Abstract
When the historical dimension of the Hungarian public law is assessed, usually the analysis of the constitutional court case law is highlighted; however the Parliament might have an equally important weight. Article R) of the Fundamental Law provides two crucial references to the historical constitution: the clause of paragraph (3) which mentions the achievements of the historical constitution, and paragraph (4) which imposes the duty on all bodies of the Hungarian state to protect the constitutional identity of Hungary laid down in 22/2016. (XII. 5.) ruling of the Hungarian Constitutional Court. These two provisions are also binding for the Parliament to take into account the historical development of the current legal system during all of its legislative activities. In our view, this duty is more extensive than the examination of certain historical laws; the whole historical development of a legal field should be considered as regard the content of laws; the circumstances of their enactment, their special meaning during each historical period. In our contribution, those already known examples are enumerated, when the Hungarian Parliament relied explicitly on the achievements of the historical constitution, and how broad is the parliamentary space of manoeuvre in this regard. Our focus is to identify such alternative legal instruments, which could strengthen the role of historical arguments in the parliamentary practice. Certain elements of the legislative process will be considered (committee meetings; impact assessment of laws, the potential second chamber), while certain components of the laws will be also assessed (preambles, reasonings of laws, parliamentary resolutions).
1 Introduction
More than ten years have passed since the adoption of the Fundamental Law of Hungary.1 During this decade, crucial changes have occurred in the Hungarian constitutional framework, and this timeframe constitutes a proper distance from which to sum up the development that has already been experienced, and outline further perspectives. These are the reasons why we here enter into a discussion focused on a specific term established by the Fundamental Law of Hungary – namely, ‘the achievements of the historical constitution of Hungary’ – to highlight some less well conceptualized challenges of interpretation.
The historical references in the Fundamental Law have been commented on by numerous prestigious Hungarian scholars, and our approach relies in several respects on the views of these authors;2 however, our concept differs remarkably with regard to certain points from the thoughts contained in published studies.
On the one hand, the discussion of historical constitutional arguments has perceptibly moved along more (almost isolated) paths; substantial dialogue is marginal between the different approaches. Therefore, the conscious goal of our study is to interpret the Hungarian model as a distorted attempt to constitutionalise historical traditions. We outline the conflicting visions about this phenomenon and look to identify the proper division of competences amongst the Constitutional Court and the Parliament.
Apart from this, and in line with the main novelty of our argumentation – which will be understood more deeply in the present contribution – instead of the widespread narrative that assumes that the Constitutional Court will clarify the relationship between current and defunct legal norms, we focus on the allegedly underestimated parliamentary margin of appreciation in this regard. Currently, the discourse focuses on what should be done by the Constitutional Court in this situation to safeguard legal certainty,3 but in the long term Parliament will have a similarly decisive role in treating this issue properly. We do not want to undermine the priority of the Constitutional Court in this field, but the potential role of other bodies should also be scrutinized, since the proper weight of the historical interpretative method and the historical references of the Fundamental Law may only be discerned through the joint effort of all bodies authorised to engage in constitutional interpretation. The Parliament enacts the constitutional and legal framework that is also binding for constitutional interpretation, and may declare its views directly on certain matters, so its standpoint may influence remarkably the discourse on the historical dimension of public law.
Enabling historical arguments used ordinarily as decisive factors in legal or constitutional debates should be avoided, but it contradicts the clarity of norms and legal certainty if the weight of the historical traditions reflected in the Fundamental Law is not defined with sufficient precision.4 In spite of the priority of the Constitutional Court as the main body set up to protect the Fundamental Law,5 other constitutional actors may be also involved in its interpretation. As a consequence, in our view, the frame should unavoidably be extended with further stakeholders in addition to the constitutional court, although the role and competences of additional potential participants in this regard has not been understood deeply by the literature yet. Thus, our contribution adds to the pre-existing legal scholarship the conceptualization of the potential parliamentary space of manoeuvre in this regard. Our focus is on analysing potential alternatives for systematizing the articulation of historical arguments during parliamentary debates; however, the still-existing implicit and informal impact of such traditions and the lack of such influence are not examined.
Moreover, our findings should be interpreted in the light of current Hungarian constitutional development, whereby the system of checks and balances has been significantly weakened during the last decade.6 The two-thirds pro-governmental parliamentary majority has unlimited power to amend the constitutional framework of the country, while several informal paths also exist to influence the functioning of seemingly autonomous bodies, such as the Constitutional Court.7 Due to such circumstances, the weight of the Constitutional Court as an independent actor is significantly less than earlier, while the articulation of historical arguments are often highly politicised. We have attempted to outline this context, as without such references the interpretation of some historical argumentation from recent years would be seriously misleading; accordingly, one should take into account the illiberal constitutional surrounding during the reading of these contributions as a whole and the related conclusions.
