Confused Constitutionalism in Hungary—New Assessment Criteria for Recognising a Populist Constitutional Court

Abstract

The starting point of the paper is that the early constitutional changes after the populist transformation of Hungarian majority state politics (from 2010) and the application of the new Fundamental Law (since 2012) have created difficulty in achieving constitutional justice by judicial means. The fundamental populist constitutional transformation and, within this, the transformation of the regulation of the Constitutional Court have created great challenges for constitutional adjudication. Scholarship on the transformation of the Hungarian Constitutional Court regards the change of jurisprudence as a consequence of the constitutional environment, which ended up in institutional state capture. Basing my arguments on the classic competence-related issues of constitutional justice, activism and deference, I argue here that for constitutional courts, there is always a limited room for manoeuvre by interpretation except for in a ‘hard’ dictatorship. Populist Hungarian jurisprudence is, therefore, not only a consequence of constitutional change but a contribution per se—a cause of the construction of a populist constitution. This job has been done by constitutional interpretation in an activist or deferent manner with regard to specific politically sensitive issues. EU- and emergency-related constitutional conflicts are used here as examples to explain the proposed assessment criteria. The conclusion is that either the Court is activist or deferent, it contributes actively to the populist construction by constitutional interpretation.