How can democratic constitutional reformers overcome the obstacles put in place by authoritarian constitution-makers? This is the central question of the Verfassungsblog debate “Restoring Constitutionalism”. The articles mainly address procedural issues. For instance, Kim Scheppele’s article demonstrates how the current Hungarian democratic opposition – after nominally controlling parliament – might start using its majority to dismantle the autocracy. My piece does not focus on these otherwise crucial procedural questions; instead, it addresses a substantive issue. To get a durable, stable, and broadly respected new constitution, political actors across the spectrum need to arrive at a consensual minimum on the foundational values that define the character of the constitution, determine the institutional design, and take fundamental rights seriously. What are the foundational values that could compete for the attention of the constitution drafters? This question is a new iteration of the same old problem of law, democracy, and disagreement.
Ethnocultural and constitutional particularism
When a country has deviated into autocracy, the drafters of a new constitution will face difficulties if they want to restore constitutionalism. Suppose they want a legitimate constitution that can be regarded as an acceptable ground for a constitutional architecture. Then, on the one hand, they need to respect the universal principles of constitutionalism: the protection of human rights, democracy, and the rule of law. On the other hand, they should also reach a workable agreement on more particularistic foundational values so that the constitution embodies common values that bind together the members of the polity. Ulrich K. Preuss regards this as the integrative function of constitutions; Michel Rosenfeld and Gary J. Jacobsohn refer to this as constitutional identity; Jürgen Habermas talks about this as constitutional patriotism. I call this phenomenon particularism and argue that there is a legitimate space for particularism in a 21st-century constitution-making process.
At this juncture, I should explain the term particularism. It is typically contrasted with universalism. When it refers to local particularism, it can be a non-inclusive attachment to one’s own group. This arises when the constitution is substantially informed by ethnocultural considerations and historical myths. If such exclusionist concerns permeate the whole constitution, it will reflect a highly parochial interpretation of universal principles and may even violate them. For instance, the Hungarian Fundamental Law projects a mental image of an indivisible and homogeneous ethnic, linguistic, religious, and cultural community consisting exclusively of ethnic Hungarians worldwide. It privileges those who identify with the prescribed “Christian culture” and who accept historical myths that refer to Hungary’s past greatness in the same breath as its victimisation. At the same time, the Fundamental Law excludes ethnic and sexual minorities, refugees and “others” considered not to belong to the nation because they differ in some key respects. So, the ethnoculturally informed particularism allows only some but certainly not all people to believe that they are part of the same political community. This form of particularism contradicts the egalitarian claim that forms the basis of constitutional democracy: the protection of the human dignity of free and equal individuals.
Particularism does not necessarily have to be exclusionist. It can be understood as particularistic manifestations and reflections of universal constitutional principles. During the national exercises to articulate universal principles, constitutional drafters decide on which principles they would like to see in their constitution and which do not belong to the local context.
Particularism in the constitution
When the constitution is concise, uses broad concepts and states the universal constitutional principles somewhat abstractly, the instantiations of these principles as particulars may appear in domestic legislative and judicial arguments. Democratic institutions may play an essential role in applying these principles in the given cultural and historical context. Take the example of free speech. The German doctrine of militant constitutionalism introduced after the Second World War aims to protect the democratic character of the state through a variety of laws and ultimately leads to a specific understanding of free speech limits. By contrast, in the early 1990s, Hungary, newly freed from Soviet-type censorship, embraced the idea of content neutrality and did not restrict hate speech in the vaguely defined interests of social peace or the name of national historical sensibilities. These exemplify two particular approaches to free speech and various levels of protection. Still, both may conform to universal human rights principles because the starting point for these interpretations is the understanding that each person is a human being whose dignity matters. German judges contextualise free speech according to this principle. The Hungarian judges did the same in the early 1990s. Using the language of constitutional theory, we may say that the German doctrine is not very far from what Jeremy Waldron describes in his book, and the early Hungarian jurisprudence was close to a Dworkinian approach of free speech protection.