Our contribution first analyses the main pillars of the relevant constitutional discourse: the Hungarian model is classified amongst a huge variety of national solutions for constitutionalizing historical traditions; the relevant references of the Fundamental Law of Hungary are explained more deeply and the main principles outlined to explain the share of competences of authorities entitled to constitutional interpretation. Then, we turn to an assessment of existing parliamentary practice in Hungary concerning the achievements of the historical constitution. Finally, some alternative options are put forward regarding the establishment of permanent tools for involving historical methods in the interpretation of the Fundamental Law.
2 Historical traditions in constitutional discourse: international and Hungarian perspectives
To analyse the present practice of the Hungarian Parliament concerning the achievements of the historical constitution, and also to provide alternatives concerning how the parliamentary role in this regard may be systematized, the Hungarian model of constitutionalizing historical traditions should be contextualized. For this purpose, three sets of issues are described in a more detailed way. First, the Hungarian model does not stand as an isolated constitutional development; it should be classified amongst a series of national endeavours aimed at establishing a constitutional link between current and defunct legal norms. Since our aim is to go beyond the well-established constitutional court-centred approach to the issue, the core element of our classification should be the role of Parliament in constitutionalizing legal traditions. Second, the relevant articles of the Fundamental Law of Hungary should be analysed in detail to understand more deeply the challenges of interpretation associated with these constitutional provisions. Third, those principles of the Hungarian constitutional framework are outlined that regulate the sharing of competences between bodies authorized to engage in constitutional interpretation.
2.1 The international context: different roles of parliaments in elaborating constitutional dimensions of public law
First of all, the Hungarian concept of historical constitutional achievements should be understood in the light of the relevant international literature that assesses the constitutional reflections of a nation's history. As Melksoo and Garibian note, States always elaborate constitutional policies to influence the attitudes of the community towards their own past,8 while in the light of René’s argumentation, the current Hungarian version just articulates in this context the approach of the current political leadership towards the main milestones of Hungarian history.9 However, these laws just express one particular view of historical development: Nora, Belavusau and Gliszczyńska highlight that several legitimate alternatives should exist for interpreting national history.10 Heinze demonstrates that the necessarily authoritarian explanation of the past through laws therefore constitutes a significant risk factor itself;11 the Central-European regulations on national remembrance through constitutional means may be seen as special models of this phenomenon.12 As the legal regulation of collective memory has led to several interdisciplinary issues in light of recent developments, a new field of research, law, and memory is distinguished by Heinze,13 and our contribution has a strong connection with this rapidly evolving research area.
Second, one should regard the Hungarian concept of historical constitutional achievements as a special case of a Central-European post-communist country facing its historical past controversially,14 especially the communist period and thereafter.15 Three factors distinguish Hungary from other European countries that rely strongly on their historical traditions on a constitutional level.
Historical traditions may also play an influential role in constitutional discourses in Western countries such as France, the United Kingdom, and Sweden, but the historical development of these countries was not so fragmented and disturbed frequently by longer periods of authoritarian regimes and external occupation, unlike the development of Central-European countries. Therefore, the attitude towards national history entails less cleavage within society in comparison with the situation in Central Europe.16
Furthermore, in Hungary the discourse on constitutional identity is also linked to debates about historical constitutional achievements, which is another attempt to constitutionalize certain defunct legal norms, but until now, without really tangible impact.17 In our view, constitutional identity should be seen primarily as a tool for distinguishing the scope of European Union law and national constitutional systems, and should contain the main constitutional principles instead of historical references.18
Third, populist tendencies have spread rapidly in recent years in the Central-European region, especially in Poland and Hungary,19 and this strand of constitution-building instrumentalizes elements of historical tradition, seemingly using them as arguments in constitutional discourse; however, without real content, or by creating false, easily contestable links between historical points of reference and current legal instruments.20 Another consequence of populist governance is the strong pressure on constitutional bodies,21 even on the Constitutional Court and the Parliament in Hungary. Despite the fact that in both bodies the vast majority of members share clearly conservative views, precise standards have not been identified for outlining historical constitutional achievements. Historical arguments do not play a decisive role in current Hungarian constitutional contests; however, their presence and frequent invocation with undefined content is always a factor of uncertainty.22
In the light of these specialties that distort the Hungarian constitutional debate about the role of historical traditions, we should describe the place of the Hungarian model amongst those constitutional systems in relation to which parliament has any competence that involves giving special weight to historical traditions. The Hungarian framework shall be distinguished from other models on the ground of these distorting factors.
