by admin | Apr 6, 2023 | General, USA
Constitutional Case-Law in the Land of (Missed) Opportunities
After the introduction laid out in my earlier post on Hungarian Footnotes to the US CGC debate regarding judicial interpretation and the common good, (here), in the following I will present some of the findings of a term search for the common good (‘közjó’) in the case-law database of the Hungarian Constitutional Court (AB) and the most recent commentary of the 100 most influential AB decisions in the past 30 years (published in Hungarian in 2021, jointly by the Hungarian Constitutional Court (Alkotmánybíróság, AB) and the Social Sciences Research Institute of the Hungarian Academy of Sciences, to which I had the pleasure to contribute as a co-author.)
As the reference to the common good appeared in the Hungarian constitution in 2012 (cf. the Specific Interpretation Clause and its context presented here), it made sense to limit the inquiry to the post-2012 AB case law. As it will be seen, explicit references to ‘the common good’ (as ‘közjó’) do not appear substantially and substantively in majority argumentation (The specific historical, cultural and political factors that might have led to this situation have been detailed here). Concurring and dissenting opinions as well as academic analyses of certain key decisions tend to rely on some or deeper explanations of the common good aspect.
(NB The brief context and fact patterns of the cases can be read in the full version of this paper due to be published in Harvard Journal of Law and Public Policy in this coming semester.)
A closer examination of the sample cases in light of the common good demonstrated that there are not in fact any guiding lines in the past ten years along which any (literal) “common good jurisprudence” could be constructed. Explicit references to the common good in the context of constitutional interpretation
- are sporadic at best, turning up only once or twice every few years;
- might only appear in scholarly interpretations or analyses of certain decisions in an attempt to shed light on some of the considerations that the AB did not explicitly put to paper;
- surface in a variety of unconnected subject matters, ranging from freedom of information through consumer protection in the face of loan contracts to the acquisition of agricultural land and the right to property.
In light of this, I endeavor to identify points of convergence that may to some extent render certain patterns visible, which might – in the future – provide a basis for a Hungarian „common good jurisprudence”.
At first glance, the insignificance of the common good angle in shaping majority points of view of the AB is signaled by the fact that even at the beginning of the “reign” of the Specific Interpretation Clause (2012-2015), only two cases referred to it explicitly. One of these [21/2013 (VII.19.) AB] seems to allude to the role of the state, according to scholarly commentary,[1] regarding an argument that by assuring the broadest possible freedom of information the state definitely serves the common good.
2015 seems to mark the year when considerations of the common good made it to the level of majority decisions. In reference to what I have outlined so far here and above regarding scholarly contexts of the common good, 2/2015 (II.2.) AB makes reference to the state carrying out a public duty “in the interest of the common good, to protect the public interest” (see above). This formulation (i.e., the state protects the public interest in the interest of the common good) seems to be in somewhat of a contradiction with earlier scholarly determinations that the “common good” and the “public interest” are synonymous (cf. here) by clearly separating them and stating that protecting the public interest is necessary to realize the common good. The same decision mentions the role of the state, an angle that is picked up again in a 2016 decision.
In this 2016 decision [3091/2016 (V.12.) AB], a concurring opinion by Justice Ágnes Czine makes reference to the common good, by pointing to an approach in relation to the state’s Schutzpflicht (obligation to protect) of fundamental rights and its scope taken by the BVerfG, the German Federal Constitutional Court: “The decisions, representations, acts of the different levels of state decision-making brought in the name of citizens, fall under the obligation to protect fundamental rights, extending this obligation to all acts of state bodies and organizations, because this realizes the carrying out of such mandatory (public) duties that are intended to serve the common good. […] [T]he state takes charge of tasks entrusted to it for the benefit of individuals and is accountable to them.” (see: para. [72] of the Reasoning) The argument goes no further than this.
Another two years pass and the common good becomes relevant once again in scholarly commentary,[2] tied to a very controversial issue of Hungarian constitutional law, namely the standing and the right of public (state) organs to file constitutional complaints when their fundamental rights are violated [Act CLI of 2011 on the Constitutional Court, § 27 (2)-(3)].
In the case at hand [23/2018 (XII.28.) AB] a public organ ( more specifically the Hungarian National Bank, MNB) filed a constitutional complaint against a judicial decision and this raised many dogmatic problems (and some scholarly eyebrows along with these) in constitutional law, especially because
- A constitutional complaint is an instrument specifically designed to offer protections for individuals and their organizations against state violations of their fundamental rights protected by the constitution; and
- The complaint filed by the state organ in the case at hand was admitted for review and the AB annulled the challenged judicial decision of the Kúria.
The relevance of the common good to the interpretation of the law at hand is also touched upon in the above-cited scholarly commentary by Chronowski and Vincze dissecting the meaning of the Specific Interpretation Clause in a similar vein that was presented regarding its implications on judicial decision-making (here). As a reminder: in interpreting certain terms and the intent of the legislator, the Specific Interpretation Clause requires judges to presume (while interpreting a law or the constitution) that they have a purpose that (i) corresponds with common sense and the common good and (ii) is both moral and economical.
Conclusions: Hungary, The Land of (Missed) Opportunities?
Based on the elaboration of the different interpretive contexts of the common good as far as the definition goes in Hungarian scholarship (see: here), and based on the very few occurrences of explicit references to the common good in AB case law (summarized briefly above), especially in the context of the Specific Interpretation Clause, we can deduce that Hungarian constitutional jurisprudence does not provide fertile grounds for references to the common good in constitutional interpretation. In this sense, the argument could easily be made that contrary to the many well-ringing and sweet-sounding provisions of the Fundamental Law contextualizing indicators and elements of the common good, Hungary is the land of (missed) opportunities.
But why is this? In describing underlying factors shaping Hungarian judicial and constitutional interpretation (see: here), I argued that in general and gradually, the notion of the common good was gradually replaced primarily due to the appearance of capitalist structures and the dualism of public and private interests. We can find much more references to other elements of the Specific Interpretation Clause in AB case law, such as ‘common sense’ and ‘moral purposes’, at one point even humor [cf. 14/2019 (IV.17.) AB] appears as an interpretive excursion, but the ‘common good’ frame of reference is very scarce, as has been represented by the five examples found in 10 years of otherwise extensive case law.
Among the very rare substantive or substantial references of the common good, we can find only one, the last from 2022 (cf. above and below), which points to the fact that will most likely not be the AB that will take it upon itself to interpret the constitutional contexts of common good in protecting fundamental rights.
Thus, if Adrian Vermuele’s CGC approach is at any point to be considered in Hungary in judicial interpretation of the constitution on any level, this means that it might not at all become influential despite a specific constitutional reference to the common good, orienting judicial interpretation of the law and of the constitution. In this sense, this is certainly a missed opportunity.
Regardless, we need to be mindful that as an institution designed to protect the constitution, and if necessary, engage in its interpretation under standards defined by the General and Specific Interpretation Clauses, the AB may only engage in such interpretation that does not replace or result in lawmaking, encroaching upon the constitutionally reserved powers assigned to the legislator under the Fundamental Law. Ample case law reinforces this position since the very early years of the Hungarian constitutional jurisprudence, declared – among others – in a case regarding abortion regulation and the legal status of the fetus, to mention just one early example from the mid-1990s.
