10.2.1 Constitutional Text

The preamble to the FL, called National Avowal, not only gives a narrative of Hungarian history, the Hungarian people, and constitutional development, but it also formulates an aspiration for the future – paradoxically by using the reference to the historical constitution, which belongs to the past. It also provides a narrative of the identity of Hungarians, which is rooted in the historical constitution and, jointly reading it with other provisions of the FL, links the individual identity with that of the state. The National Avowal is of utmost importance in the constitutional interpretation as, since 2012, the FL in its Article R) prescribes that its provisions must be interpreted in accordance with their purposes, the National Avowal, and the achievements of our historic constitution.

In the context of history, the National Avowal portrays victory and half-truth. It mentions the first king, St. Stephen, building the state 1,000 years ago; it is proud that ‘we fought for the survival, freedom and independence of our country’ and that ‘our nation has over the centuries defended Europe in a series of struggles’, and it proclaims that Christianity preserves nationhood. About the twentieth century, it expresses that ‘our nation’s intellectual and spiritual unity was torn apart in the storms of the last century’, not mentioning the roles Hungary played in the World Wars. It also states that Hungary did not have national self-determination between 19 March 1944 (Nazi Germany invaded Hungary, an ally state) and 2 May 1990 (the formation of the first democratically elected parliament after the transition). This narrative originates ‘our current liberty’ in the 1956 Revolution, not mentioning the declaration of the Republic in 1989, which not only happened symbolically on the same day when the anti-Soviet revolution of 1956 erupted but was adopted as a result of the Round Table negotiation, and thus with the involvement of the former Hungarian Socialist Workers Party. This party and officeholders of the socialist system became the first constitutionalized ‘enemy’ created by the Orbán regime, which was followed by others: homeless people (2013), non-traditional families (2013), migrants (2018) and LGBTQ people (2019). This process is based on populist rhetoric and emotional politics, resulting in exclusion and the waning of individual liberty (i.e., illiberalism).

The narrative of the National Avowal on the Hungarian people contains the following: fighters, defenders, victims and persons that have outstanding intellectual achievements, talents and diligence, but the ‘decades of the twentieth century led to a state of moral decay’, which now ends with the new era of national cooperation established by the FL.

The historical constitution appears in the following formulation (in the originally adopted text of the FL): ‘we honour the achievements of our historic constitution and we honour the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation’. It is added that ‘our historic constitution was suspended due to foreign occupations’, which refers to the Nazi occupation and Communist rule in the twentieth century (without referencing the collaboration with the Third Reich).

Aspiration for the future implies that Hungary will be made great again and that, because of the state of moral decay, Hungarians need spiritual and intellectual renewal. Also, ‘our nation’s intellectual and spiritual unity needs to be preserved’. It implies that, also because of Article R), the FL needs to be interpreted in a way that does not allow division and fragmentation.

The National Avowal gives a narrative of the identity of Hungarians since the Seventh Amendment to the FL (2018). While with this sentence ‘[t]he protection of the constitutional identity and Christian culture of Hungary shall be an obligation of every organ of the State’, the text of the FLFootnote ⁷ talks about the constitutional identity of Hungary, the National Avowal declares that of Hungarians: ‘our identity is rooted in our historic constitution’ and ‘the protection of our identity is a fundamental obligation of the State’. The Ninth Amendment finally linked the individual identity with that of the state: ‘Hungary shall protect the right of children to a self-identity corresponding to their sex at birth and shall ensure an upbringing for them that is in accordance with the values based on the constitutional identity and Christian culture of our country.’Footnote ⁸

10.2.2 Scholarly Works

After 2010, as the constitutional provisions involving the terms of historical constitution and its achievements increased, the interest in their meaning has also increased among scholars, becoming an intersectional field of study between public law and constitutional history.