Since they are usually seen as historical constitutions, those of the United Kingdom, Israel, and New Zealand23 should be mentioned,24 while the Canadian constitutional development (closely linked to the British one) is also relevant.25 Furthermore, the Swedish constitutional system falls somewhere between a codified and non-codified constitution, since four fundamental laws form the pillars of the constitutional framework.
Another possibility for constitutional extension is to refer to an extra-constitutional set of written or unwritten norms as part of the broader constitutional framework. These points of reference might be religious rules, but the more common path is to include expressly certain overarching constitutional principles or extra-constitutional content in the preamble. The approach of Saudi Arabia is an excellent example of the first direction,26 while the second method has been followed by France,27 Bulgaria,28 Poland,29 and Slovakia.30
In our view, constitutional systems with crucial unwritten legal norms at the constitutional level should be classified into three categories from the perspective of parliamentary participation. The first group is comprised of countries with historical constitutions, wherein the continuous entrenchment of constitutional design is highlighted; codified constitutional norms enacted by parliament are subordinate to the historical constitution elaborated as a result of a long-term development.31 In our own classification, the United Kingdom, Canada, and New Zealand should be included within this category. In these countries, certain constitutional norms are passed by parliament but these are adopted as ordinary acts, and these statutes do not undermine the applicability of the historical constitution, which is binding even for parliament.32 The enforceable character of the historical constitution comes from the consent of society; nevertheless, parliament is entitled to amend the constitution through the enactment of acts upon which constitutional force is conferred. The enactment of such bills is up exclusively to parliament; however, parliament cannot declare any law to be part of the constitution – this is the task of legal scholarship and may be subject to the consent of at least the vast majority of society.
The second group contains Germany,33 Israel, Saudi Arabia, and Sweden, where the core of the constitutional framework is the fundamental (basic) law or laws (in Sweden34 and Israel35 more laws are vested with quasi-constitutional force and adopted formally as ordinary laws, but considered in practice as constitutional norms). In these countries, codified constitutional norms passed by the legislation as fundamental ones regulate the status and functioning of constitutional actors as well as fundamental rights; however, these are adopted as fundamental (basic) laws instead of constitutions, leaving the constitutional framework open-ended. In these systems, fundamental laws and other constitutional norms complement each other with equal legal/constitutional value, and parliament has a key position in terms of enacting or amending fundamental laws to adapt the constitutional framework to the changing needs of society. Parliament has the final word as concerns deciding in accordance with special procedural rules from the content of written constitutional norms; however, in the case of ordinary legislation, uncodified principles and norms with historical significance in the country may be also taken into account by parliament.36
Finally, those codified constitutions should be enumerated which are adopted as constitutions, either by parliament or via referendum, but which mention expressly in their preambles certain extra-constitutional documents (former or still enforceable laws or international treaties) that extend the scope of the constitutional framework. The French Constitution refers to certain defunct legal norms and to some fundamental principles,37 while the Bulgarian,38 the Slovakian39 and the Polish Constitutions40 highlight the historical values and principles in the background to the constitution-drafting. In these frameworks, complementary documents with constitutional force fall clearly under the codified provisions of the constitution within the hierarchy of norms, but the points of reference from legal history vested with constitutional relevance should be considered by parliament during ordinary legislation.41 The constitutional court is the primary body authorized to interpret the historical references of the constitution, while the standards provided by the constitutional court should be implemented by parliament into the ordinary legislative process. However, due regard of historical dimensions during legislation may be subject to constitutional review before the constitutional court, as the context of proper parliamentary compliance with constitutional requirements in this respect.
Using this classification, Hungary may be located somewhere between the second and third categories. Formally, it might be more similar to the second group due to the adoption of the Fundamental Law by Parliament and its references to extra-constitutional norms, but in reality the Fundamental Law functions as a primarily codified constitution as specified in the third category, where in practice the priority of the Fundamental Law over additional norms without sufficiently precise definition is beyond reasonable doubt. The elaboration of the historical dimension is shared between the Constitutional Court and Parliament; the Fundamental Law has been adopted by Parliament, and it is now expected by the Constitutional Court to fill the relevant clauses and provisions of the Fundamental Law with tangible content. As the next step, Parliament should rely on the standards provided by the Constitutional Court during the passing of legislation; while in the case of proper motions submitted to the Constitutional Court the due consideration of the historical dimension may be subject to constitutional review. This mutual interdependence of the Constitutional Court and Parliament in this field will be assessed further in Section 2.3.
