The decline of human dignity and solidarity through the misuse of constitutional identity

Abstract

Dignity and solidarity are interrelated values in a democratic society, but solidarity is challenged in many ways, even in the course of defining the constitutional identity of a closed society and an illiberal democracy. The chapter reveals on the one hand, how the effective protection of human dignity may trigger the enforcement of social security rights and solidarity. For this purpose, it analyses the more or less good practice of the Hungarian Constitutional Court before 2010, and then against this background assesses the backsliding of solidarity in the post-2010 illiberal regime The chapter also analyses how the packed Constitutional Court rubberstamped the government’s anti-migration legislation after the 2015 refugee crisis against the EU’s relocation scheme. The Court argued that the planned relocation of asylum seekers can result in violation of their human dignity, and at the same time Hungary’s constitutional identity as an ethnically homogenous country. With this the Court also broke away from its previous liberal jurisprudence, which in the early 1990s had established its concept of human dignity as a ‘mother right’, a subsidiary of all rights in defence of individual autonomy, such as self-identity, self-determination as part of the ‘general personality right’. The chapter argues that the Constitutional Court misuses the concept of constitutional identity by cynically referring to human dignity and other fundamental rights, and while doing so devastates both social and European solidarity. With this the Court serves the government’s efforts to dismantle constitutional democracy, and to build up an illiberal system with authoritarian tendencies instead.