The National Avowal
This study was written for a collected volume on the new Hungarian Basic Law, to be published soon.
In what follows I am going to analyse the first chapter of the new Hungarian Fundamental Law, which has a specific title, identifying it as a National Avowal. In the first part of the paper I present its main thesis, which is going to be that the opening portion of the basic law is a separate entity, and requires special attention in general, and special treatment in its interpretation in particular. It is an autonomous piece of writing which should be understood in accordance with its own standards. First of all I am going to decide the genre to which it belongs and to enumerate some of the requirements of that particular genre the text wants to comply with. My assumption is that the genre leads directly to a number of the text’s formal features, including its length, structure and style. But the genre also decides some of the main thematic elements of the text, which are by now in the centre of public discussion in Hungary and to a certain extent in Europe as well, like the mentioning of the name of God and Christianity, the reference to the nation’s historical past, the enumeration of the supposed main values of the political community and the text’s vision of the nation’s future. The genre also helps one to identify the speakers and the audience: there is a parallel reference to members of the Hungarian nation, or Hungarian citizens as speakers, and to their community, the nation, taken as a kind of corporate personality, whose past, present and future is alluded to. These much discussed aspects of the text add up to my next point within this first half.
In the second part I shall make an effort to suggest in what directions the public discourse on the Hungarian constitution, including its authorized interpretation by the Constitutional court, should be widened up if interpreters want to do justice to the requirements raised by the assumed genre of the Avowal. Here I shall recall a thesis I put forward a few years ago, according to which the earlier constitution was the result of a political compromise of the relevant parties of the roundtable discussions (including the ruling communists and the new, segmented and democratically not yet legitimised opposition) during the transition period. The main features of this earlier constitution, including the general tendency of its interpretation by the first Constitutional Court led by László Sólyom reflected the political impasse, which was an unintended consequence of the otherwise fortunate compromise which led to the transition itself. This political deadlock, I claimed, is expressed by the obstinate adherence to legal security and the acclaimed superiority of the rule of law over other democratic values, and the constitution’s preference of value-neutrality over the popular demand for substantial justice. I shall test this earlier thesis of mine by considering how far and in what ways the framers of the new Fundamental Law might be shown to have wanted to redress this shortcoming of the earlier Constitution, and in what sense the National Avowal is to be seen as a catalogue of the main values claimed to be shared historically by the whole political community.
I.The genre and its consequences
1. The genre
In legal documents terminological nuances make the difference. It is therefore of the utmost significance that the new Hungarian Alaptörvény (Fundamental Law) is not labelled as a constitution. Similarly one should not tire emphasizing that the first chapter of the Fundamental Law is not a Prologue or a Preamble (even these two should not be taken to mean exactly the same), but is entitled a Nemzeti hitvallás (National Avowal). By interpreting this term, I shall be arguing, one can establish the precise literary-legal genre of this piece of text, and by way of defining the genre one can indirectly deduce its implied relationship with the main body of the Fundamental Law.
But first of all I have to emphasize my conviction that in terminological matters one should always rely on the authentic terms used in the original (in this case, Hungarian language) version and not on translations – not even on the authorized one. In this case, one should see that the concept of avowal is not the same as “hitvallás”. The root of the English term is ‘avow’, a 13th century word in English, meaning "acknowledge, accept, recognize,". As a synomym of avouch, it means, according to Fowler: to “own publicly to, make no secret of, not shrink from admitting, acknowledge one's responsibility for…”. It is claimed to be a legal concept as well. On the other hand, the main field of reference of the Hungarian term “hitvallás” is, of course, religious. It consists of two words, “hit”, meaning belief or faith and “vallás”, meaning both religion and confession. Together the phrase means confession of faith. The word is used in the Hungarian equivalents of terms like the The Niceno–Constantinopolitan Creed or the Augsburg Confession. Alister E. McGrath, however, distinguishes between the Creeds of Christendom and the concept of the Confessions of Faith in the time of the Reformation used by the different denominations. The creeds of the early Church were accepted by the magisterial reformers, because “they were seen as an important check against the individualism of the radical reformation (which generally declined to regard these creeds as having any authority).” On the other hand, Confessions of faith “were regarded as authoritative by specific groupings within the Reformation.” McGrath refers to the Lutheran Augsburg Confession (1530), the Confession of Basel (1534) the Geneva Confession (1536) and a number of other ones.
“Nemzeti” means national. If put together wit “vallomás”, this is a creed or confession of (political) faith used in a national context or performed by the nation itself. The reason why this transposition of the term from a religious to a political context seemed reasonable is simple: in Hungary the nationalist discourse goes back at least to the early sixteenth century, when – after the last “national” king, Matthias Corvinus had died – the fear of a foreign ruler generated a “nationalist” discourse, and this means that Hungarian “nationalism” is coeval with the Reformation. As we shall see, one of the key figures behind the Hungarian constitutional tradition, István Werbőczy, author-compiler of the famous Tripartitum, a collection of statutory and customary laws of the kingdom of Hungary, already positioned himself in the context of a foreign court and nationalist country cleavage, on the side of the “nationalists”. If nationalism and the Reformation were born approximately in the same time, it is no wonder that nationalism in Hungary is articulated within a religious discursive framework, and – on the other hand – that the Reformation is interpreted in a political – i.e. nationalistic – frame of reference here. This is the more so as a result of the fact that the Hapsburgs came to be seen as the arch-enemy both in political and in religious terms for Reformed nationalist Hungarians, being foreign and Catholic rulers in the times of the religious wars and the loss of Hungarian national independence.