2.2 Historical traditions in the fundamental law of Hungary: challenges for interpretation
Although legal literature focuses dominantly on analysing the Constitutional Court's practice since it constitutes the main body responsible for interpreting the Fundamental Law,42 the examination of the parliamentary role has equal significance in such regard. The Fundamental Law includes two references that create the ground for this assessment: Article R (3) refers to the achievements of the historical constitution within the context of interpreting the Fundamental Law; and Article R (4) states that every state body is obliged to protect the constitutional identity of Hungary.43
According to Article R (3), the provisions of the Fundamental Law shall be interpreted in accordance with not only their intended purpose and the Fundamental Law's National Avowal, but also with the achievements of our historical constitution. This creates an obligation for Parliament as well, since interpreting the Fundamental Law is an inevitable component of its work. First, Parliament as the legislative body must ensure that newly adopted legislation does not conflict with the provisions of the Fundamental Law, and this requires the interpretation of the abstract legal principles and fundamental rights, the rules of competence, and the formal requirements of the legislative process, as regulated by the Fundamental Law. Second, amending the Fundamental Law also requires the interpretation of the relevant procedural requirements as well as the entirety of the document, since the internal consistency of the normative text needs to be preserved.44
Besides the regulations concerning the interpretation of the Fundamental Law, Article R (4) also imposes an obligation on Parliament in connection with the historical constitution. It imposes the duty on every State body to protect the constitutional identity of Hungary, and this constitutional identity is rooted in the latter's historical constitution, in accordance with the National Avowal and Decision 22/2016. (XII. 5.) of the Constitutional Court.45 Article R (4) therefore obliges Parliament to analyse not only certain achievements qualitatively and distinctly,46 but the entirety of the historical constitution, and the findings of this analysis should be respected not simply when interpreting the Fundamental Law, but throughout the whole of parliamentary proceedings.47
Therefore, two separate provisions in the Fundamental Law oblige Parliament to analyse the historical aspects of constitutional development. This obligation is more extensive than examining certain historical legal texts separately, and requires a comprehensive review of constitutional development that takes into account not only the content of the legislation, but also the circumstances of its adoption, the specific meaning it has embodied in each historical period, and the extent of its change or, when appropriate, reinforcement by existing regulation.48 The need for this complex analysis is justified, first, by the Fundamental Law's regulation about interpretation; second, by the need to resolve the dogmatic anomalies created by the reference to the historical constitution in the normative text, and third, by the need to fulfil the objectives of analysing the historical dimension.
Regarding the Fundamental Law's regulation about its interpretation, in accordance with the previous analysis both Articles R (3) and R (4) create an obligation to examine the historical dimensions of constitutional development.49 More precisely, the regulation concerning the protection of constitutional identity requires the analysis of the historical constitution as a whole.50 However, the historical constitution should not have the same function as the current legislation, since the majority of the constitutional issues are regulated in the Fundamental Law. The Fundamental Law functions as a written constitution, thus it would create dogmatic anomalies to regard the historical constitution to be in force as well,51 and this would lead to situations when answering a legal question would require the application of both the Fundamental Law and a historical piece of legislation with different content.52
However, if Parliament and the other bodies are obliged to interpret the historical constitution, and not only analyse the content of specific historical legal sources to answer current legal questions but instead to comprehensively examine the historical development of certain legal institutions and principles still relevant today, as well as the context in which the laws expressing them were enacted, the findings of these examinations could substantively be reflected in the decision-making process. In this case, the decision-maker would obtain a comprehensive understanding of the legislative and, where appropriate, judicial practice concerning the issue under consideration, and could therefore draw conclusions about the path that led to the current legislation, as well as the arguments that have been used in the past to reach decisions about the issue. With this knowledge, the bodies could make more thoughtful and informed decisions using the lessons of the past to guide future developments.
