János Tamás PAPP: Regulating online platforms in the USA: How Section 230 became a seemingly insurmountable obstacle (Part II.)

As we discussed in our previous post, at its inception, Section 230 was seen as a boon for the internet. It protected burgeoning platforms from a potential onslaught of litigation. Without such protections, these platforms might have been wary of allowing user-generated content, fearing lawsuits at every turn. Given the volume of posts, comments, and shares, it would have been an insurmountable task for platforms to vet every piece of content for potential liability. Thus, Section 230 provided the shield necessary for these platforms to grow and for the internet to flourish as a space for open discourse. However, the very protections that spurred the growth of these platforms have now become a double-edged sword. As these platforms have evolved into influential giants, so too have the complexities of the content they host. Misinformation, hate speech, and divisive or incendiary content have become commonplace. The once-celebrated virtual town squares now carry the potential to distort public perceptions, fuel societal divisions, and even sway elections.

Given these challenges, the call for regulation is understandable. However, the U.S. government’s hands are tied, to a large extent, by Section 230. Any attempts to hold platforms accountable for user-generated content run into the protective wall of this statute. For instance, if a piece of false information is propagated on a platform leading to real-world harm, the platform remains shielded from any liability due to Section 230. This makes it challenging to incentivize platforms to be proactive in managing and moderating content. Every move towards oversight must be measured against the right to freedom of speech. There’s a fine line between curbing harmful content and stirring genuine discourse. Additionally, the global nature of these platforms means that regulations in the U.S. might have implications worldwide, or alternatively, global content can impact U.S. users, complicating the jurisdictional scope.

Moreover, Section 230 blurs the lines between a platform and a publisher. Traditional media entities, like newspapers or television networks, are held to strict standards of accuracy and can be liable for spreading false information. In contrast, social media platforms, while influencing public opinion just as potently, if not more, escape these responsibilities. They enjoy the vast reach and influence of publishers without the accompanying accountability. The dichotomy of Section 230 becomes even starker when one considers the algorithmic nature of these platforms. While they might not create content, they undoubtedly influence its reach. Algorithms decide which content is highlighted on user feeds, potentially amplifying some voices while muting others. This curatorial role is akin to editorial decisions in traditional media, yet the platforms remain absolved of the responsibilities that accompany such power.

Because of Section 230’s protection, social media companies have been largely free to develop their own content moderation policies without fear of legal repercussions. If these platforms decide to remove content or leave it up, Section 230 protects their decisions either way. This autonomy has made it difficult for regulatory attempts that aim to hold platforms accountable for user-generated content or misinformation. Furthermore, any government-led effort to mandate specific moderation practices could run into First Amendment challenges. Section 230 allows platforms to navigate the tension between open forums and moderating content without becoming entangled in consistent legal battles.

A recent decision by a federal appeals court that has eased some restrictions on the Biden administration’s interactions with social media companies. The court determined that the White House, the FBI, and top health officials cannot coerce or significantly push social media companies to remove content deemed as misinformation by the administration, particularly related to COVID-19. Nevertheless, the ruling did narrow an injunction by a Louisiana judge that previously prevented the administration from any communication with social media firms. This injunction will remain in place for the White House, the FBI, the CDC, and the surgeon general, but will not affect other federal officials. The court has allowed the administration a period of 10 days to seek a review from the U.S. Supreme Court. This case originated from two lawsuits, one by a group of doctors and another by a conservative nonprofit organization. Both accused the administration of infringing upon their free speech rights by pressuring social media platforms to censor their content.

Addressing the challenges posed by Section 230 is not straightforward. Repealing it entirely could stifle free speech, as platforms, fearing litigation, might opt for excessive censorship. On the other hand, letting it stand in its current form allows platforms to sidestep the broader societal responsibilities. There’s also a concern about the potential impact on smaller platforms or startups, which might lack the resources for extensive content moderation. Without the protections of Section 230, they could be exposed to debilitating lawsuits. Therefore, regulatory measures that would place more responsibility on platforms for user content have to grapple with the broad immunity granted by Section 230. This isn’t to say that social media platforms can’t be regulated at all, but Section 230 does present a significant hurdle for legislators and policymakers looking to place greater accountability on these companies for the vast amount of content circulating on their platforms.

Section 230, while foundational in shaping the internet we know today, has become a significant roadblock in the path of meaningful regulation of social media platforms. As society grapples with the influence and impact of these platforms, a nuanced reconsideration of Section 230 is imperative. Striking a balance will be complex but essential to ensure that the digital spaces remain open for expression while being safeguarded against their potential detrimental impacts. It’s a testament to the evolving nature of technology and society, where laws once seen as catalysts can become impediments, necessitating reflection and reform.

János Tamás Papp JD, PhD is an assistant professor at Pázmány Péter Catholic University, Hungary, and a legal expert at the Department of Online Platforms of the National Media and Infocommunications Authority of Hungary. He has taught civil and constitutional law since 2015 and became a founding member of the Media Law Research Group of the Department of Private Law. He earned his JD and PhD in Law at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University. His main research fields are freedom of speech, media law, and issues related to freedom of expression on online platforms. He has a number of publications regarding social media and the law, including a book titled „Regulation of Social Media Platforms in Protection of Democratic Discourses”.

Adria NIESSNER: The Right to a Healthy Environment – A Corporate Obligation?

Heatwaves, wildfires, and storms have marked the past months, showing alarming signs of climate change. It is not surprising, for this reason, that decarbonization objectives, emission reductions, and new legislation have made headlines for the past several years. A focal point of the climate change debate has been the existence – or lack thereof – of the universal right to a healthy environment. Recently, a Global Coalition advocating for the universal recognition of the human right to a clean, healthy, and sustainable environment was the recipient of the prestigious 2023 UN Human Rights Prize, which gives reason for optimism for future generations. This article will touch on recent developments of the right to a healthy environment, and how in light of this the new Corporate Sustainability Due Diligence Directive proposal (CSDDD proposal) could help in achieving ESG (environmental, social, and governance) goals.

Though the right to a healthy environment is not explicitly guaranteed in international human rights law, several treaties make reference to it[1], and it is accounted for in most national legislation as well. According to a report of the UN Human Rights Council’s Special Rapporteur, by 2020, 110 States protected the right to a healthy environment in their constitution, and 101 States incorporated it into their national legislation. In total, more than 80 percent of Member States of the United Nations legally recognized the right to a safe and healthy environment either through their own acts, or by ratifying treaties and regional agreements.[2]

The role of international law is non-negligeable when establishing international legal standards and offering last-resort protection through international courts, however in reality, the protection and enforcement of rights is mostly a national task. Hungary presents a good example in this case, as the right to a healthy environment is protected under Article XXI Paragraph (1) of the Fundamental Law. The Fundamental Law not only is the highest level of legal norm in Hungary, meaning all other laws and regulations must be consistent with it, but it also contains the most essential values and norms of society. The formulation of Paragraph (1), recognizing and endorsing the right of “everyone” does not delimitate a special group of persons, or give basis to a subjective right, but rather highlights the duty of the state to ensure the enforcement and protection of this right. Paragraph (2) of this Article also provides that anyone who causes damage to the environment shall be obliged to restore it or bear the costs of restoration as provided for in other acts. This not only guarantees a tangible protection, but also the status quo of the right to a healthy environment and the prohibition of rollbacks, also known as the ‘non-derogation principle’ or ‘principle of non-regression’, meaning the possible future weakening of environmental policies already in place.  Non-regression [LK(1] was already declared in 1997 by the Hungarian Constitutional Court, stating that the level of protection provided for under national acts may not be reduced, unless it is unavoidable during the enforcement of another constitutional right or value, and even so, it must not be disproportionate to the objective pursued.

