In his writing The remains of freedom Mihály Vajda analyses and considers the question raised by Hannah Arendt, of what consequenses can follow if in modernity and except for some unique moments, politics are concerned less and less with the worlds and more with man, and man's welfare, and are not the personification of human freedom, but a part of the realm of essentiality. He quotes the philosopher saying, that as a result of the revolutions of modern age, freedoms have become inalienable human rights, however, the real essence of freedom is not given by these at all. With the appearance of poverty the republic was no more the space for citizens to act freely and creatively, and the goal of revolution was not freedom anymore, but the happiness of the nation, that is, the satisfying of the unsatisfied needs of the crowds. The author concludes that all that has remained of freedom is not more than the human rights, which had originally protected the opportunities of those who had been ousted from politics or bad not even wanted to take part in them. Today they have a much more modest task: they are to prevent the individual whose private happiness politics are to secure, from becoming a victim of this attempt to secure happiness, just like in totalitarian societies.
In Constitution and Liberty. The Constitutional Notion of Liberty; András Bragyova begins the analysis of constitutional liberty with the notion of social liberty, and continues with that of legal liberty. Then he goes on to examine the constitutional element of constitutional liberty, the difference between legal systems containing and not containing a Constitution, and the relationship of this to constitutional liberty. Finally he analyses the relationship of general liberty right and constitutional equality, showing that general liberty right and constitutional equality are at least partially identical.
On the occasion of the Refah Partisi case of the European Court of Human Rights Cole W. Durham examines the question to what extent political parties (and other forms of association) threatening constitutional democracy itself can be permitted. In the Refah case the question of religious accession to power was also raised, so the author tried to find the answer to how Islamic values can be accommodated within the framework of Western constitutional democracies. Finally, the case poses significant theoretical and practical questions about universalism and local values. Are there genuine universals that apply in law and politics, or are there only various localism hiding behind universal claims in the struggle for legitimacy and power? Is the freedom of religion or belief one of the universal values? In this essay Christoph Brüning examines the conditions on which the right of assembly can be restricted, if it threatens the liberal constitutional order. In relation to a German provincial court and the federal Constitutional court reasoning differently, he writes that although militant democracy necessarily commits itself to a system of values, it cannot set itself against fundamental rights.
The interview with János Németh, former President of the Constitutional Court, resigned b summer 2003, was made by Gábor Attila Tóth, In Németh's opinion the court lead by him differed from its predecessors mainly in that was more attached to the text of the Constitution, and used annulment less frequently. The former President, however, was also of the opinion that they did not
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make judgements on behalf of the governing party, but their decisions caused problems for the governing majority in power. Németh mentioned the decisions of fundamental importance, of which he had written the opinion of the court: the decisions on the freedom of assembly and on euthanasia. The reason for the body finding no unconstitutionality in either case was, in Németh's opinion, that the petitions had been insufficient, and that compromises had to be reached within the body. The former President also spoke of his dissenting opinions, in which the approach of constitutional law of the judge giving preference to moderation and self-restraint as a constitutional judge is also visible.
Will the role and importance of classic civil liberties change, or have they changed within the conditions of mass democracy? We have asked three well-known experts about their opinions.
In his writing Albert Takács refers to it, that the seeming historical continuity of civil liberties gives only a very uncertain unity between the different forms of the manifestation of civil liberties. The author sees the main reason for this in the changing of the notion of man serving as a basis for civil liberties. In the time of their original formulation, human rights, and thus civil liberties had been based on a definite human notion, and had expressed the legal needs of a human type with certain desirable characteristics. Approaching present days, the human notion of civil liberties became more and more uncertain. Albert Takács points the interesting situation out, that public law does not sufficiently deal with the question, whether civil liberties have inner, essential limits. He thinks that the silence of constitutions suggests, that the existence and manifestation of fundamental rights cannot be made dependant on predestined legal practice. Only the German Constitution declares it, that certain civil liberties can be lost if the individual uses them for the abuse of the free democratic legal order. In other words: within the framework of civil liberties everything is possible, unless it excluded the possibility of the future manifestation of civil liberties. The author closes with the statement that in constitutional democracy these inner limits exist in the invisible distance. Still, if we know of their existence, we can more easily avoid having them pushed closer co us by stealth.
Among others public judge András Lányi states that the reinterpretation of the identity of man, the nature of his mysterious freedom, inspired by 20th century phenomenological and personalist approaches, teaches us that we should not look for our freedom in what is ours by law and by all means; but in what we are able to give to others. What exceeds classic civil liberties in this approach is that it does not consider law, but morals. His conviction is that only a society based on the principles of mutual forbearance and voluntary help is bearable and maintainable. In the author's opinion we should seriously consider the question, whether equal treatment and the freedom of speech should also be due to those who reject these basic principles: they are not willing to argue reasonably, they do not wish to act justly towards their partners in discussion, or they even want to exclude certain groups from the field of those entitled to equal participation. He thinks that for the order of constitutional democracy it is a smaller danger if we limit their rights, than if manifestations supporting vicious and harmful behaviours are left undisturbed.
