Vagelis PAPAKONSTANTINOU: The (New) Role of States in a ‘States-As-Platforms’ Approach

The forceful invasion of “online platforms” not only into our everyday lives but also into the EU legislator’s agenda, most visibly through the DSA and DMA regulatory initiatives, perhaps opened up another approach to state theory: what if states could also be viewed as platforms themselves? Within the current digital environment  online platforms are information structures that hold the role of information intermediaries, or even “gatekeepers”, among their users. What if a similar approach, that of an informational structure, was applied onto states as well? How would that affect their role under traditional state theory?

The ‘States-as-Platforms’ Approach

Under the current EU law approach, online platforms essentially “store and disseminate to the public information” (DSA, article 2). This broadly corresponds to the digital environment around us, accurately describing a service familiar to us all whereby an intermediary offers to the public an informational infrastructure (a “platform”) that stores data uploaded by a user and then, at the request of that same user, makes such data available to a wider audience, be it a closed circle of recipients or the whole wide world. In essence, the online platform is the necessary, medium to make this transaction possible.

Where do states fit in? Basically, states have held the role of information intermediaries for their citizens or subjects since the day any type of organised society emerged. Immediately at birth humans are vested with state-provided information: a name, as well as a specific nationality. Without these a person cannot exist. A nameless or stateless person is unthinkable in human societies. This information is subsequently further enriched within modern, bureaucratic states: education and employment, family status, property rights, taxation and social security are all information (co-)created by states and their citizens or subjects.

It is with regard to this information that the most important role of states as information brokers comes into play: states safely store and further disseminate it. This function is of paramount importance to individuals. To live their lives in any meaningful manner individuals need to have their basic personal data, first, safely stored for the rest of their lives and, second, transmittable in a validated format by their respective states. In essence, this is the most important and fundamental role of states taking precedence even from the provision of security. At the end of the day, provision of security is meaningless unless the state’s function as an information intermediary has been provided and remains in effect—that is, unless the state knows who to protect.

What Do Individuals Want?

If states are information brokers for their citizens or subjects what is the role of individuals? Are they simply passive actors, co-creating information within boundaries set by their respective states? Or do they assume a more active role? In essence, what does any individual really want?

Individuals want to maximise their information processing. This wish is shared by all, throughout human history. From the time our ancestors drew on caves’ walls and improved their food gathering skills to the Greco-Roman age, the Renaissance and the Industrial Revolution, humans basically always tried, and succeeded, to increase their processing of information, to maximise their informational footprint. Or in Van Doren’s wordsthe history of mankind is the history of the progress and development of human knowledge. Universal history […] is no other than an account of how mankind’s knowledge has grown and changed over the ages”.

At a personal level, if it is knowledge that one is after then information processing is the way of life that that person has chosen. Even a quiet life, however, would be unattainable if new information did not compensate for inevitable change around us. And, for those after wealth, what are riches other than access to more information? In essence, all of human life and human experience can be viewed as the sum of the information around us.

Similarly, man’s wish to maximise its information processing includes the need for security. Unless humans are and feel secure their information processing cannot be maximised. On the other hand, this is as far as the connection between this basic quest and human rights or politics goes: increase of information processing may assumedly be favoured in free and democratic states but this may not be necessarily so. Human history is therefore a long march not towards democracy, freedom, human rights or any other (worthy) purpose, but simply towards information maximization.

The Traditional Role of States Being Eroded by Online Platforms

Under traditional state theory states exist first and foremost for the provision of security to their citizens or subjects. As most famously formulated in Hobbes’ Leviathan, outside a sovereign state man’s life would be “nasty, brutish, and short” (Leviathan, XIII, 9). It is to avoid this that individuals, essentially under a social contract theory, decide to forego some of their freedoms and organise themselves into states. The politics that these states can form from that point on go into any direction, ranging from democracy to monarchy or oligarchy.

What is revealing, however, for the purposes of this analysis in Hobbes’ book is its frontispiece: In it, a giant crowned figure is seen emerging from the landscape, clutching a sword and a crosier beneath a quote from the Book of Job (Non est potestas Super Terram quae Comparetur ei / There is no power on earth to be compared to him). The torso and arms of the giant are composed of over three hundred persons all facing away from the viewer, (see the relevant Wikipedia text).

The giant is obviously the state, composed of its citizens or subjects. It provides security to them (this is after all Hobbes’ main argument and the book’s raison d être), however how is it able to do that? Tellingly, by staying above the landscape, by seeing (and knowing) all, by exercising total control over it.

Throughout human history information processing was state-exclusive. As seen, the only thing individuals basically want is to increase their processing of information. Nevertheless, from the ancient Iron Age Empires to Greek city-states, the Roman empire or medieval empires in the West and the East, this was done almost exclusively within states’ (or, empires’) borders. With a small exception (small circles of merchants, soldiers or priests who travelled around) any and all data processing by individuals was performed locally within their respective states: individuals created families, studied, worked and transacted within closed, physical borders. There was no way to transact cross-border without state intervention, and thus control, either in the form of physical border-crossing and relevant paperwork or import/export taxes or, even worse, mandatory state permits to even leave town. This was as much true in our far past as also recently until the early 1990s, when the internet emerged.

States were therefore able to provide security to their subjects or citizens because they controlled their information flows. They knew everything, from business transactions to personal relationships. They basically controlled the flow of money and people through control of the relevant information. They could impose internal order by using this information and could protect from external enemies by being able to mobilise resources (people and material) upon which they had total and complete control. Within a states-as-platforms context, they co-created the information with their citizens or subjects, but they retained total control over this information to themselves.

As explained in a recent MCC conference last November, online platforms have eroded the above model by removing exclusive control of information from the states’ reach. By now individuals transact over platforms by-passing mandatory state controls (borders, customs etc.) of the past. They study online and acquire certificates from organisations that are not necessarily nationally accredited or supervised. They create cross-national communities and exchange information or carry out common projects without any state involvement. They have direct access to information generated outside their countries’ borders, completely uncontrolled by their governments. States, as information brokers profiting from exclusivity in this role now face competition by platforms.

This fundamentally affects the frontispiece in Leviathan above. The artist has chosen all of the persons composing the giant to have no face towards the viewer, to face the state. This has changed by the emergence of online platforms: individuals now carry faces, and are looking outwards, to the whole wide world, that has suddenly been opened-up to each one of us, in an unprecedented twist in human history.

The New Role of States

If the generally accepted basic role of states as providers of security is being eroded by online platforms, what can their role be in the future? The answer lies perhaps within the context of their role as information intermediaries (a.k.a. platforms), taking also into account that what individuals really want is to maximise their information processing: states need to facilitate such information processing.

Enabling maximised information processing carries wide and varied consequences for modern states. Free citizens that are and feel secure within a rule of law environment are in a better position to increase their informational footprint. Informed and educated individuals are able to better process information than uneducated ones. Transparent and open institutions facilitate information processing whereas decision-making behind closed doors stands in its way. Similarly, information needs to be free, or at least, accessible under fair conditions to everybody. It also needs to remain secure, inaccessible to anybody without a legitimate interest to it. Informational self-determination is a by-product of informational maximisation. The list can go on almost indefinitely, assuming an informational approach to human life per se.

The above do not affect, at least directly, the primary role of states as security providers. Evidently, this task will (and needs to) remain a state monopoly. Same is the case with other state monopolies, such as market regulation. However, under a states-as-platforms lens new policy options are opened while older assumptions may need to be revisited. At the end of the day, under a “pursuit of happiness” point of view, if happiness ultimately equals increased information processing, then states need to, if not facilitate, then at least allow such processing to take place.

Vagelis Papakonstantinou is a professor at Vrije Universiteit Brussel (VUB) at LSTS (Law Science Technology and Society). His research focuses on personal data protection, both from an EU and an international perspective, with an emphasis on supervision, in particular Data Protection Authorities’ global cooperation. His other research topics include cybersecurity, digital personhood and software. He is also a registered attorney with the Athens and Brussels Bar Associations. Since 2016 he has been serving as a member (alternate) of the Hellenic Data Protection Authority, while previously served as a member of the Board of Directors of the Hellenic Copyright Organisation (2013-2016).