Taking into account this historical background there is not much incomprehensible in the term, and genre of a National Avowal, and – what is more - in the fact that it is used as the title of the opening chapter of the country’s 21th century Fundamental Law. However, the genre itself seriously restricts the framers’ elbow-room, closely connecting the new chapter to traditional forms of discourse. In what follows we are going to see these restrictions and their actual consequences. But before anything else, one needs to confront the issue of the legitimacy of the new Basic Law, as it, too, determines the potential interpretations of the National Avowal.
2. The present deficit of and potential legitimacy of the Fundamental Law
As it is well-known, the new Hungarian Fundamental Law was accepted by the two-third Fidesz majority of the Hungarian Parliament with a remarkable rapidity in April, 2011. Its idea was first seriously mentioned by the prime minister in an interview between the two rounds of the national election in April 2010, and in a years time, on 25 April, 2011, it was signed by the president of the republic. Referring to “numerous concerns within the civil society over the lack of transparency of the process of the adoption of the new Constitution and the inadequate consultation of the Hungarian society”, the Venice Commission, in an opinion on the drafting of the constitution, accepted in March 2011, “criticised the procedure of drafting, deliberating and adopting the new Constitution for its tight time-limits and restricted possibilities of debate”, expressing its “regret that no consensus had been possible”. In June, the Commission thought that “the above-mentioned comments are still valid”. I think that this criticism is indeed true and significant, and that it will have a lasting impact on the social-political reception of the Fundamental Law.
However, I also think that in fact most of the written constitutions were framed and accepted among tight political circumstances, and there is rarely chance for wide-ranging consensus-seeking and detailed negotiations among the different political groups, not to speak about the whole civil society. No doubt, Hume’s dictum on the rather dubious origin of all governments is beyond the point: “Almost all the governments which exist at present, or of which there remains any record in story, have been founded originally, either on usurpation or conquest, or both, without any presence of a fair consent or voluntary subjection of the people.” His comment is certainly meant as a Machiavellian note on the use of power at the botton of all authority. But his criticism covers elected governments as well which is perhaps more relevant here: „But where no force interposes, and election takes place; what is this election so highly vaunted? It is either the combination of a few great men, who decide for the whole, and will allow of no opposition; or it is the fury of a multitude, that follow a seditious ringleader, who is not known, perhaps, to a dozen among them, and who owes his advancement merely to his own impudence, or to the momentary caprice of his fellows.
Are these disorderly elections, which are rare too, of such mighty authority as to be the only lawful foundation of all government and allegiance?” One should take Hume’s cautious remark, stemming from the Platonic-Aristotelian criticism of popular democracies, aimed at the false illusions of the Enlightenment, trusting too much human rationality, more seriously even today. Hume, with a biting irony, reprehends his contemporaries for being „so much in love with a philosophical origin to government, as to imagine all others monstrous and irregular.” Therefore, following Hume, I would regard the ad hoc and less than satisfactory preliminary negotiations for drafting the Hungarian constitutional document less of a philosophical problem. I am convinced, that on condition that the created collection of basic norms can be interpreted in the interest of the whole of the political continuity as well as for its individual members, regardless of their political alliances and social standing or sympathies, it might be accepted later by the whole community.
If one accepts these considerations the new Fundamental Law will have to prove not that it was born according to the common standards written in handbooks of democracy, but that it can be interpreted in the interest of all and everyone under its effect. This condition practically means that the question is whether the text is vague enough to give room to further, sophisticated interpretations (mostly, by the Constitutional Court), allowing to represent the rights and interests of those who were left out from the negotiations during the creating process. If these manoeuvres will prove to be possible, the legitimacy of the new Fundamental Law might be within reach. I agree with its critics, however, that until then, this very lacuna in its legitimacy remains a pending question, which has an impact on the possible interpretations of the text itself.
3. Length, structure and style
The recent literature on European preambles keeps telling us that as they serve to reaffirm the national identity of a given community, substantial preambles are more common among nations that experienced foreign or internal tyranny than in the constitutions of established democracies. The self-esteem of the political communities of the new democracies are in need of reinforcement, and preambles can help in their self-expression.
The first chapter in the Fundamental Law is called a National Avowal – this title signs that a rather special function is attributed to it. Through this inner title the framers declare that this portion of the text is to be read like differently: it should be taken as a quasi-religious or -literary text. That is why it can be more lengthy than any former preambles: it is perceived to behave like a work of art. The stylistic register of the text is also to be interpreted in this light. The National Avowal’s pathetic tone refers back to the classical literary masterpieces of Hungarian literature in ages, when literature served very clearly political missions. And more particularly it refers back to the great 19th century national hymns of the Hungarians, to the Himnusz by Kölcsey and the Szózat by Vörösmarty. This is made quite explicit by the motto: “God bless the Hungarians”, which directly borrows the first line of Kölcsey’s poem. Although this piece of national art, which was written in 1823 by one of the leading political theoreticians of the age, was not made the official anthem of the country for long, although it was so regarded by custom, and was proposed to be authorized as such by the Parliament in 1903. But the Kaiser did not sanction even then the bill, as he no doubt preferred Haydn’s Gott erhalte to the patriotic Hungarian hymn.
If you compare the two texts, it is most evident, that the text of the Himnusz (Hymn) is just as much a repertoire of Hungary’s glorious and often tragic past, as is that of the Avowal. It starts out from the episode when the Hungarian tribes entered the Carpathian Basin: “By Thy help our fathers gained Kárpát’s proud and sacred height”, and similarly, the Avowal starts out from Saint Stephen, the founder of the state: “We are proud that our king Saint Stephen built the Hungarian State on solid ground and made our country a part of Christian Europe one thousand years ago.”, and it also refers to the “Carpathian Basin”. Neither of these texts restrict its scope to the glorious events, but includes emphatically also the tragic moments of national history. Both of them focus in a Gnostic way on the tragic choice between national independence and liberty on the one hand or national servitude and disaster on the other. And certainly, the genre of the Hymn is just as much pathetic and solemn as that of the Avowal.