The recent practice of the Constitutional Court reflects this approach. A good example of this is the 14/2020. (VII. 6.) decision, in which the Court, in its examination of the State's obligation to protect forests, went back as far as the village laws of 1851, concluding its analysis with Act VII of 1961, which, according to its previous practice, does not fall within the traditional scope of the historical constitution.53 The decision is also a good example of substantially reflection on the historical dimension, as the Constitutional Court ruled on a highly relevant issue related to environmental protection; a topic likely to be given more attention in the future. Finally, although in this decision the Court explicitly mentioned the State's obligation to protect forests as an achievement of the historical constitution, a complex historical analysis was conducted through several rulings without pinpointing a certain legal principle or text as an achievement.54
Therefore, when acting in accordance with its constitutional obligation to analyse the historical constitution, Parliament should examine historical development as a whole, focusing on the gradual entrenchment of legal institutions and principles and paying particular attention to the historical context in which the legislation was enacted, its reception and practice.
2.3 Outline of the role of parliament and the constitutional court: the main constitutional principles
For determining the actual role of Parliament in identifying historical constitutional achievements, those bodies should be enumerated which are authorised to interpret the Fundamental Law in Hungary, and the place of the Parliament should be identified within this structure. According to widespread views, articles R (3) and (4) of the Fundamental Law are inapplicable provisions, and historical argumentation should be left out of the constitutional discourse;55 the overemphasis on the historical arguments also constitutes a frequently expressed view.56 We acknowledge certain well-founded considerations in both approaches, and hold that historical points might add value to constitutional debate; however, these should not prevail over the laws in force, and cannot be seen as directly applicable legal sources without undermining several principles of the rule of law.57 Parliament should classify achievements of the historical constitution as subsidiary legal sources and should evaluate the historical entrenchment of the current regulation as a long-term process. Thus, our target is not an exhaustive enumeration of legal sources; however, articles R (3) and (4) create more extensive opportunities to use past legal norms and attitudes as a means of assisting in legal interpretation. The selection of historical constitutional achievements always requires the interpretation of the Fundamental Law at all levels of legislation,58 while the competences of each relevant body should be clearly distinguished. The Constitutional Court is the body entitled primarily to protect the Fundamental Law;59 this could explain why the emerging role of historical arguments has been examined consistently in the practice of that body. However, in reality, the parliamentary margin of appreciation is similarly as broad as that of the Constitutional Court, although the Constitutional Court may influence in more ways the development of case law linked to historical constitutional achievements.
First, since the generally accepted Hungarian approach rejects potential conflict between the content of a constitutional amendment and the constitution,60 Parliament could determine with a qualified majority, but without substantive external control, how historical perspectives should be reflected in the constitutional text and this will guide all other bodies dealing with constitutional interpretation. The Parliament in Hungary, as the constitution-making and constitution-amending power, could decide whether the concept of historical constitutional achievements will stay in force as sources of interpretation provided by Article R. Within the constitutional boundaries enacted by Parliament, the task is conferred upon the Constitutional Court to elaborate the detailed concept of historical constitutional achievements, and to clarify what the impact of this should be on the current constitutional discourse. In such a matter like the historical dimension of public law that is liable to be contested, none of the competent constitutional actors has initiated an abstract interpretation of the constitution.61 Thus, at this stage the final word goes to the Constitutional Court, and when it expresses, either in the operative part of a ruling or in its reasoning, its views about historical constitutional achievements, this will serve as orientation for Parliament, and will have greater weight than any similar step by other competent bodies.62
However, on the grounds of the constitutional design enacted by the Parliament, and within the interpretative frameworks elaborated by the Constitutional Courts, Parliament will apply or disapply the historical dimension during the enactment of each legislative piece, or wholly neglect this aspect.
Now we are at the stage when Parliament constructed historical constitutional achievements as complementary tools of interpretation more than a decade ago, but the Constitutional Court has not provided clear standards with regard to the legislative consequences of this step.63 Thus, one should not be surprised that parliamentary contributions supposed to be based on standards elaborated by the Constitutional Court have not been crystallized yet.
Another difference between the constitutional interpretations issued by Parliament and the Constitutional Court is worth contemplating.64 In the light of the relevant constitutional clause, Parliament should consider the historical dimension during the enactment of each statute. This should not impose any mandate to Parliament to follow former regulatory models during its legislation, but such arguments should be considered during each legislative step. Simultaneously, the Constitutional Court could focus on this issue in the case of such motions: the latter should not directly address the role of historical dimensions but should raise a constitutional issue requiring the interpretation of Article R (3). Consequently, not all decisions concerning the historical dimension will be subject to constitutional review; moreover, most of these decisions will not be scrutinized by the body. Nevertheless, Parliament shall keep in mind that each of its decisions might be sent to the Constitutional Court for substantial review. This is the reason why we find the weight given in the literature to this particular issue to be insufficient: in relation to the complex relationship of the Parliament and the Constitutional Court, the Parliament has almost the same broad margin of decision as the Constitutional Court during the conceptualization of this new means of assisting in interpretation. A further noteworthy consideration is that all currently enforceable acts enacted by Parliament shall be respected by individuals unless they have been repealed by the Constitutional Court as unconstitutional.65
Thus Parliament, as the constitution-making power, has taken two remarkable steps towards increasing the role of historical method in legal interpretation: with the enactment of the Fundamental Law the concept of historical achievements has been established, and this category has been vested with subsidiary legal force.66 The substantial standards that are also binding for Parliament should be elaborated by the Constitutional Court, and we suggest reconsidering this by focusing on long-term legal development as a process. However, it has not been analysed in-depth in the literature how and through which tools Parliament can integrate historical dimensions systematically into the legislative process.