Márton CSAPODI: Integration without control? The FCC has ruled on EU borrowing

On 6 December 2022, the German Federal Constitutional Court (FCC) ruled on a case affecting the whole of Europe, as it had to decide whether the EU Council’s Own Resources Decision (ORD), which authorizes the Commission to borrow up to €750 billion on behalf of the EU, complies with German constitutional requirements. The FCC ultimately allowed the joint EU borrowing (more precisely the domestic legislation implementing the ORD), but the reasoning of the decision gives a more nuanced picture. It seems that this leniency is far from stemming from a conviction in the legality of the borrowing. In fact, the reasoning suggests that the German constitutional judges are far from being convinced that the ORD does not constitute an overstepping of the European Union’s powers. However, under the ultra vires test applied in their decision, anything that does not constitute a manifestly evident overstepping of competence is permissible, even if there are otherwise indications that the boundaries of the Treaties have been left behind. While after their PSPP decision delivered two years ago many feared that other national courts would go on to review EU measures, now it seems that even the Germans have backed down. The question is whether EU legislation will remain subject to any judicial type of control at European or national level.

Tense waiting: will there be another ultra vires decision?

The decision of the FCC was eagerly awaited because in 2020, it fulfilled its earlier threats and dropped the “nuclear weapon”: in connection with the European Central Bank’s bond purchase program launched in 2015, it found that both the ECB and the Court of Justice of the European Union had exceeded their powers. While this did not affect the practical application of the PSPP (public sector purchase program) at the time, it raised fears among many about the future of the eurozone and the EU legal system as to the potential long-term consequences of the decision. What happens if German constitutional judges continue to review other EU measures or “worse”: if other constitutional courts follow the German example? One could look forward with excitement to see what conclusion the FCC will reach now that it is once again examining whether there has been an overstepping of competences by EU institutions.

What did the FCC examine?

The measures examined by the constitutional court are linked to the NextGenerationEU package, part of the European recovery plan following the Covid-19 pandemic, closely tied to the EU’s multiannual budget for 2021-2027. The framework for the financial assistance to Member States to deal with the effects of the epidemic is set out in the European Union Recovery Instrument (EURI). The Treaty basis of the recovery instrument is Article 122 TEU, which allows the Council to grant EU financial assistance to a Member State in difficulties caused by natural disasters or other events beyond its control.

The ORD, the Council’s Own Resources Decision allows borrowing for the Commission on behalf of the EU on the basis of Article 311 TEU (which allows for the creation of new types of own resources) and links it to the EU Recovery Instrument, i.e. the post-crisis recovery from the effects of the epidemic.

The complainants’ request was for the FCC to declare, first, that the ORD violates German constitutional identity and, second, that it constitutes an overstepping of EU competences. According to their application, the ORD does not have a sufficient legal basis in Article 122 TEU and violates the requirements of Article 311 and the non-bailout clause under Article 125.

The identity of the German basic law remains intact

As a preliminary point, it is worth noting that the identity test (i.e. whether EU law violates German constitutional identity) covers a smaller area than the ultra vires test (i.e. whether there has been an abuse of power). However, the FCC’s ultra vires test is also permissive: in the 2020 PSPP decision, for example, it said that the overstepping of competences has to be evident (e.g. the CJEU overstepped its jurisdiction if its interpretation evidently disregarded traditional European methods of interpretation).

In the context of the infringement of constitutional identity, the FCC had to examine whether the ORD infringes on the budgetary powers of the Bundestag (and thus the right to democratic self-determination that is part of the basic law’s identity). The FCC concluded on this issue that the ORD does not infringe the budgetary responsibilities of the Bundestag because it can be used for exceptional, specific purposes and the influence of the parliament on the government during the implementation of the recovery plan is preserved. (During the hearings, both the federal government and the Bundestag stressed the ORD is a one-off, exceptional and special solution, which in no way constitutes a step towards a “fiscal union”.)

The overstepping of competence is not “manifestly evident”

The FCC’s findings on the question of misuse of powers were more complex, despite the fact that it concluded that there was no manifestly evident overstepping of the powers conferred on the EU. While it is true, according to the court, that the Treaties do not contain any specific authorization of the European Union to borrow on the capital markets, it is “not completely implausible” that, in exceptional circumstances, Article 311 TEU would create such a possibility. However, to make this possible, several conditions are set out by the FCC, e.g. that funds are used only for tasks falling within the competences of the European Union in accordance with the principle of conferral, that borrowing is limited in time and amount, and that the amount of “other revenue” does not exceed the total amount of own resources.

The FCC has expressed some concerns that the link between the EURI and the impact of the pandemic is not always close – it also includes tasks such as digitalization and green transition, and 10% of the instruments would finance ongoing programs that have nothing to do with the pandemic. While the judges expressed their doubts about how Article 122 could provide an appropriate legal basis for the ORD, they retreated by concluding that it also “cannot be clearly ruled out” – a manifest overstepping of powers cannot therefore be established here.

The FCC found that, although the amount and timeframe of the borrowing cast doubt on whether it can be considered truly exceptional, the ORD does, after all, contain some limitation in terms of amount and time. The constitutional judges also said that it “appears possible” that other revenues obtained through borrowing exceed the own resources – but this is not manifestly evident. Why? According to the ORD, borrowing can amount to a maximum of €750 billion, while the EU’s multiannual financial framework for 2021-2027 amounts to €1 074 billion. The FCC also concludes, on the basis of the principle of annuality, that borrowing will exceed own resources in 2021 and 2022, in breach of Article 311 TEU. At the same time, if the principle of annuality is not applied (although there is no particular justification as to why), the overall amount of the borrowing is of course lower than the total budget for 2021-2027 (still not significantly). Thus, the FCC avoided to find a manifest violation of Article 311.

According to Article 125 TEU, neither the EU nor the other Member States can be held liable for the obligations of a Member State (non-bailout clause). According to the German judges, since the NGEU does not create a direct liability or mechanism for establishing liability, there is no direct infringement of Article 125. They add, however, that the ORD may constitute a circumvention of Article 125, since ultimately, if the EU’s own resources do not cover it, the Commission will have to call on the resources of the Member States to repay the loan – but this circumvention is “at least not manifestly evident” according to the FCC. Although EU borrowing appears to be somewhat at odds with Article 125, the Treaty does not explicitly rule out the possibility of deriving such powers from Article 122, says the German court.

Integration without control?

The content of the FCC’s reasoning gives rise to some surprise as to the outcome. The court has in fact deduced that the ORD is an overstepping of EU powers – yet it has decided to be lenient. One can only hope that the fact that the German government promised the Commission after the PSPP decision to do its utmost to avoid ultra vires decisions has nothing to do with the surprising outcome. The promise itself reflects a very unique conception of the rule of law, that denies the separation of powers, in particular the independence of the judiciary.

The ultra vires review, which two years ago seemed like a serious weapon, cannot be considered as a means of dealing with overstepping of EU powers, when applied in the manner outlined above. One might ask: if the German Federal Constitutional Court no longer wishes to step up in the event of an abuse of jurisdiction, who will do so? The Court of Justice of the EU cannot be counted on as it in fact does not exercise any vertical control of competences, even though this would be one of its tasks. With this decision, the German constitutional judges have indicated that, although they are aware that there is a likelihood of a misuse of powers and that the ORD was created in breach of/by circumvention of the TEU, they do not wish to put any obstacles in the way of its implementation. This would render ultra vires review meaningless and would also deprive the integration process of judicial control by the Member States, which has so far relied heavily on the authority of the German Federal Constitutional Court. It should be interesting to see which one of the PSPP decision from two years ago and today’s abrupt reversal will be considered the rule and which the exception in the long run.

Márton Csapodi is a PhD student at the Pázmány Péter Catholic University and research fellow at the MCC Center for Constitutional Politics under the MCC’s PhD program. He graduated as a lawyer in 2022 at the Pázmány Péter Catholic University Faculty of Law and Political Sciences. His current research interests include constitutional pluralism, European constitutionalism and judicial review.