If we have a look at the Szózat (Solemn Address), again its title already betokens a kind of quasi-religious hymn, also rechanted even today at national festivals. This one, too, already in its title, and much more in its text, makes the same use of language and past, serving national memory and national mourning as the Himnusz or the Avowal does. What is more, we find the same relationship between the whole national community and its individual members here as is evidenced by the Avowal: the nation commands complete fidelity and devotion from its members, preceding even their private interests, promising them home in their life and graveyard in their death, because “No other spot in all the world / can touch your heart”. It is also remarkable that it, too, presents the Hungarian nation as the saviour of the world, a martyr among the nations – and a similar kind of devotion and calling can be felt in the Avowal: “’We are proud that our people has over the centuries defended Europe”.
To sum up my main point therefore: I claimed that much adorned classics of national literature, The Himnusz and the Szózat borrow their tone much of their topic to the National Avowal. In this respect it comes nearer to the products of Hungarian national poetry than to the Preambles of other national constitutions. What is more this claim stands, even if I tend to accept that the lyrical power of the text is much weaker than that of the masterworks we compared it to. There are harsh critics who would go as far as to say that stylistically the Avowal is almost kitschy. But this claim again misses its target. What matters is that it is a type of linguistic product that works allegorically and rhetorically much more naturally than as a legal (pre)text. And this way it once again reminds us that the National Avowal requires special treatment and no automatic constitutional application is really adequate in its case.
4. Main points of the public debate
In this part of the paper I shall concentrate on four sensitive points of the debate about the Avowal: (1.) whether it is permissible to include the mentioning of God in a text like this, (2.) whether the inclusion of the historical constitution has any legal relevance, (3.) whether the disclosure of the time of the Communist Constitution from the constitutional tradition makes sense, and finally, (4.) whether the emphatic reference to community interests is justified, and if so, on what grounds. Let us take these points one after the other.
(1.) Perhaps the most important argument against the name of God appearing in constitutional documents is the one according to which it would hurt the requirement of state neutrality concerning questions of faith, worldview or other ideological issues. This neutrality is claimed to be the first requisite of a democratic regime, and the guarantee of the autonomy of its citizens, allowing them the freedom of choice among different, often rather different democratic political parties in public life, and among differing, often opposing visions of life in their private life. However, one should not disregard the fact that the requirement itself is not neutral. It was articulated most vehemently by the apostle of political liberalism, John Rawls, in his magnum opus, A Theory of Justice (1971) which was nothing less but a plea for an egalitarian reworking of classical liberalism. His neutrality principle, according to which the liberal state should not promote any particular “conception of the good”, is an expression of the liberal view of politics, and as such, cannot itself be neutral, even if it professes neutrality as one of its most important basic values. In his opinion, democratic politics is about creating what he calls a just society. To reach this state of affairs one needs only to solve a problem of mathematical equilibrium. But he underscores alternative views of politics, and this way tries to determine the rules of the game before the game itself starts off. Liberalism in his hand becomes a meta-political theory.
One should accept that the neutrality principle is untenable in the case of a really democratic constitution. Each and every political community has its reservoir of traditional values and one of the explicit aims of framing a constitution is to make them explicit. This does not mean that a constitution should point to one single political orientation. On the contrary, it should be open to embrace all the values significantly present in a society. Therefore, if there are religious believers in a significant number in a given society, its constitution should not shrink from a reference to the God(s) of this/these religion(s).
There is another fear which can lead some sensitive critics to raise objections against any direct references in a constitutional document to God. This is the liberal principle of the separation of Church and state, already formulated in the US constitution at the end of the 18th century, as a conclusion drawn from the fierce religious tensions earlier. The concept itself was created in the 17th century by the British Enlightened philosopher, John Locke. In this case again, it would be easy to argue that the argument is itself partisan, the philosopher, himself an active politician, trying to draw the conclusions of the fierce political struggles of his time, which sometimes turned into destructive rebellions, in Britain, due to religious disagreements. But in this case the dogma is too widely accepted by now to be disregarded this way. Therefore one should argue in this case from the premise of accepting the dogma. Yet it does not seem too difficult to do so. For indeed the separation requirement does not seem to be violated by the direct reference to God, as long as it is not the God of a certain denomination, or religious confession. Also, the type of text in which the phrase appears makes it impossible to hurt the separation thesis. For indeed it is not within the main body of the National Avowal, but appears in a fragmentary sentence standing all alone in front of the main text, serving as a kind of motto to it (or to the whole body of the Fundamental Law.) The function of a motto excludes the possibility that it be taken as a constitutional norm. Taken from the first line of the national Hymn, it remains simply a literary quotation in the text of the Fundamental Law, no doubt, with a strong symbolic resonance, but meaning nothing specific legally.
(2.) The second difficulty of the Avowal raised by the critics of the Fundamental Law is its incorporation of an earlier notion of Hungarian constitutional tradition: that of the historical constitution. The claim is that the term of a historical constitution sounds anachronistic and alien in the context of a written constitutional document. According to §29th of the opinion of the Venice Commission, the term is too vague: “The concept of ‘historical constitution’, used both in the Preamble and in Art. R, dealing specifically with the interpretation of the Constitution, brings with it a certain vagueness into constitutional interpretation. There is no clear definition what the “achievements of the historical constitution”, referred to in Art. R, are.” In §34 the Opinion further notes: “The reference to the ‘historical constitution’ is quite unclear, since there have been different stages in the development of different historical situations in Hungary and therefore there is no clear and no consensual understanding of the term ‘historical constitution’”.
