Date: 2021
Type: Article
So that the name Hungarian regain its dignity : strategy for the making of a new constitution
Verfassungsdebate, 2021, Restoring constitutionalism, OnlineOnly
ARATO, Andrew, HALMAI, Gábor, So that the name Hungarian regain its dignity : strategy for the making of a new constitution, Verfassungsdebate, 2021, Restoring constitutionalism, OnlineOnly
- https://hdl.handle.net/1814/77231
Retrieved from Cadmus, EUI Research Repository
We are facing a new though not entirely unanticipated form of authoritarianism during the first quarter of the 21st Century. It is different than fascist, state socialist and even military (bureaucratic) forms of authoritarianism in two main respects: insistence on the role of more less competitive elections in the selection of rulers and reliance on instruments traditionally associated with constitutionalism. Given the historical tension between the two poles of constitutional democracy, popular sovereignty and constitutionalism, most current authoritarian movements and governments purport to change the balance between these dimensions rather than abolish one or both as did the other major authoritarian forms. Taking the point of view of popular sovereignty, in their interpretation, the new authoritarians often depicted, rightly or wrongly as populists, seek to expand the powers of supposed majorities and elected officials at the expense of state institutions whose role was to limit these within the bounds of the constitution. Yet perhaps surprisingly they almost never neglect the role of constitutional politics in their attempts to liberate the sovereign. In particular, the new authoritarians, when they can, produce new constitutions, almost always in processes incumbent governments can dominate. When they can, they achieve this result under rules of change in previous constitutions, but when they cannot they sometimes initiate legal ruptures with the past. In cases where constitutional replacement is not feasible, the new authoritarians often resort to two additional techniques: constitutional amendment and the packing of constitutional courts. While the former represents formal constitutional change, the latter’s purpose is informal change accomplished through authoritative interpretation legalizing radical changes of the constitution enacted through ordinary laws and even executive decrees.
Additional information:
Published online: 02 July 2021; This article belongs to the debate 'Restoring constitutionalism'. How to deal with a constitution which has been turned into a tool to perpetuate the governing party’s power even in the case of a lost election? How to dispose of these undemocratic constraints without violating the rule of law oneself? A situation like this might arise in Hungary in Spring 2022 if the unified opposition manages to win a majority over Viktor Orbán’s Fidesz party. Two towering figures of constitutional scholarship, Andrew Arato and András Sajó, have addressed questions to the global constitutionalist community on how to deal with this dilemma. We publish a collection of answers in collaboration with THE NEW INSTITUTE in Hamburg.
Cadmus permanent link: https://hdl.handle.net/1814/77231
Full-text via DOI: 10.17176/20210702-140024-0
ISSN: 2366-7044
Publisher: Verfassungsblog
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