Grzegorz BLICHARZ: Platform Workers as ‘Freedmen’: Reflections on the EU Proposal

From a European perspective, the working conditions of digital platform workers are a matter of great concern. The crisis caused by the current pandemic has dramatically increased the number and value of services rendered via digital platforms, most notably the delivery of services and online services themselves. Currently, there are 24 million EU platform workers, and the estimated value of services delivered via digital platforms reaches €14 billion. After gathering comments and suggestions from the public based on a preliminary paper, by the end of 2021, the European Union proposed specific legal instruments that aim to improve the working conditions associated with platform work – EU directive of 9.12.2021, 2021/0414 (COD). In order to justify them, the European Parliament and the European Council appealed to the right of every worker to working conditions which respect their health, safety, and dignity (Art. 31 of the Charter of Fundamental Rights of the European Union). The EU legislator wants to presume an employment relationship whenever a digital labor platform “controls” the performance of work as defined in Article 4 paragraph 2 of the directive. A broad understanding of “controlled work” allows the application of certain worker standards of protection.[1]

As J.M. Puyol Montero puts it clearly “[t]he first social laws were born out of a desire to protect the human dignity of workers, particularly of the most vulnerable workers, in the exercise of their work”.[2] The appeal to human dignity revolutionized the fundamental rights foundations of labor relations in the 19th and 20th centuries which echoed the recognition of equality of every person. It urged the state to interfere with contracts for labor leading to a new branch of law – usually called labor law – aimed at balancing employee-employer relations and ensuring decent working conditions. A similar phenomenon of both recognizing a subjective element (worker’s protection) in the performance of services and a multifaceted bundle of contracts allowing to use work and services rendered, however, has its roots in ancient Roman law, more specifically in locatio conductio (A contract for lease and work), and most broadly concerns the atypical and highly-regulated provision of services by ‘freedmen’ to patrons (operae libertorum). There is a certain structural similarity between the activities of the freedmen and platform workers. It has already been confirmed that protective regulations of freedmen functionally resemble social rights granted under labor law, and they often result from humanitarian reasons.[3] Slave-work, freedmen services, and free men services played a major role in providing services in ancient Rome. It was the services of the freedmen that attracted Roman jurists particularly, which may indicate their social importance.[4] A specific, long-term relationship – based on trust and friendship – between a freedman (subject to manumission) and his former owner existed at that time. For freedom and social protection, the person subject to manumission was to provide certain services free of charge on the basis of a contractual obligation, which were implemented by stipulatio or oath (iusiurandum liberti). The imposition of duties on freedmen gave the access to free and often good quality services provided by trusted persons and patrons were allowed to hire out (locatio conductio) such services of their freedmen to others.[5] This was an extremely advantageous arrangement for the former owners, so much so that the praetors decided to issue an edict against the abuse of freedmen which often put them in de facto slave-like position.[6] The Roman example shows that rendering services may require the institution of certain precautions and leveling of the parties concerned neither with having modern concept of labor law nor extending the idea of contract for labor, which may lead us to rethink other types of contracts which might serve this goal. Anthropological considerations – the recognition of what a human person is and what goods are considered to be essential for their life – constitute the universal framework for legislation and jurisprudence, present also in Roman law.[7] Perhaps heading in a similar direction, the EU proposal on platform work at issue here offers a mere presumption of employment bond. Nevertheless, it may easily become a new test for the existence of an employment bond which could interfere too heavily with the freedom of contract and the current contractual scheme of private law. We must note that the same issues can be addressed by different nation-states in various ways, according to which side of the problem they find emphatic: they can side either with freedom of contract, invoking strong separation and difference between bona fide employment relationships and civil-code based service contracts which do not entitle to protection measures; or, on the other hand, with the general concept of protecting those who work under certain circumstances, and so including platform work within this realm and regulating it, as well as imposing specific protective duties on the suppliers of such work from the point of view of fundamental, human rights, such as dignity. Some states put more stress on functions of control and on soft measures such as audits or requiring skills certificates to operate in the market. At the EU level, there is fierce discussion over freedom of movement versus freedom of business (protection of competition) which boils down to whether platform workers indeed are workers employed by their suppliers or are rather self-employed individuals merely rendering services to their suppliers. As for now, the EU would seem to believe in finding a compromise between the two approaches, i.e., between the high-protection and no-duties approaches.

Today, a worker’s right to protection of the goods listed in Article 31 CFR has its basis and source in human dignity (Article 1 CFR), and, as a result of this, dignity is mentioned twice. As one of the goods protected under Article 31, however, dignity is listed on an equal level with the other goods, not given prominence, whereas in Article 1 it is primordial. The subtle ambiguity of dignity as applied both in labor law and in constitutional law appears not only in this act but also in all legal orders, where human dignity shines as the overriding constitutional principle. In the Polish legal scholarship and jurisprudence, discussion is focused on the relation between the constitutional principle of human dignity and the dignity at work regulated in Art. 111 of the Polish Labor Code: “The employer is obliged to respect the dignity and other personal rights of the employee”. In German labour law, protection of dignity is expressed with regards to harassment in general and sexual harassment in particular under §3 of General Act on Equal Treatment of 14th August 2006. The doctrine of labor law explicitly states that the dignity mentioned in the famous triad of employee goods refers specifically to dignity at work. What this actually means is, however, debatable. On the one hand, Art. 36 “is silent as to what measures are necessary to comply with this right”;[8] it simply reinforces the importance of human dignity simpliciter (Art. 1 CFR). More outspoken is the “twin” Article 26 of the European Social Charter (Revised, ESCR), which refers to dignity targeted to provide respect and honor towards the employee as a human being – towards his or her special position in the cosmos.[9] This has a different meaning from the fundamental human dignity so widely celebrated nowadays, which in Art. 31 CFR is treated relationally and reduced in effect to protection against bullying and harassment.[10] On the other hand, the reference to dignity in Art. 31 is considered as a safety valve, an open clause, which allows for the many ways in which workers can be protected to be extended freely, as well as the requirements of decent work to be applied also to other persons providing work, i.e. those not qualified as employed under an employment contract[11], as we see in the case of the discussed directive addressed to platform workers.[12]

Today, the constitutional obligation to provide healthy, safe, and secure working conditions is implemented through labor-law regulations, and in the case of service contracts only in specific types this obligation is particularly required. In Poland, for example, the labor code (Article 304. § 1 of the Polish Labor Code) imposes such obligations in civil-code contracts under specific circumstances only;. Polish law imposes the obligation of the observance of health and safety rules in the case of service contracts when a person employed under a service contract works at a workplace designated or organized by the employer, even if an employment relationship does not bind them or if the employer is not an employer as defined by labor law—moreover, Article 304. § 3. of the Labor Code imposes this obligation accordingly also on entrepreneurs who are not employers (within the meaning of the Labor Code) and who organize work performed by natural persons on a basis other than employment relationships or by self-employed persons. In contrast, in English common law such protection must be provided only when a service contract is performed at the client’s site.

In Roman law, the obligation to protect a worker appears for the first time on the occasion of the mercennarius, and so concerning those who perform hired work as part of locatio conductio. It turns out that the rules of Cato had already contained indications that in the case of the mercennarius certain factors should be taken into consideration – time, age, illness, and work breaks. However, when we look at the main body of Roman law – Justinian’s Digest – solutions protecting workers are rarely mentioned under locatio conductio because the emphasis is on the services of freedmen. Together with the phenomenon of freedmen who provided operae for their patrons under the contract of stipulatio and also for third parties within locatio conductio, in Rome, there were various kinds of services previously rendered only within the noble commission contract (mandatum): medical services, teaching, etc. Both hired workers and freedmen were protected with similar measures due to the unifying concept of work (operae). Paul, a Roman jurist of 2nd c. AD, argued that the type of freedmen’s services offered to the patron should be assessed in accordance with the age, status (dignitate), health, need way of life, and other such considerations of both parties (Justinian’s Digest – D. 38,1,16, Paul, Edict, book 40). Neratius, a Roman jurist of 1st-2nd c. AD introduces a subjective element[13] that the performance of services depends on the character of the person performing them (existimatio edentis), and explains that only those services are to be performed which befit his position (dignitati), abilities, habits, and occupation (D. 38,1,50, Neratius, Replies, book 1). In the case of operae libertorum, the services and labor provided were in addition to the normal activities of the freedmen, and the protection of freedmen expanded in the cases when freedmen were dedicated fully to the patron and had no time for carrying their own businesses. As for the services provided within the platform work, these are either an addition to normal work or become the main source of income. There are fears that, when they become the main source of income, they will lead to huge uncertainty – a most precarious form of work – “a new precariat class of workers who have no job security, are slaving away for poor pay”.[14]

