Law of Nature or Law of Reason? A case for Hungary’s Historical Constitution

Today 188 countries of the world have a constitution. This suggests that without a constitution no nation can aspire to be successful or even survive in a globalized world. The modern idea of constitutionalism stipulates that neither individual freedom nor the division of power can be effectively established outside a constitutional framework. It is taken for granted that modern constitutions alone can meet the requirements of modern technological-driven progress. This dogma implies that old, i.e., premodern or classical constitutionalist ideas are outdated and must be ignored for both political and moral reasons.

If that is true, then, in the past thirteen years the incumbent, and by self-definition, illiberal Hungarian government has been experimenting with something that is ultimately untenable and that unavoidably leads to conflicts within and outside the EU. One of the most important aspects of the so-called “Orbán enigma” – which includes rewriting the Hungarian constitution (effective from January 1, 2012), and winning four consecutive elections with a two-third majority – is the attempt to accommodate the norms and standards of modern constitutionalism while preserving the historical constitution of the Hungarians (or in the native language, ’a magyarokat’).

Since losing its sovereignty over 400 years ago in the context of the Ottoman invasions, the question of independence and preservation became a permanent issue in the Hungarian mind.  But even during that troubled period, there was an unwavering adherence to Hungary’s historical constitution, even if under radically different conditions and circumstances. As such, the historical constitution passes, at least, the unyielding test of time. The historical constitution has been proven to be firmly entrenched in the ever-accumulating experience of successive generations, a safeguard of the liberty of the Hungarian people – even when under foreign leaders.

The book A History of the Hungarian Constitution: Law, Government and Political Culture in Central Europe makes a focused attempt at explaining both the significance and seeming perennial resilience of Hungary’s historical constitution. And by taking into consideration the Hungarian government’s attempt at combining the historical constitution with the requirements of modern forms of government, the book points out how Hungary has managed to remain an effective and viable alternative in political decisions for more than a thousand years.

The book is based on a single but powerful idea: since the historical constitution of Hungary has managed to serve the Hungarian people in the past, it should be able to keep serving the nation going forward.

Philip Barker and Thomas Lorman, who pen the Introduction, begin the whole book by writing that, “when a new constitutional framework was inaugurated in Hungary on 1 January 2012, it was greeted with jubilation by some Hungarians and vitriol by a substantial swathe of their fellow citizens [… with] left-wing and liberal opposition parties, as well as their civic organizations, denouncing it as a ’comedy’ (komédia) which had removed Hungary from the family of liberal democracies.” As such, the book presents an intellectual defense of the new “Fundamental Law” which is inspired by the historical constitution of Hungary: “the new Fundamental Law of 2012 also claimed to have restored continuity with the historical constitution that was thought to have operated until 1944.”

But in order to demonstrate the viability of the historical constitution, one needs to understand the historical development of the Hungarian constitution. The story of the Hungarian constitution begins with the foundation of the Hungarian state in the year 1000. The most important event from the perspective of the Hungarian historical constitution in the Middle Ages was the adoption of the Golden Bull in 1222 (it must be mentioned that the Hungarian Parliament declared 24 April as the Memorial Day of the Golden Bull in 2022), a legal document that is rightly likened to the English Magna Carta as both these legal documents proclaimed that the king and his government were not above the Law (noting the parallels between English and Hungarian constitutionalism is a reoccurring feature of the book since, just like England, Hungary developed for centuries without a written constitution). This was interrupted as the Hungarian Kingdom suffered a long-lasting blow from the Ottomans. But it was during the period when Hungary lost its sovereignty, that emerged the Hungarian author who laid down the cornerstones of Hungarian liberty: István Werbőczy, whose Tripartitum (1517) is mentioned by almost all the authors of the book.

After the division of Hungary into three parts as a catastrophic consequence of the Ottoman occupation of Hungary, the major issue became how to regain the country’s sovereignty. This issue only grew with the later Austrian Habsburgs’ dominance. This triggered off Hungarian opposition and revolt, for instance, in 1703-1711, 1794-5 and 1848-9, including the great compromise (Ausgleich) between the Habsburg court and Hungary in 1867. In all cases, the final result ended up being returning to the old Hungarian laws and rules as cornerstones of not only the nation’s political sovereignty but its identity as well.

