4.1 Effects of the constitutional and political system

The origin and the text of the constitution have a crucial impact on the use of comparative law in constitutional interpretation. The Constitution of 1989/90 aimed to fulfil the requirements of the Western constitutional systems' rule of law, but its wording and choice of institutions also mirrored the nation's concurrent historical period, political compromises and sometimes even the inexperience or inattentiveness of the drafters themselves.⁴⁹ The German constitutional system served as a model, but the Constitution also incorporated institutions borrowed from other jurisdictions (e.g. the Swedish ombudsperson).

The 1989/90 Constitution was relatively short, and consequently it provided a broad scope for interpretation. The text also used several general and vague terms, such as ‘democratic Rechtsstaat’ and ‘right for human dignity’, which invited courts to construe these terms quite liberally.⁵⁰ The Constitution did not regulate methods of interpretation, so the Constitutional Court could craft its own interpretative practice, which included using the comparative method.

The adoption of a new constitution in 2011, called the Fundamental Law, provided an additional opportunity to use foreign models,⁵¹ but it also retained most of the institutions from the previous document. As a novelty, the text of the Fundamental Law includes and defines a rule of interpretation. According to Article R (3), ‘[t]he provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal contained therein and the achievements of our historic constitution.’ The text thus denotes three methods of interpretation: the teleological, the contextual connected to the Constitution's preamble and the historical. Although the Court has recognized these methods, it has not interpreted the rule as excluding other types of reasoning, such as comparative argument. Moreover, from the empirical results of this study, it is clear that the Court has relied more often on foreign citations since 2012 when this interpretive rule entered into force.

Not only is the origin of the constitutional system relevant to the use of comparative law; the history of the legal system is also pertinent to the practice.⁵² The different components of the Hungarian legal system have been strongly influenced by Western European jurisdictions, especially Germany, France and Austria, and in some instances, even North America.⁵³ When reviewing the constitutionality of a statute, the Constitutional Court often looks at the origin of a given legal institution and compares its function in Hungary to that in the model country.⁵⁴

Hungary's place on the world map of legal and political influences and its international connections have also a relevance. After the democratic transition from 1989 to 1990, the country took significant steps towards joining Western democracies and later the Council of Europe and the European Union (EU). According to Jackson and Tushnet, the Hungarian Constitutional Court may have held the death penalty unconstitutional in 1990 at least in part because Hungarian political and legal elites believed that doing so was a precondition for entry into the EU.⁵⁵ Since 2010, however, the Court has started to echo several domestic political voices that urge a movement away from the Western European liberal democratic tradition, instead emphasizing the Hungarian constitutional identity⁵⁶ and criticizing the EU and the ECtHR.⁵⁷ In the interviews, justices and law clerks alike talked about a phenomenon where certain justices are ‘allergic’ to international and foreign references. As a result, some of the justices and clerks have purposefully omitted foreign references from draft decisions in order to obtain the votes of critical justices. This action naturally decreases the number of foreign citations in the Court's opinions, but it does not signify that the justices show a blanket disregard for foreign materials in their preparatory work.

Finally, the connection between the judicial system and legal scholarship is also pertinent. First, prior to 1989, in the era of socialist legal scholarship, academics could not develop their own dogmatic system. Instead, they devoted their time to the areas of comparative law or the history of law.⁵⁸ When the Court first opened its doors, most of the justices came from academia, so they applied their comparative knowledge in their judicial work. While legal scholarship is rarely cited by the Court now, it is clear from the conducted interviews that the justices do use secondary scholarship when preparing their reasoning.

4.2 Effects of the attributes of the Court

The institutional, procedural and technical attributes of a given court can have a crucial influence on the use of comparative law in constitutional adjudication.

As constitutional review lacked a real tradition in Hungary, the Court had to craft its own process and approach and develop its case law from scratch. In the history of the Court, there are usually three recognized phases. Between 1990 and 1999, the first period, the Court began to develop its case law, and the decade was dominated by the activist approach of the Court's first president, László Sólyom. Since the Court could not apply its own precedents during this initial phase, the Court was more willing to seek foreign templates, even if they were not evident in the text of a decision.⁵⁹ After 1999, however, the Court had established case law, and it could use its own precedents more often. In addition, the Court's presidents during this second phase were less activist, exhibiting a more positivist interpretation approach.⁶⁰ Finally, after 2010, the third phase of the Court's history, the Court underwent a crucial restructuring where its competences, composition and procedure changed significantly.⁶¹

The Court's three historical phases are clearly recognizable in the empirical data set of this study: the number of foreign citations is higher in the second phase than in the first, and the highest number appears in the third phase. However, caution is required, as these numbers can be misleading without acknowledging their context. First, as reflected in the initial phase, the Court was reluctant to explicitly cite comparative examples, even if it was clear that it followed a foreign model in its reasoning. As Zoltán Szente indicated, the Court imported entire legal institutions from other courts' practices, such as ‘equal human dignity’ and the ‘living law’.⁶² Second, in the third phase of the Court's history, the high number of foreign citations is partly related to the large number of concurring and dissenting opinions, which reflects greater division among the justices rather than an internationally open court.

