In his writing on economic and social rights, Herman Schwartz attempts to ask the question of do these rights belong in a constitution, The author divided the competing arguments into practical and philosaphical. According ro the former ones, the main point is whether economic and social rights arc judicially enforceable, the latter ones focus on whether placing economic and social rights in a constitution is consistent in principle with the essablishment of a free democratic, market-oriented civil society. In the author's view, the presence of these rights in a constitution does not mean necessarily that they can be judicially enforceable. On one hand, there is political enforceability, which judges who claim to espouse judicial restraint routinely invoke. Putting rights into a constitution, according to Schwartz, even if not judicially enforceable, is not an idle gesture. As the second type of the arguments concern, it is hard to believe, emphasizes the author, that the current move toward a free-market economy will be affected in any way by the inclusion of positive rights in the constitution, Regardless of whether the programs implementing such rights are put in place by a statute adopted by a politically created majority or by some governmental action fulfilling a constitutional duty, the governmental interference with the market economy is the same. The fact that the interference results from an entrenched constitutional mandate rather than from the enactment of a possible transient majority does not affect the fact and degree of interference.
Cass R. Sunstein in his essay argues against positive rights, which in this case refer to social and economic guarantees as opposed to those rights, which refer to the right to call on govemment for assistance. According to the author, in Eastern Europe there is no special reason to contitutionalise the welfare state, even if its guarantees are properly part of a decent society; and perhaps the specification of welfare rights would jeopardize the urgent project of creating a system of legally enforceable guarantees. If a constitution tries to specify everything to which a decent society commits itself, it threatens to become a mere piece of paper, worth nothing in the real world. Therefore, Sunstein's opinion is that just few positive rights belong in East European constitutions. Not just because a constitution that prevents the operation of free labor markets may defeat current aspirations in the region in question, but also because constitutions should not hobble the creation of civil society. The author also mentions that many positive rights are unenforceable by court, and it would be unrealistic to expect courts to enforce many positive rights. Taking into account the above-mentioned, Sunstein suggests four possible routes for the future for the East European countries. First, these countries should minimize provisions which call for positive rights, second, the positive rights might be put in a separate section of the constitution, making clear that these are not for judicial enforcement, third, judges and lawyers might develop a jurisprudence that minimizes the potential risks and maximizes the potencial benefits of positive rights. Fourth, lawyers of the region might now use provisions protecting rights of property and free enterprise so as to allow considerable scope for the operation of the civil society and the market sphere.
The article of Katalin Szamel familiarizes the reader with the competing arguments on the question whether social and economic rights belong in a constitution. According to the author, the opinions could be divided into two main groups in Hungary. According to the so-called "liberal" point of view, the rights in question do not belong in a constitution, since the constitution cannot guarantee the enforcement of these rights, but if they have been already in a constitution, the place of these rights is among the general principles, since these principles do not establish subjective rights. According to another point of view, only some rights (e.g. right to social security, unemployment benefit etc.) should be ensured by the constitution, which would establish subjective rights, however the rest of these rights should be placed among the aims to be achieved by the state. In the author's opinion, the constitution, taking into account the protection of acquired rights, should determine only the constitutional limits and requirements, within which the legislature and the govemment of the state would enjoy a wide margin of appreciation in forming the state's social program.
In his essay, Tamás Győrfi is writing about the legal consequences of the previous decisions of the Hungarian Consritutional Court on abortion and death penalty. The opinion of the Court
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on the connection between the right to life and the right to human dignity is analyzed and criticized by the author. Győrfi raise the question that how can the doctrine of the Court, according to which the viotation of the fundamental right to life means also the infringement of the right to human dignity and vice versa infiuence the forthcoming decisions of the Court on abortion and euthanasia, The author shows the possible ways of deciding the petitions arrived to the Court in harmony with the principles settled by the former decisions of the Constitutional Court.
In this interview, András Sajó is talking skeptically about the doctrine of human rights, since according to him, this doctrine cannot be serve as a basis of a legal system. In Sajó's opinion, nowadays, the doctrine of human rights became almost a religion, however nobody has managed to prove yet that there is something which is equally given for everyone as an inherent right. Human rights cannot be universal, so many societics, so many human rights. There is no universality, says Sajó, that is why we cannot talk about human rights which belong to everyone.