Although some international treaties made indirect references to the right to a healthy environment, such as the 1966 International Covenant on Economic, Social and Cultural Rights, as well as the 1989 Convention on the Rights of the Child, and some explicitly mentioned it (1998 Aarhus Convention, 1991 African Charter on Human and Peoples’ Rights), the biggest step forward until recently was the Parliamentary Assembly of the Council of Europe’s (PACE) recommendation to draft an additional protocol to the European Convention of Human Rights and the European Social Charter to protect the right to safe, clean, healthy and sustainable environment. This was deemed necessary by the PACE because even though it acknowledged that the ECHR’s case law provided indirect protection in cases where other human rights were also infringed upon, no per se protection was ensured. In its resolution of 5 October 2021, the United Nations Human Rights Council recognized the universal human right to a safe, clean, healthy, and sustainable environment.  

With the progressive recognition of the right to a healthy environment as a basic right, companies and businesses will also have to adjust their practices to comply with regulations and requirements. It is in this context that the Corporate Sustainability Due Diligence Directive proposal, as the most recent development in CSR, will bring changes to companies’ environmental duties as well. At its current state, the proposal’s scope extends to most large companies formed in accordance with the legislation of a Member State fulfilling certain conditions regarding its employees and yearly turnover, as well as to companies formed under the legislation of a third country with a net yearly turnover of at least 150 million euros in the EU, or with a turnover between 40 million and 150 million euros, of which 50% concerns one of the highlighted sectors, such as agriculture, mining, the textile industry, agriculture, food and beverages.[3] This makes the scope of the proposal rather wide, encapsulating the major actors in sectors with the highest environmental impact. In fact, according to research, agriculture made up to 8.5% of all greenhouse gas emissions, and the fashion industry 10% of the globe’s carbon emissions.

Under Article 6 of the proposal, companies will have to take appropriate measures to identify actual and potential adverse environmental impacts arising from their own operations or those of their subsidiaries or established business relationships. Companies will have to take appropriate measures to prevent or adequately mitigate these impacts among others through prevention action plans, by asking for contractual assurances, by making necessary investments into production processes and infrastructures. In the case of an adverse impact, they shall take action to minimize the extent of such impact, or develop a corrective action plan, and in some cases even suspend commercial relationships with the partner in question or terminate the business relationship with respect to the activities concerned.

The proposal for the new directive also contains an article specifically combating climate change and an obligation for companies to comply with the 1.5 Celsius degree global warming limit laid out in the Paris Agreement. Supervisory authorities with adequate powers and resources to carry out tasks assigned to them, and to request information and carry out investigations will also have to be appointed.[4]

Though the new Directive lays down the foundation for an extensive environmental company policy, the implementation of mandatory environmental practices raises greenwashing concerns. Greenwashing, or the act or practice of making a product seem more environmentally friendly or less environmentally damaging than it really is, has been on the rise since an increase of demand for environmentally conscious products and practices have lead some firms to prioritize communication to maximize profits, instead of being actually concerned for the social good. Research found that in case of a “background threat” such as legislation, companies are less likely to implement actual beneficial action, as opposed to joining voluntary agreements. Though consumers are willing to make their everyday life greener, a lack of information at the point of sale and misleading commercial practices to the sustainability of products makes them easily fall victim to greenwashing practices. It was recently found in a study conducted by the European Commission that over 80% of websites surveyed contained green claims, with 53.3% of them being vague, misleading, or unfounded. This also raises the question of whether companies will comply with the CSDDD proposal, or will content themselves with continuing misleading practices and merely putting up a façade for authorities.

Nevertheless, the recognition of the right to a safe and healthy environment by the United Nations Human Rights Council and the proposal to implement it in both the European Convention of Human Rights and the European Social Charter will greatly enhance the safeguarding of this right, while also opening the possibility for litigation in front of the European Court of Human Rights, adding an extra barrier of protection. The new Corporate Sustainability Due Diligence Directive also points in this direction, reaffirming environmental duties of care, while also hopefully ensuring real incentive for companies to comply with the new rules.

[1] For example: Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, opened for signature June 25, 1998, 2161 UNTS 447 (entered into force October 30, 2001). African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 UNTS 3 (entered into force Sept. 2, 1990).

[2] Annex 2 of ’Right to a Healthy Environment: Good Practices: Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy, and Sustainable Environment’ (EA/HRC/43/53) https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/355/14/PDF/G1935514.pdf?OpenElement (Accessed: 31 July 2023)

[3] CSDDDP, Article 2.

[4] CSDDDP, Article 18.

Adria NIESSNER is a final year law student at Eötvös Loránd University and Master student at the joint Hungarian and French law program of Panthéon-Assas and Eötvös Loránd Universities. She is a Corporate Legal Intern at a leading international law firm in Budapest and she specializes in corporate and employment law.

Thomas CROMWELL: EU Social Policy: Supranationalism vs. National Interest (PART 2)

The Case of Hungary

In leading up to this article (here) I suggested that the European Union is overreaching the authority vested in it by its members, and that this is ultimately a matter of morality. I further suggested that European civilization was built on Judeo-Christian values, that should be used in determining the proper relationship between the EU and its members, and that this can be done by employing what I call the Cain-Abel paradigm. In this Part II, I will elaborate on this thesis with regard to EU Social Policy, focusing on the role and behavior of the EU Commission, and will look at the specific case of EU overreach regarding the content of text books in Hungary.

The Flimsy Foundations for EU Social Policy

Strategy papers do not have binding legal force compared to international human rights agreements and treaties. Even though the papers may include definitions, member states are not obliged to accept them, especially when these definitions touch on member states’ competences and prerogatives. For example, national legislatures have the right to define marriage in their family law in a manner consistent with prevailing norms in their society, norms that may not hold for a group of EU bureaucrats or ‘experts’ who see themselves as qualified to dictate such definitions for all member states.

This misuse of power is evident in the European Commission’s European Gender Equality Strategy 2020-2025, announced on March 5, 2020. The strategy ostensibly aims to ensure gender equality in all policy areas in order to achieve real equality between men and women. Although gender equality is vital, the Strategy uses this widely supported purpose to push a much broader political and social agenda. Thus instead of defining what it means by ’gender’, the Strategy uses the definition of gender used in the Istanbul Convention on preventing and combating violence against women and domestic violence. The Istanbul Convention is not an EU legal source, but it was adopted by the Council of Europe, signed by the members of the Council and some non-members of the Council and the EU itself, such that it required ratification by Member States.

