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.