The old laws were not called the “historical constitution” until the 18th century. And this is where philosophical context comes into play in the historical analysis. The authors of the respective chapters of the book were aware of the impact of 18th-century philosophers on the Hungarian lawgivers. The idea of Law went through a decisive change in the 18th century, and as a consequence, Natural Law lost its influence. Kant encapsulated this change: “the law of reason to seek unity is necessary, since without it we would have no reason, and without that, no coherent use of the understanding, and, lacking that, no sufficient mark of empirical truth…” Unfortunately, the authors of the book concentrated mainly on a historical account of the development of the Hungarian historical constitution, therefore failing to capture that the past is more a product of ideas than physical (economic, social and political) constraints and needs.

A fundamental change of modernity is how the idea of law was gradually changed. Ernst Cassirer wrote this in his seminal work on The Philosophy of the Enlightenment:

Leibniz was merely drawing a clear and definite conclusion from an idea stemming from Grotius when he declared that jurisprudence belongs to those disciplines which do not depend on experience, but on definitions, not on facts, but on strictly logical proof. For experience could never reveal what law and justice are in themselves. Both concepts involve the concept of a correspondence, a harmony and proportion, which would remain valid even if it were toward whom it could be extended. Law is in this respect like pure arithmetic; for the teachings of arithmetic concerning the nature of numbers and their relations imply an eternal and necessary truth which would not be affected, even if the whole empirical world were destroyed and there were no one to count with numbers and no objects to be counted.

The decline of the Law of Nature began with the rise of the “Law of Reason” in the Enlightenment. The modern written constitution is grounded on the assumption that the morality of Law no longer rests on intuition or emotions, but on a political compromise and a logical-rational construction that is meant to imitate arithmetical precision. As an outcome, all constitutional ideas of modernity had to meet the modern standards of the Law of Reason, whereas the genuinely traditional defense of the historical constitution, i.e., the priority of experience over rational constructions, became more and more difficult.

Despite the clear distinction between the merits of experience and those of rational constructions, the authors of the book wish to remain on the “neutral” side of things. The book tries to avoid being accused of defending the ambitions of the incumbent Hungarian government. Kálmán Pócza, one of the authors, says that “Both theoretical arguments and (still sporadic) empirical indications show that the revival of the historical constitution is not impossible as such. Whether it is also desirable remains a question to be answered in another book.” (p. 230) In our days, it is an intellectual dogma that the intellectuals should create arguments, consider counterarguments, and describe ‘what is’ while refraining from forming anything like a judgment or ‘what should be’. No politics, we are scholars! As such, the book, in the guise of academic defensibility, remains on the whole ambiguous about an extremely relevant topic.

This confusion can also be witnessed in the strange selection of documents in the Appendix. As a considerable part of the book, the Appendix includes important legal documents well fitting the contents of the core chapters but also reveals some contradictions to the declared intent of the book, i.e. giving arguments against those who believe that the (Hungarian) historical constitution is dead. It is really intriguing why among the relevant historical documents, only the Communist constitution of Hungary is rendered in full, whereas others are only included in parts. This suggests that the Stalinist-Communist constitution is more decisive from an intellectual point of view than the alleged or implied intent of the book, i.e., giving arguments in favor of a historical constitution tacitly supporting the new Hungarian Fundamental Law. This contradiction is really intriguing, even if we read this otherwise correct claim by Balázs Fekete: “The enactment of Law XX of 1949 was the real turning point in modern Hungarian constitutional history” (p. 201), because “that marked the real break with the past” (p. 185). Giving a full coverage to a document that was to erase everything old and traditional, while barely representing the new Fundamental Law causes some uneasiness and confusion as for the final message of the book.

In The New Science, Giambattista Vico made the following observation: “First, that he who cannot govern himself must let himself be governed by another. Second, that the world is always governed by those who are naturally fittest.” The Hungarian people never surrendered to the threat expounded by Vico’s statement. Hungarians have always claimed that they are capable of governing their country. A History of the Hungarian Constitution offers abundant examples of that from the history of Hungary, always concentrating on the most and decisive events in terms of Hungary’s constitutional development. In a small country like Hungary, with its calamitous history, the priority of experience to rational constructs becomes a command in order to stay alive, with other rational constructions will only being considerable afterwards. Hungary’s historical constitution is more than a constitution, it is a source of self-preservation and identity.

A History of the Hungarian Constitution: Law, Government and Political Culture in Central Europe.
Edited by Ferenc Hörcher and Thomas Lorman.
London-NewYork-Oxford-New Delhi-Sydney: Bloomsbury Academic, 2020.

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