Interestingly, the Istanbul Convention—due to its sensitive legal-political implications on defining terms (such as gender) which are in the competence of nation states—was not ratified by the following countries: Armenia, Bulgaria, Czechia, Hungary, Lithuania, Latvia, Slovak Republic, United Kingdom and Ukraine. Turkey denounced it in 2021. The EU recently joined the convention, despite many of its members not having ratified it. This demonstrates that EU leadership is willing to trample on Member State rights on behalf of a social agenda being advanced by a small lobby of radical Leftists.

Furthermore, the European Commission adopted its LGBTIQ Equality Strategy on 12 November 2020. This Strategy is not a law. It is a policy being advanced by the Commission (similar to the Gender Equality Strategy). However, it touches upon politically sensitive issues (such as defining genders) that again infringe on the Member States’ prerogatives and competences. The Cain-like nature of this document lies in the way it seeks to ’make law’ by using sources that provide cover for its destructive, extra-constitutional agenda. The Commission uses ’soft’ sources to incentivize the Council of the European Union and the European Parliament to create ’hard’ law.

The LGBTIQ Equality Strategy refers to primary legal sources—Treaties, the Charter of Fundamental Rights—to wrap its agenda in the language of human rights and non-discrimination. However, fighting discrimination is possible under the existing legal framework —which is cited in the strategy paper. Gender equality is already secured by the Charter of Fundamental Rights (EU) and is applicable to all EU and member institutions insofar as they implement EU law. Furthermore, there is already a great deal of EU law to implement that was enacted to counter discrimination on a broader scale. And gender equality is provided for everyone under International Public Law, the European Convention on Human Rights and UN Treaties.

The point is that the notion of equality arises from our Judeo-Christian culture and the belief that all people are ’children’ of God and therefore naturally of equal value. Thus, it is not necessary to define genders on the EU level to ensure gender equality within the EU or in member states. If anything, such rules are overly redundant and contribute to the general feeling of creeping over-regulation. Thus, it is evident that the purpose behind the two EU Commission strategy statements is clearly other than what gender equality means in existing international agreements and treaties. And by imposing the policies embedded in these strategies, the Commission is clearly overstepping the competences the member states originally intended to grant it—also known as ‘competence creep’.    

The two strategies reveal, then, an agenda to go beyond existing pan-European and even global norms to accommodate a specific set of interests of a particular minority community. This is a clear abuse of Brussels’ power which seeks to impose a gender ideology on all the people of Europe, irrespective of their varying beliefs. This is a Cain-type abuse of the EU bureaucracy. For the many Europeans who treasure traditional family values, this is not an innocent, let alone moral, intervention by the EU.

Hungary Falls Afoul of EU Overreach

Hungary, a Virginia-sized, post-Socialist country in Central and Eastern Europe, is strongly committed to the Judeo-Christian values that underpin Western Civilization and is ready to stand up for these values. Hungary values its EU membership—and securing it was a priority for Budapest after it got free from Soviet hegemony at the end of the 1980s. In the context of this article, at issue in the dispute over the content of text books is the extent to which EU membership gives the EU’s governing bodies the right to impose on Hungary a social agenda that Budapest is opposed to. Hungary argues that it already has comprehensive anti-discrimination legal protection mechanisms which are in line with EU law and international requirements.

Moreover, the Fundamental Law of Hungary prohibits all kinds of discrimination, including discrimination on the basis of sex, and declares equal rights for men and women. Furthermore, the EU Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities contains detailed rules on the requirements of equal treatment, including explicitly prohibiting discrimination based on sexual orientation as well as gender identity under Article 8. Equal treatment-related issues are dealt with by a separate unit of the Office of the Commissioner for Fundamental Rights, which is called the Directorate General for Equal Treatment.

Besides primary legal sources, the EU adopted secondary legal sources (such as the Directive 2005/29/EC on unfair commercial practices) in support of the single market. Some of these sources may have human rights aspects. For example, a state may breach the unfair commercial practices directive by requiring additional steps from certain groups of sellers to be permitted to sell their products in the state–conditions not applied to other sellers. This may be interpreted as discrimination, unless it is justified by public interest. The legal battle starts, then, when states consider distinguishing between certain industries and groups as justified by a national interest. However, while they consider their actions to fall within their national jurisdiction, the EU Commission may consider the practices at issue discriminatory. This is the situation where infringement proceedings occur that relate to alleged non-compliance with obligations arising under EU law.

Navigating the Intersection of Ideology, Law, and Supranationalism

The Hungarian Consumer Protection Authority recently obliged the publisher of a book for children that seeks to explain LGBTIQ people, to include a disclaimer that the book depicts forms of “behavior deviating from traditional gender roles.” The Commission considered that by imposing an obligation on the publisher to provide this disclaimer, Hungary was limiting the freedom of expression of the authors and book publishers (Article 11 of the EU Charter of Fundamental Rights); discriminating on grounds of sexual orientation in an unjustified way (Article 21 of the EU Charter of Fundamental Rights), and incorrectly applying the EU rules on unfair commercial practices (Directive 2005/29/EC). 

In addition to imposing the book disclaimer, Hungary adopted a law in June 2021 which in particular prohibits or limits access to content that promotes or portrays the so-called ‘divergence from self-identity corresponding to sex at birth, sex change or homosexuality’ for individuals under 18. The EU Commission agreed that the protection of minors is a legitimate public interest which the EU shares and pursues. However, in this case the EU claimed that Hungary had failed to explain why the exposure of children to LGBTIQ content as such would be detrimental to their well-being and not in line with the best interests of the child.

The Commission claimed that this law violates a number of EU rules. First, the Audiovisual Media Services Directive (AVMSD) had been breached as regards standards for audio-visual content and the free provision of cross-border audiovisual media services, since Hungary had put in place unjustified and disproportionate restrictions that discriminate against people based on their sexual orientation. Second, some of the contested provisions infringe the e-commerce Directive (namely the country of origin principle). The law prohibits the provision of services displaying content showing different sexual orientations to minors, even if these services originate from other member states. Third, Hungary failed to justify restricting cross-border information services. Fourth, Hungary failed to notify the Commission in advance of its decisions, although doing so is required by the Single Market Transparency Directive. Fifth, the Commission considered that Hungary has violated the Treaty principles of the freedom to provide services (Article 56 TFEU) and the free movement of goods (Article 34 TFEU), by failing to demonstrate that the restrictions are duly justified, non-discriminatory, and proportionate. Sixth, the right to data protection laid down in the GDPR and Art. 8 Charter are violated by some of the contested provisions. Finally, the Commission believes that Hungary’s actions violated EU laws that apply to human dignity, freedom of expression and information, the right to respect privacy as well as the right to non-discrimination as enshrined respectively in Articles 1, 7, 11 and 21 of the EU Charter of Fundamental Rights. Because of the gravity of these violations, the contested provisions – argues the Commission – also violate the values laid down in Article 2 of TEU.

What is the function and purpose of the law in this case, especially in the context of the EU legal framework?

European and international human rights protections are supposed to provide broader guarantees for individuals than states are able to do. However, when EU laws protecting human rights are used to advance a social or political agenda that is not accepted by member states, this represents an abuse of the EU Commission’s authority. The breadth of LGBTIQ issues is based on a set of values that are not consistent with the Judeo-Christian values on which Western Civilization is built. This is also true of gender theories that claim gender and biological sex are not the same. 

