Anna Unger's study by raising the question, how the current Hungarian constitution system can be altered without the governing party having the two-thirds majority in the Parliament, she argues that this question cannot be answered without defining the exact nature of the current regime. Her main argument is that the obstacle to consider any constitution-making approach outside the existing procedural rules of the Fundamental Law is the characterisation of the regime as a hybrid one, instead of admitting its authoritarian nature.
Gábor Attila Tóth seeks to offer a new approach on how Hungarian democracy can be restored constitutionally. This article aims to contribute to understanding the difficulty and offers a new approach. After an overview of the regime type, a new autocratic system and the possible ways of transformation, the article argues that under certain conditions, a new type, the two-phase reconstruction constitution-making, may emerge. Here, a single majority can first remove the autocratic elements from the constitutional system, and in a second, final phase, a positive, compromise-based constitution-making can take place.
András Jakab highlights the road in front of the Hungarian opposition in the case of a single majority victory during the parliamentary election, how to lead the country from a hybrid regime back into a system governed by the rule of law. First he describes the very nature of the Hungarian hybrid constitutional regime followed by his own scenario of the changes, which according to him should be led by the effort to avoid the break of legal continuity.
János Kis reconstructs the two approaches in the debate on Hungarian constitutional restoration that he calls "legalist" and "legitimist" and argues that only the synthesis of the two approaches promises a way out. He argues, accordingly, that disregarding formal rules can be part of restoration, but only if used in a limited (proportional, necessary and risk-minimizing) manner.
András Sajó argues that the core values of rule of law are interpreted in leading democracies where these values are immanent elements of the normal functioning of a country. However, according to the author the rule of law is vulnerable even in the mentioned modern democracies. The abuse of formal legality in illiberal regimes became a common practice which purport to be a serious problem within the EU as well. On reflecting the Hungarian constitutional crisis he argues that restoring the rule of law is impossible by simply amending the Fundamental Law or accepting a new constitution. It is the trap of formal legality which prevents the new government from reshuffling the whole constitutional system without the relevant majority. He argues that although there is an important legal debate on restoring the rule of law in Hungary, the real problem is not a legal one but a more complex issue: the weathering of democratic values.
Zsolt Körtvélyesi provides an overview of selected examples of adopting constitutions and discusses the two recent Hungarian cases in this light. He argues that legal shenanigans often hide the fact that the central element of constitutional founding lies beyond the reach of discussions on legal validity. He concludes by discussing how this underlines the importance of looking beyond legal rules and taking into account the political and social foundations of constitutionalism.
In the Forum section, our contributors discuss various aspects of constitutional restoration, starting with the critical account of a political scientist (Balázs Böcskei) and continuing with constitutional scholars (Tímea Drinóczi, Judit Tóth, Gábor Halmai, Kriszta Kovács, Pap András László, Péter Sólyom). ■
Visszaugrás