In order to explain the term, one should refer to the secondary literature in Hungarian legal history, which is undoubtedly huge on this issue and certainly there is no consensual opinion concerning the gist of it. (One could of course ask, if there could be a consensus about any historical phenomenon which has an influence on present day politics.) In order to get a balanced view I shall turn to those partly or wholly independent observers, who still have a first hand professional knowledge of Hungarian constitutional history: the late Professor László Péter (himself of Hungarian origin, but teaching and researching in the UK) and Martyn Rady, also from the University of London, School of Slavonic and East European Studies. Here are some historical data brought up by them, which might be relevant to make sense of the problem itself.
Although Hungary received its first written constitution only from its Communist regime after the second World War, it looks back to a long line of constitutional practice. As László Péter put it: “Hungary’s ancient constitution… was generated by custom.” It was collected in a creative compilation and presented to the diet in 1514, also first supported, finally not authorized by the king and published privately in Vienna by the author, István Werbőczy in legal Latin language. Sometimes quite innovative in its content, the Tripartitum was always considered a reliable summary of ancient Hungarian constitutional practice. This customary ancient constitution “was still the dominant source of law” “well into the nineteenth century”. After the April laws of the Hungarian Revolution against the Hapsburgs in 1848 and the unconstitutional Hapsburg oppression of the revolution and the constitutional tradition between 1849-1867, an unexpected return occurred to this tradition, represented for example by the debates about what came to be called the idea or doctrine of the Holy Crown. The doctrine concerned the public law status of what was called the Hungarian Crown, determining the rights of the (noble) Hungarians in the Hapsburg empire under the jurisdiction of the Crown personified by the actual king. However, in the modern situation jurists had to decide about the relationship between ‘consuetudo’ and statute law, the new way of governing people in an ever more complex European society. According to Péter, due to the interpretative talent of politics professor Győző Concha, law professor Ákos Timon, and leading politician Count Albert Apponyi, the Tripartitum played a major role in Hungarian Monarchical politics, because politicians relied on it, “explaining into Werbőczy’s passage the legislative sovereignty of the state”. What is more “”The precepts as well as the doctrine read into the Tripartitum survived after the collapse of the Habsburg Monarchy.” On the other hand, “The doctrine of the Holy Crown became a red-rag for communists: some party hacks even labelled it a fascist ideology.”
It is only natural therefore, that if the tyrannical Communist regime created a new constitution and threw away the historical one, a new, democratic regime will distrust that written creation and will try to do its best to refurbish whatever is possible from the old, historical one. However, the constitution-making members of the national roundtable-talks in 1989 were not careful enough to secure the legitimacy of the new written constitution. I find the present references to the historical constitution a nice gesture to heal wounds of the body politic, even if it comes a bit too late.
But beside this symbolic relevance, there is a further chance for its revitalisation. I think that it is not yet possible to asses the legal significance of the references in the Basic Law to a historical constitution. Constitutional legitimacy is decided on the long run, and it might depend on historical accidents as well. But one thing is sure: a lot will depend on whether its official interpretation, basically determined by the Constitutional court, will be creative and loyal enough to find ways to incorporate as much as possible from the country’s constitutional tradition into the explanation of the vaguer parts of the Fundamental law. For legal continuity is an important principle of the practice of the Hungarian constitutional court, and now the text of the Constitution explicitly demands a widening up of the horizon of continuity, in order to enable it to incorporate some of the still relevant values (called achievements in the Avowal) of the ancient constitution. How exactly this can be done, is an open question at the moment, but one thing is sure: the nature of constitutional legal practice must change as soon as the Basic Law explicitly refers to the historical constitution as the source of its interpretation. From that moment the understanding of the constitutional norms require a historical background knowledge of the Hungarian constitutional tradition.
(3.) A further criticism of the Avowal is concerned with the supposed legal paradox created by the apparently “ex tunc nullity” of the old Constitution, stated by the Fundamental Law: “We do not recognise the communist constitution of 1949, since it was the basis for tyrannical rule; therefore we proclaim it to be invalid… We date the restoration of our country’s self-determination, lost on the nineteenth day of March 1944, from the second day of May 1990, when the first freely elected body of popular representation was formed. We shall consider this date to be the beginning of our country’s new democracy and constitutional order.” However, in my opinion, there is no paradox here, or better to say the paradox is a (legal) technical problem only. Since, as far as political philosophy is concerned, the democratic standpoint and a tyrannical Constitution are non-negotiatable. Therefore it is only natural that a newly founded democracy detaches itself from any remnants of a tyrannic past. You found the same robustness of self-distancing in the case of German legal thinking in connection with its recent past after the second World War, and in Spain, after the fall of the Franco regime. According to my conviction nothing less direct could be acceptable on a democratic politico-philosophical basis, and compared to this must, the technical legal solution is a secondary problem.
(4.) Modern constitutional safeguards usually serve the defence of individual rights. This is however only a recent development. Although the defence of private property and other individual rights can be traced back at least to the Habeas corpus Act (1679) and the Bill of Rights (1689) in British context, the logic behind modern Constitutions was not simply the defence of the individual citizen against the state (ie. the ruler). In fact, individual rights were pushed forward only by Grotius and his contemporaries. Before that the idea of the individual versus his/her community was hard to extrapolate. In fact individual identity was firmly based beforehand in the particular community one was (or became) a member of. Individual liberty was therefore directly dependent on communal liberty. Therefore I do not think that the perceptible shift of emphasis from the defence of individual rights to a double focus on the defence of both individual rights and the socio-political values of the whole political community substantiated by the history of political thought and justified by the reflections on the often competing findings of recent re-conceptualisations of liberal democracies in communitarian, civic humanist and (neo- or civic-) Republican thought is misconceived or unacceptable. On the contrary, my understanding is that this is the result of a necessary development of political theory initiated by recent Western experiences of political unconcern on the one side, and populist hyper activism on the other side, both endangering the right workings of legitimate political institutions and of democratically elected agents in Western constitutional regimes. Given that the genre of a National Avowal by its very nature requires an identification with the “first person plural” viewpoint, I take it as an effort by the constitution-makers to react adequately on these later developments of constitutional thought. In the meantime I am also keen to emphasize the dangers of a too strongly “nationalistic” constitutional programme, and therefore try to point at the efforts of the Constitution-makers to balance the patriotic line with a European and regional agenda.