Hungary has good reason and every right to exercise caution before allowing these ideas to be widely circulated among children in its educational institutions. In some Western countries, LGBTIQ theories and their promotion are responsible for waves of transgenderism among young girls in particular, resulting in irreversible damage and exceptionally high suicide rates. (See, for example, Abigail Shrier’s book: Irreversible Damage: The Transgender Craze Seducing Our Daughters.)

Since the EU’s infringement case against Hungary is ongoing, we do not know what the EU Court of Justice will have to say about the issues discussed here. This is highly relevant to the case because it touches on moral issues that inevitably affect the lives of individuals. And while the EU claims it is intervening in Hungary’s decision-making on behalf of pan-European values, we would argue that the EU is using pan-European principles of justice and equality to disguise what is in fact a set of ideas and values which, if allowed to take hold across Europe, will destroy the very foundations of our civilization.

Concluding thoughts

Hungary is standing up for values that are essential for civilization. It is protecting children from information they have no need of and no way of processing appropriately—information that is neither scientific nor moral by traditional Judeo-Christian standards. It is not in accordance with the best interests of the children and their mental, spiritual, moral and social development as promoted by the UN Convention of the Rights of the Child. The EU is unjustly using laws protecting equality as a cover for a radical social agenda that Hungary rightly recognizes as extremely damaging to its young people, families and society as a whole. In this field, the EU is overstepping its legitimate authority and abusing its power as a regional organization.

Thomas Cromwell was born on a Christian communal farm in Shropshire, England. He moved to America with his parents at age 14. After 13 years there, he spent 25 years in the Middle East as a journalist, publisher and peace-builder, studying the monotheistic faiths in their homelands and working to promote understanding among the diverse communities in the region. He traveled throughout the Communist world before the fall of the Soviet Union, learning first-hand about life under Marxist regimes. His work and curiosity about human civilization have taken him to 130 countries so far.

Thomas CROMWELL: Individual, Familial and National Rights vs. EU Overreach (PART 1)

Historical, Civilizational and Legal Perspectives

As the European Union’s power over its members continues to expand, the rights of these members are increasingly being challenged by rules emanating from Brussels that are not granted to the EU by treaty, but which are imposed on flimsy or even unconstitutional grounds. This is particularly the case in the realm of social policy, where EU bureaucrats seek to establish rules for members that are without foundation in EU law and often are in direct contravention of the social norms in a member state’s society. This scenario was recently highlighted when the EU sued members Hungary and Poland for imposing restrictions on the inclusion of material dealing with homosexuality in textbooks for young school children. Not only that, but Brussels held up funding for Budapest when it failed to comply with the EU intervention over this matter.

The United Kingdom left the EU, since a majority of voters there believed the EU was violating Britain’s national sovereignty by imposing an excessive number of (unnecessary and unwelcome) rules on their country. Brexit was a warning shot across the bows of the Brussels ship of state, but there is little evidence the shot was heard, based on the high-handed manner in which Hungary and Poland have been treated since Brexit.

I believe that there are profound principles at stake here, not only for the EU but for other would-be or actual regional or international organizations (such as the United Nations and the World Economic Forum) that are tempted to wield enormous political, economic, financial and/or military power to impose their will on others.

The sacred value we must protect and uphold is individual freedom, whether of a person or a nation. The American revolution was historically important because it was fought in the cause of freedom, in this case from the outstretched hand of a distant ruler, the British monarch. The republic forged on that principle changed the world for good. The same cannot be said of the influence of socialist-minded leaders who, in the name of securing equality and ‘social justice’ for all, are seeking to use the institutions and mechanisms of the European Union to impose their own values on all institutions and individuals within the EU. We saw all too much of that in the last century, and we paid an enormous price in human death and misery beating back the forces of Socialism, Communism and Fascism.

I suggest that the rules of good human behavior apply to good international relations, and that we have to look to pre-history for the archetypal behavior that caused (and still causes) human conflicts, on all levels. I elaborate on this theory in a book I published recently: The Triumph of Good: Divine Providence, The Cain-Abel Paradigm, and the End of Marxism. In it I describe history as being shaped by an invisible Divine Providence that is constantly being opposed by a Satanic Anti-Providence. In modern times, these two trends have been evident in very different movements to secure personal freedoms and just government: The first represented by Magna Carta, England’s Glorious Revolution, the American Revolution and the rise of morally-grounded democracies; the second by the French Revolution, Russian Revolution, Marxism and Neo-Marxism and the destructive ideologies and brutal regimes they produced.

The American revolution led to the establishment of a republic that deemed its citizens’ rights to be God-given, and set in motion a global trend towards the establishment of democratic systems that respect individual rights, and delivered unprecedented freedom and prosperity. In contrast, the French Revolution gave birth to the destruction of the ruling class through a violent and bloody uprising that denied Divine Sovereignty and foreshadowed Communist and Fascist revolutions and regimes. These brought about great suffering, loss of life and widespread poverty in totalitarian states.

Marxism claims to be the “scientific socialism” that was missing in the French Revolution of 1789 and which Marx, Engels and Lenin saw was also missing in the bloody uprising in the Paris Commune of 1871. (It was Lenin’s additions to Marxism that made it an effective instrument of violent revolution and Communist dictatorship.) Dissatisfied Marxists in the 1920s and 30s would seek to apply what was essentially a politico-economic theory of revolution to wider social and psychological issues, and founded the Frankfurt School, which developed Critical Theory. This was followed by an even more radical break with traditional Marxism by a French school whose luminaries were Michel Foucault and Jacques Derrida. They rejected any notion of absolute values or natural laws, let alone a Divine origin for our existence. Their ‘Postmodernism’ began to gain influence in the 1960s and 70s, and today their Critical Theories are the dominant social theory in Western academia. (Foucault is the most cited source in the social sciences.[1]

It’s worth noting, however, that Marxism is anything but scientific: It certainly does not meet the tests of the physical sciences and is not supported by the social sciences either, most glaringly by modern economic theories and practices—as demonstrated by the failure of every single attempt to use Marxism to run an economy. By making no claims to conform to the principles of science, Postmodernism has developed Critical Theories like post-colonialism, CRT, Queer Theory and Transgenderism that are the product of skewed research and personal prejudices unfettered by science.  

Yet policies based on Marxist and Critical Theories are being forced on EU members by activists animated by personal agendas and power ambitions that are producing harmful social trends. This is a dangerous trend that needs to be understood and countered.

This analysis has two parts. In the first, it looks at the broad issue of EU overreach, why this is inconsistent with the founding purposes of the European Union, and why it represents a trend that could destroy the union, if not checked. The second looks at the specific case of Hungary and its dispute with the European Union based on Budapest’s insistence that it has every right to preserve its own cultural values. 

European Union Overreach

The overreach of a central European bureaucracy has always been a concern for independent-minded people and governments, and only intensified as the European Economic Community (EEC) morphed into the European Communities (EC) and then, in 1993, into the European Union (EU), this last step signifying a move from an economic to a political union—with a single currency (the Euro) introduced in 1999 and a massive corpus of laws and regulations binding on all member states. According to British Social Attitudes surveys, from 1993 to 2015 “Euroscepticism” increased among the population from 38% to 65%.[2]This would suggest that the sentiment leading to a 2016 referendum vote for Brexit was building over decades.