We may make a similar comparison to platform workers, but not with regard to all categories of platform workers. Just as the contract of locatio conductio served not only to provide work but also to provide specific services (especially those of a variety of craftsmen), so is the case with platform workers: we may distinguish between various services intermediated by the various platforms. Protection could be extended without requiring an employment relationship but merely based on a service contract and the unifying concept of work (already present in EU law). Protection could be extended only to specific types of work, e.g., with regard to the workplace and time organized by the platform or by the client; provided on the client’s site; provided upon the call/demand of the platform, etc., etc. (these provisions resemble the Roman patron’s allowing freedmen services to third parties). Protection need not necessarily be extended to all platform workers but rather only as it would seem reasonable according to the circumstances: online platform workers are more independent and flexible, while on-site platform workers require more protection. However, we note that the term ‘workplace’ needs to be understood broadly, i.e., include physical workspace and virtual workplaces.

To complement this safety valve, there are also plans to introduce a special category of “economically dependent self-employed” into the Polish Labor Code, which would serve to stabilize the situation of individual entrepreneurs who enter into quasi-employment relationships and thus to reduce the phenomenon of labor exploitation based on formally B2B relationships that nevertheless lead to an actual employment relationship. In this case, creating a “third” way of employment should be approached with caution. It has been used in some countries for a long time (Canada) or for some time (Italy), but due to the growing phenomenon of sharing economy and especially gig economy, the necessity of introducing a new “third” form of employment has been raised in many countries for some time. Meanwhile, recently, courts, legal doctrine and legislators in other countries are choosing to qualify even such a relationship as an employment relationship. In this regard, both national and international courts continue to resolve specific cases in a casuistic manner, once attributing to employment the nature of a contract of employment, while at other times maintaining its civil law status. The interpretation of the employment relationship covering relations that serve to “conceal” the employment of an employee will be conducive to greater regulatory clarity and will protect us from legislative inflation and problems with the application of new legal constructs.

Today, protection extends from employment contracts to service contracts, so the situation at the historical roots of protective provisions has been reversed. Whereas in the Antiquity, the protection of workers was developed historically within service contracts and was seen as inherent to them, today these origins have been forgotten. In fact, many of the protective laws were based on Roman law on respect for human nature, even if taken pragmatically (not based on the human dignity concept unknown to them) and sometimes solely on the basis of aequitas (equity) on natural law. To sum up, further investigations into Roman law’s[15] way of accommodating different contractual schemes for using other’s work and services can give us some interesting points to consider as regards how to set up the situation of people, who provide services in different contractual configurations today, which pose a problem for ensuring decent working conditions without expanding highly regulated employment bond and curtailing private law arrangements while at the same time realizing the violation of certain human rights.[16]

[1] Controlling the performance of work within the meaning of paragraph 1 shall be understood as fulfilling at least two of the following:
(a) effectively determining, or setting upper limits for the level of remuneration;
(b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;
(c) supervising the performance of work or verifying the quality of the results of the work including by electronic means;
(d) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
(e) effectively restricting the possibility to build a client base or to perform work for any third party.
[2] Jose Maria PUYOL MONTERO, “Dignified Work and Dehumanization of Work. Some Reflections On The Prehistory of Labor Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 130.
[3] W. Waldstein, Operae libertorum. Untersuchungen zur Dienstpflicht freigelassener Sklaven, Stuttgart 1986, p. 400, 403.
[4] G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 144–145.
[5] Idem, p. 153–154.
[6] Idem, p. 147–150.
[7] Franciszek LONGCHAMPS DE BÉRIER, “Persona: Bearer of Rights and Anthropology for Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 53.
[8] Tobias LOCK, “Article 31 CFR”, in M. KELLERBAUER, M. KLAMERT and J. TOMKIN (eds), The EU Treaties and the Charter of Fundamental Rights, Oxford, 2019, p. 2189;
[9] Article 26 – The right to dignity at work
With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations:
1 to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct;
2 to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.
[10] Tobias LOCK, “Article 31 CFR”; Ellen PINKOS COBB, Workplace Bullying and Harassment: New Developments in International Law, Abingdon-New York: Routledge, 2017, p. 6.
[11] Brian BERCUSSON, European Labour Law, Cambridge, 2009, p. 380–381; Leszek MITRUS, “Godność jako podstawa aksjologiczna praw pracowniczych”, in M. SKĄPSKI, K. ŚLEBZAK, Aksjologiczne podstawy prawa pracy i ubezpieczeń społecznych, Poznań, 2014, p. 140; 142.
[12] Cfr. The whole argument on dignity, G. Blicharz, Ancient Origins of Dignity at Work: Freedmen’s Social Protections and Digital Platform Workers, in Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).
[13] Thomas A.J. McGINN, “Hire-Lease in Roman Law and Beyond”, AHB 27 (2013), p. 178.
[14] Joep CORNELISSEN, Magdalena CHOLAKOVA, “Profits Uber everything? The gig economy and the morality of category work”, Strategic Organization (December 2019), p. 8.
[15] G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 134–162 and G. Blicharz, Ancient Origins of Dignity at Work: Freedmen’s Social Protections and Digital Platform Workers, , in: Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life , J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).

[16] The paper has been made possible thanks to the National Science Centre (Poland) PhD holder Grant– Sonata 14 no. 2018/31/D/HS5/01951.

Grzegorz Blicharz, PhD is Assistant Professor at the Chair of Roman Law at the Faculty of Law and Administration, Jagiellonian University in Kraków, Poland, where his work focuses on Roman law, comparative law, European legal tradition, and governing the commons. He serves as co-editor of the Forum Prawnicze law journal and has held visiting appointments at the University of Oxford (2020) and Antonin Scalia Law School at George Mason University (2021).

Márton SULYOK: On Methodologies, Findings and “Contextual Determinants”

Comments Inspired by some Evidence on Constitutional Courts

In their book titled High Courts in Global Perspective (Evidence, Methodologies and Findings) published in 2021 by University of Virginia Press, the editors provide constitutional and political science scholars the map to a treasure trove of empirical and quantitative sources and findings put together to provide insight (from a birds-eye point of view) into the strengths and weaknesses of research on “specialized constitutional courts […] playing a growing role in the review of both proposed and enacted laws” (p. 1.), or “specifically constructed to review the constitutionality of legislation and ultimately regulate the boundaries of political institutions”. (p.1.) Exchange of ideas on the operation of high courts and desirable reforms to their composition and competences is a dominant discourse in today’s world, especially when it comes to constitutional courts, and this book serves all stops of this discourse.

Nuno Garoupa, the lead editor, is not an unknown “contextual determinant” of American scholarship directed at the global study and understanding of the composition and operation of apex (i.e. high) courts in the national and international environment. His academic footprint is driven by examining judicial power and behavior(alism) – namely activism –, judicial politics, as well as procedural issues like the economic theory of exclusionary rules or voting procedures in terms of constitutional review, or quantitative approaches to constitutional courts in Western Europe. Rebecca D. Gill and Lydia B. Tiede are both professors of political science working with the comparative study of judicial institutions, judicial selection, judicial behavior and decision-making. The combination of their viewpoints and approaches makes the book a valuable resource supporting research directed at understanding the inner workings of and external influences on the judiciary.

In framing my review, I would like to go back to 2011, because it was then – exactly ten years before the publication of this book –, when Garoupa published a paper with Tom Ginsburg (another well-known “contextual determinant” of constitutional law scholarship) on how constitutional courts built their reputation. In this paper, they first argued that such courts that were “specialized”, because they have been created based on the 1920 Kelsenian model, which leads to two consequences – them being wedged between two dimensions: the political and the judicial. Their key argument was that these courts are inevitably political actors (being created by political institutions through political processes) as their actions of norm control (acting as what relevant academic literature calls “negative legislators”) also have political consequences. Moreover, they added that the model’s application in the different countries highly depends on local conditions.