II. The National Avowal as an interpretative tool and as a catalogue of basic values
So far, starting out from the genre of the text of the National Avowal, we have seen that it belongs to a quasi-religious, highly-charged literary genre, which makes its reading as a constitutional legal document rather uneasy. We have seen that the lack of political consensus at the time of its framing might be an obstacle to an open-minded and trustful reading of it even today, and I suggested to rightly weigh each and every word about the – rather tragic - historical experiences of the nation’s past, taking into account the recent national traumas expressing themselves in the words of the Avowal. We also mentioned that its vagueness might be seen as an effort to make room for competing political thoughts to find guarantees for their particular values in the text. We explained its relative length, highly rhetorical style and complex structure by the historical parallels in the classical (nineteenth century) Hungarian literary tradition. We also made sense of the mentioning of God’s name, of the concept of the historical constitution and of community values, also referring in connection with these to the genre itself.
In what follows we have to make two further steps. First we shall see how the National Avowal relates to the main body of the text of the Fundamental law, and more particularly, how and to what extent it could be used to interpret the actual norms of the Fundamental Law. And second, we have to show the utmost significance we attribute to the fact that by the National Avowal a – perhaps not yet perfect – effort was made to give an overview of the history and reinstate a catalogue of the traditional basic values of the political community of the Hungarians.
1. The National Avowal as an interpretative tool
To try to find the way the Avowal can, or should be used as a tool to interpret the Fundamental Law, I sum up the relevant point of my earlier essay. Then I shall see how the text of the basic law itself demands from its users to be used as an interpretative tool.
As I mentioned above, in an earlier writing I expressed the view that in order to bring Hungarian Constitutional practice closer to the general public, the political parties should agree on the creation of a basic document which would sum up – if only in a catalogue format – the most important, and possibly sometimes even diverse - values of the community. One could see the National Avowal as answering exactly this question. But that would definitely be a misapprehension. In fact, there are rather significant differences between my ideal scenario and what is actually contained in the Avowal. Let me show the differences and then to point out in what respect I still hold my earlier view, that this part of the basic document should be used, but only very carefully used as an interpretative tool to help to make sense of the norms of the new Basic Law.
First of all, I regarded it as a necessary prerequisite of a legitimate basic document that it be the result of a political consensus on the shared values of the whole community. By now, I am convinced that this was an exaggerated demand, given the actual political situation, but still hold that a simple practical compromise would have been able to do the required job of a political negotiation.
Second, I was quite clear that the new basic document should not be embedded in the text of the constitution itself, because introducing another genre would disturb the autonomy of the understanding of the actual constitutional norms: “The basic document of the political transition would not be a contestant of the constitution, and would not take over the place of its predecessor. Rather, the basic document and the constitution would need to strengthen each other, as - mutatis mutandis – the Declaration of Independence in the US related to the Constitution.”
Third, I regarded the
occasion of creating a basic document as a chance for a national
self-examination, with a special focus on the stormy history of the twentieth
century. This was envisaged by me as a kind of secular confession, which the
genre of Avowal would have made possible – the more so, as the literary
precursors – beside the rosy parts - all referred to national sins as well,
like Kölcsey, claiming in the Hymn that “But, alas! for our misdeed, /
If one is interested in the philosophical stakes of the issue, Paul Ricoeur’s ideas are worth to consult, in his writings on making sense of the tragic or sinful moments of the past by a given community or between communities or between a communnity and the external world. TO some up the main points here, both the Pope and Ricoeur makes tremendous efforts to show up that the real strength is not to demand vengeance or simple pardoning, but to get through a shared process of spiritual purgation by rituals of atonement and forgiving. This is all the more urgent because, as Ricoeur points out: „Political prose begins where vengeance ceases, if history is not to remain locked up within the deadly oscillation between eternal hatred and forgetful memory. A society cannot be continually angry with itself.” If the Avowal takes a more self-examinatory, and not simply a glorificatory tone, that would have better resemble the Hymn and the Solemn Address, as the historical narratives of both these long poems touched upon the sins and guilts of the nation. The Solemn Address, for example, recalls the sins of the community by referring beside„long calamity” to „centuries of strife” as the cause of the national disasters. Therefore, I wished that the Avowal had been braver in facing the tormented past of the nation.
But given all these differences between my ideal of a basic document and the actually created Avowal, as the opening chapter of the Fundamental Law, I still hold the view of its role as an interpretative tool. I suggested earlier that “it would take off the shoulders of the body authorized to interpret and safeguard the constitution the difficult task of grounding the basic values. The role of constitutional control would be defined to consist in the constitutionally controlled surveillance of the process of the political actualization of the already expressed constitutional values.” Significantly, to this daring thought-experiment I even in that essay added the following reserves: “In the same time, the basic document of the political transition naturally needs to take into account the tradition of the constitutional interpretation worked out by the Constitutional Court.”
