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Constitution for a Disunited Nation

On Hungary's 2011 Fundamental Law

Gabor Attila Toth

Publication Year: 2012

Published by: Central European University Press

Title Page

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Copyright Page

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Table of Contents

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Preface

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pp. ix-xiii

More than two decades after the post-communist constitutional transition, Hungary entered the spotlight again. The winner of the 2010 elections gained two-thirds of the seats in Parliament, which made constitutional revision exceptionally easy—bypassing political and social deliberation. On April 25, 2011 (Easter Monday), on the first anniversary of the 2010 election, the president ...

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Acknowledgments

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pp. xv-xvi

The authors wrote their chapters for the purpose of this volume. Earlier, most of the contributors had discussed the Hungarian constitutional transformation at international conferences and workshops. They learned a great deal from the papers, presentations, and comments that, hopefully, have much improved their chapters. ...

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Introduction: From the 1989 Constitution to the 2011 Fundamental Law

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pp. 1-21

On January 1, 2012 the new constitution of Hungary, called the Fundamental Law, came into effect, and on January 2, the government held a gala in its honor at the Opera House in Budapest. In response, tens of thousands gathered in front of the building to demonstrate their anger at what they saw as a subversion of the democratic constitution of the republic. ...

I. LEGITIMACY

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What Is Democracy?

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pp. 25-34

... The story begins with a country which has painfully emerged from terrible periods of tyranny, established what looks like a path to a mature democracy. It has free elections, with near universal suffrage, it has a free and independent press representing opinions across the range of the political spectrum, it has a constitution which embeds fundamental rights of individuals against the majority, it has constitutional ...

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Regime Change, Revolution, and Legitimacy

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pp. 35-57

Ever since 1989, the question whether the transitions to democracy in Central Europe were revolutions has been an intense subject of debate. Behind this debate lies a rigid alternative between revolution or reform. Since the transformations were not reforms compatible with, or preserving systemic identities, they had to be, supposedly, revolutions— an idea confirmed by the presence of large ...

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Constitution-Making, Competition, and Cooperation

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pp. 59-81

In April 2010, Fidesz, one of Hungary’s major parties, achieved a decisive victory in free and fair legislative elections. Due mainly to the splintering of the opposition and quirks of the nation’s electoral rules, Fidesz’s sizable advantage at the polls translated into a two-thirds majority in the Parliament, slightly over the qualified majority needed to amend or replace the constitution. In due course, the party ...

II. HISTORY AND COMMUNITY

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A Sacred Symbol in a Secular Country: The Holy Crown

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pp. 85-109

In his classic work, The English Constitution, Walter Bagehot differentiates between the efficient and dignified parts of the constitution. “Every constitution must first gain authority, and then use authority.” The dignified part of the constitution “excites and preserves the reverence of the population,” while the efficient part “works and rules.”1 ...

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From “We the People” to “We the Nation”

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pp. 111-140

In Hungary, as in the region in general, the distinction between the nation in the political sense and the cultural nation is far from clearcut. While the former describes the community of citizens regardless of their ethnicity, the latter unites those of the same ethnicity or cultural family1 (most notably those who speak the same language) regardless of their country of residence or citizenship. ...

III. HUMAN RIGHTS

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Human Dignity: Rhetoric, Protection, and Instrumentalisation

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pp. 143-169

The commitment to constitutional protection of human dignity was a prominent feature of the Hungarian 1989 post-communist constitution, where it was enshrined under Article 54(1), as the first Article of chapter XII on fundamental rights.1 The 2011 Fundamental Law also enshrines human dignity and does so in several places: it is firstly mentioned in the preamble (“We hold that human existence is based ...

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Equality: The Missing Link

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pp. 171-195

A constitution is much more than a fundamental legal document. It is the basic charter of the political community, which draws on the experience of the past and expresses hopes for the future to create a set of principles that are beyond the power of ordinary legislative majorities to change. The 1989 Constitution of Hungary was a good example of this. ...

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Freedom of Religion and Churches: Archeology in a Constitutionmaking Assembly

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pp. 197-234

Many aspects of the new Hungarian constitution are difficult to assess, as its key provisions need to be entrenched by further statutes, the so-called cardinal laws, to be passed by a qualified majority in Parliament.1 This means that Parliament could delay strategic decisions concerning the content and details of most key constitutional provisions, and this delay also allows for some fine tuning of key ...

IV. INSTITUTIONAL DESIGN

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From Separation of Powers to a Government without Checks: Hungary’s Old and New Constitutions

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pp. 237-268

On April 24, 2011, Hungary adopted a new constitution that entered into effect on January 1, 2012. With a great deal of public fanfare,1 symbolic flourish2 and even a new iPad App,3 the new Fundamental Law promised to end the Hungarian transition begun in 1989 by completely replacing the constitution established at that time.4 ...

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Between Revolution and Constitution: The Roles of the Hungarian Constitutional Court

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pp. 269-299

There are questions which are themselves more important than their answers. In some cases, answers may even be downright undesirable, at least if they possess a definitive character. Such a case may be represented by the question ascribed to the Roman poet Juvenal: Quis custodiet ipsos custodes? (“Who will guard the guards themselves?”) The aphorism comes from ....

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Governance, Accountability, and the Market

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pp. 301-331

This chapter investigates the provisions of the new Hungarian Fundamental Law on governance, accountability and the market. Its main contention is that the Fundamental Law largely failed to reflect on the changes experienced by European states, including Hungary, in the past decades affecting the relationship between the state and individuals, the modes and mechanisms ...

V. EUROPEAN PERSPECTIVES

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No New(s), Good News? The Fundamental Law and the European Law

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pp. 335-358

This paper intends to examine the effect of the Fundamental Law to the relationship between European Law (now Union law)1 and Hungarian law. First, I would like to make a rather obvious but important distinction. The relationship of European law and Hungarian law includes two separate questions which should be carefully distinguished: first, the relationship ...

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Trees in the Wood: The Fundamental Law and the European Court of Human Rights

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pp. 359-376

Many of the constitutional changes found in Hungary’s new Fundamental Law relate—whether directly or indirectly—to rights and freedoms guaranteed by the European Convention on Human Rights (“the European Convention”). This chapter considers those changes from the perspective of the mandate given to the European Court of Human Rights (“the European Court”) by the European Convention. ...

VI. APPENDIX

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pp. 379-535

Bibliography

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pp. 537-549

Table of Cases

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pp. 551-556

Contributors

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pp. 557-560

Index

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pp. 561-570


E-ISBN-13: 9786155225574
Print-ISBN-13: 9786155225185

Publication Year: 2012