Post-Sovereign Constitution-Making in Hungary: After Success, Partial Failure, Now What?

South African Journal on Human Rights, Vol. 26, Part I, 2010

26 Pages Posted: 13 Nov 2013

See all articles by Andrew Arato

Andrew Arato

New School for Social Research

Date Written: 2010

Abstract

This article reconstructs a model of 'post-sovereign constitution-making', namely, a multi-stage, democratic model with round table or multi-party negotiations as its center piece, involving two constitutions with free elections in between, and overall enforcement through a Constitutional Court. This is the model that was more or less perfected in South Africa in the 1990s. In comparison, Hungary, the empirical object of the study, is seen as an imperfect realization, because the final stage, not provided for in the interim Constitution, was not completed in a democratic process. The author thus sees the role of the Hungarian Constitutional Court as compensatory, and inevitably weakening, given the weak legitimating background provided by an incomplete process. A case in point is the jurisprudence of constitutional amendments. In light of the inherited amendment rule, the Constitution of the regime change could only be reliably protected if the Hungarian Constitutional Court adopted one or another version of amendment review, in the path of the Indian 'basic structure' doctrine. The article tries to show that a four-fifths rule concerning constitutional replacement, adopted during an unsuccessful effort at constitution-making, could be a textual support for such a review. Subsequent to the conclusion of this research, the new right-wing Hungarian Parliament abolished the four-fifths rule, by using the two-thirds amending rule. This, in the author’s view, is prima facie unconstitutional.

Suggested Citation

Arato, Andrew, Post-Sovereign Constitution-Making in Hungary: After Success, Partial Failure, Now What? (2010). South African Journal on Human Rights, Vol. 26, Part I, 2010, Available at SSRN: https://ssrn.com/abstract=2353856

Andrew Arato (Contact Author)

New School for Social Research ( email )

66 West 12th Street
New York, NY 10011
United States

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