Most recently, the AB reiterated this stance once again, in 3083/2022 (II.25.) AB, when they declared that creating the balance between individual rights and the common good is typically not a question of constitutional law and therefore subject to adjudication by the AB. It is rather an issue of lawmaking to be handled by the legislator.
At this point, it seems relevant to mention what Casey and Vermuele (cited above) talk about, in terms of an “executive-led separation of powers above other ways of allocating authority”, which they consider advantageous from the point of view of CGC.
In Europe, in those countries that have adopted a parliamentary form of government, over time, an ‘executive-infused’ (if not -led) separation of powers became predominant (termed as ‘fusion of powers’), where actual executive and legislative functions are blended and bound to each other in many respects. In Hungary, this might eventually leave a bit of legroom for the government (headed by the Prime Minister) to influence lawmaking in the service of the common good and not miss an opportunity to do so, e.g. through instructing the ministries (the equivalents of U.S. departments) regarding what values to focus on when preparing regulatory concepts for laws to be adopted by the National Assembly that also help the government realize its working program and legislative agenda.
However, the draft legislative proposals (for Acts of Parliament to be adopted by the National Assembly) still have to go through the bodies of the elected legislature and be deliberated on more than once before being put to a closing vote in the plenary session. The elaboration of these procedural issues, however, is not pertinent to the subject matter of the article on some Hungarian aspects of the American CGC debates.
[1] Kerekes, Zsuzsa: 21/2013. (VII. 19.) AB határozat – a döntés-előkészítő adatok nyilvánossága. In: Gárdos-Orosz Fruzsina, Zakariás Kinga (eds.), Alkotmánybírósági gyakorlat. Az Alkotmánybíróság 100 elvi jelentőségű határozata (Társadalomtudományi Kutató, HVG-Orac 2021), 229-231.
[2] Chronowski, Nóra – Vincze Attila: 23/2018 (XII.28.) AB – Közhatalmi szerv alkotmányjogi panasza. In: Gárdos-Orosz Fruzsina, Zakariás Kinga (eds.), Alkotmánybírósági gyakorlat. Az Alkotmánybíróság 100 elvi jelentőségű határozata (Társadalomtudományi Kutató, HVG-Orac 2021), 893-894.
Márton Sulyok JD, LLM, PhD is an Asst. Professor (Senior Lecturer) in Constitutional Law and Human Rights at the Institute of Public Law, University of Szeged in Hungary. JD (2007, Szeged), LLM in Anglo-Saxon Law and English Legal Translation (2012, Szeged), PhD in Law and Political Sciences (2017, Szeged). Certified as an American Legal Expert (since 2009) in a joint training program of the University of Toledo College of Law and the University of Szeged Faculty of Law and Political Sciences. Currently, Prof. Sulyok is the Head of the Public Law Center at Mathias Corvinus Collegium (MCC) in Budapest, Hungary. Previously, he sat on the Management Board of the EU Fundamental Rights Agency (Vienna, 2015-2020), and currently he represents MCC on the Board of Directors of the European Public Law Organization (Athens, Legraina, Greece).
by admin | Apr 4, 2023 | European Union
One of the most basic principles of political thought is the fact that the essence of democracy, as the term’s origins reveal, entails the notion of giving the power of ruling (kratos) to the people (demos). Yet, to this day, the purest form of democracy, known as direct democracy has never existed in practice, instead, the system of indirect democracy has been adopted and applied by nation states worldwide. This should come as no surprise. As Churchill famously quoted: “democracy is the worst form of government – except for all the others that have been tried”. It would not only be impractical, but in fact impossible for a demos to vote about all issues together, as it is likely to consume most of their free time, moreover, people simply cannot be experts in all interdisciplinary matters involved in the governance of nations. To this end, in order to overcome the administrative burden of self-governance, it makes sense to elect specialised officials, who devote their time and expertise to representing citizens’ interests.
As a result, policymakers, and those in charge of governance structures have an inherent responsibility to enable citizens willing and able to devote more time to expressing their views on matters to do so, and reevaluate opportunities the implementation of which could enable a gentle shift towards the principle of direct democracy over time. With the formation and evolution of complex multi-level governance structures such as the European Union, the further away representatives are from their citizens, the less citizens are able to exert influence over the activities of their elected representatives, thus, at times, the ability of decision making on a European level to accurately reflect views and interests of the people often conveys the physical and psychological distance of Brussels from European citizens. This asymmetry of influence can result in a slow disillusionment of citizens concerning multi-level governance structures, questioning their legitimacy, and ultimately undermining their very existence long term. It is becoming increasingly clear, that while many in the European Parliament like to claim that they carry the uppermost source of democratic legitimacy, they are only using the European Parliament as a tool to expand their own powers and further their personal political agendas. But they are in a grave misunderstanding: direct source of democratic legitimacy remains within the walls of national parliaments and not the European Parliament.
Some Member States recognised the need to maximise the involvement of citizens in decision making earlier and accordingly developed innovative solutions on a national level to increasingly engage citizens in the process of policymaking. Hungary’s national consultations, a process launched in September of 2010 introduced by the freshly elected government led by Viktor Orbán sought to gather and analyze feedback from citizens on the most defining topics of contemporary Hungarian politics. The core aim of establishing National Consultations was to give a voice to people seeking to express their views on a wide variety of matters, including migration, the economy, family policy or the coronavirus. Relevant questionnaires, initially sent out by mail, later with the development of virtual infrastructure also made accessible online therefore provided a chance for millions of Hungarian citizens to voice their opinions on the most defining questions influencing their everyday lives. The National Consultations saw an unprecedented success, with millions of Hungarian citizens filling out and returning the questionnaires. This innovative institutionalisation of deliberative democracy has arguably contributed to the long lasting success of Prime Minister Viktor Orbán, intrinsically counter-weighing criticisms concerning the state of democracy and the rule of law in Hungary.
It always seemed somewhat surprising, that while EU officials were often the ones voicing loud criticisms concerning democracy and the rule of law, one of the main sources of disapproval concerning the European Union’s institutions is the claim that they are undemocratic and that their decision making or bureaucratic processes do not reflect the will of European citizens. Many continue to argue that the structure of the European Union is in fact overly static, failing to make use of technological developments, and as a result, there remains a lack of democracy and transparency in the decision-making process, which results in a constant democratic deficit. To this end, it is clear that EU institutions have an important task of ensuring they practice what they preach, and continue to look for solutions that help take into account interests and concerns of citizens more efficiently in relevant matters.