Another warning signal of this Euroscepticism trend occurred when the EU proposed a European Constitution that was rejected in 2005 by voters in France and the Netherlands, despite a massive publicity push to get it approved by all members. In France, only French socialists approved of this further step towards European integration.

More recently, on August 10, 2022 Polish Prime Minister Mateusz Morawiecki accused the EU of imperialist behavior towards smaller Member States, stating that ” the positions of Germany and France count more than all the others, so we are dealing with a formal democracy and a de facto oligarchy in which the strongest hold power.” These are strong words, but they reflect the frustration of smaller European countries that cannot compete with the influence of France and Germany in the EU. The EU lawsuits against Hungary and Poland demonstrate Morawiecki’s point perfectly, and all member states would do well to pay attention to these simmering frustrations if they don’t want to force further Brexits.

A Historical, Legal and Moral Framework for Judging EU Overreach

Later in this article we will look at some of the specific problems of the EU’s prosecution of Hungary and Poland, but at this point I want to set up a framework for looking at EU overreach from the perspective of benefit versus harm, good versus evil. This may sound strange, or irrelevant, but if you consider that the Mosaic Law is foundational to the rule of law in Judeo-Christian Civilization, it is far from irrelevant.

What is the Mosaic Law? It is based on the Ten Commandments that for the first time set moral parameters for the Jewish people—upon their exodus from captivity in Egypt. All their laws (as elaborated in Leviticus, Deuteronomy and Numbers), as well as many of the laws that govern our societies, derive from these basic commandments.

But even before Moses there were moral laws embedded in society, since the first story of human existence in the Bible describes the first man and woman being instructed to refrain from eating “the fruit of the Tree of the Knowledge of Good and Evil.” Their disobedience resulted in their alienation from the Creator and the appearance of evil on earth, first fully manifest when Cain killed his younger brother Abel.

As Jordan Peterson put it in a 2017 lecture: Cain and Abel are “prototypical human beings… Humanity enters history at the end of the story of Adam and Eve, and then the archetypal patterns of human behavior are instantaneously presented… The first two human beings engage in a fratricidal struggle that ends in the death of the best one of them. That’s the story of human beings in history.[3]

Cain and Abel represented relative standards of good and evil. Neither was perfect because of their shared alienation from the perfect Creator, but Cain represented the values and policies that diminish individual freedom and rights in favor of irresponsible self-interest and the use of force to achieve selfish ends, while Abel represented those values and policies that advance personal freedoms as God-given rights. History has been shaped by these two opposite forces contending for influence in society. When ‘Abel-types’ prevail, the Divine Providence and good advance; when ‘Cain-types’ prevail, the Satanic Anti-Providence and evil advance.

The great advance for good represented by the establishment of a democratic republic in America was due to the Founders recognizing that government itself should exist to protect the individual rights of citizens rather than the citizens existing to protect the rights of government and the ruler. In totalitarian states, the government plays a Cain-type role in society by subordinating the rights of citizens to the self-interested will of the state.

In the EU context, for national governments to do good, they must protect the rights of their citizens, while the pan-European institutions should protect the rights of the national governments to perform these rights-protecting functions of national government. As Lord Acton noted, however, power is corrupting and few governments can resist the temptation of accruing ever greater power over their people (in the name of “serving the People”, of course). In Marxism-Leninism, the government of the Socialist pre-cursor to the perfect Communist state should be a “dictatorship of the proletariat”. The wretched, blood-stained history of Socialist and Communist countries has been written by Cain-type megalomaniacs seeking ever more power over increasingly less-powerful, Abel-type citizens, with the rulers always resorting to force when they deem it necessary to retain power.

When the EU imposes the social agenda of a small minority population on the national governments of its member-states, it is abrogating its responsibility to protect national governments in their prerogative to protect their citizens’ rights and freedoms. This is Cain-like and destructive. It must be resisted by the national governments on behalf of their citizens.

We are contending here that laws seek to translate moral virtues and values into enforceable statutes. As such, the ‘moral law’ provides the background to the nation’s laws. In the United States, the Supreme Court is often divided on issues because so-called ‘originalists’ (notably Thomas, Alito, the late Scalia, for example) insist that the Constitution must be interpreted as its authors intended, whereas ‘liberals’ (Breyer, Sotomayor, the late Ginsberg, for example) see the Constitution as a ‘living document’ that should be updated to meet the needs of our time. Rulings that favor the wider ‘liberal’ agenda (i.e. influenced by Left-leading ideology, including removing religion from the public square, or making ‘gay marriage’ legal nationwide) are typically the work of ‘liberal’ majorities on the court, and they represent the undermining of the traditional values that guided the Founders.

In the EU case, we would argue that interpretation of the law should be guided by the foundations of European civilization, namely the morality embedded in Judeo-Christianity. That morality is summarized in the Cain-Abel paradigm, which can serve to inform the view of European justice systems as they decide on how European laws should be applied or modified to serve the interests of a morally-anchored Europe. If Lady Justice (Justitia) is unable to make such discernments wisely, she will be unable to provide the much-needed guidance to limit the overreach of a Brussels intoxicated by its ever-expanding power.

[1] See, for example, this May 12, 2016 survey from the London School of Economics (LSE), by Elliott Green: What are the most-cited publications in the social sciences (according to Google Scholar)? Only Foucault has two books in the list of 25 most cited books in the social sciences, giving him a winning total of 108,655 citations.

[2] Brian Tarran. April 8, 2016. The Economy: A Brexit Vote Winner? Significance, Volume 13, Issue 2, April 2016, Pages 6–7, https://doi.org/10.1111/j.1740-9713.2016.00891.x

[3] Jordan B. Peterson. 2017. Biblical Series V: Cain and Abel: The Hostile Brothers.
Video: https://www.youtube.com/watch?v=44f3mxcsI50;
Transcript: https://www.jordanbpeterson.com/transcripts/biblical-se-ries-v/

Thomas Cromwell was born on a Christian communal farm in Shropshire, England. He moved to America with his parents at age 14. After 13 years there, he spent 25 years in the Middle East as a journalist, publisher and peace-builder, studying the monotheistic faiths in their homelands and working to promote understanding among the diverse communities in the region. He traveled throughout the Communist world before the fall of the Soviet Union, learning first-hand about life under Marxist regimes. His work and curiosity about human civilization have taken him to 130 countries so far.

Anna NÉMETH: Right to apply to the courts

Have you ever filed a lawsuit in court, or do you know someone who has? For us, citizens, it can be part of our everyday lives to be involved in such procedures. However, one might not fully grasp the true importance of having the right to access the courts and the underlying constitutional ideas and considerations. This particular right encompasses various aspects. I invite you to be part of the journey to explore the significance of the right to apply to the courts in legal systems and touch upon related issues through international and Hungarian national sources.