Something like this moderated reform of the constitutional interpretation is now explicitly demanded by the text of the Basic Law itself. In Article R§3 we read: The provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal and the achievements of our historical constitution.” Purpose is generally considered important in constitutional hermeneutics. However, the article explicitly refers to the National Avowal and “the achievements of our historical constitution” as well, which means that it will be difficult to disregard the Avowal in the actual practice of interpretation exercised by the Constitutional Court. But, given the genre of the Avowal, one should keep in mind that its use in constitutional interpretation is strongly limited by its literary genre, and t due to the metaphorical nature of poetic art, it cannot determine the line of interpretation so directly as if it was written in a technical legal language. Its use is like the use of the Hymn in interpreting Hungarian national identity – through a careful process of literary interpretation.
2. An overview of the National Avowal: fragments of the national history and a shorthand catalogue of the basic values
To see what I mean by this careful process, let us return once again to the National Avowal. As we have seen, it has two main building blocks: it is a combination of particular historical references and universal value-statements. Its historical approach might look a bit awkward to observers coming from a happier historical background, but in a country where the last century brought with it so many political upheavals: crises, wars and revolutions, oppressive regimes and unpredictable changes of regimes, history keeps its relevance even in day to day politics. Also, the enumerations of the basic rights of the community and those of the individual members might be a bit long here, but it really has the function of expressing a pledge to democratic values, as a prerequisite of making sense of the Basic Law. In what follows I try to sum up in a more detailed fashion the main propositions of this separate part of the Basic Law.
Not surprisingly, the historical narrative starts out with St Stephen’s reign, traditionally regarded as the founding moment of the Hungarian State. In this short reference to the rule of the first King, initiating the Holy Crown, the nation’s past is closely tied up with the fate of Christian Europe. It is in this context that the Venice commission’s statement should be seen, which welcomes the double – national and universalist-European – perspective of the Avowal, recognizing in the following note that: “notwithstanding the strong emphasis put on the national element and the role of the Hungarian nation, there has been an effort to find a balance, in the Preamble, between the national and universal elements.” As both these perspectives belong to the nation’s past, and both are highly valued, there is no other choice for any interpreter of the Fundamental Law, but to try to negotiate the national and the European components of it, claimed to be mutually dependent on each other: “We believe that our national culture is a rich contribution to the diversity of European unity”.
The only other historical moment mentioned in a cursory fashion in the text is the last century, of which the Avowal says the following: “We promise to preserve the intellectual and spiritual unity of our nation torn apart in the storms of the last century.” The rhetorical trope of the historical storm which tears apart the nation is a Biblical allusion, referring to the fate of the Jewish nation. The language is reminiscent of the age of Reformation, when Hungary was torn apart both by religious disputes and by external enemies. And therefore the phrase’s interpretative value is to look at the normative part with this twentieth century experience in the back of one’s mind, taking internal enmities, and the lack of solidarity in times of external threat as potentially leading to disasters, and therefore as really dangerous to the national interest.
After this historical recapitulation, we find the catalogue of the basic values, starting out – as in the argumentative practice of the Constitutional Court - from human dignity. This is a concept which is as much prevailing in the Catholic social teaching as in the secular philosophical tradition of the Enlightenement. It was rightly chosen by the first president of the Hungarian Constitutional court as the key value of the basic rights, and apparently the new Basic Law keeps this starting point. Yet the Avowal makes more explicit that the concept of dignity is in accordance with the Catholic teaching, connecting individual freedom with the human condition of cooperation with others. From the Communitarian account of the nature of man, from the “thick description” of the person, it draws the values of fidelity, faith and love – all connected with the Christian teaching, but none contradicting Enlightened secular morality. It also establishes social virtues, and common goals, supported by the State, and its own values of well-being, safety, order, justice and (civic) liberty. It also explicitly commits itself with democracy, opting exclusively for it from the different political regimes.
And there again comes a historical detour, as the twentieth century witnessed non-democratic regimes in Hungary, and the Avowal repudiates both “national socialist and communist dictatorships”. This is something which is all important to understand by foreign interpreters of the new fundamental law: that it is to be taken as an outright refusal of all totalitarian regimes, experienced in twentieth century Hungary. It tries to re-establish the constitutional continuity, by connecting 19. March 1944 to 2. May 1990.
And there a final turn occurs – from the past the discourse leads to the future, using the famous Burkean analogy of the covenant of the different generations of a nation. In Burke’s version it sounds like this: „Society is indeed a contract… it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature. It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.” And the Avowal refers to this famous locus the following way: „Our Fundamental Law shall be the basis of our legal order: it shall be a covenant among Hungarians past, present and future; a living framework which expresses the nation’s will and the form in which we want to live.” With this gesture, the Avowal admits that it is based on a view of society which goes back to the great tradition of European social and political thought, connecting the teaching of the ancients, of the Church and of the Christian humanist and Enlightened modernist trends of ideas with the local constitutional tradition and common sense experience, in order to fulfil its mission to help Hungarians confront an uncertain future.
 This must have been the opinion of the editors of this volume, who asked me – a non-lawyer, legal and political philosopher and a historian of ideas– to write this chapter for the volume.
 HORKAY HÖRCHER FERENC: Értékhiányos rendszerváltás (Value-deficient political transition), in: A dolgok természete, szerk. G. FODOR GÁBOR és LÁNCZI ANDRÁS, Századvég Kiadó, Budapest, 2009, 79-100. Originally appeared in: Fundamentum, 2003/1, 62-72.o.