3 The relevant practice of the parliament and its evaluation
The Parliament, therefore, plays a particularly essential role in achieving the constitutional aim of including the historical dimension into legal decision-making. Despite this fact, neither the legislation nor the amendments of the Fundamental Law reflect the substantial consideration of constitutional history.
Parliament has adopted nine amendments to the Fundamental Law so far, only one of which, the seventh amendment, refers to the historical constitution explicitly. It contains two references: the first contributes to extending its role, and the second justifies a change in the legal system based on that.67 The first reference changes the text of the Fundamental Law to include the previously mentioned reference about constitutional identity: ‘We hold that the protection of our identity rooted in our historical constitution is a fundamental obligation of the State’.68 This reference serves as the basis for applying the historical dimension in the current legislative framework, and its original aim was to ensure that Hungary can claim the protection of its constitutional identity in disputes over competence with the EU.69 The ninth amendment, however, established that children have the right to a self-identity corresponding to, among other things, values based on the constitutional identity of Hungary; therefore, this concept assumed a national dimension besides the European one.
The text of the seventh amendment was adopted after the Constitutional Court's 22/2016 (XII. 5.) decision that made the same connection between constitutional identity and the historical constitution.70 However, before this decision the prime minister proposed to amend the Fundamental Law in a similar way, only this first time the proposal did not receive support from Parliament.71 The reasons for this were not elaborated in the document's reasoning; however, it follows the European trend of referring to constitutional identity before the Court of the European Union, as well as in the decisions of constitutional courts.72 Despite this, we can see no further reference to the historical constitution in the regulation of the relationship between the European Union and Hungary.
In this case, Parliament widened the historical constitution's scope of application, thereby making substantial reflection; however, this change itself was not justified on the grounds of constitutional history. Therefore, this amendment contributed substantially to the constitutional history's application in practice, but the process of its adoption itself was not an example of applying the historical constitution.
In contrast to this first reference in the seventh amendment, the second one reflects the analysis of the historical constitution. This amendment created the constitutional basis for the independent administrative court system. The reasoning of the related provisions refers to this, and to the independent high court of administration as an achievement of the historical constitution.73 This is therefore an example of introducing a change to the existing legal system and justifying it by referring to historical tradition. The Constitutional Court previously reflected on the historical background of the court system, but it never pinpointed the independent administrative courts as achievements.74 Thus, we can see a connection between the practice of the Parliament and the Constitutional Court here as well, but similarly to the previous example, Parliament acted independently by identifying a new achievement. However, due to the strong politicization of the legislation and parliamentary work dominated by a two-thirds parliamentary majority almost continuously since 2010, the concept of historical achievements has likely just been used as a decorative element for justifying the enactment of the intended amendments, rather than historical references having inspired current law-makers to adopt particular laws.
One may identify examples of the recognition of the historical constitution, and this case law shows that the practice of the Constitutional Court can guide, at least in principle, the Parliament, but the elaboration of the historical dimension is very far from complete. Apart from this, one may argue that substantial reflection appears particularly rarely in the practice of Parliament, which might also be a consequence of playing down the weight of the constitutional court during the last decade as an autonomous constitutional actor.
Moving on to examining legislative practice, referring to the historical constitution is not common. In the course of our research we only found two acts that include explicit reference, and both are in connection with the separate administrative court system. These two acts are Act CXXX of 2018 on Administrative Courts and Act I of 2017 on the Code of Administrative Court Procedure, which both include reference to the historical constitution in their preambles and their reasoning. According to these references, the acts were adopted after considering the statement in the interpretation clause about the achievements of the historical constitution, and they also briefly analyse the main historical sources of law regarding the administrative court system.