On March 20-21, 1998 the Hungarian Human Rights Information and Documenration Centre organized a workshop on the necessity of an anti-discrimination law in Hungary. The participants of this workshop had got an overview on the legal situation of the various minority groups of the Hungarian society and they had the opportunity to think about and find the best solution of the minorities' problems together with the experts of this field. With the exception of some participants, most of those who took part in the seminar agreed on the necessity of not only an anti-discrimination law, but also an act on equal treatment as regards to national and ethnic minorities in Hungary. As a follow up, the Centre plans to publish the conference materials, and the most inieresting opinions will appear also in this column of the Fundamentum. In this issue the editors requested five lecturers to present their point of view. In his writing, István Kemény explains what will be solved by such an anti-discrimination law. In his opinion due to the specific legal regulations concerning the ethnic and national minorities, the people will understand that discrimination is prohibited. György Csepeli is writing about the relationship between the anti-discrimination law and the majority. He familiarizes the reader with the results of the experiments on the relationship between the groups exist within the society and the distribution of the goods and advantages among them. He emphasizes that it is important to convince the majority of the society that an anti-discrimination law is needed. In János Ladányi's view, the problem of the roma people is not only a social problem, but it is also a question of civil rights. He argues that the anti-discrimination law should contain that local governments are obliged to ensure the minimum level of social services. Sándor Palásti is writing about what kind of steps should be taken by the state before the enactment of the anti-discrimination law. The author argues that before making such kind of law, the government should make the majoriry aware of the existence of minorities and it should frame an anti-discrimination policy in order that the majoriry of the society would be against the unequat treatment of the roma people. In his essay, Balázs Tóth comments on the opinions of the above-mentioned authors.
In March 1998, a 13-year-old pregnant minor seeking an abortion was stopped by the local court of Baja when an NGO created an apparent conflict of interest between pregnant girl and foetus she was carrying. The conflict of interest, the NGO claimed, required the appointment of a legal guardian to determine the interests of the foetus in the abortion procedure that the girl
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had requested, since the abortion would end the conflict of interest by ending the life of foetus. We publish the judgement of the local court of Baja with the commentaries of Gábor Halmai, András Hanák and Vilmos Sós. In its judgement, the court, on the basis of the Constitution, however contrary to the Hungarian law on abortion currently in force and the relevant decision of the Constitutional Court, declared that the abortion would have violated the right to life of the foetus and therefore prohibited it.
We publish the petition submitted to the Constitutional Court on the constitutionality of the Act of 1992 on Abortion. Three academics, János Kis, Kim Lane Scheppele and Judit Sándor are writing about the possible outcome of the forthcoming decision of the Court.
The other topic of this column is the forthcoming ratification of the European Social Charter by the Hungarian Parliament In his writing, György Könczei gives a detailed overview on the conrent of the European Social Charter, Mónika Weller and Gábor Kardos raise the question which articles of the Charter should be rarified by the Hungarian legislature,
In this column, the Editorial Board of Fundamentum publishes summaries of some judgements of the European Court of Human Rights concerning the economic, social and cultural rights and also on the question of abortion in connection with the two main topics of this issue of our quarterly. We also publish summaries of some recent decisions of the Hungarian Constitutional Court on human rights issues and the recommendation of the Data Protection Ombudsman on the protection of personal data of a 13-year-old pregnant minor, who due to the activity of the press suddenly became a well-known person.
In this issue of Fundamentum we introduce the non-governmental organizacion called Habeas Gorpus, which was established in 1996 in order to safeguard the right to privacy and especially the right to sexual seIf-determination. The NGO gives assistance to the persons who in most cases victims of discrimination because of their bisexual or homosexual behavior. Habeas Corpus also researches issues where there has been unequal treatment based on someone's sexual preference. Besides, the NGO aims to protect the rights of the non-smoking part of the society.
In this issue of our quarterly, we publish recensions of recendy published human rights publications. We introduce the translated version of The Federalist Papers written by Hamilton, Jay and Madison and the book of Benjamin Constant on the freedom of the ancients and the moderns. Besides the reader can also obtain in this issue the recension of the book of Michael Foucault on justice and the forms of judicature, the handbook of András Grad on the case-law of the European Convention on Human Rights, Krisztina Morvai's volume on the violence within the family, the publication of the Legal Defense Bureau for National and Ethnic Minorities, which contains interviews with roma people, the bookler written by three authors on human rights issues and last, but not least the compilation of cases concerning the ethnic and national minorities. ■
Visszaugrás
