy of the political branches, or, possibly, they can try to keep their distance from political struggles. The study, based on the results of our comparative international research, examines how populism influences the methods of interpretation in the jurisprudence of constitutional courts and other relevant high courts,whether they have developed new interpretative instruments, or have used the classical ways of constitutional interpretation when facing populist aspirations. The article contributes to the present-day scholarly discourse on the effects of populism on constitutional justice in Europe.
Abstract
The economic crisis of 2008 brought about a rapid depreciation in the exchange rate of the Hungarian forint (HUF). Debtors in Hungary had borrowed money in foreign currencies—especially the ...Swiss franc—and now found themselves in a significantly deteriorating situation. The consequences of increased indebtedness reached all levels of society. On various grounds, consumers took out numerous civil law proceedings to challenge consumer loan agreements. Questions raised by these lawsuits were, several times, brought to Hungary’s Supreme Court, and were then taken to the legislature. The legislative acts and judicial decisions that ensued were subsequently reviewed by the Constitutional Court of Hungary. This article analyses the case law the Constitutional Court applied in this crisis situation, and brings out the lack of balancing capacity in the constitutional adjudication. Referring to the principles of basic Rule of Law, the author makes a critical assessment of the new constitutional ideas, measures and legal solutions that emerged.
In the Hungarian legal system, the anti-hate speech rules of media law provide an additional (administrative) proceeding for the media authority in parallel with proceedings under criminal law and ...civil law. The media authorities, over the past twenty years, have consistently set media law sanctions at a lower intervention threshold than criminal law did, and in many cases, they established media law violation in cases where criminal proceedings for incitement against a community were not initiated or ended in acquittal. The fundamental aim of media law regulation is to shape media content and the editing practices of media players with a view to ensure respect for human dignity, and to prevent media from becoming an ‘amplifier’ of hateful communications. In the first fourteen years of the Hungarian media regulation, the scope of interpretation concerning anti-hate speech media law restrictions developed gradually. The authority reacted not only to individual cases, and individual communications, but also carried out targeted investigations in cases that can be described as a phenomenon in the media coverage. Besides reviewing news and information programmes, it also acted against hateful contents of the entertainment programmes. The new media regulation, which entered into force in 2011, partially amended the content of the former anti-hate speech regulation: in addition to the provisions of “incitement to hatred”, the former category of “offending or prejudiced content” was replaced by the prohibition of “exclusion”. The practice of the media authority has not changed as regards the assessment of the media law standard, as the authority has continued to apply it differently from the criminal law standard, considering it as a lower intervention threshold. However, in comparison with pre-2010 practice, the authority initiated considerably fewer proceedings and its approach in terms of law enforcement became less characterised by adjudicating problems that can be described as phenomenon in the media coverage, no targeted proceedings of this kind were initiated. Its practice can be characterised by a couple of high profile cases with extreme sanctions, which attract great attention. These cases are important as they designate the boundaries of public communications, but in this way, media law measures are not really suitable for making any substantial changes to the characteristics of the media coverage.
Jiri Zemanek, Professor at Charles University, Prague, asks what conclusions may be drawn from the current state of acceptance of the European Union (EU) law doctrine by the constitutional courts of ...the new Member States for their performance in the agenda of preliminary rulings. What can they learn from the experience of the old Member States? Should they follow the practice of the Austrian
Verfassungsgerichtshof
(Constitutional Court), which referred its first question in 1999, four years after its accession, and later repeated it several times? Or should they follow the most active Belgian Cour Constitutionnelle? Should Hungary follow the practice of the Italian Constitutional Court, Lithuania, France, Spain, or Germany? Having reviewed the case law of the Hungarian Constitutional Court and the scholarly analysis in search of the “missing links,” this study wishes to contribute to the diverse range of ideas concerning European “rule of law” integration and constitutional court contributions to it.
In Hungary, the year 2012 brought a significant change in constitutional review. With modifying the competencies of the Constitutional Court, the Basic Law introduced three types of constitutional ...complaints and abolished actio popularis. Actio popularis was a well-functioning legal instrument in Hungarian law since the political transition of 1989-1990. Up until January 2012 anyone could request the abstract ex post facto constitutional review of a law or regulation. Unlike the former actio popularis, the essence of the new system of constitutional complaints is to have standing requirements for the complainants. Furthermore, new types of complaints are designed to defend constitutionality against personal injuries caused by ordinary courts as well. The article aims to describe actio popularis and constitutional complaints with regard to possible comparison of weaknesses and strong points. The author argues that regarding its effectiveness the new system do not yet provide a complete substitution for actio popularis. Reprinted by permission of Akadémiai Kiadó
While the capacity to have rights has been a question since people started creating states and law, having the capacity to exercise fundamental rights is a contemporary legal issue. The article ...focuses on the legal capacity to fundamental rights and presents an innovative proposal for the legal doctrine related to the concept of the normative constitution of fundamental rights. The authors argue that protecting fundamental rights is incomplete if uncertainties exist regarding these rights’ subjects. Due to the complexity of the problem and the relevance of the “judge-made law”, the article offers a new methodological tool: instead of building a pre-set, abstractly defined comprehensive concept, concept mapping is advocated for conceptualizing the legal capacity to fundamental rights. The concept map is an organic and beneficial way to collect and structure the interrelated factors determining legal capacity. It can be a decision-support tool for judges in fundamental right-related cases to bring well-grounded decisions. As a starting point, the authors argue that an autonomous dogmatic category of legal capacity to fundamental rights is crucial for effectively protecting rights. To support this point, the complex theoretical background (the concept of person, personality, rights and fundamental rights) is reviewed. The authors point out that existing approaches do not give an unambiguous answer to what entity and how far can be the holder of what fundamental right. The article concludes with a methodological proposal of conceptualizing by mapping to maximize the effect of knowledge on factors that influence judicial decisions in this regard.
The COVID-19 pandemic has posed a major challenge not only to the effectiveness of health crisis management by national governments but also to the democratic functioning of states. This article ...describes how the institutional guarantees of the democratic exercise of power in Hungary malfunctioned. The operation of Parliament and local self-governments as representative bodies, the Constitutional Court, the Ombudsperson, and the courts as control- and judicial-type institutions will be analysed vis-à-vis the Hungarian Government's action. The study thus aims to reveal how the systematic challenges and diminishing role of local self-governments in collaborative crisis management are not an outstanding and isolated problem, but part of the systematic autocratic regime change in Hungary accelerated by the COVID-19-related special legal order.
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