Technological development and the information revolution have evidently opened up new channels of quick and efficient communication. Giving the economy a new impetus to provide better products and more targeted marketing campaigns to consumers worldwide, similarly, it has provided politicians with an array of opportunities to reach out to and engage with their constituents, and better understand their needs in order to make more informed policy decisions. Nation state governments, with more citizen-centric governance structures were willing and able to implement solutions overtime to enhance the quality of democracy. Their example should also provide a key source of inspiration to leading officials of multi-level governance structures to strengthen the legitimacy of their functioning in the long run, delivering policy solutions that increasingly reflect the views and interests of European citizens. As Prime Minister Viktor Orbán has stressed, while in Hungary, National Consultations have been organised in order to reinforce the government’s family policy, “in Western Europe and Brussels no one ever asked the people about LGBTQ propaganda or migration”. While the EU is the world’s largest single market and the source of a wide variety of laws, it still has room for improvement regarding one key component to make it truly democratic: direct representation from European citizens themselves.
In recent years, the EU has indeed been facing numerous challenges that tested its democratic credentials. With a growing sense of disillusionment, European leaders saw that new steps needed to be taken to ensure that democracy remains an integral part of the European Union’s identity. Launched in May 2020, the Conference on the Future of Europe was a unique, unprecedented scale initiative launched by the European Commission to bring together citizens, civil society, and political leaders from across the EU to discuss and shape the future of Europe’s continent. With the use of a digital platform, it finally gave European citizens an opportunity to express their views on a variety of topics directly, by uploading opinions, ideas, and conference conclusions, starting a seemingly inclusive international dialogue about some of the most future defining topics of the 21st century.
In contrast with claims made by some EU officials accusing Hungarians of being eurosceptic, Hungary was one of the most active participants in the Conference on the Future of Europe, even advocating for an expansion of the Union. While Hungary’s Prime Minister was amongst the first to share his vision on the future of Europe, published in the form of seven theses, Hungarians organised and uploaded conclusions of hundreds of local conferences, quickly putting the country on the map of the most engaged Member States in the dialogue. Citizens truly believed that with their active participation and commitment, they would finally be able to tip the scale towards a European Union favouring voluntary cooperation between sovereign nations, as opposed to a federal European empire disregarding its diverse historic and cultural heritage.
While Hungarian citizens believed in the opportunity of change through sincere dialogue, hopes of technology paving the way to a more democratic European Union quickly faded. At the end of the day, it was revealed that the pan-European consultation was merely a tool to legitimise a pre-written script of the federalist elite, and that the initiative was not in fact aimed at gaining a true insight into citizens’ opinions, but instead, an instrument seeking to reinforce EU leaders’ own ideology, which placed a federal, nationless Europe at its core. At the end of the day, Hungarian citizens’ views failed to make it to the final conclusions of the conference, despite their unprecedented collective efforts to make their voice heard. Once again, instead of the principle of democracy, the discriminating issue of double standards prevailed. No wonder that eventually, fears arose that European integration has become an end per se, with elites seeking to create a federal empire, ultimately dissolving the very Member States that contributed to their rise.
Perhaps the most important lesson of the Conference on the Future of Europe is the fact that while democratic innovations can indeed pave the way to creating more democratic governance structures, in essence, technology is only a tool, and the outcome of a tool’s use fundamentally depends on the intention of the actor able to exert control over it. As history has often revealed, technology can be both constructive and destructive, and the results very much depend on the context in which technology is applied. If the intention of a tool’s owner is to enhance the quality of democracy using a bottom-up approach, as it proved to be in the case of Hungary’s National Consultations, it can achieve promising results long term, which in exchange will usually assure the success of those in charge with good intentions. On the other hand, a tool in the hands of an ideologically motivated elite can also be used in an attempt to further ideological goals top-down. After all, there is little doubt that federalist elites will sooner or later be faced with an exponential disillusionment of European citizens, as the contrast between their utopia and European citizens’ everyday reality further diverges. One thing is certain: Europe is in urgent need of a sincere, in-depth reality check.
Dr. Boglárka Bólya graduated summa cum laude from the Faculty of Law and Political Sciences at Pázmány Péter Catholic University. Later she studied European Studies at the University of Nice and obtained a Master’s degree in European Law in Brussels, ULB. She started her career as a paralegal, then she began working at the State Secretariat for European Union Affairs of the Ministry of Foreign Affairs. From 2003 to 2019, she worked in the European Parliament, first as a political adviser int the European People’s Party and then as a legal adviser to the EPP, and finally as Head of Unit for Legal and Home Affairs. She continued her career as legal adviser to the President of the European Parliament, Antonio Tajani, from 2017 to 2019. During the Hungarian EU Presidency in 2011, she chaired the Council working group on the drafting of the Treaty of Accession of Croatia to the European Union. From 2019, she was Deputy State Secretary for European Union Relations at the Ministry of Justice and then Chief Political Adviser to the State Secretary for European Union Affairs. Currently, she is working on the preparation of the Hungarian EU Presidency in 2024 as Ministerial Commissioner. She speaks English, Spanish, French and German and understands Italian. She is married and has 3 children.
by admin | Mar 12, 2023 | General
Judicial Interpretation and the Common Good
Whether or not this was his original intent, HLS Law Professor Adrian Vermuele stirred some waves by publishing his theory of Common Good Constitutionalism (CGC) arguing against the original method of American constitutional interpretation (more closely originalism) in that it no longer serves its purpose and cannot appropriately address current challenges of American constitutionalism. He proposed CGC because in his view ‘living constitutionalism’ cannot adequately address these issues either. He first wrote about CGC in the Atlantic, and “[it] is fair to say it did not go unnoticed.” His book by the same title (Common Good Constitutionalism, published by Polity Press in 2022) explains his ‘original public meaning’ of CGC, and it was widely reviewed, debated, cited and criticized across the board of American constitutional and political science scholarship for the better part of the past year and ever since. Given this momentum, the Harvard Journal of Law and Public Policy and the Harvard Chapter of the Federalist Society organized a CGC Symposium in October 2022, where I had the honor of moderating a panel of American, Irish and Canadian legal scholars on the Common Good. (The full research is set to be published in the Harvard Journal of Law and Public Policy during this coming semester.)
The academic debate, the book and the Symposium all offer an opportunity through this post (Part One) to look at how the common good appears and is interpreted in the context of the widely debated and often criticized Fundamental Law of Hungary. This new Hungarian constitution (in force since 2012) contains a General and a Specific Interpretation Clause, the latter of which mandates the presumption of the service of the common good – as well as other factors – when interpreting the purpose of laws and the constitution. The relevant constitutional provisions were partially amended in 2018 and Hungarian scholarship disagrees on the extent of changes to the interpretive methodology. This status quo renders the following analysis even more timely.
I. Interpreting Interpretation – For What Purpose?
For as long as courts first had the authority and power to interpret the constitution, judicial interpretation and its constitutional scope and extent has been central to global debates. The birth of ‘constitutional justice’ was a feat of interpretation itself carried out by the Supreme Court of the United States in Marbury v Madison, also shaping future European regimes. The Hungarian Constitutional Court (Alkotmánybíróság, AB) was first established in 1989 and molded in the Kelsenian (German-Austrian, centralized) tradition after the fall of Communism. The AB received interpretive powers through the adoption of the first democratic constitution and a preceding ‘constitutional convention’ (National Roundtable, NEKA) before the first freely elected democratic parliament voted on the constitutional text adopted by this ‘convention’. After more than 20 years, with the 2011 adoption of the Fundamental Law, Hungary’s new constitution by the National Assembly, specific provisions on its judicial interpretation have been created.