As early as 2012, some scholars criticized the National Avowal, claiming that it was too political and did not necessarily genuinely reflect the entirety of Hungarian history,Footnote ⁹ while others interpreted it as a new narrative of a sovereign Hungarian nation and the extract of Hungarian history.Footnote ¹⁰ While applauding the content, others asked whether the FL could provide a new value catalogue with which the polity would identify.Footnote ¹¹ Constitutional law scholars conceptualized these provisions (on the historical constitution and its achievements) as a mere aide to constitutional interpretation, that is, emphasizing the historical approach,Footnote ¹² and they expected that the CC would interpret the meaning and conceptual framework of these concepts.

There are three main challenges in determining what historical constitution and its challenges mean. One of the issues with defining these concepts, in both scholarly works and legal procedures, is that the historical constitution is a constitution of many centuries shaped by various laws, declarations, customary law and complemented by extra-legal components, such as the spirit of Hungarians/identity of Hungarians (néplélek) and the national genius.Footnote ¹³ These latter extra-legal categories used by scholars in the early twentieth century make it difficult – if not impossible – to define the historical constitution from a legal perspective.Footnote ¹⁴ This difficulty is overlooked by others who have made considerable effort to prove the raison d’étre of the term in the contemporary constitutional law as something more than an aide for constitutional interpretation – as scholarly support of the illiberal turn.Footnote ¹⁵ In this context, the historical constitution is viewed as a concept characterized by its perpetuance, which manifests in legal continuityFootnote ¹⁶ and has revolved around three components. The first is the maintenance of the feudal division of power, as ‘nobles waived willingly of the power’ and the ‘former feudal representation was replaced by popular representation’.Footnote ¹⁷ The second element is the lack of rupture with the past whenever a new beginning came as opposed to what usually happened in Europe, with revolutions and new constitutions. The third component is the extension of rights, as ‘no rights were withdrawn but extended to those who had not enjoyed them’.Footnote ¹⁸

The other difficulty is connected to the appearance of the Holy Crown in the text of the FL: it ‘embodies the constitutional continuity of Hungary’s statehood and the unity of the nation’. Nevertheless, the doctrine of the Holy Crown, closely connected to the era of the historical constitution, held that it embodies the king, the territory of Hungary and the nobles, as described by Werbőzy in his Tripartitum.Footnote ¹⁹ In other words, the crown, usually (and in Hungary too, historically speaking) relates to monarchy as a form of state. Nevertheless, the doctrine of the Holy Crown and the idea of the historical constitution has been maintained even under different constitutional and political settings. So, historical changes after the dissolution of the Austrian–Hungarian Monarchy challenged the tenability of the doctrine of the Holy Crown and the idea of the historical constitution in situations in which there was no monarch, but the form of state was officially monarchy (1920–1945)Footnote ²⁰ and when there was no monarchy (1946–1949)Footnote ²¹ and in which Hungary adopted codified constitutions, such as the communist one (1949), the liberal (substantially amended 1949 Constitution in 1989 and 1990) and the illiberal one (2011). Some constitutional scholars believe that the doctrine of the Holy Crown is simply incompatible with the European constitutional development after the transition of 1989/1990.Footnote ²² Others opine that, even if this doctrine cannot legitimate any CC decision, it could support arguments.Footnote ²³

The third challenge of interpreting the history-related FL texts is that the ‘achievements’ of the historical constitution must also be construed. Constitutional lawyers have been sceptical about the rationality of the provision. As the historical constitution contains many components that are nonsense (attached to the feudal state) or unacceptable (restriction of rights), the only rationale for using the term ‘achievements’ (of the historical constitution) could be to filter out these elements. Nevertheless, in this way, only those components will remain to be considered in the constitutional interpretation, which are already compatible with modern constitutionalism and are part of the Hungarian legal system.Footnote ²⁴ Others, however, claim that the achievements of the historical constitution embody its fundamental values, which transcend the written sources of law and can be found in customary law and, as such, are subject to interpretation. Three principles are identified: the division of power (horizontal and vertical as developed throughout the centuries), the protection of the constitution and the nation-unification role of the Holy Crown. As for the first two principles, these have been part of the constitutional text and constitutional jurisprudence since the transition – which supports the view of constitutional laws scholars. The actualization of this latter is found in that, after Trianon, the national ‘togetherness’ has become even more important and, after the EU accession, it helps preserve the national identityFootnote ²⁵ – a view that explicitly appears in the jurisprudence of the CC.