As admitted in its Introduction, High Courts in a Global Perspective was originally intended as a collection of “draft papers, conversations and commentary” compiled in a research project funded by the US National Science Foundation, but it does much more than starts the conversation on high courts in a global perspective. Where possible, the book, its editors and the authors apply on analogies to the legal and constitutional system and doctrine of the United States to provide context for their understanding of the basic tenets of these structures.

Based on the above-mentioned qualities, this volume intends to offer a comprehensive methodological summary and commentary of globally available data on judicial behavior and relevant organizational patterns. It provides detailed insight – through sixteen chapters – into various aspects of the judicial realm such as (i) looking at patterns and indicators of various types of judicial behavior from New Zealand to India, (ii) providing insight into some of the burning questions scholars have thus far ventured to ask and answer in terms of two European (international) apex courts (the ECtHR and the CJEU) in an academic assessment of their success, e.g. by looking at the effect of judgments on national legal systems and the importance of national jurisdictions, or the application and citation of these judgments by (inter)national supreme and constitutional courts.

At times, the top-down, birds-eye perspective on global literature and research efforts directed at the various judicial systems presented in the book and its chapters produces such statements like “existing data neglect important areas of institutional activity entirely”, talking about the absence of specific research into the workings of the EU General Court. Not to argue with the fact that the EU General Court’s activity could be subject to more comprehensive research corresponding to some of the methodological avenues presented by the book, but it should be noted that huge areas of the EU General Court’s institutional activities are adequately dealt with by some contemporary scholars in Europe. This research also delves into questions that are treated by the authors, so one should not forego the conclusion that entire segments of the General Court’s work are neglected by scholarship. Maybe international scholarship (outside of Europe) is what is lacking to a greater extent thereby not informing extrinsic views on the operation of this supranational judicial entity, which can be construed as a problem regarding the goals of the book itself.

Regardless, the book is a well of meticulously thought-through and logically constructed “scholar’s guide” on how best to look at the operation of these courts from a comparative perspective. The rigor with which the editors construct the internal cohesion of the layers of methodological argumentation is exemplary. Hall and Wright argue in California Law Review (2008) that “[l]egal scholars, the mockingbirds of the academy, are great borrowers of scholarly methods. We experiment with the tools of historians, economists, sociologists, literary theorists, moral philosophers, and others, often to great effect. Yet despite these innovative efforts to study legal doctrines and institutions through different lenses, legal scholars have yet to identify their own unique empirical methodology.” In furthering this effort to create a unique empirical methodology, this book can certainly be considered a guiding light.

In addition to all this, the book addresses another challenge in terms of similar research: the lack of adequate information and data for in-depth empirical and quantitative studies. The book offers a well-rounded summary of empirical literature on Eastern Europe (p. 189-192), and sets a priority for future research in Europe: to address “data availability and publicity”. From my time working with the EU Fundamental Rights Agency between 2015-2020 as a member of the Management Board, I have first-hand experience on how absence in terms of vital data may disrupt otherwise quintessential work in monitoring best practices in that field, but we can imagine how this is reflected in terms of the intimate workings of the judiciary, whether we focus on “judicial behavioralism” or “content analysis”, as explained and promoted by Hall and Wright in their work cited above.

Hall and Wright this method of “content analysis” best fitting to projects that look into „(1) the bare outcomes of legal disputes, (2) the legal principles one can extrapolate from those outcomes, and (3) the facts and reasons that contribute to those outcomes and principles.” They also refer to Barry Friedman’s statement in his piece on Taking Law Seriously that „it is almost impossible to study law in a meaningful way without some attention to the [content of] opinions that contain these justifications.”

With this in mind, I would like to mention that not too long ago the creation of a database has been put in motion – spearheaded by the Hungarian Constitutional Court – called ECCN, European Constitutional Communication Network. (Expected to be operational by mid-2022.) Methodologically speaking, ECCN focuses on uncovering patterns and causal links across and between different national constitutional jurisdictions in Central and Eastern Europe. Its purpose is to enable a better understanding of local, national, regional specificities (previously dubbed as “contextual determinants”). In doing so, the database pools cases primarily from the constitutional jurisprudence of about a dozen Central and Eastern European EU countries that are in the center of public and therefore academic attention. In this effort, ECCN intends to enable the user to uncover and understand patterns of reasoning, thereby facilitating comparative constitutional research and application of law with such mindset. (So far, there is only one similar initiative known on the European level, the so-called CODICES, which is operated by the Council of Europe, casting a much narrower net, due to the limited scope of data available and the larger number of Member States concerned.)

In addition, ECCN also intends to open a window into any eventual “contextual determinants” of the operation of the high courts issuing the decisions selected and registered, the database may also be useful in pointing to traces of “constitutional convergence”, a theory thoroughly analyzed by Dixon and Posner. They argued in 2011 that while some find that the constitutional law of states is and should inherently be independent of the constitutional law of other states, there are concurrent opinions which put forth that “constitutional law of one state inevitably influences, and should influence, constitutional law in other states.”

I think that this must then be true to “applied constitutional law” as well, and this is what the ECCN projects intends to shed light on by providing a tool of learning for European courts in the region, enabling them to engage in judicial dialogue through their cases and their reasoning. Through such an effort, maybe some regional commonalities might emerge as well (beyond certain local conditions and national specificities) that will point to the fact that when certain constitutional law problems may be similar or the same in certain states, then it stands to reason that correlation between their constitutional legal solutions is to be expected as well. And this is particularly true if they are closer together due to a shared or similar historical past, or economic and social – contextual – determinants.

This brings me to my second point regarding the book, being that Garoupa, Hill and Tiede also call attention to the importance of having in-depth knowledge on regional and national specificities when analyzing high courts. In a very important part of the book, authors Bagashka and Garoupa talk about Constitutional (and Supreme) Courts in Europe (pp. 186-199). They react to current trends in relevant literature disserting on the politicization of the institutions of what I call “constitutional justice” by admitting that factual conclusions can only be drawn in this context in command of a “deep understanding of contextual determinants.” Most possibly the “local conditions” argument already elaborated by Ginsburg and Garoupa (see: above) reverberates in this thought, which I characterized above as regional and national specificities. But even if this is not the case, to my mind, it is indubitably true that without intimate knowledge of the internal workings of the legal, political and constitutional arrangements and structures that support and sustain these judicial institutions (i.e. the determinants of the context) that are specific to the country (and sometimes the region) no conclusive findings can be produced.

Unfortunately, as it can be seen from many current trends in mainstream constitutional discourse, the time that would be necessary to gain an actually deep understanding of these historical, cultural or even political and constitutional – contextual – determinants (i.e. the European concepts of constitutional identity) of certain legal systems is something of a luxury that seems not to be afforded to and by many. I can only hope that methodologically sound projects like the ECCN that was presented above will help avoid the further increase of such tendencies and push critics not just to “talk the talk”, but also to “walk the walk”.

Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail:

Mónika MERCZ: Constitutional or environmental law?

Different interpretations of the precautionary principle with regard to Article P) of the Fundamental Law of Hungary

As I have already remarked in one of my previous articles, the Fundamental Law of Hungary contains an Article dedicated to preserving the environment for future generations. I have done extensive research on this Article P) (1), and made a point of mentioning a particularly important principle that governs how we interpret the Article. While there are several related principles which we can mention when discussing this issue, the one which I would like to elaborate on is the precautionary principle.

