Mónika Mercz: The historical constitution's unique interpretation by the Hungarian Constitutional Court[1] (ABSz, 2025. Különszám, 63-69. o.)

Abstract

Since its establishment in 1990, the Hungarian Constitutional Court has played a pivotal role in shaping legal thought and practice, not only within Hungary but also in the broader European constitutional landscape. Among its distinct contributions is the clarification of key legal concepts - most notably, national sovereignty, constitutional identity, and 'essential state functions' under Article 4 (2) TEU. In doing so, the Court not only safeguards the normative core of the Hungarian state but also constructs a framework through which the historical constitution becomes a foundational element of national identity and legal continuity. These elements are essential to understanding diverging Member State positions within the European Union, especially regarding contentious issues such as migration and integration. This research aims to explore the content and constitutional function of Hungary's historical constitution, its relationship to sovereignty and identity, and how similar dynamics manifest in other Member States. Ultimately, this study engages with the broader question: how can the EU reconcile national constitutional identities with the demands of supranational governance?

Keywords: constitutional identity, sovereignty, essential state functions, European Union, historical constitution

I. Introduction

A constitution can be defined as a set of laws that legally represent the ideals of a state, in a written or unwritten format, which makes a constitution either codified or uncodified.[2] Of these two formats, the former is the most widely used, laying down rules on how the state should be run, what rights citizens have, and many more vital issues that ultimately allow a country to exist. States such as New Zealand and the United Kingdom have uncodified constitutions, which result in a unique legal system: any law passed by parliament has the potential to be of constitutional significance.

The term 'constitution'[3] can be found earlier than the existence of what we now consider to be modern written constitutions - such as that of the United States of America. Early versions of constitutions generally denoted 'the condition or situation of a state', as shaped by 'historical development, natural features and legal order'.[4]

Still to this day, a Constitution is to be construed by extrapolating from its provisions the societal values the framers sought to achieve.[5] Therefore, to truly interpret the nuances of a state's constitutional order - regardless of its format - we must first figure out what historical events, basic societal values and changes have led to the values present in the provisions governing the 'ideal state' of specific countries. This thought process is also vital in understanding what is happening in the European Union today, particularly when it comes to differing opinions and actions of Member States on matters such as immigration, national security, or integration.

An incredibly controversial issue in regard to the EU's future is Member States' stance on immigration, especially after the 2015 European migrant crisis. To understand why it warranted such different responses, I wish to employ the post-functionalist theory,[6] meaning, we must ask how national identity shaped certain countries' responses to the arriving refugees. Together with moral-philosopher Christine Korsgaard,[7] Kathrin Bachleitner and Alexander Betts[8] argue that practical identities are at the source of normativity, therefore, it is a nation's values, historical events, and identity that

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give root to the EU's normative dissensus when it comes to migration.

Korsgaard identifies the major source of normativity as 'self-constituting practical identities', which means that identity and its present interpretation are at the basis of what people come to consider a right course of action. The concept of practical identity itself implies a constant interplay between purpose and action in defining who an actor is. In the case of countries, this actor is the head of the executive branch of the state, making decisions, and specifying what the best course of action is for the collective. A practical identity explains how social actors would describe a 'good' or virtuous version of themselves, so a given action by definition leads to what Korsgaard calls 'self-constitution', which is the primary moral imperative on an actor - again, this essentially means making executive decisions, in our case, for an entire country.[9] For a state, practical identity is based on a diffuse set of 'national ideas',[10] historically and culturally constituted, continuously shaping a nation's self-image based on a collective's experience.[11] This experience is transmitted from the past into the present, and even to the future, through the process of society's interpretation, which results in a country's national identity being formed.[12]

This means that, if we follow the post-functionalist theory, our historical constitution, everything that has contributed to Hungary, as a specific nation's growth, culture, and collective experience, is ultimately part of our national identity, a subset of which forms our constitutional identity. The protection of the latter is an obligation of every organ of the State,[13] but especially The Sovereignty Protection Office.[14] In Hungary, the commitment to preserving identity, and its roots in the historical constitution is further stressed as part of the Fundamental Law's National Avowal.[15]

For Hungary, the right answer to the refugee crisis, in line with post-functionalist theory, pursuant to its historical constitution forming its national identity, seemed to be an aim to defend cultural homogeneity, furthering a unified, sovereign, Christian, and European nation. The roots of this decision can be found in the historic memory at "the basis of the country's practical identity, which was one of unification and defense against external invaders."[16] However, it is important to note that this decision is also highly political in nature, while being underlined through the lens of historical and moral interpretation.

Other EU Member States had vastly different historical memories, thus, their idea of what an actor should do to achieve 'morality' or 'the best outcome' hinged more on acceptance and welcoming refugees, then unification of the state. Because our all-encompassing European identity is limited, each Member State has their own identity, sovereignty, and essential state functions,[17] which they are aiming to exercise in different ways, resulting in 27 unique perspectives on one issue which often requires common actions.

When Member States are met with such normatively challenging situations, their policymakers and heads of the executive branch (the actors) invoke their countries' practical identities.

Following this line of thought, we can see that historical constitutions, the values and identities that are created because of them, and ultimately, every Member State's unique fabric of society is vital in the course of further integration. The European Union's future hinges on numerous factors but working together and being 'united in diversity' should be our goal. To better understand the issue, I would like to turn my attention to what constitutes Hungary's historical constitution, and how the Hungarian Constitutional Court plays an essential part in shaping and understanding this concept, through defining its achievements. Ultimately, I would like to argue that the Constitutional Court's interpretation of Hungary's historical constitution is a vital part of the discourse not only regarding the interpretation of the national constitution but it is also a driving force regarding the future of the European Union, with a heavy focus on preserving constitutional identity and essential state functions, in accordance with Article 4 (2) TEU.