10.3.1 Rights Expansion

One of the results of the Hungarian revolution and the war of independence of 1848–1849 was the reform of voting rights, which also meant the expansion of the ‘membership’ in the Holy Crown (the manifestation of the source of power and subject to national sovereignty). Before 1848, every nobleman was part of the Holy Crown ( i.e., part of the national sovereignty) and, after 1848, as reminded in the literature on the historical constitution in 2010, all citizens.Footnote ²⁶ Both the literature and the FL, and its constitutional interpretation,Footnote ²⁷ mention the protection of minorities, that is, nationalities, ethnicities (hereinafter nationalities), which is considered the noblest tradition of the Hungarian nation and an example of the rights expansion. This section contrasts the narrative on the expansion of rights in the field of the right to vote and protection of nationalities with the then prevailing legal, social and political circumstances and highlights that the historical constitution was not necessarily about rights expansion.

In the feudal parliament, noblemen, leaders of churches and representatives of the ‘free royal cities’ had the right to vote. Act V of 1848 extended the subjects of this political right according to the following criteria: male of 20/24 years old (active/passive right to vote, respectively), ownership of certain property, knowledge of the Hungarian language (for passive right to vote). This reform meant that 7.2 per cent of the population had the right to vote, which, at that time, was progress. Act XXXIII of 1874 introduced some more restrictions. The first was the ability to pay taxes (those who were behind with the payment could not vote), and then it was that voting must be done verbally (until 1938). This resulted in a situation in which less than 6 per cent of the population had the right to vote, which was 5.3 per cent in 1899. Comparatively, it was very low as, in Europe, at that time, the average was 20–30 per cent. Struggles for suffrage for all started in the 1890s and the result was the Act of the People I of 1918 (during the short period of the democratic revolution after WWI). It established the right to vote for male voters of 21 years old and women of 24 years old who could read and write. The secrecy of voting was planned to be introduced and it would have meant that 50 per cent of the population had the right to vote, but this rule was never applied. Decree 5985 of 1919 of the new regime changed the law of 1918 and increased the age limit for male voters to 24 years, making, thus, 40 per cent of the population entitled to vote. Decree 2200 of 1922 and Act XXVI of 1925 increased the property and knowledge-based criteria and the age limit of women to 30 years. The percentage of the people that had the right to vote decreased to 29 per cent. Act XIX of 1938 further increased the age limit for men (to 26 years), maintained the age limit for women (30 years) and introduced certain property and knowledge-based criteria.Footnote ²⁸

Hungary’s Act on the Equality of Nationality Rights (hereinafter: Nationalities Act) of 1868 is said to be very advancedFootnote ²⁹ in the multinational Austro–Hungarian Monarchy at the time when the focus was the sovereign nation-state. The preamble of the Act (1868) guaranteed that all citizens of the Kingdom of Hungary (as part of the Austro–Hungarian Monarchy), regardless of their nationality, constituted politically a single nation, that is, the indivisible, unitary Hungarian nation under the constitution. It also declared that there should be no differentiation between the members of the united nation save for the official usage of the current languages and insofar as necessitated by practical considerations. The Hungarian governments did not necessarily respect this Act and, while nationalities tried to fight for their independence and rights, Hungarian politics was featured by Magyarization, which, as researches show, did not include repression or violent conflicts.Footnote ³⁰ Nevertheless, despite the law, the use of minority languages was banished almost entirely from administration and even justice, Hungarian names for settlements were introduced and Hungarian language and historical narratives dominated at schools.Footnote ³¹ This administrative Magyarization was slow, uneven across domains and contingent on local power dynamics,Footnote ³² but existed and was challenged.Footnote ³³ Over the years, the ethnic antagonisms worsened, and there was no rising social class strong enough that could have changed the system, breaking through the fixed pattern of class, religion and regions.Footnote ³⁴