The precautionary principle, together with the prevention and the restoration principles determine human activity in relation to the environment.[1] These three principles can also be interpreted collectively,[2] but it is the precautionary principle which concerns the most common human behavior.[3] The principle stipulates that if the effect of a certain human behavior – for example a decision taken by the governing bodies – on the environment or certain elements of it cannot be shown, then the human behavior in question shall be considered something that inherently poses a potential danger to (the elements of) the environment.[4] Consequently, the legislator must consider risks which are likely or certain to occur during the decision-making process.[5] The precautionary principle is now seen as one that represents an approach to the protection of the environment or human health based on taking precautionary measures even when there is no clear indication of harm or threat thereof,[6] so that we should treat human activity as a potential threat.[7] The foundation of the principle is that our knowledge of science is limited, thus the time of protecting our environment must begin as soon as possible.[8]

While all of this is undisputed as far as what the principle itself entails, different scholars have expressed a variety of views on what the precautionary principle can govern. Notably, Gyula Bándi, the current Ombudsman for Future Generations, has a strong opinion on the issue. According to him, the precautionary principle is not only an environmental but also a constitutional principle.[9] This means that in his interpretation the principle can be applied not only to issues relative to environmental law, as we have seen it and been discussing its uses, but also to constitutional law as a whole. If the precautionary principle would be applied in the entirety of constitutional law, as he proposes, that would cause a huge shift. To my mind, it would make decision-making processes much too long as well as unstable. I personally do not think that the usage of this principle on such a wide scale could lead to further preservation of our environment and the future of the next generations. Currently, the application of the precautionary principle is working and while its expansion in theory could lead to a better level of preservation, we must think about the issue in realistic and practical terms. Rather than reaching its original goal, it would slow down development and public administration as a whole. If this approach would become legally enforceable, the proportionality test should best be applied not just in terms of whether an activity has a significant impact on the environment, but also to determine whether this principle can be applied with regard to a specific issue. I would suggest limiting its use to intersectional cases where environmental and constitutional law issues are both concerned, such as in the case of Decision 16/2015. (VI. 5.) of the Constitutional Court of Hungary.

Despite his current objective to broaden the interpretation of the precautionary principle, I have done research on the practice of the Ombudsman for Future Generations, without uncovering any examples of such broad interpretation. Taking a look at the practice of the Ombudsman for Future Generations, we can see that the precautionary principle does not appear in every report, motion or resolution. Sometimes the basis of reference is limited to Articles XX and XXI of the Fundamental Law.[10] The decisions of the Constitutional Court[11] are cited many times in all available annual reports on the activities of the Commissioner for Fundamental Rights, which demonstrate the depth of the relationship between the two bodies. This is especially important as we can see that the Constitutional Court also applies this principle in environmental issues. In 2018, the Constitutional Court stated that the chance of damage occurring when making decisions about environmental issues shall always be examined.[12] The Constitutional Court also stipulated in its interpretation that due weight must be given to this principle in the course of decision-making.[13] This all ties back to how the Constitutional Court sees the precautionary principle as a specifically environmental principle. I am curious how the process of legislation as well as the entirety of public administration would change, were the precautionary principle always present as an obstacle when new legislation was about to be introduced. Because this principle raises the standard of protection to the level of possible endangerment without sufficient scientific proof, it would be exceedingly easy to halt a legislation by summoning the precautionary principle, were it ever widely applied.

In the examination of the activities of the previous Ombudsmans, as well as the current Deputy Commissioner for the Protection of the Interests of Future Generations – Dr Gyula Bándi-, the precautionary principle has been invoked in 17 of the last 27 years, a total of 42 times. Since 2012, the application of the principle has grown exponentially, appearing every year.[14] Regarding environmental administrative issues, the need for a broad interpretation as a goal is clearly visible; the Ombudsman for Future Generations would prefer the interpretation as a constitutional principle. The non-derogation principle also raises interesting questions, as its wider interpretation in a stronger concept is also more and more commonly desired. This principle, in my opinion, could be a better fit for application in the context of constitutional law issues, however, I would advise caution in it becoming much more pronounced as well.

Another interesting piece of information to note is how different the current situation of Hungary is compared to the United States’ stance on the use of the precautionary principle. While we aim to implement further precautionary measures into public law as a whole, Gail Charnley and E. Donald Elliot write about the principle of legality, and how extensively one must present factual reports proving significant risk before any measure can be taken to counter a potentially harmful action. While I wholeheartedly agree with E. Donald Elliot’s and Daniel C. Esty’s view, that “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”, I also think that the right way to implement the precautionary principle is only within the confines of environmental law, simply because of its very nature. I would be very interested in pinpointing where the fine line between the lack of use of the precautionary principle that characterizes the USA’s approach, and the increased interpretation of the principle that threatens to overspill into public administration lies.

To sum up, I have to say that even the Ombudsman for Future Generations’ practice raises questions about the applicability of the strong concept[15] of the precautionary principle. At the end of the day, our most noble end goal is to preserve the environment, natural resources and our culture itself for future generations, but we must be careful to preserve the present’s development, too, in the process.

[1] Olajos István: The precautionary principle in the practice of the Hungarian Constitutional Court and the connected agricultural innovations, Zbornik radova Pravnog fakulteta Novi Sad 53(4):1391-1412, 2019. DOI:10.5937/zrpfns53-22769
[2] Fodor László: Környezetjog, Debreceni Egyetemi Kiadó, Debrecen, 2014; Fodor László: ”A környezetjog alapelvei”, Környezetjog (ed. László Fodor), Bíbor Kiadó, Miskolc, 2003, pp. 40-43.
[3] Timothy O’Riordan, James Cameron, Interpreting the Precautionary Principle, Earthscan, London, New York, 1994.
[4] Bándi Gyula: ”Az elővigyázatosság elvének mai értelmezése”, Új kutatási irányok az agrár- és környezetvédelmi jog területén, conference organised by University of Szeged, Hungarian Association of Agricultural Law and Association of Hungarian Lawyers, 16 May 2019, Szeged.
[5] HCC Decision 13/2018. (IX. 4.) Reasoning [20]
[6] Stuart Bell, Donald McGillivray, Ole W. Pedersen, Environmental Law, Oxford University Press, New York, 2013. pp. 68.
[7] Bándi Gyula: ”Az elővigyázatosság elvének mai értelmezése”, Új kutatási irányok az agrárés környezetvédelmi jog területén, conference organised by University of Szeged, Hungarian Association of Agricultural Law and Association of Hungarian Lawyers, 16 May 2019, Szeged.
[8] Fodor László: Környezetvédelmi jog és igazgatás, Kossuth Egyetemi Kiadó, Debrecen, 2007 pp. 48.
[9] A jövő nemzedékek érdekeinek védelmét ellátó biztoshelyettes állásfoglalása, AJB-3658-2/2018. pp. 4.
[10] Közös jelentés egy vasútállomáson működő hangosbemondó kapcsán AJB-4642/2020. pp. 2-3.
[11] Particularly HCC Decision 28/2017. (X. 25.), HCC Decision 13/2018. (IX. 4.), HCC Decision 17/2018. (X. 10.), HCC Decision 17/2018. (X. 10.), HCC Decision 4/2019. (III. 7.) and HCC Decision 4/2019. (III. 7.)
[12] HCC Decision 17/2018. (X. 10.) Reasoning [91]
[13] HCC Decision 17/2018. (X. 10.) Reasoning [87]
[14] Mercz Mónika: Az Alaptörvény P) cikkének elemzése a jövő nemzedékek érdekeinek védelmét ellátó biztoshelyettes gyakorlatának tükrében (konzulens: Olajos István), Tudományos Diákköri Dolgozat, Miskolc, 2021. pp. 19.
[15] Szilágyi János Ede: The precautionary principle’s ’strong concept’ in the case law of the Constitutional Court of Hungary, Lex et Scientia No. XXVI, Vol. 2/2019. pp. 88-112.

Mónika MERCZ: Senior undergraduate law student at the University of Miskolc (Hungary). As a certified English legal translator, she is currently working as a project coordinator at the Mathias Corvinus Collegium (Budapest, Hungary) and is a member of the Editorial Board of the legal blog Constitutional Discourse. Mónika is the Secretary General of Miskolc (Hungary) branch of the European Law Students’ Association (ELSA). In recognition of her academic achievements, she was a recipient of the National Higher Education Scholarship 2020.

Lilla Nóra KISS: Constitutionalism: Universal but Unique?

