Mr. István Stumpf: The importance of constitutional identity in Europa (ABSz, 2020. Különszám, 31-36. o.)

The complex relationships between law and politics have undergone quite remarkable changes over the past few decades. Commentators and researchers have been particularly alerted to the twin phenomena of the politicization of law and the legalization of politics. During periods of constitutional legislative effort, the correlation between law and politics is thrust even further into the foreground. Constitutional lawyers and political scientists unanimously agree that erecting a constitution is, preeningly, a political issue. In this study, I undertake to answer a number of interconnected questions: Do we need a constitution marked by national identity, or would a neutral constitution suffice? What are the points of intersection between our Fundamental Law and our national identity? What is the constitutional significance of national identity in this day and age? What role does it play in the conflict between European law and national sovereignty?

I. Constitutions and identities

A thorough understanding of Hungary's current constitutional situation should begin with an overview of "constitutional order" in our country during the communist years. We must then follow by examining the development of constitutional law after the democratic turn. Finally, we will need to look at the new features that enriched our constitutional system upon the adoption of our Fundamental Law.

For centuries, Hungary's constitution remained an unwritten one, based on common law and certain so-called "cardinal acts." Formally, these were quite ordinary laws, yet considered to be of the utmost importance from the overall perspective of Hungary's legal system and tradition.

In the shadow of Soviet occupation in the wake of World War II, when the Hungarian Workers' Party had consolidated its iron-fisted hold over the entire country, the powers that be adopted, in August 1949, the country's first written constitution on the model of the 1936 Soviet constitution.

This Constitution introduced a "social order" and "catalogue of values" tailored to suit the socialist conception of the state, the latter obviously informed by Marxist-Leninist ideology. "The armed forces of the great Soviet Union liberated our country from the yoke of German Fascism, and crushed the anti-democratic state power held by landowners and industrialists..." So began the preamble of the 1949 Constitution before entering a lengthy description of the struggle of the working class for socialism. Hungary had been turned into a "people's republic," in which all state power was vested with "workers and working peasants." The Constitution made the life of the economy subject to planning by the people's state, in science pledged support only "for scientific endeavors serving the cause of the working people," and the list goes on.

The amendment adopted at the democratic turn, promulgated in the October 23, 1989 issue of the Hungarian Bulletin, purged the former Constitution of communist dogma to the extent that the new text hardly contains a provision, if any, that had remained unchanged from the original 1949 document.

At the time, the constituent legislators saw the constitution mainly as a means of providing the democratic transition with a legal framework. As such, it accorded a central role to the protection of fundamental rights and to the putting in place of an institutional background capable of supporting the operation of a democratic state based on the multi-party system.

This constitution represented a constitutional identity that was politically neutral. It did not articulate any well-defined symbolic or social values, and was entirely devoid of historical perspective. Not that this approach was anything to be surprised at. In fact, the neutrality of the constitution seemed a downright virtue after decades of communism when its predecessor text had suffered under a massive ideological burden.

Two decades later, the new legislature formed in the wake of the 2010 general elections - what has become known to Hungarians as the "Revolution in the Booths" - brought along the most radical transformation of the Hungarian legal system since the democratic turn. Indeed, in certain circles there was a concern, before the enactment of the new Fundamental Law, that the constituent legislators might be thinking of declaring Hungary's historic Holy Crown to be the wellhead of supreme power. The Fundamental Law, however, remained firmly planted in the soil of popular sovereignty and the rule of law of a constitutional democracy. Yet certain major changes had been made on the constitutional level with implications for national identity. On the one hand, the legislature clearly broke with the former approach of favoring political neutrality. On the other hand, it effectively rehabilitated the countries historic constitution. Ultimately, what this multi-faceted affirmation of values accomplished was to create a normative foundation upon which a constitutional identity could be built.

II. National consciousness and Fundamental Law

The legislators behind the Fundamental Law held that the constitution of a country was more than a sort of nationwide articles of organization and operation, but that it had to be a document expressing and affirming a sense of identity.

This ambition is reflected from the start, by the Preamble known as the National Avowal, in which the constituent lawmakers attempt - in the name of the entire nation, no less - to take tally of the major turn-

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ing points of Hungarian history, landmarks of heritage, and other values cementing the members of the nation together.

Without pretense to completion, the list includes Hungarian language and culture; Christianity; the geographical location where we live; our commitment to freedom; and our shared responsibility for Hungarian minorities abroad. Thus, in the spirit of the National Avowal, "We commit to promoting and safeguarding our heritage, our unique language, Hungarian culture, the languages and cultures of nationalities living in Hungary, along with all man-made and natural assets of the Carpathian Basin. We bear responsibility for our descendants; therefore, we shall protect the living conditions of future generations by making prudent use of our material, intellectual and natural resources." Furthermore, "We hold that the family and the nation constitute the principal framework of our coexistence [...]."

These values, like several others, are echoed faithfully in many particular provisions of the Fundamental Law. Among them, Article H) paragraph (2) declares that "Hungary shall protect the Hungarian language." Article L) paragraph (1) defines the notion of "family" and provides for its protection: "Hungary shall protect the institution of marriage as the union of a man and a woman established by voluntary decision, and the family as the basis of the survival of the nation. Family ties shall be based on marriage and/or the relationship between parents and children."