First, it needs to be acknowledged that the right to apply to the courts is an integral part of the right to a fair trial.[1] Article 6(1) of the European Convention on Human Rights explicitly states the right to a fair trial, affirming that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”[2] The right to apply to the courts is not explicitly mentioned in the Convention; and while in retrospect, it might seems obvious that it lies between the lines, it was the European Court of Human Rights that provided clear guidance and solidified the understanding that these two rights are indeed intertwined.[3] The European Court of Human Rights held in Golder v. the United Kingdom (21 February 1975) that “in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.”[4]  With that said, the Court ruled that Article 6 includes the right to apply to the courts. On the other hand, the Court also noted in this case that the right to access a court is not absolute and can be limited. This principle was further elaborated in the case of Airey v. Ireland (9 October 1979)[5], where the court established that it is not enough to have access to the courts, but it must also be effective. Thus, the right to apply to the courts cannot fulfil its purpose if it remains merely theoretical and citizens do not have a genuine opportunity to access a court. When examining the true effectiveness of this right, numerous aspects come to mind, such as the availability of a legal aid system for parties facing financial difficulties, the provision of legal representation, and the presence of impartial judges.

But whose responsibility is it to build this framework? It may look easy to answer this at first, but in reality, it can get complicated. We will return to this topic later, but for now, let us take a look at how the right to apply to the courts appears in the Hungarian legal system.

Just like in the European Convention on Human Rights, the right is not mentioned literally in  Hungarian Fundamental Law. The right to apply to the courts derives from Article XXVIII paragraph (1) of the Fundamental Law. The paragraph states that “Everyone shall have the right to have any indictment brought against him or her, or his or her rights and obligations in any court action, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act.” It is hard not to notice that the text of the Fundamental Law very much resembles the text of the European Convention on Human Rights.

As mentioned earlier, in order to effectively exercise the right to apply to the courts, one must take other factors into consideration: This right relies on a comprehensive framework, comprising elements of constitutional significance. One might ask whose task it is to make sure this framework is intact and everything works in favor of effectiveness. Undoubtedly, the answer to this question lies with the State: the right of the citizens is often an obligation of the state. And obligations often require proactive action. The right to apply to the courts places an obligation on the state to — among others — provide a judicial channel for the resolution of disputes.[6] This was stated in the Decision 59/1993 (XI. 29.) of the Constitutional Court.[7] This judicial channel or tribunal should be able to conduct “a fair and public hearing within a reasonable time” as it is mentioned in the Fundamental Law. Another pillar of this topic concerns, as we have seen, the features of said tribunal: it must be “independent and impartial”. Certainly, the mentioned qualities are usually not clear-cut — they can only be judged in the light of the proceedings as a whole and the circumstances of the case. What might be a reasonable time for one case, might be unacceptably long when considering another case; in the end, reasonable time and other elusive principles are all outcomes of assessment.

Regardless of how flexible and interpretation-dependent these rules might be, they serve as safeguards for the right to a fair trial and, consequently, the right to apply to the courts.

As discussed, many things need to be in order to ensure that citizens have the righ to go to court. But even if all is in order, it does not mean anybody is obliged to go to court. The right to access a court also includes the right not to go to court.[8] The Hungarian Constitutional Court recognized this in its early years[9], and they stated: “A party’s constitutional right to take his or her case to court – like other rights of freedom – includes the freedom not to exercise that right.”[10] This aspect does not require further elaboration in the current context, but it is important to acknowledge the freedom not to exercise the right to access a court.

Last, but not least, we shall talk about how the right to access a court is connected to the monopoly of the courts to exercise judicial functions. This monopoly is a crucial aspect of the separation of powers in a democratic society. It ensures that only the courts have the power to resolve legal conflicts and that their decisions carry legal weight and binding authority. It means the executive powers and legislative powers cannot interfere with judicial powers, which keeps the justice system free of politics and impartial. Yet, state courts are not the only options when seeking a forum to settle a dispute. There are alternative dispute resolution options, which coexist with the monopoly of the courts, to exercise judicial functions through the principle of party autonomy. As mentioned, the negative dimension of the right, the right not to go to court, is a part of this freedom. But not going to court does not necessarily mean one does not want the dispute at hand to be settled; it might just mean that one feels more comfortable with other options of dispute settlement and is therefore not exercising his or her right to go to court. For example, the parties to a contract have the right to submit their dispute to arbitration by contractual agreement. Or parties can choose to engage in mediation, where they try to reach mutually acceptable agreements through facilitated negotiations. There are many options, but the main concept of all is the autonomy of the parties. These procedures are less constrained, and parties have an influence on them. The question is, can the above-mentioned guarantees of a fair trial apply to these proceedings? How far can the autonomy of the parties reach? Do courts or law, in general, have a say in what kinds of decisions can be made at the end of these alternative roads? And what does the European Union think about the connection between the right to apply to the courts and alternative dispute resolution options?

In my subsequent discussion, I will delve into these points and analyze potential insights surrounding these topics.

Laws, conventions

European Convention on Human Rights, https://www.echr.coe.int/documents/d/echr/Convention_ENG Accessed 1 July  2023


Rimaszécsi János: A bírósághoz fordulás joga, mint alkotmányos alapjog érvényesülésének egyes aspektusai (Glossa Iuridica, 2018/3-4., 115-133. o.) | Szakcikk Adatbázis https://szakcikkadatbazis.hu/doc/5329437 Accessed 1 July  2023

Bodnár Eszter Gárdos-Orosz Fruzsina Kukorelli István Lápossy Attila Pozsár-Szentmiklósy Zoltán Somody Bernadette Vissy Beatrix: Alkotmányos Tanok I., HVG-ORAC Lap- és Könyvkiadó Kft., 2021, 193. o.

Court decisions

Golder v. The United Kingdom, Sz. 4451/70 (ECtHR 21 February 1975). https://hudoc.echr.coe.int/eng?i=001-57496 Accessed 1 July  2023

AIREY v. IRELAND. ((ECtHR 9 October 1979) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57420%22]} Accessed 1 July  2023

Decision 59/1993 (XI. 29.) of the Constitutional Court, 94/B/1991 http://public.mkab.hu/dev/dontesek.nsf/0/626A5A0DA50120DEC1257ADA00525F54?OpenDocument  Accessed 1 July  2023

Decision 9/1992 (I. 30.) of the Constitutional Court

https://jogkodex.hu/doc/7791932 Accessed 1 July  2023

[1] Alkotmányos tanok I.

[2] European Convention on Human Rights, https://www.echr.coe.int/documents/d/echr/Convention_ENG

[3] https://rendeszet.uni-nke.hu/document/rendeszet-uni-nke-hu/MRTT10.pdf#page=122

[4] (Golder v. The United Kingdom, 1975) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57496%22]}

[5] AIREY v. IRELAND https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57420%22]}

[6] http://projektjeink.birosag.hu/sites/default/files/allomanyok/e-learning/alaptorveny_birok/at_szabadsag/lecke7_lap1.html (

[7] 94/B/1991 (mkab.hu)

[8] Rimaszécsi János

[9] The Hungarian Constitutional Court began its work on 1 January 1990.  https://alkotmanybirosag.hu/tortenete/

[10] Decision 9/1992 (I. 30.) of the Constitutional Court

Anna NÉMETH – She is currently pursuing her master’s degree in law at Eötvös Loránd University, completing her courses with excellent marks. In addition, she is studying international public management BA at the University of Public Service. During her university years she won the New National Excellence Programme in 2020. She worked as an intern for KPMG Legal Tóásó Law Firm and for the Oppenheim Law Firm in Budapest. In her previous research, she has focused on the constitutional status of art and artistic freedom. Through another project she has explored the consumer protection and competition law aspects of the Digital Markets Act. In her ongoing research, she delves into the topic of mediation.