In the current “rule of law” climate, a book such as the one reviewed hereunder might provide us with some much needed guidance in our arguments over what the concept of constitutionalism is and what it really means in terms of the rule of law. In his 2019 book titled “Revolutionary Constitutions: Charismatic Leadership and the Rule of Law”, Bruce Ackerman ambitiously addressed the topic of constitutionalism by using a unique comparative approach. His comparison focuses on three ideal types (revolutionary outsiders, responsible insiders, elite construction), in which he elaborates in each of them the four developmental phases (from Time One to Time Four) of constitutional development. The scientific uniqueness of the Author’s approach is the applied categorization of constitutional changes and the stages of operation of the post-change systems. Constitutionalism – as the Author defines it – “is part of a larger dynamic”; it should always be discussed. It means different ways of legitimizing power, its “rise reshaped modern notions of authority”. Ackerman asserts that considering the constitutionalism “as a one-size-fits-all ideal” is a mistake. This is one of the most valuable statements of the book in my view, as it turns into relative (or correlative) all values that are supposed to be objective and clear, transparent and without any doubt. If the reader presumed that constitutionalism is a universal value-system, the Author provides convincing arguments to the opposite. Even if the Readers might have some common idea about the fundamentals of constitutionalism, it evolved via very diverse ways under altering conditions all around the world. Literature on constitutionalism generally treats this as an optimal status consisting of democratic values in a rule of law state functioning within a framework having guarantees.

Ackerman treats constitutionalism as a process of change and the post-change-development of the society from a legal and political perspective.

Ackerman explains that the different cultural and historical heritage of states led them to multiple levels and forms of constitutionalism. All constitutions were transformed by social, cultural, and historical dynamics. Different movements (such as revolutions) strengthened the transformation into “powerful engines of legitimation” in the last century. Even if the Author analyzes social, legal, and political changes that arose in the twentieth century, he raises concerns and draws consequences that could be interpreted and monitored today.

The book reveals the Author’s individual vision of historical events determined by the types of constitutional movements and development, by which he established a new categorization system.

The comparative work often refers to the Weberian system (and highlighting the differences of the new approach). The fundamentals that are defined by Max Weber and his anti-positivist followers may still serve as points of reference in putting the social sciences on a rational footing. Ackerman considers his own approach positivist in only one sense: when it comes to defining the nature of a constitutional revolution. The positivist approach distinguishes law from non-law but does not question how a system legitimates itself. This leads to both over- and under-inclusive definitions according to Ackerman. Therefore, the Author also deters from the leading legal positivist perspective besides focusing on past events from a new approach.

I find the book particularly valuable in re-evaluating events that have now become historic in the light of past, recent, and present events. The Author’s assertions have a common ground within each type: these events impact on constitutionalism, its establishment or disestablishment, and its role as a source of authenticity. The interpretation is vital as our past often determines our future, and this also is true for the states. The durability and further development opportunities of mature democracies are results of the constitutional development of states. If the states evolve in terms of their constitutionalism in different ways, their conditions for the rule of law will not be the same either.

Finally, the Author is deviating from the conventional bipolar division of the legal world (common law, continental law) and applies a four-stage dynamic of constitutionalism(Time One: mobilized insurgency, Time Two: constitutional founding, Time Three: succession crisis, Time Four: consolidation). He attempts to rethink comparative law by distinguishing his theory from former and contemporary theoretical viewpoints. His comparison is based on a chronological order of development stages of revolutionary, establishmentarian, and elitist models of constitutionalism, and, on the other hand, on different countries’ case studies. Ackerman uses evaluative, analytical, and comparative methods by which he presents the constitutional development from the early stages of the regime changes until the afterlife of the established legal orders. He does this by guiding the readers to India, South Africa, France, Italy, Poland, Iran, Burma, and Israel. Ackerman finishes his book by a chapter about American exceptionalism.

Lessons for future ‘,influencers’,: pathways for legitimizing and elaborating power (the ,revolutionist,, the ,establishmentarian,, the ,elitist,)

Ackerman distinguishes three types of constitutionalizing processes and examines their development within their respective pathways. By using the model-system, the Author presents in the first part some constitutional revolutions in six chapters, and further elaborations in seven chapters in the second part. The last chapter is an outlook on the US constitutional system.

The first scenario is the revolutionary movement transformation which mobilized masses of outsiders to change the system controlled by the insiders. The Author points out some success stories of this type, such as India, South Africa, France, Italy, Poland, Israel, and Iran. (Even if the Author does not name the country here, I would add Hungary to this list as the development is very similar to the Polish example.) However, these constitutionalizing revolutions are not uniform. According to Ackerman, modern revolutions have two main types: the totalizing variant and the evolutionist. The latter is described as an approach to “propose pragmatic alternations in the status quo”, while the totalizing one intends to reach changes in multiple spheres of life. For revolutions to be successful, he asserts, must meet some conditions under certain circumstances. One of these is self-consciousness (which means that revolutionaries have a common ideology or combine elements of ideological themes: liberal, neoliberal, social democratic, imperial grandeur, egalitarian, etc.). Another inevitable element of a successful revolution is an active movement party. After the successful revolution, the previous and the new regimes are connected by a transition. The new system needs democratic reorganization which requires electoral victories. The new era or regime tends to keep older traditions that recognize the legitimacy of the revolutionary; therefore, the adaptation is unconventional. Revolutionary movements also have a central player: charisma. Ackerman distinguishes between organizational charisma and leadership charisma. The relationship of these types of charisma is complex, sometimes leaders rely on their organizations while in other cases they destroy their movement organizations to build their cults of personality.

The second and third scenarios are soft versions compared to the (sometimes bloody) revolutionary solution for changing the reigning system. In the second (establishmentarian) type, the new legal and political order are built by pragmatic insiders who tend to reach compromise. The insiders invite pacific groups of outsiders into a common brainstorming and by involving some of them, the common sense of the different opposing groups could be reached without a revolution. This solution could be defined as a soft strategic transition. The classic example for this solution is the United Kingdom. The UK had an influence on Australia, Canada, New Zealand.

The third type is very similar to the second, but the change here lacks the “popular uprising” that could be found in the first two models. Ackerman called this type an “elite construction”. In this case, the old system begins to unravel while the society is “relatively passive”. In this situation, a power vacuum emerges that is occupied by the political and social elites who become the engines of the new constitutional order. The Spanish regime-change serves as an example for this type.

The main difference between the first and the latter two scenarios is that the first requires a very active outsider (out of the reigning system) movement, while the others are changing from the inside. The distinguishing feature of type two and three is that in the second case, there is an outsider movement with soft and radical elements (and the model uses the consolidated groups of outsiders to dilute the system), while the third model lacks social movements. The change comes from the top, from the wealthy and educated political and social elite. In the Weberian system, the first scenario could be the root of the charismatic legitimacy, while the second and the third could probably have rational legitimacy. Ackerman’s scheme is lacking the transcendent and the traditional models of legitimacy, but the former is not conceivable in the twentieth century, while the latter usually pertains to kingdoms which became rather formal or ceremonial in the mentioned period. The previous century put an end to several charismatic (often dictatorial) leaders whose ‘systems’ became replaced by well-estimated rational and legitimate regimes.

The Author summarizes that all types face different problems arising from the “constitutionalization of charisma” and the “bureaucratization of charisma” over time that is emphasizing the legal and political dynamics. For example, the revolutionary legitimacy fades over time as the revolutionary generation dies off. Their heritage is fading and will not sustain the system forever. In all types, the political authority moves toward “the normalization of revolutionary politics”. A significant part of this normalization process in the first type is the judiciary, which first develops the new system’s “early constitutional doctrines in less provocative settings”. Later, the “jurists are aware of the fragility” of the doctrines. Lastly, jurists are “using the early judgements with growing self-confidence as authoritative precedents to resolve hot-button disputes between rival politicians”. As the second and third types lack revolutionary movements, the maintenance of the new order is relying on the elections. The party that triumphs in the elections is entitled to enact legislation and the judiciary cannot strike it down by referring to its noncompliance with the former systems’ norms. The judiciary therefore plays a significant but secondary role compared to the first type. According to the Author, the “judges may play a constructive role in type two by returning problematic statutes for reconsideration”. Ackerman also expresses that while the judges may play a constructive role, they “must recognize the parliament’s democratic authority to demand that the courts faithfully implement the new legislation”. This is an interesting perspective if we consider that judicial decisions shall be reasoned, objective and defendable. In type two, Ackerman defines the establishment / disestablishment as a problem. In this system, the lack of establishment is often replaced by referendums that are – as Ackerman writes – a “far deeper threat to the establishment of tradition”.

