One of the interesting innovations of the Hungarian Fundamental Law of 2011 was to define authoritatively the methods of interpretation of its own text. According to this unusual but not unprecedented approach, the provisions of the constitution should be interpreted in accordance with their purposes, the preamble (ʻNational Avowal’) and the achievements of the historical constitution (i.e. the unwritten constitution effective before the end of the WWII). Then, a constitutional amendment repealed all Constitutional Court rulings prior to the entry into force of the new Fundamental Law. The goal of this modification was hardly any than to compel the Court to change its jurisprudence, adapting it to the values of the parliamentary majority. The paper examines who is the final interpreter of the constitution in the contemporary Hungarian constitutional law context, and what are the arguments for different options.
Nowadays, the dominating function of constitutional courts refers to the interpretation of rights. Constitutional courts consider – in order to guarantee rights – political and cultural developments of societies while interpreting rights. During times of populism, dynamic rights-based constitutional interpretation comes under great pressure domestically as well as transnationally. While courts might attempt to change their interpretation in a more self-restraint way towards formalist interpretations, populist approaches to undermine constitutional courts will not be stopped by that. The rights-protective function of constitutional courts is even more crucial when fundamental values of constitutionalism are at stake. Even if public distrust is rising in constitutional courts in a populistic atmosphere, it is the task of the constitutional courts to uphold the protection of the rights of minorities.
Courts dealing with constitutional issues regularly use comparative arguments: in their reasoning, they refer to foreign constitutions, laws, court decisions, or legal scholarship. They sometimes use comparative law to reinforce their legitimacy and convince their audience. While there is a broad literature on the legitimacy dilemma (especially because of the exceptionalism doctrine of the US Supreme Court), the methodological question is seldom raised. Scholars agree that there is usually a lack of methodology in comparative reasoning. The use of foreign law is often accidental, and ‘cherry-picking’ and ‘misuse’ of comparative law are widely accepted phenomena. Bringing examples from the practice of the Supreme Court of Canada and the Hungarian Constitutional Court, the paper examines how a transparent and methodologically well-founded comparative reasoning can enhance public trust – and on the contrary, how cherry-picking can backfire and weaken legitimacy.
Constitutional courts are often concerned with asserting their own legitimacy against claims of undemocratic usurpation. Different courts respond to these issues in different ways. In particular, some constitutional courts (on an American model) attempt to assert a sharp distinction between law and politics and insist that their legitimacy is secured by remaining solely on the legal side of the divide. In contrast, other constitutional courts assert their role as guardians of political principles as a legitimating basis for their authority (Germany, India). This paper examines constitutional courts in Austria, Hungary, and Israel as cases of the deployment of legitimating claims based on legal or political authority and considers the consequences of these different approaches for public trust in constitutional institutions.