Conor CASEY: Hungarian Constitutionalism as Classical Constitutionalism? Reflections from an Interested Observer

Inspired by two earlier posts penned about the Hungarian Fundamental Law and constitutional interpretation by my friend Márton Sulyok, here I offer some thoughts on the topic as a comparative constitutional law scholar working within the natural law tradition. My basic suggestion is that the Hungarian Fundamental Law appears to commit legal officials to an interpretive framework steeped in classical legal thought, making it a framework that foreign natural law jurists, or anyone interested in ongoing debates over common good constitutionalism, can profitably study.

Classical legal tradition and legal interpretation: a quick primer

Following St Thomas Aquinas,[1] classical jurists tend to maintain that the core object of legal interpretation is ascertaining the reasoned intention of the legitimate political authority in positing what they decide to posit. The lawmaker (whether in the form of the prince or legislature) enjoys “stewardship of the community”[2] and has the duty and responsibility to create new law, and make determinations specifying how the particular community will respect the under-determinate principles of natural law and secure the demanding conditions of the common good. The secondary and related judicial role involves interpretation of a community’s already existing law while resolving disputes. These functions, and the role morality which attend them if they are to be done authentically, combine to radically cabin and structure a courts’ ability to make far-reaching determinations which functionally make new law. Compared to the richly creative role of the lawmaker, the structure of judicial inquiry is necessarily highly institutionally bounded. It is primarily to ask what the public authority has done in its authoritative act, ascertaining and inferring what reasoned choice it has made, mainly as manifested in the text of the legislative act. Their basic charge is discerning the reasoned intention of the legitimate authority, by reflecting on the relationship between the legal scheme it adopted and the good it wished to achieve. It is certainly not the judge’s role to displace positive law by reference to all-things-considered moral decision making or ‘palm tree justice’. Commitment to understanding lawmaking as a reasoned and authoritative act and determination, serves to constrain the scope of sound interpretive method, and would exclude as unreasonable, for instance, so-called living instrument approaches that permit judges to update legislation or constitutional provision by reference to changing moral and political views they think sound. It will also exclude forms of arid textualism that treat lex as a “cryptic collection of words dropped from the sky”[3] and not as rational ordinances aiming to promote the common good.

Classical jurists also regard posited law as part of a wider juridical ordering of a polity to the common good, but not exhaustive of the community’s law. The tradition makes a distinction between two senses of “law”: lex and ius. Lex is the enacted positive law created and promulgated by political authorities, such as a master text constitution or the statutes of designated law-making bodies. In the classical legal tradition lex is understood, as Aquinas famously framed it, as an ordinance of reason promulgated by political authorities for the common good.[4]  To count as law in this focal sense, a posited law of a public authority must rationally conduce to the good of the community for which the lawmaker has a duty and privilege of care. Because the natural law only offers a skeleton law to communities – one which determines what posited arrangements are just and right – to enjoy concrete existence the basic precepts of the natural law require the sinew, flesh, and muscle provided by positive law enacted through human creativity and discretion.

Ius is the overall body of a community’s law generally, including and subsuming lex but transcending it, and containing general principles of jurisprudence and legal justice flowing from the natural law. Principles of ius, or legal justice, are not co-extensive with morality tout court.[5] Rather, they are concerned with the maintenance of a just and reasonable ordering of persons in political community through law and legal institutions, and of proper treatment of citizens by political authority; both of which are standing requirements of justice and the natural law. Or as Professor Vermeule puts it, the classical tradition incorporates a “subset of political morality within law, namely the subset bearing on the virtues of general justice and regnative prudence, of which the common good is the object”[6] and “settlement or coordination of social disputes and rational governance”[7] the central means. Principles of ius concern the “art or craft of practical reasoning about legal justice that takes into account distinctive considerations arising from the institutional embodiment of the legal system.”[8]

As John Finnis outlines, these basic precepts include moral absolutes central to a just and basically well-ordered polity like prohibitions on “intentional killing, intentional injury to the person, deliberate deception for the sake of securing desired results, enslavement which treats a human person as an object or a lower rank of being than the autonomous human subject.”[9] Other examples of non-posited principles of legal justice (often found in hard cases) cited by Professor Vermeule in his recent work include: the presumption no-one will be a judge in their own cause, that those affected by a decision will be heard,[10] that no-one shall profit from their own wrong-doing,[11] that all public power will be directed to public and not private good,[12] that retroactivity (especially criminal) is not favoured in the law,[13] that legitimate expectations or reliance interests established by state action will be given consideration,[14] that no one will be punished in the absence of law,[15] that judges will defer to reasonable legislative determinations made in the public interest,[16] that rights are not absolute but ordered to the common good and objective needs of society.[17] Even judges who have lost sight of the classical legal tradition, do not tend regard appeal to such principles as akin to appealing to moral norms external to law, but as part of its fabric and critical to interpretative practice, even if their basis in posited law or social fact sources is decidedly shaky.

Ensuring harmony between lex and ius is a critical component of a sound legal practice that is ordered to the common good. Judges working within a classical legal framework will therefore strongly presume, when ascertaining the reasoned choice of the lawmaker, that they do not “wantonly violate background principles of ius and norms of reason that are constitutive of the nature of law”[18] but will attempt to harmonize lex and ius. The primary structure of judicial inquiry may be to ask what the public authority has done by ascertaining what the authority has said; but an important supplementary task is to ask whether the court faces the nonstandard case, in which the authority’s rational ordering for the common has been imperfectly captured by what the authority said, read in light of larger background principles.[19] Those tasked with administering justice according to law, like judges, are therefore “entitled and required” to treat legal propositions enacted by lawmakers as “presumptively oriented towards justice and the common good.”[20] Part of upholding these standing presumptions will involve relying upon principles of legal justice that help to determine the good the lawmaker wished to achieve, in a manner that renders the lawmaking act intelligible as a work of reason.

Hungarian constitutional law as classical law?

There are several provisions of the 2011 Hungarian Fundamental Law specifying decision rules for legal officials interpreting statutory and constitutional text. Article R) provides that the provisions of the Fundamental Law itself are to be interpreted in accordance with their purpose, the preambular principles of the constitution, and the achievements of the historical constitution. Article 28 additionally provides for the standing interpretive presumption that provisions of the Fundamental Law serve moral and economical purposes in accordance with common sense and the common good. Some of the key preambular principles include the following propositions:

  • “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”

For statutes and other types of posited law, Article 28 provides that Courts will interpret them in accordance with their purpose and consistently with the Fundamental Law. In ascertaining the purpose of a statute, consideration will be given primarily to the preamble of that law and the justification of the proposal for, or for amending, the law. As with interpreting the fundamental law, it is presumed that statutes and other laws serve moral and economical purposes which are in accordance with common sense and the public good.