- The provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal [i.e. preamble] contained therein and the achievements of our historical constitution. [General Interpretation Clause,Article R) (3)]
- Courts shall interpret the text of laws primarily in accordance with their purpose and with the Fundamental Law. In the course of ascertaining the purpose of a law, consideration shall be given primarily to the preamble of that law and the justification [i.e. reasoning] of the [draft legislative] proposal or a proposal for amending the law. When interpreting the Fundamental Law or laws, it shall be presumed that they serve moral and economical purposes which are in accordance with common sense and the [common] good. [Specific Interpretation Clause, Article 28, last amended through the Seventh Amendment in 2018]
These two clauses have lead scholars and practitioners to revisit fundamental questions of judicial interpretation. According to some, the purpose of the Specific Interpretation Clause particularly its sentence containing the reference to the common good, was to move the judiciary out of its comfort zone. Others think that “the contradictions and misunderstandings in the interpretation rule stem from the fact that it is not clear whether it is a fiction or a matter of content”.
Whether is it is an issue of great controversy or an issue of comfort zones, the fact of the matter is that the Supreme Court of Hungary (Kúria, Curia) oversees ordinary jurisdictions without any constitutional authority. It is separate from the constitutional jurisdiction (AB), but responsible for the uniformity of the application of law and the consistency of judicial practice. In this spirit, two previous Kúria Presidents have tasked working groups over the past 10 years with looking at how the Specific Interpretation Clause has been applied in judicial practice, including AB jurisprudence (as judicial decisions are subject to constitutional review before the AB through ‘constitutional appeals’ called complaints). Having been assigned to one such working group in 2021, I prepared a comparative review (in Hungarian) of academic literature on judicial interpretation in light of the Specific Interpretation Clause.
In this short contribution, I intend to share some of my select insights and add to those others that seem relevant to judicial interpretation in light the common good, specifically focusing on the jurisprudence of the AB. Maybe this may affect or inform some of the debates on Common Good Constitutionalism (CGC) in the United States or in the wider Anglosphere as well.
Looking at the Interpretation Clauses (above), many questions arise, and there is apparent tension between the first and third sentences of the Specific Interpretation Clause, in that it is not clear whether the four values in the third sentence (i.e. moral and economical purpose, common sense and the common good) (i) relate to the purpose of the legislation; (ii) are independent interpretative criteria; or (iii) a ‘check’ on the result of interpretation. Prof. András Varga (the sitting President of the Supreme Court) sees the third sentence as a ‘verification rule’.
Hungarian constitutional scholar Johanna Fröhlich argues that the distinction between the interpretive standards of interpreting the constitution and ordinary laws exist only in the normative text as the Specific Interpretation Clause expressed the subjective intention of the legislator before the 2018 amendment as well, and the change that year was merely a refinement of that original intent. “On the other hand, it could be argued that […] the Seventh Amendment has at most changed the interpretation of the ordinary courts [i.e. by clarifying the purpose of the legislation], but not the rules of interpretation of the Fundamental Law.”
In a similar vein, Prof. Varga – in his work cited above – posits that the post-Amendment Specific Interpretation Clause is not ‘new’ as:
- “It does not define a new interpretative criterion, merely elaborates on an existing one”;
- It does not change the existing canon of interpretation, since “the new provision does not override the previous rule that the interpretation must take into account not only the purpose of the legislation but also its conformity with the Fundamental Law”.
- The Specific Interpretation Clause channels the General Interpretation Clause, i.e. in order to declare conformity with the constitution, the interpretation of the Fundamental Law will always be required, mindful of the requirements of both Clauses.
There is consensus in Hungarian academic sources – argues Krisztina Szigeti – that purposivist (teleological) interpretation is to be determined from the text of the law to be interpreted, in which the preamble of the law plays a decisive role. Through this, the post-2018 Specific Interpretation Clause explicitly drives judicial deliberation and discretion into hitherto alien territory regarding the definition of legislative purpose, especially through the obligation to examine preambular provisions or legislative justifications, and explanatory memoranda.
The Specific Interpretation Clause, moreover, also orients the interpreter with regard to the quality of the aim by an ex-post ‘verification rule’ (argues András Varga, cf. supra) with reference to the morality, economy, common sense and common good. Verification means that all interpretation must be weighed against the four values. However, if we accept this ‘verification thesis’, the interpretation most definitely opens up to metajuristic layers, which brings about its own problems.
Constitutional law professor Péter Sólyom considers the constitutional rules on interpretation a source of unnecessary uncertainty, seeing the Specific Interpretation Clause as a ‘futility of futilities’ that sets in stone many uncertainties that pitted the interpretation of the ordinary courts against each other and the AB’s ‘interpretive authority’ against the interpretation of ordinary courts (and the Kúria on top).
I think that judicial interpretation under the Specific Interpretation Clause is special when it comes to the constitution. A judge’s interpretative position is that of a ‘participant’, but interpretation also imposes an ‘observer’ position which, according to Johanna Fröhlich “is not bound by the rules governing the situation, its position is neutral, which allows it to look at the legal problem from an external perspective from which the facts of the situation observed can be objectively described.”
Under the Specific Interpretation Clause, I would also add that the judge as a ‘participant’ is bound by the concrete, specific legal rules ‘governing the situation’ and is ‘an active part of the interpretative decision’, but – as an ‘observer’ – he must also have an external (i.e. superior) point of view, which is not only determined (objectively) by the facts of the observed situation, but also by a ‘hermeneutic layer’ above and beyond them. This layer is intrinsically linked to the constitution and its content, and in this respect can be considered objective. In addition, the above-mentioned ‘verification rule’ specifies four ‘teleological constraints’ in interpreting the Fundamental Law or laws: moral and economical purposes, common sense and the common good.
Part II. Interpreting Common Good
II.1. In Hungarian Legal and Constitutional Scholarship
In this Part, a brief overview of the concept of common good seems necessary, focusing our inquiry onto the aspect relevant to the American CGC discourse. As very aptly put by legal theorist Prof. Péter Szigeti: “the mystery of public interest, public will, public or common good and of general interest has been a topic of discussion for more than 3000 years”. As state theory scholar Péter Takács argues (in the same volume as Szigeti) “the foundational idea of the ideal of the common good is that the association and cooperation of humans necessarily creates a unique group of goods, which in turn decisively affects the order of their relationships as well.”