The 1868 Nationalities Act was discussed in the lower house of the Parliament for six days, and the opinion of the majority, that is, that there is a united Hungarian political nation and no other nationality is considered to be a nation, was adopted out of the three submitted draft laws. In the parliamentary debate,Footnote ³⁵ both the majority and the minority opinion relied on the argument of the historical constitution to support their own claims. Several arguments supported the concept of a united nation. They referred to the principles of the historical constitution, the lack of fight of nationalities, the claim that it has always been like this, a united country was guarded by the ancestors and the sentiment that Hungarians deserve this type of nationhood. It was also reminded that a united nation was also necessary due to the national administrative law and that Hungary is a historically created unity that cannot be dissolved. They also argued that the draft law submitted by the minorities intended to dissolve this unity. Indeed, the arguments of the nationalities consisted of their sentiments and the demands of the new era. These demands required a distance from the old terms and laws and a way of thinking based on the spirit of the new age. They also used the argument of the historical constitution when highlighting that laws dating back to Saint Stephan recognized them as ‘nation’, these nationalities had de facto existed in the Hungarian territory until 1848, there was no political nation and the county system evidenced that Hungary had not been a country demanding a unified state.Footnote ³⁶

Nevertheless, the result of the debate was the mentioned Act, signalling that the liberal Hungarian elite at that time insisted on the status quo and adopted the concept of the French-type nation-state. Despite the provided rights and autonomies, the Act was not properly implemented. The unresolved minority issue is viewed as one of the main causes for the collapse of dualist Hungary.Footnote ³⁷ Just as the history of the right to vote, it did not represent any inclusive attitude but focused on the status quo and an exclusive understanding of sovereignty, which certainly was one of the legitimate options for the decision-makers.

These examples illustrate that the expansion of rights, an important component of the historical constitution in the narratives of some contemporary authors, was, contrary to their narratives, not consistent and free from retrogression at all. There seem to be more arguments against the continuity of the historical constitution in a republican era than supporting it. Section 10.3.2 discusses the relevant jurisprudence of the CC. The CC also gives its own narrative on the historical constitution in its interpretation of the relevant provisions of the FL. This review might seem to break the previous logic of presenting continuity and rights expansion because the CC interprets and applies what is in the constitutional text, based on the content and request of the petition it receives. Nevertheless, by discussing the CC’s concept of the historical constitution, along with that of the term ‘constitutional identity’, this section could provide important impetus for supporting the argument of this chapter, that is, constitutional narrative based on the historical constitution of Hungary is conducive to illiberalism (i.e., exclusion and inequality).

10.3.2 Continuity

Beyond the text of the FL, some in the literature also claims that both the historical constitution and the Holy Crown constitute legal continuity and represent the 1,000 years old history in which the FL fits.Footnote ³⁸ A review of the documented legal change, however, proves otherwise.

The question of continuity emerged in the interwar period, during which Hungary was a monarchy without a monarch governed by the regime of the historical constitution and implied by the doctrine of the Holy Crown. After the publication of Act I of 1946 on the republican form of government, scholars agreed on the existence of continuity and considered Act I of 1946 as a written constitution,Footnote ³⁹ which established a republic and that the new institutions of the interwar period, that is, the provisional legal order (the new parliament and the government instead of the monarch and the former parliament) were placed provisionally and beside the historical constitution.Footnote ⁴⁰ It was also argued that the Holy Crown did not represent the monarchy but, from the fourteenth century, the state.Footnote ⁴¹

Nevertheless, the Holy Crown was not included in the national symbols in 1849 and 1918 and between 1946 and 1949 – which could be viewed as a rupture with the past and looking into the future based on the new constitutional system without the Holy Crown.Footnote ⁴² It was obviously not mentioned in the communist constitution adopted in 1949, nor in its major amendment in 1972, the preamble of which, on the other hand, referred to the 1,000 years old history of Hungary. Beyond using the coat of arms displaying the Holy Crown in 1990 as a heraldic ornament, it was only in 2000 when the Holy Crown was brought back into the realm of law with some kind of public law function. Act I of 2000 defined it as a ‘relic representing the continuity of the Hungarian statehood and independence’, which ‘lives in the consciousness of the nation and the traditions of Hungarian public law’.Footnote ⁴³