The Constitutional Court was originally created to be one of the most powerful constitutional review institutions in Europe. It had a broad range of competences—some were later annulled or transferred to other institutions—but in the first historical period, the Court focused on ex post constitutional reviews. These abstract cases provided opportunities for the Court to use more comparative examples. After 2012, the Court's focus shifted towards concrete review cases, such as constitutional complaints and ex post reviews initiated by justices in a concrete process. From the case law analysis, it is clear that the changes made to the Court's competences had a crucial influence on the overall frequency of its use of comparative law. While, as seen in Fig. 2, the percentage of cases with foreign references is quite high in the more abstract competences, it is lower in the concrete review cases and in constitutional complaint procedures. With regard to the latter, this is partially due to the fact that the Court filters the procedures and decides on the merits in only about 15–20% of its cases.

While the workload of the Court has been heavy for most of its thirty years, its initial abstract review system did not impose deadlines, and the Court was the master of its own agenda. The Court's new regulation, which went into effect in 2012, is also generous with procedural deadlines (except for a few competences that demand short deadlines, e.g. the ex ante abstract review procedure). This has resulted in some cases lasting for several years, but the longevity has consequently created a fertile ground for comparative reasoning.

The effect of the number of justices on the quantity of foreign references has seemingly been twofold. First, theoretically, an increase in the number of justices should lower the number of cases per justice, and thus there should be more time available for them to use comparative material during the preparatory stage. Second, the higher the number of justices, the higher is the probability that there will be concurring and dissenting opinions. As seen in the data, there was a significant rise in the total number of cases with foreign citations after 2010, when the number of justices on the Court increased from eleven to fifteen.

The number of concurring and dissenting opinions is clearly relevant to the Court's use of foreign law in its decisions. Almost one-third of the Court's opinions that contain foreign references are dissenting opinions. The interviewed justices agreed that these types of opinions offer an opportunity to cite the results of their own comparative work, even if the plenary Court is not open to the practice. Justice Kovács frequently used this method.⁶³

The type of reasoning may also have an impact on the use of comparative law. In examining the reasoning practices of the Constitutional Court, Szente pointed out that, in its first twenty years, the Court failed to develop a uniform and consistent reasoning practice or theory. Indeed, the Court applied different interpretative methods to similar cases, which resulted in a constantly changing, eclectic practice.⁶⁴ The Constitutional Court was, for a long time, divided over the role and methods of constitutional interpretation; justices were either textual positivists or activists.⁶⁵ It would be expected that judicial activists, who generally favour extrajudicial arguments, would use comparative arguments more frequently. However, positivists are also willing to introduce foreign examples if they are legal sources (foreign constitutions, statutes and cases). In addition, the division is not so demarcated, and elements from the two differing approaches have been used by the same justices.⁶⁶ This explains why it is hard to identify any correlation between the type of reasoning and the use of comparative law.

The Constitutional Court has no special internal unit dedicated to comparative work, but its law clerks do play an important role in comparative reasoning. From the Court's inception, each justice's work has been supported by three law clerks. Unlike in common law systems, these clerks are generally experienced legal professionals, some of them having worked at the Court for years or even decades.

The level of the law clerks' contributions to comparative reasoning is dependent on several factors. The first of these is a justice's general approach to the role of the law clerk. Some of the interviewed justices admitted relying heavily on the clerks, who conducted research and drafted opinions. Other justices insisted on drafting the decisions themselves and asked the clerks to only provide supporting research. As for comparative reasoning, in most of the cases, a justice did not provide specific instructions to the clerk about whether and how to conduct comparative research. Relatedly, the clerk's knowledge, abilities and interests also influenced the use of comparative arguments. First, most of the interviewed clerks spoke English, a majority also spoke German and some knew other languages (French, Italian or Spanish). Second, the younger clerks had almost all studied abroad, mostly in Europe (United Kingdom, France, Germany, etc.), and some even in North America. While the older generation had limited opportunities for engaging in international work during socialist times, almost all the interviewed clerks from the current generation had experiences abroad in at least one country. Third, while comparative law was missing from the curriculum at most of the universities the clerks attended as undergraduates, some of them had experience with it during their graduate studies. Fourth, the clerks' previous and parallel legal jobs also influenced the use of comparative law. Some of the clerks had an academic background and taught comparative technique in their university courses and performed comparative work in their research projects. Others worked in public service positions (at the Office of the Parliament, the ombudsperson's office and in government ministries) where the examination of foreign countries' laws was part of the job. Finally, many clerks talked about the Court's new grant opportunity that provides funding for law clerks to conduct research at a foreign court, university or research institute.