Early notions of the common good are often related to principles of ‘commutative justice’, bearing on the mutual relationships of the members of the community, by harmonizing (ordering) their activities with each other, by respecting and representing common and mutual interests – Casey and Vermuele argue in this vein as well in analyzing myths of CGC in the Harvard Journal of Law and Public Policy. The second part of the preamble of the Fundamental Law provides a vision reflecting on these views, representing a vision for the Hungarian state and its communities:
- “human existence is based on human dignity”
- “individual freedom can only be complete in cooperation with others”
- “the family and the nation constitute the principal framework of our coexistence, and that our fundamental cohesive values are loyalty, faith and love”,
- “the common goal of citizens and the State is to achieve the highest possible measure of well-being, safety, order, justice and liberty”
In general, with the appearance of modern capitalist structures and relations, the notion of the common good was gradually deemed more and more inappropriate and became replaced by the dualistic structure of private vs. public interest. In this approach, the public/common good is such a concept that strives to realize or protect the public interest, and what it means might demonstrate a rich variety in historical terms as well as in the context of different legal systems. This is the summary of the arguments of Szigeti and Takács, cited above. However, Takács also writes that those who think that the references to the Holy Crown in the Fundamental Law represent a service to the common good are wrong. He calls abundant and exuberant references to the common good the corollaries and consequences of ‘shallow relativism’, operating based on the assumption that the content of the common good changes with the age, culture, or community of reference and is therefore impossible to define.
Casey and Vermuele hit a similar tone reacting to claims that the common good
- “is not simply […] a placeholder for whatever subjective preferences any particular official might desire to impose”
- “is an undefined notion […] both spatially and temporally”.
Considering these views extremely shortsighted, they conclude that the legal field cannot ignore its manifold representations through ‘cognates’ such as ‘common good’, ‘social justice’, ‘general welfare’, ‘public interest’, ‘public good’, ‘peace, order, and good government’. Takács (cited above) also deals with these notions and explains how ‘public will’ (közakarat) and ‘public interest’ (közérdek) – two accompanying terms of the common good – started substituting ‘public/common good’. He also argues that the use of ‘public interest’ is the continuation of the ‘common good’ in modern times. We can concede that these terms seem at least prima facie synonymous, and are ‘cognates’ of the common good (‘közjó’) as Casey and Vermuele argued above.
Coming soon, I will look at how and in what contexts the common good appears in the jurisprudence of the Constitutional Court of Hungary.
Márton Sulyok JD, LLM, PhD is an Asst. Professor (Senior Lecturer) in Constitutional Law and Human Rights at the Institute of Public Law, University of Szeged in Hungary. JD (2007, Szeged), LLM in Anglo-Saxon Law and English Legal Translation (2012, Szeged), PhD in Law and Political Sciences (2017, Szeged). Certified as an American Legal Expert (since 2009) in a joint training program of the University of Toledo College of Law and the University of Szeged Faculty of Law and Political Sciences. Currently, Prof. Sulyok is the Head of the Public Law Center at Mathias Corvinus Collegium (MCC) in Budapest, Hungary. Previously, he sat on the Management Board of the EU Fundamental Rights Agency (Vienna, 2015-2020), and currently he represents MCC on the Board of Directors of the European Public Law Organization (Athens, Legraina, Greece).
by admin | Feb 19, 2023 | Book Review
Towards a Dignified Discourse on Human Rights?
The universal respect for human rights should be the tie that binds, not divides our societies. Unfortunately, the currently raging conflict in Ukraine, the rising global tensions as well as the increasing shift in how the world views human rights makes this discourse unavoidable. In recent years, we have experienced the expropriation of interpretation in several legal questions. Albeit diversity and freedom of opinion are core values, interpretative tendencies that are locked into certain institutions or dynamics without giving any merit to outside input might lead – in our context – to the weaponization of human rights in various social and political situations instead of protecting individuals on legal grounds – as they should. One-size-fits-all legal interpretation minimizes the need and space for open discourse and exchange of views and, therefore, fastens political and societal polarization as well. This creates divide when it comes to individual needs, worldviews and interpretations not being heard, which contributes to ever-rising tensions. As a result, questions related to human dignity, fundamental rights, and values are becoming wedges rather than essential ties among us, actual tools for social cohesion.
The Authors of ‘Human Dignity and Law: Studies on the Dignity of Human Life’ (Guillermo F. Arquero Caballero, Grzegorz J. Blicharz, Carlos Espaliú Berdud, María Luisa Gómez Jiménez, Franciszek Longchamps de Bérier, Javier Martínez-Torrón, Federico de Montalvo Jääskeläinen, Liviu Olteanu, Maria do Céu Patrão Neves, José María Puyol Montero, Hugo S. Ramírez-García, Francesc Torralba and Luca Valera) recognized that unilateral interpretation in human rights advocacy is a zero-sum game, where no win-win scenario could be achieved. There is a need for competition in the ‘marketplace of ideas’ in order to respect our diversity and preserve alternative and valid legal interpretations in different cases. This book serves as a set of ideas on the various aspects of human dignity.
The Authors’ valuable contribution shows that we need new, renewed, and alternative ways to approach social conflicts to prevent driving society into disintegration. Hyper-judicialization of human rights and applying only one solution for all cases only lead to injustice. Therefore, based on our human dignity, we should rebuild a culture of respect for those who think and live differently. In this process, retrieving and rediscovering the concept and content of human dignity is crucial. The Authors provide an introduction into the ‘know-how’, by discussing the importance of the many aspects of upholding human dignity.
The current trend of monopolization in legal interpretation, where only one viewpoint is accepted, as they argue, leads to the weaponization of human rights and ultimately polarizes society. The Authors propose that there should be competition in the “marketplace of ideas” in order to allow for the respect of diversity and the consideration of alternative (concurrent) legal interpretations. The book draws on the concept of persona in Roman law, which posits that law exists to serve humans rather than the other way around. The authors argue that a return to this principle is necessary in order to rebuild a culture of respect for those who think and live differently.
In our understanding, the erosion of human dignity seems to be a result of intensifying migratory movements, changes in the reasons for migration, and the emergence of new technologies that challenge traditional definitions of humanity. The creation of artificial life and the modification of human bodies raise both social and legal questions about human dignity and the legal status of humanoid robots.
Step by Step
José María Puyol Montero, the author of the first chapter discussing these issues highlights the case of Sophia, a humanoid robot that was granted Saudi citizenship and appointed as an ambassador to the United Nations Development Programme, and discusses the impact on international relations and the consideration of robots as persons or objects under the law. The chapter also discusses the views of moralists in the 16th to 18th centuries on the dignity of Native Americans and enslaved Africans in the Spanish Crown and the efforts to protect their human dignity on moral and religious grounds. The author concludes that human dignity is an inherent aspect of being human that should be exercised as a responsibility for both personal development and the betterment of society.[1] This is why the birth of social rights[2] was such an impactful development, particularly when it came to labor law.
In addition to AI and emerging (disruptive) technologies, the gig (sharing) economy poses challenges to the protection of human dignity and labor rights due to the lack of clear legal categorization and the influence of algorithms and artificial intelligence on the measurement of trust. Grzegorz J. Blicharz argues that universal moral assumptions should be applied in these relationships due to the fact that contractors are human beings with dignity and human rights, regardless of the legal classification. This is where the issue of the wage-gap between men and women also comes up, as a potential threat to the betterment of society.
The next chapter discusses the concept of ecological citizenship, which involves the obligation to protect the environment,[3] and the importance of reshaping the relationship between morality and law in order to address humanity’s vulnerability and ensure the preservation of the planet.[4] Hugo S. Ramírez-García also mentions the need to redefine concepts such as citizenship in the face of technological advances, wars, and pandemics.