This formulation from the year 2000 seems to decide the debate on the nature of the Holy Crown by emphasizing traditions and continuity and considering it a symbol of the Hungarian statehood. It also expressively refers to the consciousness of the nation in which the Holy Crown lives. It did not consider the fact that the Holy Crown had not been used in the Hungarian public law in the past 50 years when declaring that it lives in its traditions.

These two elements (statehood and nation) also appear in the National Avowal of the FL: the Holy Crown represents the continuity of the constitutional Hungarian statehood and national unity. Nevertheless, there is no evidence about whether or not the people embraced the Holy Crown during the era of the unwritten constitution. However, what can be known is that the awareness of the population about the (communist) constitution was not high in the 1960s and 1980s. In the 1960s, the legal knowledge of the population was uncertain, especially in the field of constitutional law,Footnote ⁴⁴ while in the 1980s, the content of the constitution was not really known.Footnote ⁴⁵ After the transition, there have been no studies specifically surveying the awareness of the population in the field of the historical constitution or the Holy Crown.Footnote ⁴⁶ This brings us to the issue of whether or not the Holy Crown represents statehood and independence to the extent that the FL creates a constitutional institution (historical constitution) and a basis in which our identity is rooted. In the efforts of finding some clarity in this regard, it is worth referring to the explanatory memorandum of Act I of 1920. The Act is about restoring constitutionalism and the provisional arrangement of the state sovereignty, and, as explained in its preamble, it was adopted by the new parliament as the sole legal representative of the national sovereignty (Article 2). The preamble recalls that the exercise of the power of the monarch had ceased to exist on 13 November 1918 and that the parliament elected in 1910 also ceased to function on the very same day. Therefore, the exercise of state sovereignty became impossible within the ordinary framework of the (historical) constitution. As opposed to this observation of the preamble, the Act itself refers to the constitution, based on which the new parliament is entitled to determine the other ways of exercise of the state power (Articles 1 and 9). The Act created the position of a popularly elected governor (Article 12), the sole representative of the executive power until the question of the head of state would finally be decided. The governor has the same power as the monarch did with certain restrictions (Article 13).

The explanatory memorandum explains that, throughout Hungarian history, whenever necessary, the provisional exercise of power was generally vested in one person, starting from the thirteenth century, due to the many governors who had held power. This practice was followed by Act LVII of 1921 on the dethronement of IV CharlesFootnote ⁴⁷ and Act XIX of 1937 on the expansion of the governor’s power and its election.Footnote ⁴⁸

These rules do not contradict the existence of the doctrine of the Holy Crown, as a symbol of a monarchy and the historical constitution in the interwar period. The form of state of this time was ‘monarchy without a monarch’, where the role of the monarch was substituted by a governor, as earlier, when it had been necessary. Nevertheless, it can also be argued that Governor Miklós Horthy substituted the king only until the adoption of the Act on dethronement (1921) and, after that, he governed the country in its own right. Notwithstanding the difference in opinions, the authors place the end of the historical constitution and the applicability of the doctrine of the Holy Crown in a period where Hungary did not have a written constitution and an explicit republican form of government. Act I of 1946 established a republic, without mentioning the interwar period. Its preamble focuses on the end of the monarchy in 1918 and the popular sovereignty, which belonged to the people that decided on the republican form of state in 1946. All of these seem to support the argument claiming that the doctrine of the Holy Crown is linked to the monarchy as a form of state and, along with the historical constitution, was dismissed by the subsequent power holders, that is, the subject of popular sovereignty in 1946, at the latest.Footnote ⁴⁹ It was also rejected by the first written and communist constitution, which advocated for the understanding of law and society from the perspective of the Soviet Union. The Holy Crown as a symbol was resurrected as a part of the coat of arms in 1990, and in 2000 it was given more symbolic importance – even public law relevance. The controversy emerged when it was inserted into the National Avowal of the FL, which, due to Article R), became an applicable constitutional provision. It seems that the Holy Crown is intrinsically interlinked to the era of the unwritten, historical constitution, which represents backward-looking constitutionalism.