It seems to me (with all the limitations that attend being an external observer) that the provisions of the Fundamental Law concerning legal interpretation can be considered a series of determinationes guiding the interpretive practice of officials in a way thatfaithfully tracks the core classical legal precepts sketched above. For a start, the basic object of both statutory and constitutional interpretation is unmistakeably classical: it is the search for the purpose, or reasoned choice, of the lawmaker in positing what they decided to posit; by reference to the justification motivating their change to the law. Equally classical is the fact that these provisions make it clear that the search for the intention of the lawmaker takes place within a rich conceptual framework comprised of several standing juridical presumptions, which are all tied to a substantive normative picture of the nature of law-making and law-making bodies.

This paints a normative picture of law-making that rejects the idea law-making is an act of sheer will but sees it as a reasoned and purposive activity concerned with securing legal justice and the rational ordering of persons, families, and communities to their common good. As Adrian Vermeule has recently written of the Hungarian Fundamental Law, its understanding of law does not regard it as the:

“mere arbitrary command of a dominus, a master, but has a fundamentally reasoned and public-regarding aim: to promote the public welfare and public goods of peace, order and justice.”

The Hungarian Fundamental Law places a strong interpretive presumption that lawmakers will not act to transcend or transgress the intrinsic limits on their authority, or the purpose for which their constitutional office is constituted. Thus, legal officials will strongly presume statutes will be consistent with the Fundamental Law, and that all types of law will be understood consistent with moral and economical purposes in accordance with common sense and the public good. This appears to me a prudent means of ensuring legal officials remain attuned to the fact that posited law, or lex, must be understood harmoniously with principles of legal justice.

In the Hungarian context, thus, principles of ius picked out by the preamble to the Fundamental Law and the interpretation clauses include acknowledgment that law is for the sake of persons and human dignity; that the family is the basic and primary unit of the community; that individual rights must be ordered to the common good; that the institutions of State exist to serve the community and promote the good of citizens; and that the purpose of lawmaking is the common good.

Lack of explicit mention of the common good: a missed opportunity?

Márton Sulyok noted earlier on this platform that explicit references to the common good are sparse in the opinions of the post-2012 Constitutional Court and concludes, somewhat gloomily, that “Hungarian constitutional jurisprudence does not provide fertile grounds for references to the common good in constitutional interpretation.” Does this lack of explicit reference to the common good in legal interpretation mean that it is implausible to suggest Hungarian public law has a strong classical flavour? I am wary of straining the bounds of my competence in tackling this question, so I restrict myself here to simply observing that a commitment to a classical legal framework certainly does not require that judges engage in extended elaboration about what the common good requires, all-things-considered.

After all, in the classical tradition it is executives, legislatures, and the People (acting as a constituent authority or voting in referendums) that properly take the lead in specifying how a particular community will respect the under-determinate principles of natural law and secure the demanding conditions of peace and justice conducive to the common good. When it comes to resolving a particular legal dispute judges can only properly have regard to the overall demands of the common good in an institutionally cabined way, because the judicial inquiry aims to resolve legal disputes by discerning the reasoned choice of the lawmaker expressed in and through the text, not to do so by their own moral choices. As Sulyok properly observes above, legal interpretation properly done “does not replace or result in lawmaking, encroaching upon the constitutionally reserved powers assigned to the legislator”.

All of which is to say that, within a classical framework, it should not be unusual at all for direct references to the common good by judges to be sparse. Rather, judicial reflection on the needs of the common good will typically happen under the radar, as it were, by faithfully discerning the choices of the lawmaker while ensuring any interpretive ambiguities or uncertainties are resolved in favour of interpretations that presume the lawmaker acts consistent with reason and human flourishing. Adhering to such juridical presumptions will therefore, at the same time, inevitably indirectly and implicitly invite judicial reflection on the ends and goods the lawmaker wished to achieve for the common good, and press judges to correctly grasp what types of ends would make a given interpretation of an ordinance rational or irrational, or consistent with human flourishing or not.

Thus, if a Hungarian judge opts for interpretation A over interpretation B in a given case because they have concluded the latter would lead to an unjust or irrational result the lawmaker could not possibly have intended – perhaps because it would be immoral or lacking in common sense – then they will have been implicitly reflecting on the requirements of the common good in their own limited way, even if they do not explicitly invoke the term.

If I have sketched anything like a plausible account of how Hungarian legal practice proceeds, then contra my friend Professor Sulyok, it might be premature to say “Hungary is the land of (missed) opportunities” for developing a framework with concern for the common good at the heart of legal interpretation. That, at least, is the optimistic hope of this interested observer.

Conor Casey, Associate Professor, University of Surrey School of Law

[1] Thomas Aquinas, Political Writings, ed. R.W. Dyson (Cambridge: Cambridge University Press, 2002),148-149; 200-201.

[2] Adrian Vermeule, Common Good Constitutionalism (Polity, 2022) 74, 83.

[3] Id., 83.

[4] Thomas Aquinas, Summa Theologiae, Ia-IIae, q. 90, art. 4, Great Books of the Western World: Volume 18, ed. Mortimer J. Adler (Chicago: Encyclopedia Britannica, 1990).

[5] Adrian Vermeule, ‘Enriching Legal Theory’, (November 2022), Ius & Iustitium, https://iusetiustitium.com/enriching-legal-theory/.

[6] Adrian Vermeule, ‘The Common Good as a Universal Framework’, (July 2022), Balkinization, https://balkin.blogspot.com/2022/07/the-common-good-as-universal-framework.html.

[7] Adrian Vermeule, ‘Common Good as a Legal Concept’ (November 2022) Ius and Iustitium, https://iusetiustitium.com/the-common-good-as-a-legal-concept/#:~:text=%E2%80%9CThe%20common%20good%E2%80%9D%20in%20the,is%20an%20absolutely%20ubiquitous%20concept..

[8] Id.

[9] John Finnis, “Natural Law and Legal Reasoning,” Cleveland State Law Review 38 (1990) 11.

[10] Vermeule, Common Good Constitutionalism, 153.

[11] Id., 81.

[12] Adrian Vermeule, ‘The Original Scalia’ (2023) 2 Harvard Journal of Law & Public Policy: Per Curiam 1, 8.

[13] Adrian Vermeule, ‘The Theory and Practice of Common Good Constitutionalism’ (August 2022), https://iusetiustitium.com/the-theory-and-practice-of-common-good-constitutionalism/.

[14] Cass Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State (HUP, 2021) 76-77.

[15] Vermeule, Common Good Constitutionalism, 83.

[16] Id., 61-4.

[17] Id., 164-6.

[18] Conor Casey & Adrian Vermeule, ‘Myths of Common Good’ (2022) 45 Harvard Journal of Law & public Policy 103, 124.

[19] Vermeule, Common Good Constitutionalism, 83.

[20] Gratian, Decretum: Treatise on Laws, with Ordinary Gloss, trans by Augustine Thompson O.P. & James Gordley (1993) 33; John Finnis, “Priority of Persons,” Intention and Identity: Collected Essays Volume II (Oxford University Press, 2011) 27.

Conor CASEY, Associate Professor, University of Surrey School of Law, a non-practising barrister in Ireland since 2020, specialising in administrative law, constitutional law, and legal theory. Co-author of the Irish Human Rights & Equality Commission Report on Irish State response to the COVID-19 crisis. His work has been cited by the United States Court of Appeals for the Third Circuit. Dr. Casey regularly comments on legal matters in public forums.