Judicial Interpretation and the Common Good

Whether or not this was his original intent, HLS Law Professor Adrian Vermuele stirred some waves by publishing his theory of Common Good Constitutionalism (CGC) arguing against the original method of American constitutional interpretation (more closely originalism) in that it no longer serves its purpose and cannot appropriately address current challenges of American constitutionalism. He proposed CGC because in his view ‘living constitutionalism’ cannot adequately address these issues either. He first wrote about CGC in the Atlantic, and “[it] is fair to say it did not go unnoticed.” His book by the same title (Common Good Constitutionalism, published by Polity Press in 2022) explains his ‘original public meaning’ of CGC, and it was widely reviewed, debated, cited and criticized across the board of American constitutional and political science scholarship for the better part of the past year and ever since. Given this momentum, the Harvard Journal of Law and Public Policy and the Harvard Chapter of the Federalist Society organized a CGC Symposium in October 2022, where I had the honor of moderating a panel of American, Irish and Canadian legal scholars on the Common Good. (The full research is set to be published in the Harvard Journal of Law and Public Policy during this coming semester.)

The academic debate, the book and the Symposium all offer an opportunity through this post (Part One) to look at how the common good appears and is interpreted in the context of the widely debated and often criticized Fundamental Law of Hungary. This new Hungarian constitution (in force since 2012) contains a General and a Specific Interpretation Clause, the latter of which mandates the presumption of the service of the common good – as well as other factors – when interpreting the purpose of laws and the constitution. The relevant constitutional provisions were partially amended in 2018 and Hungarian scholarship disagrees on the extent of changes to the interpretive methodology. This status quo renders the following analysis even more timely.

I. Interpreting Interpretation – For What Purpose?

For as long as courts first had the authority and power to interpret the constitution, judicial interpretation and its constitutional scope and extent has been central to global debates. The birth of ‘constitutional justice’ was a feat of interpretation itself carried out by the Supreme Court of the United States in Marbury v Madison, also shaping future European regimes. The Hungarian Constitutional Court (Alkotmánybíróság, AB) was first established in 1989 and molded in the Kelsenian (German-Austrian, centralized) tradition after the fall of Communism. The AB received interpretive powers through the adoption of the first democratic constitution and a preceding ‘constitutional convention’ (National Roundtable, NEKA) before the first freely elected democratic parliament voted on the constitutional text adopted by this ‘convention’. After more than 20 years, with the 2011 adoption of the Fundamental Law, Hungary’s new constitution by the National Assembly, specific provisions on its judicial interpretation have been created.

1. The provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal [i.e. preamble] contained therein and the achievements of our historical constitution. [General Interpretation Clause,Article R) (3)]

• Courts shall interpret the text of laws primarily in accordance with their purpose and with the Fundamental Law. In the course of ascertaining the purpose of a law, consideration shall be given primarily to the preamble of that law and the justification [i.e. reasoning] of the [draft legislative] proposal or a proposal for amending the law. When interpreting the Fundamental Law or laws, it shall be presumed that they serve moral and economical purposes which are in accordance with common sense and the [common] good. [Specific Interpretation Clause, Article 28, last amended through the Seventh Amendment in 2018]

These two clauses have lead scholars and practitioners to revisit fundamental questions of judicial interpretation. According to some, the purpose of the Specific Interpretation Clause particularly its sentence containing the reference to the common good, was to move the judiciary out of its comfort zone. Others think that “the contradictions and misunderstandings in the interpretation rule stem from the fact that it is not clear whether it is a fiction or a matter of content”.

Whether is it is an issue of great controversy or an issue of comfort zones, the fact of the matter is that the Supreme Court of Hungary (Kúria, Curia) oversees ordinary jurisdictions without any constitutional authority. It is separate from the constitutional jurisdiction (AB), but responsible for the uniformity of the application of law and the consistency of judicial practice. In this spirit, two previous Kúria Presidents have tasked working groups over the past 10 years with looking at how the Specific Interpretation Clause has been applied in judicial practice, including AB jurisprudence (as judicial decisions are subject to constitutional review before the AB through ‘constitutional appeals’ called complaints). Having been assigned to one such working group in 2021, I prepared a comparative review (in Hungarian) of academic literature on judicial interpretation in light of the Specific Interpretation Clause.