10.3.3 The Jurisprudence of the CC

The CC started applying and interpreting the history-related FL provisions since 2012.Footnote ⁵⁰ It did so partly and mostly at the beginning of the 2010s, as constitutional law scholars have predicted, as suggested by advocates of the legal tenability of the concept of historical constitution. It has also coincided with the amendments to the FL. Accordingly, two phases of the jurisprudence of the CC on the historical constitution can be identified. The first phase features controversies that emerged within the body concerning the conceptualization of the term of the ‘achievements of the historical constitution’ and the interpretation of Article R). The second phase brought about the connection of the constitutional identity and the historical constitution emphasizing it ‘nation-uniting power’.

The identification of what ‘achievements’ are have been surrounded by debates within the CC and the application of Article R) as an interpretation rule has been considered underdeveloped by judges in their concurring and dissenting opinions.Footnote ⁵¹ Nevertheless, during the period of 2012–2020, the CC identified, for instance, the following achievements of the historical constitution:Footnote ⁵² judicial independence, separation of the judiciary and administration, administrative judiciary and justice, freedom of media, historical antecedents of disciplinary accountability of judges, freedom of religion and autonomy of churches, the law-making power of local governments.Footnote ⁵³ Reviewing the jurisprudence of the CC on the topic, it was concluded in both 2016 and 2020Footnote ⁵⁴ that the CC identifies laws that are in harmony with the FL as achievements of the historical constitution and simply does not refer to Article R) when something would not be in harmony with the FL. In this context, however, Article R), as an interpretation rule, is useless.Footnote ⁵⁵ The CC does not interpret the FL in the light of/in accordance with the ‘achievements of the historical constitution’, as would be required by Article R), but select the (ineffective) rules of the historical constitution in order to establish that its rule is in harmony with the FL.Footnote ⁵⁶ The vague text of the FL in this respect and the uncertainty of the constitutional terms do not serve legal certainty and the rule of law but provide an opportunity for arbitrary interpretation and abusive informal constitutional amendment.

Besides continuing this practice,Footnote ⁵⁷ in the second phase, after it introduced the term of constitutional identity into the Hungarian constitutional jurisprudence in its first identity decision in 2016, the CC linked the term ‘historical constitution’ with history, identity and sovereignty that could be abusivelyFootnote ⁵⁸ used against the collective entity to which Hungary belongs (i.e., the EU).

Nevertheless, the CC has not activated the concept of constitutional identity against any EU measures but used it to stall some politically sensitive constitutional reviews.Footnote ⁵⁹ The concept of the historical constitution, however, has been continuously employed. In 2019, a dissenting opinion of Béla Pokol to CC decision 22/2019 (VII. 05) emphasized the difference between the Western and the Hungarian constitutional developments of the eighteenth century. It explained that the Western model used the idea of constitutionalism against the status quo. As opposed to this, the emergence of the idea of historical constitutionalism in the 1850s in Hungary was not meant to be in opposition to the status quo but against integration into the Habsburg Empire. National independence and the defence of the country’s own statehood were at the centre of the reference to the historical constitution. Therefore, goes the argument of the judge of the CC, the achievements of the historical constitution should not be used as ‘historical anecdotes justifying the interpretation of the constitutional rules based on the contemporary democracy’ but in the sense mentioned: against integration into an empire.

