The use of binding interpretative methods in constitutional jurisprudence

The application of the new methods of interpretation

My first question is whether the new methods of interpretation have been used at all by the Constitutional Court, and if so, how often and in which cases they were used. Although the constitution makers tried to impose limits on the freedom of the Constitutional Court to interpret the Fundamental Law independently from the majority will, at first this was not clearly successfill. After the new constitution entered into effect, the Constitutional Court declared in 2012 that the Court may continue to use arguments in its decisions which had also been made before the entry into force of the Fundamental Law, if the Fundamental Law contains the same or similar provisions for the case compared to those of the previous Constitution.[1] When in 2013 the Fourth Amendment expressis verbis declared the repeal of all Constitutional Court rulings made before 2012, the Court appeared to maintain its earlier position, saying that the Court must hereto justify in more detail if it wishes to use arguments contained in its pre-2012 decisions. This means that the Constitutional Court simply refused openly to ignore its earlier decisions, and practice also shows that it refers to its previous judgments in many cases, or it refers to a new judgment that has confirmed the previous jurisprudence.

As to the use of the specific interpretative method, its significant impact on the Constitutional Court’s jurisprudence cannot be demonstrated or proved. At first sight, as I described earlier, the constitutional command to respect the achievements of the historical constitution has had the greatest impact on constitutional interpretation, because it appears in a significant number of cases in the jurisprudence, unlike the other requirements. However, in fact, the Constitutional Court often used merely formal statements referring to the historical constitution when reasoning its decisions. The Court has not yet developed a doctrinally sound method or theory of how to take into account the achievements of the historical constitution. Its interpretative practice is consistent only in the sense that a legal norm may not be invalidated solely on the basis of Article R (3); however, in reality, the references to the historical constitution are usually merely decorations of the reasoning of the Court’s rulings. Although the constitutional provision for respecting the achievements of the historical constitution is certainly flexible enough to be used in almost any reasoning, it is less useful when it comes to provide compelling arguments for definite interpretation results.

The content of the unwritten, historical constitution was inherently ever-changing, and there is no guidance to determine which period or state of the historical constitution the new constitution should take as its reference point. The Fundamental Law only records that the self-determination of the Hungarian state was lost on 19 March 1944, when Nazi Germany occupied

the country. Presumably, this date is the endpoint of the historical constitution. However, because of the wartime regulations or the anti-Jewish laws that were in force in 1944, this state of the historical constitution can hardly be assumed or followed. In reality, the Constitutional Court occasionally selects certain rules or customs of historical Hungarian public law, i.e. it considers the historical constitution as a sort of menu.[2]

As in Hungarian legal traditions, the preambles of legal norms, such as the National Avowal, did not have normative power, making the constitutional preamble a sub-principle of interpretation represents a real innovation. Given that this preamble contains very abstract values, solemn phrases and historical references, its real effect on the case law is fairly limited.

Furthermore, although the Fundamental Law has certainly assigned a preeminent role to the purposive interpretation in Article R when exploring the meaning of the constitutional text, this intention hardly prevails in practice. The Constitutional Court only rarely uses this reasoning, and hardly ever refers to this guidance of the Fundamental Law. The intention of revealing the purpose can be concluded, at most, from the fact that in certain cases the Court asks for the lawmaker’s position. However, this is a contingent rather than a well-founded practice, as the role and methodology of using purposive interpretation is completely unclear in Hungarian constitutional jurisprudence.

As to Article N imposing the obligation on the Court to take into account budgetary considerations, this suffers from some deficiencies. Not only is its content unclear and obscure, but it is questionable which constitutional requirements should be preferred if the issue of constitutionality is confronted with economic rationality (such as a balanced budget). However, it would be an extremely difficult task to use this interpretative guideline, anyway, as the scope for constitutional review of public finance legislation is grievously restricted. Since 2011, the Constitutional Court has been able to review and annul laws relating to public finance only if they violate the right to life and human dignity; the right to the protection of personal data; freedom of thought, conscience and religion; and the rights related to Hungarian citizenship. In effect, the Court may not review any budgetary law, so, in the absence of the relevant power, it would hardly be able to enforce budgetary considerations in the course of constitutional interpretation, and it has not yet done so in jurisprudence.

In sum, although the new methods certainly aimed at changing the jurisprudence of the Constitutional Court, these requirements appeared to be quite weak and uncertain when they come to creating substantive changes in the interpretative mindset. However, substantive changes can be detected, as I will highlight in the next section. The notion of human dignity and the notion of constitutional identity, for example, have become substantive interpretative tool concepts that have influenced the jurisprudence of the

Constitutional Court in sonic cases, and a doctrinally confused interpretation, a mix of the classical methods of interpretation, has also led to deferential decisions that favour the populist constitutional agenda.

  • [1] Decision 22/2012. (V. 11.) of the Constitutional Court. 2 Zoltán Szente, ‘A 2011. évi Alaptôrvény és a tôrténeti alkotmàny ôsszekapcsolâsânak mítosza’ (2019) Kôzjogi Szemle 1-8. 3 Szente (n 9); Gâbor Attila Tôth ‘Historicism or Art Nouveau: A Comment on Zoltán Szente, The Interpretative practice of the Hungarian Constitutional Court, a Critical View’ (2013) German Law Journal 615-626. 4 Imre Vôrôs, ‘A tôrténeti alkotmàny az Alkotmanybírósag gyakorlataban’ (2016) Kôzjogi Szemle 46. Adam Rixer, ‘Hungary’s Fundamental Law and the Concept of the Historical Constituiton’ (2013) 4 European Journal of European History of Law 8. 5 Szente (n 15) 5.
  • [2] Szente (n 15) 6. 2 Szente (n 9).
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