In this short contribution, I intend to share some of my select insights and add to those others that seem relevant to judicial interpretation in light the common good, specifically focusing on the jurisprudence of the AB. Maybe this may affect or inform some of the debates on Common Good Constitutionalism (CGC) in the United States or in the wider Anglosphere as well.

Looking at the Interpretation Clauses (above), many questions arise, and there is apparent tension between the first and third sentences of the Specific Interpretation Clause, in that it is not clear whether the four values in the third sentence (i.e. moral and economical purpose, common sense and the common good) (i) relate to the purpose of the legislation; (ii) are independent interpretative criteria; or (iii) a ‘check’ on the result of interpretation. Prof. András Varga (the sitting President of the Supreme Court) sees the third sentence as a ‘verification rule’.

Hungarian constitutional scholar Johanna Fröhlich argues that the distinction between the interpretive standards of interpreting the constitution and ordinary laws exist only in the normative text as the Specific Interpretation Clause expressed the subjective intention of the legislator before the 2018 amendment as well, and the change that year was merely a refinement of that original intent. “On the other hand, it could be argued that […] the Seventh Amendment has at most changed the interpretation of the ordinary courts [i.e. by clarifying the purpose of the legislation], but not the rules of interpretation of the Fundamental Law.”

In a similar vein, Prof. Varga – in his work cited above – posits that the post-Amendment Specific Interpretation Clause is not ‘new’ as:

1. “It does not define a new interpretative criterion, merely elaborates on an existing one”;
2. It does not change the existing canon of interpretation, since “the new provision does not override the previous rule that the interpretation must take into account not only the purpose of the legislation but also its conformity with the Fundamental Law”.
3. The Specific Interpretation Clause channels the General Interpretation Clause, i.e. in order to declare conformity with the constitution, the interpretation of the Fundamental Law will always be required, mindful of the requirements of both Clauses.

There is consensus in Hungarian academic sources – argues Krisztina Szigeti – that purposivist (teleological) interpretation is to be determined from the text of the law to be interpreted, in which the preamble of the law plays a decisive role. Through this, the post-2018 Specific Interpretation Clause explicitly drives judicial deliberation and discretion into hitherto alien territory regarding the definition of legislative purpose, especially through the obligation to examine preambular provisions or legislative justifications, and explanatory memoranda.

The Specific Interpretation Clause, moreover, also orients the interpreter with regard to the quality of the aim by an ex-post ‘verification rule’ (argues András Varga, cf. supra) with reference to the morality, economy, common sense and common good. Verification means that all interpretation must be weighed against the four values. However, if we accept this ‘verification thesis’, the interpretation most definitely opens up to metajuristic layers, which brings about its own problems.

Constitutional law professor Péter Sólyom considers the constitutional rules on interpretation a source of unnecessary uncertainty, seeing the Specific Interpretation Clause as a ‘futility of futilities’ that sets in stone many uncertainties that pitted the interpretation of the ordinary courts against each other and the AB’s ‘interpretive authority’ against the interpretation of ordinary courts (and the Kúria on top).

I think that judicial interpretation under the Specific Interpretation Clause is special when it comes to the constitution. A judge’s interpretative position is that of a ‘participant’, but interpretation also imposes an ‘observer’ position which, according to Johanna Fröhlich “is not bound by the rules governing the situation, its position is neutral, which allows it to look at the legal problem from an external perspective from which the facts of the situation observed can be objectively described.”

Under the Specific Interpretation Clause, I would also add that the judge as a ‘participant’ is bound by the concrete, specific legal rules ‘governing the situation’ and is ‘an active part of the interpretative decision’, but – as an ‘observer’ – he must also have an external (i.e. superior) point of view, which is not only determined (objectively) by the facts of the observed situation, but also by a ‘hermeneutic layer’ above and beyond them. This layer is intrinsically linked to the constitution and its content, and in this respect can be considered objective. In addition, the above-mentioned ‘verification rule’ specifies four ‘teleological constraints’ in interpreting the Fundamental Law or laws: moral and economical purposes, common sense and the common good.