 It is not the theme of the present paper, therefore I would only like to point out very shortly that by opting for the title Fundamental Law the constitution-maker adheres to a view of the constitution which does not accept the positivist account according to which it is nothing more than a statute. Rather, it presents the constitution as consisting of the fundamental law and other cardinal laws, as well as of the constitutional tradition of the country. Due to the nature of this mixture one cannot pinpoint it is content for once and for all, but should rather look at it in its historically dynamic development.
 http://www.etymonline.com/index.php?term=avouch The Online Etymological Dictionary refers to Fowler, H.W., A Dictionary of Modern English Usage, 2nd edition, revised by Sir Ernest Gowers, Oxford Univ. Press, 1965.
 „An open declaration by an attorney representing a party in a lawsuit, made after the jury has been removed from the courtroom, that requests the admission of particular testimony from a witness that would otherwise be inadmissible because it has been successfully objected to during the trial.” http://legal-dictionary.thefreedictionary.com/avowal
 ALISTER E. MECGRATH: Christian Theology: An Introduction, Blackwell Publishers, Oxford, 5th edition, 2011, p. 63.
 STEPHEN WERBŐCZY: The Customary Law of the Renowned Kingdom of Hungary: A Work in Three Parts Rendered by Stephen Werbőczy, ed., transl. and critical apparatus: János Bak, Péter Banyó, Martyn Rady. Idyllwild (CA, US), Charles Schlacks. 2005
 On this, see: MARTYN RADY: “Stephen Werbőczy and his Tripartitum”. In: WERBŐCZY, xxvii-xliv.
 It is the irony of the tragic turn of Hungarian history, that the furious struggle between the two (and very soon more) camps of contenders for the throne led the country open to foreign – non-Christian – invasion by the Ottoman Turks. One should also add for historical accuracy that Werbőczy himself, although his family belonged to the lower nobility, did still fiercely defend the Catholic position against the revolutionary doctrines of Luther. Fraknói attributes to him the following position: “With the instinct of the zealous believer, with the clearsightedness of the experienced politician, he realised, that Luther’s attack will not lead to doing away with the problems of the Church, but shall lead to new schism, not to restoration but to revolution.” FRAKNÓI VILMOS: Werbőczy István, 1456-1541, Budapest Franklin-Társulat Könyvnyomdája, Budapest, A Magyar Történelemi Társulat Kiadása, 1899., Book III, Chapter III. According to Fraknói, Werbőczy is also claimed to have met and debated Luther. Online: http://mek.oszk.hu/05700/05752/html/03.htm#d1e1938
 Two further notes need to be made in connection with the genre: Catholics even today practice a „confession” of sins, and in penal law „confession” means that the accused admits the charges against the accused. What is more, from the first of these modes of speaking a litetrary genre grew out, following the lead of Saint Augustine and Rousseau.
 VENICE COMMISSION: Opinion on the new constitution of Hungary, adopted by the Venice Commission between 17-18, June, 2011 (CDL-AD(2011)016, §11, referring to its earlier opinion of CDL-Ad(2011)001, §16-19.
 VENICE COMMISSION: Opinion, §11.
 DAVID HUME: Of the Original Contract (1748), in DAVID HUME, , Essays: Moral, Political and Literary, ed. E.F. Miller, Indianapolis: Liberty Fund, 1985, pp. 465-487., 471.
 HUME, 472.
 HUME, 472.
 See for example: BALÁZS FEKETE: Történeti elemek az EU-tagállamok alkotmány-preambulumaiban (Historical elements in the preambles of the constitutions of EU member states), in: Preambulum az alkotmányokban , eds.: VANDA LAMM, BALÁZS MAJTÉNYI and ANDRÁS PAPP, Budapest : Complex Kiadó Kft, 2011, 33-45., 38.
 In the Hungarian version this line of prayer ends with an exclamation mark.
 I use the 1881 William N. Loew translation. For a more recent one, see the translation by the acclaimed poet, George Szirtes, http://www.nationalanthems.us/forum/YaBB.pl?action=print;num=1087952141.
 I use the translation by Watson Kirkconnell.
 Either as „nominatio dei” (simple mentioning of the name of God) or as „invocatio Dei” (invoking God). On this distinction and the following counter-arguments in the German context, see: MICHAEL SILAGI: A német alaptörvény preambuluma: a preambulumok alkotmányos helyzete és jelentősége a német jogban (The Preamble of the German „Grundgesetz”: the constitutional status and significance of the preambles in the German Law), in LAMM: Preambulum, 47-58.
 One could call this a paradox: neutrality (among values) becoming the basic value, the claim of neutrality itself turns out to be non-neutral.
 See the so called Establishment Clause and the Free Exercise Clause of the First Amendment to the US Constitution: „Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” The interpretation of the Supreme Court had to base the whole policy of the separation of Church and State on this rather vague and short form of the First Amendment.
 See NOAH FELDMAN: Divided by God. America's Church-State Problem and What We Should Do about It, Farrar, Straus and Giroux, New York, 2005, p. 29, for this claim: "It took John Locke to translate the demand for liberty of conscience into a systematic argument for distinguishing the realm of government from the realm of religion." See Locke’s Letter Concerning Toleration (1689), where he supports the separation thesis. However, see also his The Reasonableness of Christianity (1695), where the author presents himself as an Enlightened and Christian thinker.
 VENICE COMMISSION: Opinion, §29.
 VENICE COMMISSION: Opinion, §34.
 LÁSZLÓ PÉTER: The Primacy of Consuetudo in Hungarian Law, in: Custom and Law in Central Europe, ed. Martyn Rady, Cambridge: Centre for European Legal Studies, Faculty of Law, University of Cambridge, 2003, 101-111.
 PÉTER, The Primacy, 101. I also consulted the same author’s The Impressible Authority of the Tripartitum, from WERBŐCZY, xiii-xxvi. Professor Peter has some more papers worth to consult in relation to the Hungarian constitutional tradition.
 PÉTER, The Impressible, xxv.