Finally, the Court's international connections can also influence the use of comparative law. The Court's first president, László Sólyom, established strong connections with fellow constitutional and supreme courts, especially from Western Europe and North America. The level of participation in international dialogue has been shifting over the last three decades, but there are still regular bilateral visits and conferences at the Court. The interviewed justices and law clerks mentioned meetings with judges from Austria, Germany, the Visegrad countries and Romania. Although they found some of these encounters to be rather formal, there were sometimes discussions about judicial matters on the meeting agendas.

The Court also has an institutional connection with the Venice Commission through an appointed liaison officer, who is the Hungarian member of the Joint Council on Constitutional Justice. The Venice Commission provides a network for constitutional courts through which members can exchange experiences, share seminal decisions and seek advice from other courts. Courts may also ask the Venice Commission to draft an amicus curiae brief, although the Hungarian Constitutional Court has never taken advantage of this opportunity.

4.3 Effects of the type of case

The topic of the case is of utmost importance when judges decide whether to use comparative arguments. In the cases included in the study, Constitutional Court justices used comparative reasoning in both human rights and institutional cases (organisational and procedural rules of state organs).

Human rights cases using comparative reasoning included decisions about several fundamental rights, such as freedom of expression,⁶⁷ the right to a fair trial,⁶⁸ human dignity⁶⁹ and freedom of assembly.⁷⁰ The interviewees emphasized that it is much easier to apply a comparative method in human rights cases, as the ‘connection seems evident’, and they don't need to explain why there is a similarity among jurisdictions because of the global nature of human rights.

On the contrary, there were fewer foreign citations in cases involving institutional matters, although there are some examples (cases about political parties and their foundations' budgets⁷¹ and freedom of speech as it applies to members of Parliament⁷²). In these types of cases, the comparison very often involved the different models of legislation that, according to the interviewees, can help to understand one's own institution.⁷³

A third type of case, which also cites foreign law regularly, is dealing with the membership in the European Union, European law, or interpretation of international agreements (e.g. decision on the constitutionality of the Lisbon Treaty,⁷⁴ decision on the European arrest warrant,⁷⁵ decision dealing with the constitutional identity,⁷⁶ decision on the interpretation of Geneva Convention⁷⁷).

Besides the topic, the overall significance of the case also matters. The interviewees mentioned that they were more likely to seek foreign examples in cases dealing with a new legal institution, or those that attracted more attention in political, public or academic circles. On the contrary, they rarely conducted comparative research in an area where the Court already had well-established case law, or in cases with low relevance (especially those that had been rejected on formal grounds).

The type of the procedure is also relevant when using comparative material. Some of the Court's procedures can only be initiated by state institutions (e.g. involving the interpretation of the Fundamental Law and a priori constitutional review). With these types of cases, there is an expectation that more human power and time are invested than in a constitutional complaint initiated by individuals or private legal entities. The Court sometimes indicates that the comparative material it has used was originally cited by the initiating parties of the case, but not always.⁷⁸ There are also opportunities for a legislator or initiating party to inform the Court about their position regarding a statute; this action can also be a source of comparative material.⁷⁹ Finally, the Court can also accept amicus curiae briefs from interested parties (e.g. professors or non-governmental organisations), who usually make comparative arguments.⁸⁰

While it is expected that a deadline would play a crucial role in the choice of using comparative law (or not), it is clear from the empirical results that it is just the opposite. Indeed, foreign references appeared more often in procedures with short deadlines than in those without a deadline. This can be explained, on the one hand, by the financial and resource capacity of state institutions that initiated these procedures, and on the other, by the high level of importance of these cases, which justifies a more thorough reasoning.

4.4 The Personality and Background of the Justice

A justice's professional background and personality can clearly influence that justice's willingness to use comparative reasoning. These factors, among others, encompass previous jobs, foreign language knowledge, foreign studies, research focus, international connections and personal characteristics.⁸¹ Even if the personal characteristics of a justice are not as crucial as in common law systems, they can influence whether that justice is a rapporteur, an author of a concurring or dissenting opinion or is the president of the Court.

The justices may have had extensive experience with comparative law in their previous jobs. Judges with academic backgrounds usually cite foreign law more often. This is true for the Constitutional Court because, as seen in the empirical results, six of the eight justices who used the largest number of foreign references were originally academics or worked at research institutes. On the contrary, justices with backgrounds as judges in lower-level courts, at the Supreme Court, as lawyers, as public servants or even as members of Parliament rank in the bottom of the list of those who cited foreign jurisdictions. Some of the interviewed justices talked about hostility towards a so-called ‘professorial constitutional adjudication’, where judges without academic backgrounds criticize the writing styles of former professors, who cite more research studies and overall use a style similar to that of a scholarly article.