The Author critically points out that “the referenda open a way for demagogic appeals to ordinary citizens (who lack the resources of time and knowledge for fateful choices)”. He mentioned the Brexit as an example for this. The elite construction model faces challenges of authenticity. The obvious question is raised by the Author: how do the elitists generate support from the general population? The Spanish constitution provoked crisis in Catalonia and in the Basque Country for decades. The Germans created their post-war constitution (the Basic Law) in 1949 under military conditions. The naming refers to the Germans belief that their Charter did not deserve the status of a constitution. Therefore, they asserted a Final Article that expresses that a “truly authentic constitution could only be achieved when East Germans could free themselves from Soviet control” and when Germany is reunified. The authenticity problems arose in 1989 again when the Berlin Wall fell. The German Reunification Treaty enabled the German Democratic Republic (GDR) to become part of the Federal Republic of Germany (FRG) by signing the agreement. The authenticity aspect of the Treaty is that it extinguished the existence of “East Germany” by the signature of that agreement. Due to the active role of the German Federal Constitutional Court, the Basic Law became a central engine for the German constitutional and political identity. The Author demonstrates the role of the judiciary and the constitutional courts in the constitutionalizing process in which their decisions support the new system’s establishment.

Case studies: different countries, similar challenges?

Ackerman starts to present the first type of constitutionalizing programs by guiding the readers to India. The country (which is considered to be the largest constitutional democracy in the world) faces poverty, illiteracy, and a caste system. (The latter – from an egalitarian perspective – cannot be considered as democratic. However, “being democratic” from a Western perspective would presume a one-size-fits-all kind of solution for constitutionalism that cannot be achieved on such a diverse globe as ours.) India must handle several other challenges arising from its various ethnic and linguistic diversity. Ackerman raised the question of how India could sustain its constitutional order under these circumstances. The answer is the Indian Supreme Court and its role in defending the nation’s constitutional legacy and identity. The activity of the courts – which operate on a common law basis – became significant in the country’s succession crises of the 1970s.

South Africa has several parallels to India in the way of forging revolutionary charisma into constitutional authority. However, India applied a “declining empire scenario” while South Africa used a “revolutionary bargaining scenario”. South Africa struggles now with its succession crises according to the Author.

France and Italy are similar in the sense of their constitution building efforts after the Second World War. Both countries faced resistance movements of Communist, Socialist, and Christian democratic ideologies. The French Commander (later President), Charles de Gaulle allowed himself to challenge the resistance by the power of the military. He became the nation’s first President, and to date, the semi-presidential system is considered to be a relative success-story – according to the Author – as thirty-five countries already have adopted the Gaullist model.

In Italy, the Constitutional Court emerged from the succession crisis to gain political recognition as the guardian of the nation’s legal principles defined during the revolution. In Poland, the movement behind the regime change was the largest Solidarity agitation that led to the adoption of a semi-presidential design. This was evaluated as “less successful” by Ackerman. The reason behind the failure of the semi-presidential system in Poland was the competitive approach of Solidarity group leaders (in favor of a parliamentary and of a presidential system) instead of cooperation. This led to a post-Soviet leadership that was consolidated enough to reach consensus and adopt the new (elitist and not real revolutionary) constitution for Poland. The failure of the semi-presidential system therefore triggered the constitutionalizing of the charisma (both leadership and organizational).

The governments of Iran and Israel were both results of revolutions. The Zionist government was committed by the Israeli Declaration of Independence to promulgate the constitution, the liberal social democratic leaders (such as Ben-Gurion) passed this obligation to the movement party (Mapai) which became the constituent assembly. In Iran, the Supreme Religious Leader took advantage of the moment to establish the constitution on the basis of popular sovereignty. The adoption of the French style semi-presidential system (that did not bring luck to the Polish) was a successful attempt in Iran. Hassan Habibi drafted the constitution and used the French system as a source of inspiration. In Burma, military brutality followed the call for the new beginning in 1989. Aung San Suu Kyi was arrested until the movement forced the military to give her a seat in the government.

Finally, the Author dedicated a chapter to examine American Exceptionalism in order to enlighten the country’s constitutional crisis in the age of President Trump. To guide the reader in American constitutionalism, Ackerman starts by introducing Exceptionalism in the understanding of Justices Scalia and Thomas, and the cosmopolitanism represented by Justices Breyer and Kennedy among others. Ackerman calls for a rooted cosmopolitanism – “an approach that recognizes America’s exceptional constitutional culture” – that generates new insights. The Author analyzes US constitutional development with continuous comparison between the formerly presented countries’ revolutionary changes and establishments. In the end, Ackerman talks about the consequences of Roosevelt’s repudiation to constitutionalizing the charisma in the 1930s on the recent events of the Trump presidency.

Concluding remarks

In “Revolutionary Constitutions”, Ackerman approaches constitutionalism and several historical events that formed the current systems from a unique, 21st century direction. Helping readers understand the different movements and the succession of the regime-changes in various countries, Ackerman enables the comparison of today’s systems with the former ones.

. In doing so, he leads the readers into today’s America and attempts (in my view successfully) to interpret current processes on the basis of past events. According to John Bernall, “a nation who do not know its own history deserve to live it again“. I believe that knowing a bit about other nations’ struggles for their values also is important. Ackerman’s book helped me understand that even if we lived on different continents and used different legal systems, we probably would face similar challenges. A good example for this is our health crises arising from the COVID-19. Our countries treat the pandemic in various ways, but we still have mutual points and opportunities to cooperate. The health crisis caused constitutional turbulences within the EU as it has no competence in health matters, but the pandemic – of course – did not stop at the borders of the states. The Member States locked down their borders, introduced extraordinary rules for daily operations in several institutions, restricted the free movement of people and goods in the Internal Market which caused several economic and human rights issues. Several (rather liberal) Member States used the COVID-crisis to raise and force the idea of a European Health Union complemented by a Social Europe, while other (rather conservative) Member States denied deepening the integration in that way. COVID-19 affected the constitutional dialogue related to the future of the European Union and the level of cooperation among the Member States as well. Even if the EU is not a state, it struggles with relevant issues of constitutional identity, and so do the Member States – sometimes on a collision course. Ackerman’s comparison of certain European states was informative for me as a European citizen. Probably, in the next edition, the Author could present more countries. The analysis of Scandinavian and Baltic states could add a great value to this comparative approach in any upcoming work.

I particularly appreciated the short outlook to the brief cultural diagnosis of the European Union (EU). Even if the EU is not a state, it faces constitutional challenges. On the one hand, the EU has its own elite constitutional legitimacy, while, on the other hand, its Member States emerge from different legitimation pathways that cause collision when it comes to crisis management or decision-making affecting sovereignty. The Author points out that the leading European nations – in which group he considers including the Member States with the largest populations (Germany, Spain, France, Italy, Poland and [at the time of the publishing of the book Great Britain]) – came along in different constitutional ways, therefore they have trouble in finding common grounds for a more perfect Union. I guess, this book could serve as a guide for mutual understanding of the Member States on matters of constitutionalism.

To sum up, I conclude that the book has provided insight to the past through a lens of pathways to create a better understanding in a unique and useful way. Even if the content goes back to historical ages, the effects of those revolutionary events and constitutional transformations can still be felt today. Therefore, we should always draw on the past to have better conclusions for the future.

Lilla Nóra KISS is a postdoctoral visiting scholar at Antonin Scalia Law School, George Mason University, Virginia. Lilla participates in the Hungary Foundation’s Liberty Bridge Program and conducts research in social media regulation and regulatory approaches. Formerly, Lilla was a senior counselor on EU legal affairs at the Ministry of Justice and she has been a researcher and lecturer at the University of Miskolc (Hungary), Institute of European and International Law for five years, where she taught European Union law. Lilla obtained her Ph.D. degree in 2019. The topic of the dissertation is the legal issues of the withdrawal of a Member State from the EU.

Her current research interests cover the legal dimensions of Brexit, the interpretation of the European Way of Life, and the perspectives towards social media regulation in the USA and in Europe.