The following chapter discusses the impact of COVID-19 on human dignity and the projection of the “Red Queen Effect” (i.e. the constant need to adapt and evolve in order to survive) on public health policies. María Luisa Gómez Jiménez discusses the importance of human dignity in the design and implementation of health policies and the need to consider the long-term effects on the public’s trust and the sustainable development of the health system.
The final chapter discusses the concept of “dignity in the end of life“, including the right to a dignified death, the role of palliative care, and the legal regulation of assisted suicide and euthanasia. Francesc Torralba discusses the need to respect the autonomy and dignity of individuals in end-of-life decisions and the importance of providing appropriate palliative care.
Conclusions
Seeing how many different threats our society has to face, the motto of the European Union, “Unity in Diversity,” has been called into question in recent years. Are we really ‘united in our diversity’? Or our diversity became a ground for distinguishing and dividing us? We are living in a very controversial world where our personal features and values have become our own enemies and they can be weaponized against us by the click of a button. As a result, societies became very polarized; politics and extreme rhetoric are circulating ideological themes wrapped in trendy new layers of the concepts of ‘human rights’ and ‘dignity’. Human rights are supposed to provide cohesion at the social level due to their universality. However, the interpretation of human rights content and applicability might vary in each state or region, so due respect should be given to particularity. Instead, this trivial truth led to reshaped processes designed to tilt the role of human rights and dignity, transforming then into political weapons to fight ideological battles. A new layer of this is the digitalization and the evolution of certain technological solutions, which all affect human nature, human dignity, and its legal and social evolution.
The book bravely deals with these sensitive issues and express their professional opinion about human dignity and its conceptual elements based on the lessons learned from Roman Law. The fact that most of these chapters deal heavily with Artificial Intelligence and digitalization as part of the broader conversation about human dignity conveys a message about the state of human rights and which direction we should move. If we wish to preserve our environment and maximize our chances of avoiding another pandemic and uphold our rights in the digital age, new perspectives must appear in conversations about the place law holds in today’s society. However, we have to keep an eye on the original concepts and from time to time, we should go back to the roots, reinterpret and rethink those in the light of our present.
‘Human Dignity and Law. Studies on the Dignity of Human Life’ starts an overdue conversation about new aspects of the challenges we are facing and, in our opinion, does a very good job. It is an intriguing work that presents revolutionary ideas grounded in extensive and in-depth research. Its 306 pages and 12 longer chapters contain intriguing data, necessary for the new generation of thinkers to prepare for the unique challenges to come. Since the Authors recognized that unilateral interpretation of human rights is a zero-sum game, where no win-win could be achieved, we applaud that they opened the floor for a fresh and much needed debate on human dignity, human rights, and their protection.
Human rights issues are often complex and multifaceted, requiring a nuanced and respectful approach. Unilateral interpretation and one-size-fits-all solutions can lead to injustice and further polarize society. In order to achieve a win-win solution, it is important to consider multiple perspectives and engage in open and respectful dialogue. Only by approaching human rights issues with an open mind and a willingness to find mutually beneficial solutions can we hope to uphold the universal respect for human rights and prevent societal disintegration.
Lilla Nóra Kiss, PhD, Visiting Scholar and Adjunct Faculty, Antonin Scalia Law School, George Mason University, USA; Founding Member, Freedom and Identity in Central Europe (FICE). Email: lkiss@gmu.edu
Mónika Mercz, JD, specialized in English legal translation, Professional Coordinator at the Public Law Center of Mathias Corvinus Collegium Foundation while completing a PhD in Law and Political Sciences at the Károli Gáspár University of the Reformed Church in Budapest, Hungary. Mónika’s past and present research focuses on constitutional identity in EU member states, data protection aspects of DNA testing, environment protection, children’s rights and Artificial Intelligence. Email: mercz.monika@mcc.hu
[1] L. N. Kiss – O- J- Sziebig, “Defining the Common European Way of Life”, HUNGARIAN YEARBOOK OF INTERNATIONAL LAW AND EUROPEAN LAW 9, 2021, p. 111-131.
[2] W. Rosen, “The Most Powerful Idea in the World: A Story of Steam, Industry and Invention”, University of Chicago Press. 2012. p. 149. ISBN 978-0-226-72634-2.
[3] O. J. Sziebig, “The Implementation of the Aarhus Convention’s Third Pillar in the European Union – a Rocky Road Towards Compliance”, EUROPEAN STUDIES: THE REVIEW OF EUROPEAN LAW ECONOMICS AND POLITICS 6, 2019, p. 205-218.
I. Olajos – M. Mercz, “The use of the precautionary principle and the non-refoulement principle in public law – Or how far the boundaries of constitutional principles extend”, Journal of Agricultural and Environmental Law, Vol. 17 No. 32, 2022, p. 79-97. DOI: https://doi.org/10.21029/JAEL.2022.32.79
M. Mercz, “Constitutional or environmental law?”, Constitutional Discourse, 2022, https://www.constitutionaldiscourse.com/post/monika-mercz-constitutional-or-environmental-law (access 09.01.2023)
[4] The concept of Environment as a Public Concern is underlined by Elliott and Esty’s paper on this issue, “imposition of a credible risk of a risk without someone’s informed consent, not merely provable actual injury, should be cognizable as a harm that environmental law should address to the extent practical”.
by admin | Feb 9, 2023 | Tech & AI
Artificial intelligence-based algorithms are now of inescapable importance in many fields. Their applications include automatic content recommendation systems for streaming providers, chatbots (e.g. ChatGPT), Google’s search interface, etc. The applications listed above are designed to help users make decisions, find information, or organize the vast amount of information available online to make it easier to find what they are looking for. In fact, many of the most popular online services are nowadays unthinkable without the use of artificial intelligence since they make the navigation efficient and accessible to all in the vast amount of data present in the online space.
In addition to the above, however, other uses of digitized data can be envisaged, which are less obvious and are not necessarily aimed at satisfying the needs of the average user, but rather at serving market or political interests, even though (conscious or unintentional) invasion of privacy.
In the world of artificial intelligence, and specifically in its subfield of machine learning, the quantity and quality of training data is a key factor. In the traditional sense, privacy in the online / digital space can be defined as private conversations, social media posts and information related to the individual. However, in addition to these, users leave behind several online footprints that are either not protected at all or are protected by inadequate means by the legal rules on privacy.
Examples include data sets such as browsing history, content viewed, ‘liked’, individual contact networks, geolocation data, etc. Until the last decade, this information has existed mostly in isolation, on separate servers, under the ‘authority’ of different data controllers or collectors. However, from the point at which these data sources became interoperable (whether through the activities of data brokers or otherwise), they have given rise to a mass of data (mostly referred to as ‘big data’) which nowadays offers the possibility of psychological profiling of the source individual, micro-targeting of ads and content, or even the use of psychometric methods.