The foreign language facility of the justice can also play an important role. While the Court's first members included justices who, as professors, used German and other languages with confidence, there is a mixed scene in the later compositions of the Court. The majority of the interviewed justices spoke at least one foreign language (English, German or French), and some spoke two or three. However, they admitted that some colleagues had lower levels of foreign language facility. Even in these situations, however, a well-chosen law clerk could help a justice rank higher in terms of foreign materials usage.

Also influential are foreign experiences—studying, working or conducting research abroad. The original Constitutional Court included several justices who had Humboldt Foundation Research Awards and studied in Germany.⁸² Later, justices had experiences in France, Germany, the United Kingdom, the United States and the Court of Justice of the European Union.

While comparative constitutional law was not part of the university curriculum when many of the justices attended, some of them had comparative experience abroad or taught the topic as a professor.

Besides the institutional connections, the justices have also had personal foreign connections. Some interviewed justices mentioned their contacts with fellow constitutional or supreme court justices (e.g. from Austria, Italy, Germany and the United States). Some of them also had connections with neighbouring countries' constitutional courts—specifically, with those court members who were of Hungarian origin. Finally, the justices who were former professors had important interactions with fellow professors who could help with specific cases.

The evidential difference between civilist (dealing with private law) and public lawyers has varied throughout the three historical phases of the Court. In the first phase, civilist lawyers cited more foreign law, but in the following decades, public lawyers became the main importers of global ideas. This phenomenon can be explained historically; prior to 1989, the use of the comparative method was more acceptable in the private law area than in the more ideological public law.⁸³

Szente wrote that some justices were the ‘prisoners of their legal branch’, as they were chained to their own area of law and were indifferent about crafting far-ranging comparisons that did not relate to their own fields of interest.⁸⁴ While it is true that there are more foreign references in cases that match the specialized legal fields of the deciding justices (e.g. Justice Erdei's or Justice Lévay's opinions on criminal law cases), it should be noted that the Court usually makes some effort to allocate cases based on the justices' interests. Thus, the mathematical chance of a referral to foreign law in cases involving the justices' own fields is high.

4.5 Factors influencing the choice of the selected jurisdiction

While the previous section presented several factors that can influence whether the Court uses comparative law in constitutional adjudication (how often and in which cases), there are still others that can influence the choice of foreign law to be used.

The type of political regime of the cited foreign jurisdiction is of great importance. The judiciaries of liberal, democratic regimes cite each other. Especially at the beginning of its history, when choosing the model countries, the Constitutional Court clearly expressed its preference for a well-functioning constitutional system. Germany, France, Austria and the United States have historically been regarded as well-functioning Western countries, which are based on the respect for democracy, the rule of law and human rights. The Court's choice of these jurisdictions was originally made in tandem with Hungary's steps to become a party to the European Convention on Human Rights and a member of the EU.

Shared historical, political and constitutional events, as well as Hungary's geopolitical alliances (especially with the V4 countries and Austria), explain the relatively high number of citations from the Central and Eastern European region (mostly the Czech Republic, Poland, Romania and Slovakia). Some interviewees mentioned that they tried to focus on European countries, and especially on EU members, when making comparisons. The empirical data shows that, in the study's list of the top twenty-five most cited countries, the United States and Canada are the only non-European jurisdictions, and Switzerland is the only non-EU member.

The interviewed justices and law clerks also emphasized that they tried to avoid referencing countries where the status of the rule of law was tenuous (e.g. Poland in recent years), or countries where the legal system was unfamiliar to fellow justices (e.g. South Africa).

The Western European systems were used as models when the Hungarian Constitution was drafted, as well as important statutes in different legal fields. Jakab and Fröhlich recently pointed out that the terms ‘modern constitutions’ or ‘general trends of Western democracies’ have almost always meant Germany (even if the German solution was actually unique, it was presented as the Western constitutional solution).⁸⁵

Western countries are not only regarded as historic and model countries where constitutional systems thrive; these countries also often appear in legal scholarship and legal education curriculums. Germany's top place on the list of cited foreign jurisdictions can be explained by the long and historical German orientation of the Hungarian legal profession, which is partly due to Germany's extensive scholarship system.⁸⁶

The interviewees all emphasized that they considered language barriers when choosing the selected jurisdictions. Most of the interviewed justices and clerks were proficient in English, German and some of them French, so jurisdictions that publish regulations and case law in these languages had an advantage. The empirical data shows that the five most-cited jurisdictions were countries with English, German or French as official languages. Other jurisdictions' materials are only accessible when they are translated.

The interviewees also emphasized that a personal bond with a country is important. If a justice or clerk studied, conducted research or had another close association with a foreign jurisdiction, it was more likely that they used the law of that jurisdiction with more confidence.