 Péter, Impressible, xxv. GYÖRGY BÓNIS, in 1942 wrote: „our public law even today recognizes the ability of customary law to interpret, substitute and destroy statute law.” Gyögy Bónis: Törvény és szokása Hármaskönyvben (Law and custom int he Tripartitum), in E. P BALÁS et al: Werbőczi István, Acta Juridico-Politika (Kolozsvár), 2, 1942, pp. 121-140, 138.
 PÉTER, The Impressible, xxvi.
 See the earlier essay of the present president of the Hungarian COnstitutional Court on the relevance of historical constitution after the transition period: PÉTER PACZOLAY: A történeti alkotmány és a konzervatív jogi gondolkodás (The historical constitution and the conservative legal thinking), in Magyar konzervativizmus, hagyomány és jelenkor,, szerk. Tőkéczki László, Budapest, Batthány Lajos Alapítvány, 1994, 29-36.
 „The Venice Commission labelled this statement as creating a legal paradox, „since an illegitimate or even non-existent Parliament cannot enact a new Constitution.” VENICE COMMISSION, § 35.
 See, in Hungarian, my collection of essays by and introductory essay on MacIntyre, Sandel, Ricoeur, Taylor and Walzer in: FERENC HORKAY HÖRCHER, ed.: Közösségelvű politikai filozófiák, (Communitarian political philosophies), Századvég, Budapest, 2003.
 On the last two see the entry on Republicanism in the Stanford Encylopedia of Philosophy, written by Frank Lovett, at http://plato.stanford.edu/entries/republicanism/, focusing on the historical works by Arendt and Pocock on the one hand, by Quentin Skinner as well as the political philosophical theory by Philip Pettit, on the other hand. One could also refer to the social teachings of the Catholic Church here, pointing out that the idea of solidarity and the concept of the person both helps to see the philosophical relevance of both the individual and the communal aspects in social-political thought.
 On the dangers see the most eloquent treatment of it by JOHN LUKACS, in his Democracy and Populism: Fear & Hatred (New Haven: Yale University Press, 2005). , which however sometimes overstates its case.
 „We deny any statute of limitations for the inhuman crimes committed against the Hungarian nation and its citizens under the national socialist and communist dictatorships.”
 For this view, see ATTILA TÓTH GÁBOR: Egy új alkotmány háttérelmélete (The background theory of a new constitution), BUKSZ, 22. 2. szám, 2010 nyár, 138-141, 139-140. This article calls my standpoint, without any further argument, a „materialistic, value-centered constitutional theory”, presumably referring to Scheler’s non-formal ethics of values. It presumes that if my article is put together with András Körösényi’s realistic approach, one can create of our – independent – writings a coherent system, and – again without proving it - that our articles advanced the radical reformation of the Hungarian constitutional regime as we witness it today.
 FERENC HORKAY HÖRCHER, p. 71.
 As one can see from László Körössy’s literal translation (http://en.wikipedia.org/wiki/Himnusz), the original uses the word „bűn”, meaning sin.
 I recommend here Ricoeur’s following works: The Just, translated by David Pellauer, The University of Chicago Press, Chicago and London, (1995, English translation) 2000, and Memory, History, Forgetting, tranlated by Kathleen Blamey and David Pellauer, The University of Chicago Press, Chicago and London, (2000, English translation) 2004.
 Ricoeur, Paul. Memory, History, Forgetting. Translated by Kathleen Blamey and David Pellauer.
Chicago: University of Chicago Press, 2004., 501.
 FERENC HORKAY HÖRCHER, 71.
 § 33.
 For a detailed analysis of the court’s interpretation of human dignity, see now CATHERINE DUPRE: Importing the law in post-communist traditions: the Hungarian constitutional court and the right to human dignity, Oxford, UK: Hart Publishing, 2003.
 For the Catholic understanding of the concept, see Gaudium et Spes, Pastoral Constitution on
the Church in the Modern World, Second Vatican Council, 1965. For the Enlightenment connection between morality and dignity, see KANT’s Groundwork for the Metaphysics of Morals, edited and translated by Mary Gregor, Cambridge, Cambridge University Press, 1998. For a recent overview of the relevant theory by Kant, see: DIETER VON DER PFORDTEN: On the Dignity of Man in Kant, Philosophy, 2009, 84/3: 371-391. This text also refers to the following documents as sources of the present use of the term of human dignity in legal thought: „Preamble to the Charta of the UN in 1945, the Preamble and Article 1 of the General Declaration of Human Rights from 1948 and Article 1 Paragraph 1 of the Constitution of the Federal
Republic of Germany from 1949”. see in PFORDTEN, p. 373.
 On the constitutional court’s interpretation of human dignity, see: TERSZTYÁNSZKYNÉ VASADI ÉVA: Az élethez és az emberi méltósághoz való jog az alkotmánybíróság döntéseiben (The right to life and to human dignity in the decisions of the constitutional court), Iustum Aequum Salutare, V. 2009/2. · 93–102. She explains the concurring opinion by László Sólyom, for which see: On Capital Punishment, Decision 23/1990 (Hung. Const. Ct. Oct. 31, 1990) (Sólyom, P., concurring), translated in LÁSZLÓ SÓLYOM and GEORG BRUNNER: Constitutional Judiciary in a New Democracy: the Hungarian Constitutional Court. Ann Arbor, The University of Michigan Press, 2000. at 118, 125. For an alternative interpretation of the concept of human dignity, see: ZOLTÁN BALÁZS: : Kant and Kolnai on (Human) Dignity. In: ZOLTAN BALAZS, FRANCIA DUNLOP, eds.: Exploring the World of Human Practice. The CEU Press, Budapest, 2004. 251-66