Conor CASEY: Hungarian Constitutionalism as Classical Constitutionalism? Reflections from an Interested Observer
Inspired by two earlier posts penned about the Hungarian Fundamental Law and constitutional interpretation by my friend Márton Sulyok, here I offer some thoughts on the topic as a comparative constitutional law scholar working within the natural law tradition. My basic suggestion is that the Hungarian Fundamental Law appears to commit legal officials to an interpretive framework steeped in classical legal thought, making it a framework that foreign natural law jurists, or anyone interested in ongoing debates over common good constitutionalism, can profitably study.
Classical legal tradition and legal interpretation: a quick primer
Following St Thomas Aquinas, classical jurists tend to maintain that the core object of legal interpretation is ascertaining the reasoned intention of the legitimate political authority in positing what they decide to posit. The lawmaker (whether in the form of the prince or legislature) enjoys “stewardship of the community” and has the duty and responsibility to create new law, and make determinations specifying how the particular community will respect the under-determinate principles of natural law and secure the demanding conditions of the common good. The secondary and related judicial role involves interpretation of a community’s already existing law while resolving disputes. These functions, and the role morality which attend them if they are to be done authentically, combine to radically cabin and structure a courts’ ability to make far-reaching determinations which functionally make new law. Compared to the richly creative role of the lawmaker, the structure of judicial inquiry is necessarily highly institutionally bounded. It is primarily to ask what the public authority has done in its authoritative act, ascertaining and inferring what reasoned choice it has made, mainly as manifested in the text of the legislative act. Their basic charge is discerning the reasoned intention of the legitimate authority, by reflecting on the relationship between the legal scheme it adopted and the good it wished to achieve. It is certainly not the judge’s role to displace positive law by reference to all-things-considered moral decision making or ‘palm tree justice’. Commitment to understanding lawmaking as a reasoned and authoritative act and determination, serves to constrain the scope of sound interpretive method, and would exclude as unreasonable, for instance, so-called living instrument approaches that permit judges to update legislation or constitutional provision by reference to changing moral and political views they think sound. It will also exclude forms of arid textualism that treat lex as a “cryptic collection of words dropped from the sky” and not as rational ordinances aiming to promote the common good.
Classical jurists also regard posited law as part of a wider juridical ordering of a polity to the common good, but not exhaustive of the community’s law. The tradition makes a distinction between two senses of “law”: lex and ius. Lex is the enacted positive law created and promulgated by political authorities, such as a master text constitution or the statutes of designated law-making bodies. In the classical legal tradition lex is understood, as Aquinas famously framed it, as an ordinance of reason promulgated by political authorities for the common good. To count as law in this focal sense, a posited law of a public authority must rationally conduce to the good of the community for which the lawmaker has a duty and privilege of care. Because the natural law only offers a skeleton law to communities – one which determines what posited arrangements are just and right – to enjoy concrete existence the basic precepts of the natural law require the sinew, flesh, and muscle provided by positive law enacted through human creativity and discretion.
Ius is the overall body of a community’s law generally, including and subsuming lex but transcending it, and containing general principles of jurisprudence and legal justice flowing from the natural law. Principles of ius, or legal justice, are not co-extensive with morality tout court. Rather, they are concerned with the maintenance of a just and reasonable ordering of persons in political community through law and legal institutions, and of proper treatment of citizens by political authority; both of which are standing requirements of justice and the natural law. Or as Professor Vermeule puts it, the classical tradition incorporates a “subset of political morality within law, namely the subset bearing on the virtues of general justice and regnative prudence, of which the common good is the object” and “settlement or coordination of social disputes and rational governance” the central means. Principles of ius concern the “art or craft of practical reasoning about legal justice that takes into account distinctive considerations arising from the institutional embodiment of the legal system.”
As John Finnis outlines, these basic precepts include moral absolutes central to a just and basically well-ordered polity like prohibitions on “intentional killing, intentional injury to the person, deliberate deception for the sake of securing desired results, enslavement which treats a human person as an object or a lower rank of being than the autonomous human subject.” Other examples of non-posited principles of legal justice (often found in hard cases) cited by Professor Vermeule in his recent work include: the presumption no-one will be a judge in their own cause, that those affected by a decision will be heard, that no-one shall profit from their own wrong-doing, that all public power will be directed to public and not private good, that retroactivity (especially criminal) is not favoured in the law, that legitimate expectations or reliance interests established by state action will be given consideration, that no one will be punished in the absence of law, that judges will defer to reasonable legislative determinations made in the public interest, that rights are not absolute but ordered to the common good and objective needs of society. Even judges who have lost sight of the classical legal tradition, do not tend regard appeal to such principles as akin to appealing to moral norms external to law, but as part of its fabric and critical to interpretative practice, even if their basis in posited law or social fact sources is decidedly shaky.