The preamble of Act I of 2017 confirms the Parliamentary adoption of the act ‘with respect for the achievements of the historic constitution’. The preamble of the Act CXXX of 2018 includes a more elaborate reference about the circumstances of its enactment: ‘in the light of the judicial achievements of our country's historic constitution and the Hungarian legal tradition, seven decades after the abolition of the Administrative Court in 1949’. The reasoning of Act I of 2017 refers to Act XXVI. of 1869 as the theoretical basis of the new act. Act CXXX of 2018 is more elaborate once again: it briefly analyses the separate financial administrative court system created by Act XLIII. of 1883 and the separation of powers doctrine through Act XXVI. of 1869, then it underlines the elimination of the separate administrative court system by the socialist regime in 1949, therefore its consistency with the restoration of the historical constitution is well grounded.
In relation to legislative practice, some examples might be mentioned when the historical constitution has been at least seemingly substantially analysed and the outcome has been referred to when justifying changes to the legal system. However, on the one hand these examples are exceptional, and one may enumerate very few acts that refer explicitly to the historical constitution. On the other hand, regarding the example of administrative courts, as several commentators have held, the primary motivation was presumably to launch a separate court system to decide on the politically most sensitive matters rather than revitalizing certain crucial traditions of Hungarian judicial development.75 Moreover, if we accept the starting point that the essence of legal development lies in the organic evolution of legal institutions, and that all decisions are the result of historical precedent, the current selective practice of the Parliament is not sufficient, and it does not meet the requirements of the Fundamental Law regarding the application of the historical dimension. Our analysis could not encompass those potential cases when historical achievements are not mentioned explicitly in the reasoning, but which have clearly influenced the attitude of law-makers and the exact wording of the adopted law. One further direction for the research would be to examine the implicit role the historical dimension may play during the legislative process.
4 Alternative options for integrating historical constitutional achievements into the legislative process
As demonstrated by the previous chapters, the main concern with the historical references of Parliament is the accidental character of such arguments, which is even stronger in law-making than in legal interpretation.76 Parliament has relied on historical references only in a few cases to justify the exact content of a law, and these few cases have failed to outline a coherent vision of the historical dimension. In light of the already detailed model, one should not be surprised since Parliament took a considerable step with the enactment of the relevant constitutional provisions and the National Avowal; the task of the Constitutional Court is to fulfil these norms and declarations, via interpretation, with tangible meaning. Since the Constitutional Court failed to take substantial steps in this direction, Parliament lacks effective standards for integrating historical reasoning into the current constitutional discourse. In this situation, we could not undertake to outline such detailed standards for historical reasoning to orient Parliament.77 In this regard, we only highlight once again that instead of attempting to enumerate historical constitutional achievements, it would be better to see the historical entrenchment of a legal field as a long-term process.78 Regardless of the exact choice of Parliament to strengthen the role of the historical dimension, due to its greater flexibility we expect from this approach a substantial but also consolidated and accountable outcome.
Instead of the substantial issues, we should focus at this stage on those legal instruments that might be adequate means for the Parliament to strengthen the role of the historical dimension.
The historical dimension could be added to the profile of a specialized permanent parliamentary committee. To give an example, the current committee of judicial affairs at the Hungarian Parliament, which is responsible for hearing constitutional matters, could consider historical arguments during its assessment. This obviously does not constitute an effective safeguard of substantial consideration, since committee sittings are often very pragmatic and are not proper occasions for discussing conflicting arguments.79 Nevertheless, in certain cases this filter may prevent some distortions of the legislative process. In addition to, or instead of the specialized permanent parliamentary committees, the Legislative Committee of the Hungarian Parliament could also deal with the historical dimension, since bills should not be sent to plenary debate before the approval of the Legislative Committee. Historical arguments might be presently raised in committee meetings (the current system does not exclude such interventions), yet creating a separate committee for this purpose or assigning a committee to be primarily responsible for the discussion of such aspects should in result more systematized reflection on historical dimensions.
Another potential element of the legislative process that may be engaged to treat this issue is impact assessment. The present impact assessment system has severe deficiencies in Hungary – its structural and substantial development has been continuously on the agenda in relation to the democratic transition.80 During impact assessment, the expected economic and societal effects of a bill shall be considered carefully,81 thus the relationship with historical tradition might be also incorporated within the coverage of such an assessment. However, at the moment, if any impact assessment is conducted at all, this remains only a formalistic examination without sufficient transparency,82 while Hungary also lacks the structural and personal background for the systematic implementation of impact assessment.83 The historical dimension might be a component of a broad reform of legislative impact assessment in Hungary. In this way, in the case of an effective and credible impact assessment process, at least the tangential consideration of historical points might be guaranteed during the preparation of each bill.