Unlike traditional information that people are basically aware of sharing (for example, uploading a photo), this data is often generated in ways that the user is not necessarily aware of. Nevertheless, by using it, machine learning algorithms can be a much more effective tool than before for profiling an individual, whether it is (automatically) recognizing and attributing values to a person, be it party preferences or other interests. Mapping groups thus formed (e.g., by unsupervised machine learning algorithms) back to the individual is the key to developing effective and automated opinion-forming techniques.
The process by which data is “turned into gold” in the right hands[1], and the ways in which it can be used to serve business or policy interests is a multi-stakeholder process that involves a range of technological innovations, emerging trends, regulatory challenges, and perspectives.
In response to the insatiable demand for data from machine learning algorithms, there is now an entire industry dedicated to collecting and selling user data in the most efficient and detailed way possible. Given the rapid progress in both IT and artificial intelligence research, it is reasonable to assume that the problems we are already seeing (data leaks, manipulation, micro-targeting, psychometric profiling, etc.) will only get worse in the future without the right regulatory environment or may be replaced by new challenges that are not yet foreseen.
Among the (already existing) uses of artificial intelligence that are of concern, this paper presents some of the ways in which it can be used to influence election outcomes. The issue of political polarization in social media is also discussed in more detail.
Electoral manipulation
In modern democracies, weaponized / manipulative AI poses a serious threat to the fairness of elections, but also to democratic institutions more generally. In the case of elections, the outcome can be influenced in several ways, in line with the interests of a third party.
The attacks, carried out by artificial intelligence used for malicious or even economic, political interests, can take the form of “physical” attacks (such as paralysis of critical infrastructures or data theft), or psychological effects that poison the voters’ trust in the electoral system, or discredit certain public actors[2].
In the present context, micro-targeting refers to personalized messaging that has been fine-tuned based on previously collected data about a given user, such as an identified psychological profile. Messages targeted in this way are much more likely to influence or even manipulate opinion than traditional advertising techniques.
This is exemplified by the suspicious cases of abuse uncovered by the Mueller report[3] in the US in connection with the 2016 presidential election, one of the main arenas of which was/is social media platforms.
The heightened concern about such activities is illustrated by the fact that, following the introduction of the GDPR[4], several EU Member States have initiated investigations against companies involved in data collection. For example, the Irish Council for Civil Liberties (ICCL) report[5] raises serious concerns about the activities of Google and other large-scale operators whereby data collection companies auction information about users, linked to their real-time geolocation, to potential advertisers and then transmit the data packets to the ‘winning’ bidder (Real Time Bidding – RTB). In several of the cases studied, the data transmitted in this way included sensitive health characteristics such as diabetes, HIV status, brain tumors, sleep disorders and depression[6].
The report found that in some cases, Google’s RTB system forwarded users’ data packets (which may have included the above-mentioned sensitive data without filtering) hundreds of times a day. The value of the data, and the seriousness of the leak, is illustrated by the fact that (also according to the report) it was used by some market/political actors to influence the outcome of the 2019 Polish parliamentary elections.
In doing so, OnAudience used data from around 1.4 million Polish citizens to help target people with specific interests when displaying election-related ads. According to the company, although the data packets were processed and transmitted anonymously, they were still uniquely identified to specific, real individuals. Moreover, these identifiers can be linked to the databases of other companies and thus continue to form a single profile[7]. This implies not only a threatening market behavior in terms of compliance with the GDPR, but also in terms of violation of privacy rights.
Opinion bubbles and political polarization
In addition to the above, it is also significant that social media platforms, to maximize users’ time on the platform, typically present content that best matches the personality of the user, i.e., that is most likely to be of interest to them.
This kind of (AI-enabled) content pre-screening has highlighted two new and important problems in recent years. The first is the problem of the often-false positive feedback generated by the homogeneity of the ranked content, and the second is the issue of political polarization often associated with it.
The former is driven by the phenomenon that social media platforms are making it possible for people to connect with others who share a similar worldview to their own on an unprecedented scale. This kind of social selectivity, coupled with the content filtering technologies[8] of the platforms, results in the creation of psychosocial bubbles that essentially limit the extent of possible social connections and interactions, as well as exposure to novel, even relevant information[9].
This phenomenon has been studied since the 2010’s, mainly based on informatics and structural measures of online behavior and social networks[10]. Among the later research, the Identity Bubble Reinforcement Model (IBRM)[11] stands out, with the dedicated aim of integrating the social psychological aspects of the problem and human motivation into the earlier results. According to this model, the expanded opportunities for communication and social networking in social media allow individuals to seek social interactions (mainly) with people who share and value their identity. This identity-driven use of social media platforms can ultimately lead to the creation of identity bubbles, which can manifest themselves in three main ways for the individual:
- identification with online social networks (social identification),
- a tendency to interact with like-minded people (homophily)
- and a primary reliance on information from like-minded people on social media (information bias).
Within social media, these three elements are closely correlated and together reflect the process of reinforcing the identity bubble.
Psychometrics
The data generated online can also be used to make predictions about users’ personality traits. One of the priority areas for these is psychometric use. This is closely related to the use of the online footprint (and its connection with the right to privacy and confidentiality) and is now also known as a possible technique for influencing voter opinion.
Psychometrics (psychometrics – psychometry) is the field of psychology that deals with testing, measurement, and evaluation. More specifically, the field deals with the theory and techniques of psychological measurement, i.e., the quantification of knowledge, skills, attitudes, and personality traits. Its classical tests aim to measure, for instance, the general attitude of employees in a work environment, their emotional adaptability, and their key motivations, but also include aptitude tests to assess the success in mastering specific skills, or classical IQ tests as well[12].
In the context of social media, and big data in general, the concept came to the fore mainly in the context of the 2016 US presidential election, along with another technique, micro-targeting.
The name of Cambridge Analytica, which first received significant media attention in July 2015, shortly after the company was hired by Republican presidential candidate Ted Cruz’s team to support his campaign, is inescapable on this topic.[13]. Although the campaign was unsuccessful, Cambridge Analytica’s CEO claimed that the candidate’s popularity had increased dramatically thanks to the company’s use of aggregated voter data, personality profiles and personalized messaging / micro-targeting techniques. The firm could also have played a role in shaping the outcome of the Brexit campaign according to a familiar scenario[14]. In 2016, it was also suspected that US President Donald Trump had also hired the company to support his campaign against Hillary Clinton. In this context, there are reports that Cambridge Analytica employed data-scientists who enabled the campaign team to identify nearly 20 million swing voters in states where the outcome of the election could have been influenced[15]. Winning voters in these states could ultimately and significantly boost Trump’s chances in key states, as well as in the general election[16].
The company also claims that one of the keys to their success has been the combination of traditional psychometric methods with the potential lies in big data. Their free personality tests, distributed on social media platforms, promised users more information about their own personality traits at no cost[17]. The data submitted could then be linked by Cambridge Analytica to the name of the submitter and a link to their profile[18].
The resulting data set (supplemented by other public and private user data) allowed the company to classify some 220 million US voters into 32 different personality types, which could then be targeted by the ads that most appealed to them[19].