Ensuring harmony between lex and ius is a critical component of a sound legal practice that is ordered to the common good. Judges working within a classical legal framework will therefore strongly presume, when ascertaining the reasoned choice of the lawmaker, that they do not “wantonly violate background principles of ius and norms of reason that are constitutive of the nature of law” but will attempt to harmonize lex and ius. The primary structure of judicial inquiry may be to ask what the public authority has done by ascertaining what the authority has said; but an important supplementary task is to ask whether the court faces the nonstandard case, in which the authority’s rational ordering for the common has been imperfectly captured by what the authority said, read in light of larger background principles. Those tasked with administering justice according to law, like judges, are therefore “entitled and required” to treat legal propositions enacted by lawmakers as “presumptively oriented towards justice and the common good.” Part of upholding these standing presumptions will involve relying upon principles of legal justice that help to determine the good the lawmaker wished to achieve, in a manner that renders the lawmaking act intelligible as a work of reason.
Hungarian constitutional law as classical law?
There are several provisions of the 2011 Hungarian Fundamental Law specifying decision rules for legal officials interpreting statutory and constitutional text. Article R) provides that the provisions of the Fundamental Law itself are to be interpreted in accordance with their purpose, the preambular principles of the constitution, and the achievements of the historical constitution. Article 28 additionally provides for the standing interpretive presumption that provisions of the Fundamental Law serve moral and economical purposes in accordance with common sense and the common good. Some of the key preambular principles include the following propositions:
- “human existence is based on human dignity”
- “individual freedom can only be complete in cooperation with others”
- “the family and the nation constitute the principal framework of our coexistence, and that our fundamental cohesive values are loyalty, faith and love”,
- “the common goal of citizens and the State is to achieve the highest possible measure of well-being, safety, order, justice and liberty”
For statutes and other types of posited law, Article 28 provides that Courts will interpret them in accordance with their purpose and consistently with the Fundamental Law. In ascertaining the purpose of a statute, consideration will be given primarily to the preamble of that law and the justification of the proposal for, or for amending, the law. As with interpreting the fundamental law, it is presumed that statutes and other laws serve moral and economical purposes which are in accordance with common sense and the public good.
It seems to me (with all the limitations that attend being an external observer) that the provisions of the Fundamental Law concerning legal interpretation can be considered a series of determinationes guiding the interpretive practice of officials in a way thatfaithfully tracks the core classical legal precepts sketched above. For a start, the basic object of both statutory and constitutional interpretation is unmistakeably classical: it is the search for the purpose, or reasoned choice, of the lawmaker in positing what they decided to posit; by reference to the justification motivating their change to the law. Equally classical is the fact that these provisions make it clear that the search for the intention of the lawmaker takes place within a rich conceptual framework comprised of several standing juridical presumptions, which are all tied to a substantive normative picture of the nature of law-making and law-making bodies.
This paints a normative picture of law-making that rejects the idea law-making is an act of sheer will but sees it as a reasoned and purposive activity concerned with securing legal justice and the rational ordering of persons, families, and communities to their common good. As Adrian Vermeule has recently written of the Hungarian Fundamental Law, its understanding of law does not regard it as the:
“mere arbitrary command of a dominus, a master, but has a fundamentally reasoned and public-regarding aim: to promote the public welfare and public goods of peace, order and justice.”
The Hungarian Fundamental Law places a strong interpretive presumption that lawmakers will not act to transcend or transgress the intrinsic limits on their authority, or the purpose for which their constitutional office is constituted. Thus, legal officials will strongly presume statutes will be consistent with the Fundamental Law, and that all types of law will be understood consistent with moral and economical purposes in accordance with common sense and the public good. This appears to me a prudent means of ensuring legal officials remain attuned to the fact that posited law, or lex, must be understood harmoniously with principles of legal justice.
In the Hungarian context, thus, principles of ius picked out by the preamble to the Fundamental Law and the interpretation clauses include acknowledgment that law is for the sake of persons and human dignity; that the family is the basic and primary unit of the community; that individual rights must be ordered to the common good; that the institutions of State exist to serve the community and promote the good of citizens; and that the purpose of lawmaking is the common good.
Lack of explicit mention of the common good: a missed opportunity?
Márton Sulyok noted earlier on this platform that explicit references to the common good are sparse in the opinions of the post-2012 Constitutional Court and concludes, somewhat gloomily, that “Hungarian constitutional jurisprudence does not provide fertile grounds for references to the common good in constitutional interpretation.” Does this lack of explicit reference to the common good in legal interpretation mean that it is implausible to suggest Hungarian public law has a strong classical flavour? I am wary of straining the bounds of my competence in tackling this question, so I restrict myself here to simply observing that a commitment to a classical legal framework certainly does not require that judges engage in extended elaboration about what the common good requires, all-things-considered.