The third alternative would involve reinstating a constitutional actor with deeply rooted historical traditions in Hungary:84 if a second parliamentary chamber were to be set up, amongst its other tasks it could focus on historical arguments during its deliberations.85 The effects of such a step would obviously lead us further than legal interpretation and would generate the reconsideration of the whole of Hungarian constitutional design. Several authors have contributed to the discussion of this topic in the Hungarian constitutional scholarship86 – this study only seeks to add one point to pre-existing arguments: the second chamber may be seen as a potential channel for strengthening the role of the historical dimension. This does not infer our support for the establishment of a second chamber; we just argue for the validity of considering this approach under Article R (3) and (4).
The previous three examples highlighted certain elements of the legislative process; in the following we look for the elements of the legal norms themselves wherein historical arguments might have a greater role. The Seventh Amendment of the Fundamental Law of Hungary highlighted the role of preambles as a means of assisting legal interpretation,87 but if these preambles contained clear historical references88 this would institutionalize the presence of such historical narratives and provide more tangible points of reference for legal interpretation.89 With the exception of the National Avowal, historical arguments have not been implied amongst the clauses of the preambles.
The reasoning behind laws has played a traditionally marginal role in interpretation due to the fact that such sentences have added only a few valuable points to the exact words of the legal provisions themselves. The reasoning's have only been invoked rarely in teleological argumentation, and in Hungary they are considered only as marginal and subsidiary sources of legal interpretation. Parliament could also prescribe that the reasoning behind laws should reflect the historical narrative and the preceding historical entrenchment of the regulatory framework. This duty could obviously be emptied or misused, as with all other obligations, but should at least be mentioned as an alternative direction.
Finally, Parliament may enact a resolution in relation to its proper understanding of historical constitutional achievements that focuses on the applicable selection method and the consequences for the law-making process. The parliamentary resolution would not be binding for internal stakeholders outside of Parliament, but would at least define its own approach that could orient the legislative body itself, and would also clarify for other constitutional actors its standpoint on this matter.
The simultaneous introduction of the enumerated alternatives would not be feasible: we have simply elucidated some potential – and from this perspective currently unexploited – parliamentary tools that could strengthen the weight of the historical dimension in public law.90 Without clear standards confirmed by the Constitutional Court, Parliament could identify those means of interpretation through which it could elaborate its approach in compliance with the constitutional provisions and the case-law of the Constitutional Court. The clarification of parliamentary role and practice would not entail necessarily the more frequent citation of historical argumentation; Parliament might interpret the historical narrative restrictively, and may rely on such arguments only on an exceptional basis. However, for the promotion of legal certainty and accountability, it is essential to establish a predictable practice and standard in this regard that should be grounded on the intense, continuous, and constructive dialogue of the Constitutional Court and Parliament.
5 Conclusions
The Fundamental Law of Hungary contains references to the historical constitution and its achievements, and these create obligations for Parliament regarding its work in the field of legislation and constitutional amendments. These obligations could be fulfilled more transparently if Parliament did not aim to find certain historical legal sources still applicable, besides the legislation in force, but instead analysed the historical traditions of legal principles and institutions in their entirety and focused on how the lessons of the past can help to create a better future. This study has examined the current practice of Parliament and suggested six potential ways of integrating the historical dimension in a consolidated way into its work.
Although this study has focused on Hungary's constitutional system and enumerated its main relevant specificities, the constitutions of several other countries include references to respecting historical traditions. A comprehensive analysis of these references and the classification of Hungary amongst these models could contribute to a better understanding of the Hungarian legal system. Although this study has focused on Parliament's options for considering historical traditions, the Constitutional Court's practice inevitably has an effect on this. Thus, the re-examination of this field is beneficial in light of its potential development.
The discourse on the relevance of the historical constitution, as well as on Parliament's actual and potential role in this context, is not only crucial for preserving the coherence of the Hungarian legal system, but also because of the link between the historical constitution and national identity, as well as referring to national identity in the European context, while domestic regulatory policy has risen in importance in recent years. Since Parliament plays a key role in defining domestic law and Hungary's position in the European Union, it will remain particularly essential to explore the framework within which it can fulfil its obligation of examining the achievements of the historical constitution while the present constitutional term continues.
Acknowledgement
This research was funded by the Magyarország történeti alkotmánya egykor és ma (“The historical constitution of Hungary in tradition and in the present”) NKFIH 143008 project.
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