By contrast, when the constitution does not just list abstract universal principles, it may also invoke the existing democratic traditions of the society. A good example is the Polish Constitution adopted in 1997. It equally respected those with a worldview and cultural heritage inspired by their Christian faith and those who did not view life through a religious lens. Its preamble referred to “those who believe in God as the source of truth, justice, good and beauty, as well as those not sharing such faith but respecting those universal values as arising from other sources, equal in rights and obligations”. The constitutional text thereby accepted that the Polish constitutional culture is rooted in both Christian heritage and universal human values.
Particularism is not homogeneous. The theoretical roots of progressive thought and the heroic history of struggling for universal principles like freedom and equality are present and waiting to be discovered in any country’s past. And, of course, any country’s history contains reactionary ideas and periods, and they all have dark chapters in which they have denied the universality of human rights. It is therefore crucial to identify which part of a country’s history and cultural traditions serve as reference points for the particularistic concretisations of universal constitutional principles.
A new Hungarian constitution
Let us take the case of Hungary again. Like any other country, Hungary has a turbulent history that includes the revolutions of 1848 and 1956, the ruptures in 1918 and 1946, the annus mirabilis 1989, and the authoritarian tradition of the interwar nationalist Horthy and the Soviet-type Kádár regimes. The current Fundamental Law follows an authoritarian tradition and puts the assumed common ethnicity of the Hungarian people in the centre of particularism, thereby failing to integrate the whole population. That is why, for Hungary to comply with the universal constitutional principles and their manifestations in the domestic constitutional tradition, it would need to adopt a new constitution.
The foundational values of a prospective constitution may include (1) the universal constitutional principles as authoritatively interpreted by the independent courts, (2) the emblematic political institutions of the democratic period, and (3) the crucial achievements of EU law in concretising universal principles and their implementation in domestic law.
The first pillar may encompass universal constitutional principles as contextualised by the domestic authorities (parliaments, courts, etc.). For instance, both the right to free speech and religion have long been part of the domestic constitutional tradition. Free speech and press freedom can be traced back to the pre-1848 Hungarian movements for freedom and the revolution of 1848 as well as the struggles of 1956 and 1989. Another example is the freedom of religion. The path to the idea of state neutrality and religious pluralism that was recognised by the early 1990 constitutional jurisprudence was long and went via religious persecution to religious toleration. This idea is waiting to be rediscovered by the constitution drafters.
The second pillar may include a commitment to the political institutions that have roots in Hungarian democratic traditions. For instance, when the democratic opposition made constitutional choices in 1989, it followed the Hungarian constitutional traditions and demanded real popular representation and a parliamentary republic. Or, to take another example, the constitutional review had already provided crucial protections, and the position of the Constitutional Court as a protagonist in the democratic process had a stabilising effect. Thus, meaningful constitutional review has its roots in Hungarian democratic history and may also serve as the primary constraint on the executive power in the future. Moreover, constitution drafters may consider the vital public participatory elements Hungary has already had, from the popular initiative to the right to appeal to an ombuds institution. The ombuds person for data protection and freedom of information was an innovation that the country could be proud of. Reviving these elements and adapting them to the country’s current needs would allow the people to participate in the decision-making processes.
Third, there are specific legal safeguards in EU law contextualising universal principles such as freedom and equality. These may also serve as foundational values. For instance, Hungary’s first anti-discrimination law was adopted to conform to the EU directives; however, the drafters constructed the anti-discrimination law such that it was broader in scope. It prohibited types of discrimination beyond those required by EU law and did not just limit itself to the employment field by referring to all aspects of social life (housing, access to goods and services, etc.). This commitment to equal respect for persons in everyday life could serve as one of the main pillars of the foundational values.
Of course, the catalogue of foundational values considered here is far from exhaustive. These are just examples of how universal constitutional principles, as they have been concretised in the Hungarian democratic context, may serve as pillars of the new constitution.
Democratic constitutional thinkers are in the process of exploring the possible and legitimate procedures for reconstructing democracy in Hungary and beyond. This process may take some time, and its outcome is uncertain. This is normal because we are in unknown territory. This piece has argued that it is possible to draft a new, durable, stable constitution if – and only if – its foundational values conform to universal principles and contain the particularistic concretisations of these principles. For such a constitution to be viable, it should convey the following message: democracy values everyone equally, even if the governing majority sometimes does not.