Philosopher Mária Ludassy believes the sad fact that mass democracy is not really fit for the development of the classic ideal of freedom (participative democracy, a republican ethos), to be a cliché since Tocqueville. This however, cannot really be an explanation to the fashionable perfectionist standpoint, according to
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which, since there is only a very small possibility for the realization of an ideal democracy - the ignorant crowds watching reality shows and having prejudices, not being interested in public life, and by freedom meaning only the freedom of scrape short -, we should also give up those negative civil liberties (according to Isaac Berlin), the realization - and claiming - of which is institutionally-constitutionally guaranteed. The author does not think, that giving up civil liberties - or even their mutilation - would be the best solution for the protection of the Freedom. At the same time she is of the opinion that the incitement to direct violence falls outside the conception of the freedom of speech of Condorcet and Constant, and also that of Mill and Laski.
The bill of the act on law making was drafted this spring, which, among others set the opening of the law-making process as a goal. Márta Faur's writing examines those parts of the bill, which concern the practice of the right of opinion of civilian organizations.
In the other essay of this column, and on the occasion of a conception of the new Media Act, Krisztina Nagy and János Timár consider those constitutional requirements that in their opinion cannot be disregarded when constructing the new Act.
In column Documents and Commentaries we can read about the decision of the Constitutional Court on euthanasia. From the Moral Reading of the Constitution to the Pragmatical Interpretation of the Constitution by Zoltán Szente deals with the employment of the interpretation of the Constitution as a legal reasoning in relation to the admissibility of euthanasia, and its preconditions. The analysis does not primarily concern the question how should the Constitutional Court have interpreted the constitutional provisions in question, but whether the methods of interpretation of the Constitutional Court can be justified, and whether it acted rightly and consistently in their employment.
In the light of foreign and international examples Renáta Uitz tries to survey those main questions in the decision of the Constitutional Court, and those problems raised by this decision, the consideration of which is inevitable for the reregulation of the legal framework of euthanasia.
In the second part of the column Gábor Halmai's writing compares the decision of Budapest Court on the restriction of tobacco advertisement, and the decision on the same subject of the Constitutional Court, and thus, makes an effort to point out the two completely different approaches of the question. As he tries to verify, the decisions of ordinary courts, including the Supreme Court's decisions determining practice, are regardless of the constitutional connections of tobacco advertisements (and in general economic advertising activity), especially that advertisements are the manifestations of the freedom of expression in the broader sense.
In this column we are presenting the summary of some decisions of the United States Supreme Court for the first time. The summary of the case US v. American Library Association, in which the Court examined that provision of the
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Children's Protection Act which prohibited public libraries to receive federal funds unless they install software to block obscenity and child pornography and prevent minors from accessing material that is harmful of minors. We present summaries of two decisions on the use of race as a factor in student admissions by state university, and a decision on the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. Furthermore, as usual we present the summaries of the recent decisions of the European Court of Human Rights, and also the summary of the decision of the Hungarian Constitutional Court considering some fundamental rights.
Here we present the essay of Tamás Csapody about the history of the anti-war movement Civilians for Peace, and also the proposal which the organizers of the movement presented at the Strasbourg Court on occasion of the restriction of their right of assembly. In his writing Tamás Csapody minutely follows the founding of the movement protesting against the war in Iraq, its actions, inner conflicts and falling apart. In the author's opinion the real reason for the weakening of the movement was that on the demonstration of 15 February it became clear: although the CFP got the right to demonstrate and did it with the unproportionate violation of the order of traffic, yet neither its power to activate, nor its possibilities to integrate, neither its influence in the media, nor the principal and practical "presentation" of its case gives reason for the authorities to accept it as a serious partner, and fear its assertion of interest.
We also introduce Védegylet founded in 2000, the founders of which "guided by the worries for our descendants, earthly home and our native land s future" created the organisation for the preservation of natural and cultural diversity, the strengthening of a common environmental responsibility, and the creation of a more resourceful Hungary. The SFP tries to bring the problems concerned into focus by spectacular actions. Such was the demonstration on behalf of the trees in Roosevelt Square, the Lack of Air Day, or the "Buy Less, Give Morel" performance.
In this column we present three recently published volumes. The book of Zsolt Krokovay on Mediaethics, the book written by Péter Molnár with the title Gondolatbátorság and in addition, the volume about Anti-Semitic Speech in Hungary in 2001. ■
Visszaugrás