Part II. Interpreting Common Good

II.1. In Hungarian Legal and Constitutional Scholarship

In this Part, a brief overview of the concept of common good seems necessary, focusing our inquiry onto the aspect relevant to the American CGC discourse. As very aptly put by legal theorist Prof. Péter Szigeti: “the mystery of public interest, public will, public or common good and of general interest has been a topic of discussion for more than 3000 years”. As state theory scholar Péter Takács argues (in the same volume as Szigeti) “the foundational idea of the ideal of the common good is that the association and cooperation of humans necessarily creates a unique group of goods, which in turn decisively affects the order of their relationships as well.”

Early notions of the common good are often related to principles of ‘commutative justice’, bearing on the mutual relationships of the members of the community, by harmonizing (ordering) their activities with each other, by respecting and representing common and mutual interests – Casey and Vermuele argue in this vein as well in analyzing myths of CGC in the Harvard Journal of Law and Public Policy. The second part of the preamble of the Fundamental Law provides a vision reflecting on these views, representing a vision for the Hungarian state and its communities:

• “human existence is based on human dignity”
• “individual freedom can only be complete in cooperation with others”
• “the family and the nation constitute the principal framework of our coexistence, and that our fundamental cohesive values are loyalty, faith and love”,
• “the common goal of citizens and the State is to achieve the highest possible measure of well-being, safety, order, justice and liberty”

In general, with the appearance of modern capitalist structures and relations, the notion of the common good was gradually deemed more and more inappropriate and became replaced by the dualistic structure of private vs. public interest. In this approach, the public/common good is such a concept that strives to realize or protect the public interest, and what it means might demonstrate a rich variety in historical terms as well as in the context of different legal systems. This is the summary of the arguments of Szigeti and Takács, cited above. However, Takács also writes that those who think that the references to the Holy Crown in the Fundamental Law represent a service to the common good are wrong. He calls abundant and exuberant references to the common good the corollaries and consequences of ‘shallow relativism’, operating based on the assumption that the content of the common good changes with the age, culture, or community of reference and is therefore impossible to define.

Casey and Vermuele hit a similar tone reacting to claims that the common good

• “is not simply […] a placeholder for whatever subjective preferences any particular official might desire to impose”
• “is an undefined notion […] both spatially and temporally”.

Considering these views extremely shortsighted, they conclude that the legal field cannot ignore its manifold representations through ‘cognates’ such as ‘common good’, ‘social justice’, ‘general welfare’, ‘public interest’, ‘public good’, ‘peace, order, and good government’. Takács (cited above) also deals with these notions and explains how ‘public will’ (közakarat) and ‘public interest’ (közérdek) – two accompanying terms of the common good – started substituting ‘public/common good’. He also argues that the use of ‘public interest’ is the continuation of the ‘common good’ in modern times. We can concede that these terms seem at least prima facie synonymous, and are ‘cognates’ of the common good (‘közjó’) as Casey and Vermuele argued above.

Coming soon, I will look at how and in what contexts the common good appears in the jurisprudence of the Constitutional Court of Hungary.

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Márton Sulyok JD, LLM, PhD is an Asst. Professor (Senior Lecturer) in Constitutional Law and Human Rights at the Institute of Public Law, University of Szeged in Hungary. JD (2007, Szeged), LLM in Anglo-Saxon Law and English Legal Translation (2012, Szeged), PhD in Law and Political Sciences (2017, Szeged). Certified as an American Legal Expert (since 2009) in a joint training program of the University of Toledo College of Law and the University of Szeged Faculty of Law and Political Sciences. Currently, Prof. Sulyok is the Head of the Public Law Center at Mathias Corvinus Collegium (MCC) in Budapest, Hungary. Previously, he sat on the Management Board of the EU Fundamental Rights Agency (Vienna, 2015-2020), and currently he represents MCC on the Board of Directors of the European Public Law Organization (Athens, Legraina, Greece).