Given the right amount of data, the method can be implemented in reverse; after collecting the same data from users who were not profiled by the survey as those who were surveyed, this data can be used as input for machine learning models that can then classify users who were not previously profiled into the personality groups mentioned above. Although the real success of Cambridge Analytica’s methods has not been clearly established, the moral, political and security concerns surrounding the company undoubtedly highlight both the potential of the use of online footprint data and the ways in which it can be used in ways that are legally unregulated or morally and ethically questionable.
Taken together, the above illustrates the potential lying in the use of the ever-increasing amount of data currently available on the internet. However, given that the so-called ‘data-driven economic model’ (where the primary source of profit is not industrial production, but peoples’ attention) is not yet fully developed, the ethical and legal concerns that have already been raised undoubtedly highlight the risks of further proliferation and refinement of AI-based technologies, leaving many questions unanswered.
Conclusion
Initiatives are already being taken to tackle these problems. For example, the European Union’s efforts to achieve digital sovereignty[20] seek to respond to the uneven distribution of artificial intelligence capacities (research, infrastructure) in the world, which is currently to the detriment of the Union. Significant progress has been made with the adoption of the GDPR in relation to the processing and use of personal data, but (as the above-mentioned report of the Irish Council for Civil Liberties and Justice reveals) it is far from clear that in practice what is an effective and appropriate way forward on issues that are not currently regulated and in terms of detecting abuse.
Given that the function of law is primarily to respond to social and technological changes that have already occurred by fine-tuning the regulatory environment, a comprehensive study of the problems related to AI from a legal perspective is also essential.
Another issue that is not discussed in detail in this article, but which is also of particular importance, is the question of the contrasts that the use of AI-based capacities concentrated in the hands of the state entails. Such capacities can be used both to defend liberal democracies and to build authoritarian (and/or surveillance) states, as the People’s Republic of China has done, for instance, by introducing a ‘social credit system’[21].
After examining the issues involved, perhaps the most important finding is the need to improve the regulations surrounding artificial intelligence, to update them to meet the challenges of the times, and to develop cyber defense procedures that can detect, predict and possibly prevent manipulative techniques using artificial intelligence.
[1] The quote refers to a common saying, especially in the United States, which emphasises the data-based dimension of economic growth: ‘Data is the new gold’. (e.g., Rachel Nyswander Thomas: Data is the New Gold: Marketing and Innovation in the New Economy https://www.uschamberfoundation.org/data-new-gold-marketing-and-innovation-new-economy (Accessed: 12. 22. 2022.)
[2] In addition, artificial intelligence can be used to amplify the effects of efforts to distort election results, such as gerrymandering, which are not really relevant to the topic of this paper. Cf. Manheim, Karl – Lyric, Kaplan: Artificial intelligence: Risks to privacy and democracy. Yale JL & Tech. 21, 2019 p. 133 – 135.
[3] Robert S. Mueller, III: Report on the Investigation Into Russian Interference in the 2016 Presidential Election:(https://www.nbcnews.com/politics/politics-news/read-text-full-mueller-report-n994551 Accessed: 12. 19. 2022.)
[4] (EU) 2016/679
[5] [5] Ryan, Johnny: Two years of DPC inaction on the ongoing RTB data breach – Submission to the Irish Data Protection Commission (21 September 2020): https://www.iccl.ie/wp-content/uploads/2020/09/1.-Submission-to-Data-Protection-Commissioner.pdf
[6] Ibid. 6-7.
[7] Ibid. 5.
[8] For example, ranking content in the newsfeed according to relevance and interests.
[9] Kaakinen, Markus –Sirola, Anu – Savolainen, Iina – Oksanen, Atte: Shared identity and shared information in social media: development and validation of the identity bubble reinforcement scale, Media Psychology, 23:1, 25-51, 2020, p. 25-26.
[10] Pariser, Eli: The filter bubble: What the Internet is hiding from you. London, England: Penguin, 2011
[11] Zollo, Fabiana – Bessi, Alessandro – Del Vicario, Michela – Scala, Antonio – Caldarelli, Guido – Shekhtman, Louis – Quattrociocchi, Walter: Debunking in a world of tribes. PloS ONE, 12(7), 2017
[12]Krysten Godfrey Maddocks: What is Psychometrics? How Assessments Help Make Hiring Decisions: https://www.snhu.edu/about-us/newsroom/social-sciences/what-is-psychometrics (Accessed: 12. 22. 2022.)
[13] Vogel, Kenneth P. – Parti, Tarini: Cruz partners with donor’s ‘psychographic’ firm: https://www.politico.com/story/2015/07/ted-cruz-donor-for-data-119813 (Accessed: 12. 22. 2022.)
[14] Doward, Jamie –Gibbs, Alice: Did Cambridge Analytica influence the Brexit vote and the US election? https://www.theguardian.com/politics/2017/mar/04/nigel-oakes-cambridge-analytica-what-role-brexit-trump (Accessed: 12. 22. 2022.)
[15] Blakely, Rhys: Data scientists target 20 million new voters for Trump: https://www.thetimes.co.uk/article/trump-calls-in-brexit-experts-to-target-voters-pf0hwcts9 (Accessed: 12. 22. 2022.)
[16] González, Roberto J.: Hacking the citizenry?: Personality profiling, ‘big data ‘and the election of Donald Trump. Anthropology Today 33.3, 2017, p. 9-12.
[17] The results could be evaluated according to the Big Five personality model, a long-established, fundamental concept in personality psychology research about the classification of an individual’s personality traits into factor groups. These main traits are extraversion, friendliness, conscientiousness, emotional stability, and culture/intellect.
[18] Harry Davis: Ted Cruz using firm that harvested data on millions of unwitting Facebook users: https://www.theguardian.com/us-news/2015/dec/11/senator-ted-cruz-president-campaign-facebook-user-data (Accessed: 12. 22. 2022.)
[19] Confessore, Nicholas –Hakim, Danny: Data Firm Says ‘Secret Sauce’ Aided Trump; Many Scoff: https://www.nytimes.com/2017/03/06/us/politics/cambridge-analytica.html (Accessed: 12. 22. 2022.)
[20] EPRS Ideas Paper – Towards a more resilient EU: Digital sovereignty for Europe: https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/651992/EPRS_BRI(2020)651992_EN.pdf (Accessed: 12. 23. 2022.)
[21] Nicholas Wright: How Artificial Intelligence Will Reshape the Global Order – The Coming Competition Between Digital Authoritarianism and Liberal Democracy: https://www.foreignaffairs.com/articles/world/2018-07-10/how-artificial-intelligence-will-reshape-global-order?check_logged_in=1&utm_medium=promo_email&utm_source=lo_flows&utm_campaign=registered_user_welcome&utm_term=email_1&utm_content=20221108 (Accessed: 12. 23. 2022.)
István Üveges is a researcher in Computer Linguistics at MONTANA Knowledge Management Ltd. and a researcher at the Centre for Social Sciences, Political and Legal Text Mining and Artificial Intelligence Laboratory (poltextLAB). His main interests include practical applications of Automation, Artificial Intelligence (Machine Learning), Legal Language (legalese) studies and the Plain Language Movement.