This message has not gone unnoticed. It resurfaced in CC decision 32/2021 (XII. 20), which was initiated on behalf of the Government seeking an explicit ruling on the possibility of (non-)application of certain EU measures. It wanted a similar decision to that of the Polish Constitutional Tribunal challenging the primacy of EU law and its interpretation by the CJEU,Footnote ⁶⁰ which it welcomed in its governmental decision 1712/2021 (X. 9). This decision is entitled ‘on the Hungarian opinion be represented in connection to the ruling of the Constitutional Tribunal of the Polish Republic on the relationship between national law and the EU law’ and established the following: First, that the referred decision of the Polish Constitutional Tribunal ‘was triggered by the bad practice of the European Union institutions, which does not take into account the principle of the delegation of powers, and by the stealthy expansion of powers without amending the basic treaties of the European Union, tries to take away powers from the Member States that the Member States never transferred to the European Union’. Second, that ‘the primacy of EU law can only exist in those areas where the European Union has competence, the framework of which is laid down in the basic treaties of the European Union’. Third, that EU institutions ‘are obliged to respect the national identity of the member states, which is an inseparable part of their basic political and constitutional system’, while, also ‘the law-enforcement bodies of the Member States – especially the constitutional courts and courts – are also entitled to examine the scope and limits of the European Union powers’.

In this case of the CC in 2021, interpretation of the FL was sought because, in the view of the petitioner, the implementation of a judgment of the CJEU,Footnote ⁶¹ because of the ineffective EU measures, might lead to a foreign national illegally staying in Hungary for an indefinite period of time and thus becoming part of the Hungarian population. This would violate Hungary’s sovereignty and identity, which are based on its historical constitution. The CC interpreted the FL as follows: where the joint exercise of competences is incomplete, Hungary, due to the presumption of reserved sovereignty, can legislate until the EU institutions take measures necessary to ensure the effectiveness of the joint exercise of competences.

To achieve this result, the CC, among others, conducted the ‘fundamental rights review’ and the ‘identity review’. The CC argued that an incomplete joint exercise of competences could result in an infringement of the right of the identity of people living in Hungary. Therefore, the state must protect this right. Reading the decision, it becomes clear that the ‘self-identity of people’ is a newly created constitutional right. It finds its origin in a determinism approach that denies individualism and autonomy and individual and social/cultural change, and yet the CC links it to the right to human dignity. The CC stated that a man is born into a given social environment, which can be defined as the traditional social environment, especially through its ethnic, linguistic, cultural and religious determinants. These circumstances create natural ties, determined by birth, which shape the identity of community members and these circumstances cannot or hardly can be changed by the individual, and form an integral part of the human quality that stems from human dignity.Footnote ⁶²

Under the identity review, the CC, while recalling the text of the FL and Hungarian history, noted that Hungary has a European identity (National Avowal) and realized that the terms constitutional identity of Hungary and national (state) sovereignty intertwine. It explained, first, that constitutional identity manifests itself primarily through a sovereign act, adopting the constitution.Footnote ⁶³ Second, it clarified that taking into account Hungary’s historical struggles, the aspiration to safeguard the country’s sovereign decision-making powers is itself part of the country’s national identity and, through its recognition by the FL, of its constitutional identity as well.Footnote ⁶⁴ It also highlighted that the main features of State sovereignty recognized in international law are closely linked to Hungary’s constitutional identity due to the historical characteristics of our country.Footnote ⁶⁵ Against this background, the CC stated that the inalienable right of Hungary to determine its territorial unity, population, the form of government and state structure (Article E(2)) forms part of its constitutional identity.

The political intentions of the Hungarian Government and the case-law of the CC are deeply interconnected in this case, providing the bases for one another and, thus, challenging political liberalism in its sense of constraints and respect for the rule of law. The CC’s 2021 decision did not directly confront the mainstream approach of national constitutional courts and was quite restrained if compared, for instance, to the jurisprudence of the Polish and the Romanian constitutional courts,Footnote ⁶⁶ which challenged the constitutionality of some EU measures, including CJEU rulings. On the other hand, first, this stance also allowed the Government to declare that the CC accepted its position.Footnote ⁶⁷ Second, the CC not only gave a blanket authorization to the Executive but also implemented what the Government already laid down in its abovementioned decision 1712/2021 (X. 9), only two months before the delivery of the CC’s ruling. This decision of the Government was published on 9 October 2021, while the CC’s judgment was delivered on 20 December 2021.