After all, in the classical tradition it is executives, legislatures, and the People (acting as a constituent authority or voting in referendums) that properly take the lead in specifying how a particular community will respect the under-determinate principles of natural law and secure the demanding conditions of peace and justice conducive to the common good. When it comes to resolving a particular legal dispute judges can only properly have regard to the overall demands of the common good in an institutionally cabined way, because the judicial inquiry aims to resolve legal disputes by discerning the reasoned choice of the lawmaker expressed in and through the text, not to do so by their own moral choices. As Sulyok properly observes above, legal interpretation properly done “does not replace or result in lawmaking, encroaching upon the constitutionally reserved powers assigned to the legislator”.
All of which is to say that, within a classical framework, it should not be unusual at all for direct references to the common good by judges to be sparse. Rather, judicial reflection on the needs of the common good will typically happen under the radar, as it were, by faithfully discerning the choices of the lawmaker while ensuring any interpretive ambiguities or uncertainties are resolved in favour of interpretations that presume the lawmaker acts consistent with reason and human flourishing. Adhering to such juridical presumptions will therefore, at the same time, inevitably indirectly and implicitly invite judicial reflection on the ends and goods the lawmaker wished to achieve for the common good, and press judges to correctly grasp what types of ends would make a given interpretation of an ordinance rational or irrational, or consistent with human flourishing or not.
Thus, if a Hungarian judge opts for interpretation A over interpretation B in a given case because they have concluded the latter would lead to an unjust or irrational result the lawmaker could not possibly have intended – perhaps because it would be immoral or lacking in common sense – then they will have been implicitly reflecting on the requirements of the common good in their own limited way, even if they do not explicitly invoke the term.
If I have sketched anything like a plausible account of how Hungarian legal practice proceeds, then contra my friend Professor Sulyok, it might be premature to say “Hungary is the land of (missed) opportunities” for developing a framework with concern for the common good at the heart of legal interpretation. That, at least, is the optimistic hope of this interested observer.
Conor Casey, Associate Professor, University of Surrey School of Law
 Thomas Aquinas, Political Writings, ed. R.W. Dyson (Cambridge: Cambridge University Press, 2002),148-149; 200-201.
 Adrian Vermeule, Common Good Constitutionalism (Polity, 2022) 74, 83.
 Id., 83.
 Thomas Aquinas, Summa Theologiae, Ia-IIae, q. 90, art. 4, Great Books of the Western World: Volume 18, ed. Mortimer J. Adler (Chicago: Encyclopedia Britannica, 1990).
 Adrian Vermeule, ‘Enriching Legal Theory’, (November 2022), Ius & Iustitium, https://iusetiustitium.com/enriching-legal-theory/.
 Adrian Vermeule, ‘The Common Good as a Universal Framework’, (July 2022), Balkinization, https://balkin.blogspot.com/2022/07/the-common-good-as-universal-framework.html.
 Adrian Vermeule, ‘Common Good as a Legal Concept’ (November 2022) Ius and Iustitium, https://iusetiustitium.com/the-common-good-as-a-legal-concept/#:~:text=%E2%80%9CThe%20common%20good%E2%80%9D%20in%20the,is%20an%20absolutely%20ubiquitous%20concept..
 John Finnis, “Natural Law and Legal Reasoning,” Cleveland State Law Review 38 (1990) 11.
 Vermeule, Common Good Constitutionalism, 153.
 Id., 81.
 Adrian Vermeule, ‘The Original Scalia’ (2023) 2 Harvard Journal of Law & Public Policy: Per Curiam 1, 8.
 Adrian Vermeule, ‘The Theory and Practice of Common Good Constitutionalism’ (August 2022), https://iusetiustitium.com/the-theory-and-practice-of-common-good-constitutionalism/.
 Cass Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State (HUP, 2021) 76-77.
 Vermeule, Common Good Constitutionalism, 83.
 Id., 61-4.
 Id., 164-6.
 Conor Casey & Adrian Vermeule, ‘Myths of Common Good’ (2022) 45 Harvard Journal of Law & public Policy 103, 124.
 Vermeule, Common Good Constitutionalism, 83.
 Gratian, Decretum: Treatise on Laws, with Ordinary Gloss, trans by Augustine Thompson O.P. & James Gordley (1993) 33; John Finnis, “Priority of Persons,” Intention and Identity: Collected Essays Volume II (Oxford University Press, 2011) 27.
Conor CASEY, Associate Professor, University of Surrey School of Law, a non-practising barrister in Ireland since 2020, specialising in administrative law, constitutional law, and legal theory. Co-author of the Irish Human Rights & Equality Commission Report on Irish State response to the COVID-19 crisis. His work has been cited by the United States Court of Appeals for the Third Circuit. Dr. Casey regularly comments on legal matters in public forums.