by Mónika Mercz | Jun 2, 2023 | Courts, Fundamental Rights, General
Inspired by two earlier posts penned about the Hungarian Fundamental Law and constitutional interpretation by my friend Professor 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 that faithfully 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, 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.
by Mónika Mercz | Apr 25, 2023 | General, Privacy & Data Protection
Do you listen to true crime podcasts? If so, you have probably heard about cold cases such as the Boy in the Box, the Lady of the dunes and Opelika Jane Doe. The common feature of these cases? These victims have all been identified using genetic genealogy (DNA) – but the story is not as simple as you might think. Especially seeing that your curiousity about what your ethnic background is like is what helps DNA testing companies create huge banks of DNA from your samples. Do you think they keep these samples to themselves? Do you think solving crimes through DNA testing has nothing to do with at-home DNS testing and companies such as Ancestry or 23andMe? You might be surprised if you dig a little deeper.
Your genetic material provides invaluable information to those handling it, and while solving these cold cases and catching perpetrators is seen as worth the price we pay, maybe paying with unrestricted access to our DNA is not as proportional to the goal we want to reach as you might think.
While many companies try to develop further technologies to unlock our DNA, and DNA testing companies such as Ancestry, 23andMe and MyHeritage make it possible for us to figure out decade-long disappearances, we forget that law enforcement, private companies and many more interested parties now know everything about us – without our consent. Our aim was just to help alleviate the pain of unbelievable tragedies, but now we have given up information about our being as a whole, in addition to our family tree, our diseases and our relatives. This is especially frightening, seeing that our society as a whole could become much more transparent – and possibly segregated, if we were to give out our genetic makeup. How could we stop this unrestricted access to our DNA from causing problems while keeping the best parts of DNA databases? I believe the answer lies in stronger regulations that protect sensitive data, especially in the US, where many of the headquarters of these private DNA testing companies are, and where data protection is given less attention than for example in the European Union.
The GDPR, an Act governing data protection across the European Union, is not named as applicable in the privacy policies of many DNA testing companies. We might think that there is additional protection in the US – but actually those laws are significantly weaker, making the infringement of this kind of sensitive personal data more easy. It may get into the hands of insurance companies, who will know about your state of health, or law enforcement might use it to identify one of your loved ones as committing a crime. While combating heinous atrocities is a noble goal, are we ready for anyone to see our ethnic background, our genetic diseases? Are we ready to live transparently, stripped bare in the name of justice? Focusing more on the data protection aspects is more important now than ever. If we wish to have our cake and eat it too – provide justice for the dead and protect the living, we should consider what measures need to be taken. It is imperative that companies providing DNA testing as well as law enforcement should be more clear about the timeframe and manner of handling genetic material. Open communication and strict regulations are necessary. We cannot and should not ask families of loved ones to give up hope of finding out what happened, but we also cannot afford to become transparent and risk possible horrible consequences . I advise every lover of true crime, every empathetic person who wishes to see crimes solved and all of us, who are curious about our genetic background to take a step back and advocate for laws which protect us, while giving law enforcement the opportunity to do their job – without any mishandling.
New, stricter laws and bodies should be set up, as we progress towards a society, where no misdeed will be left uncovered, so that we, the innocent may keep seeing crimes being discovered without our very makeup meeting the same fate.
Mónika Mercz, JD, specialized in English legal translation, Professional Coordinator at the Public Law Center of Mathias Corvinus Collegium Foundation while completing a PhD in Law and Political Sciences at the Károli Gáspár University of the Reformed Church in Budapest, Hungary. Mónika’s past and present research focuses on constitutional identity in EU member states, data protection aspects of DNA testing, environment protection, children’s rights and Artificial Intelligence.
Email: mercz.monika@mcc.hu
by admin | Feb 19, 2023 | Book Review
Towards a Dignified Discourse on Human Rights?
The universal respect for human rights should be the tie that binds, not divides our societies. Unfortunately, the currently raging conflict in Ukraine, the rising global tensions as well as the increasing shift in how the world views human rights makes this discourse unavoidable. In recent years, we have experienced the expropriation of interpretation in several legal questions. Albeit diversity and freedom of opinion are core values, interpretative tendencies that are locked into certain institutions or dynamics without giving any merit to outside input might lead – in our context – to the weaponization of human rights in various social and political situations instead of protecting individuals on legal grounds – as they should. One-size-fits-all legal interpretation minimizes the need and space for open discourse and exchange of views and, therefore, fastens political and societal polarization as well. This creates divide when it comes to individual needs, worldviews and interpretations not being heard, which contributes to ever-rising tensions. As a result, questions related to human dignity, fundamental rights, and values are becoming wedges rather than essential ties among us, actual tools for social cohesion.
The Authors of ‘Human Dignity and Law: Studies on the Dignity of Human Life’ (Guillermo F. Arquero Caballero, Grzegorz J. Blicharz, Carlos Espaliú Berdud, María Luisa Gómez Jiménez, Franciszek Longchamps de Bérier, Javier Martínez-Torrón, Federico de Montalvo Jääskeläinen, Liviu Olteanu, Maria do Céu Patrão Neves, José María Puyol Montero, Hugo S. Ramírez-García, Francesc Torralba and Luca Valera) recognized that unilateral interpretation in human rights advocacy is a zero-sum game, where no win-win scenario could be achieved. There is a need for competition in the ‘marketplace of ideas’ in order to respect our diversity and preserve alternative and valid legal interpretations in different cases. This book serves as a set of ideas on the various aspects of human dignity.
The Authors’ valuable contribution shows that we need new, renewed, and alternative ways to approach social conflicts to prevent driving society into disintegration. Hyper-judicialization of human rights and applying only one solution for all cases only lead to injustice. Therefore, based on our human dignity, we should rebuild a culture of respect for those who think and live differently. In this process, retrieving and rediscovering the concept and content of human dignity is crucial. The Authors provide an introduction into the ‘know-how’, by discussing the importance of the many aspects of upholding human dignity.
The current trend of monopolization in legal interpretation, where only one viewpoint is accepted, as they argue, leads to the weaponization of human rights and ultimately polarizes society. The Authors propose that there should be competition in the “marketplace of ideas” in order to allow for the respect of diversity and the consideration of alternative (concurrent) legal interpretations. The book draws on the concept of persona in Roman law, which posits that law exists to serve humans rather than the other way around. The authors argue that a return to this principle is necessary in order to rebuild a culture of respect for those who think and live differently.
In our understanding, the erosion of human dignity seems to be a result of intensifying migratory movements, changes in the reasons for migration, and the emergence of new technologies that challenge traditional definitions of humanity. The creation of artificial life and the modification of human bodies raise both social and legal questions about human dignity and the legal status of humanoid robots.
Step by Step
José María Puyol Montero, the author of the first chapter discussing these issues highlights the case of Sophia, a humanoid robot that was granted Saudi citizenship and appointed as an ambassador to the United Nations Development Programme, and discusses the impact on international relations and the consideration of robots as persons or objects under the law. The chapter also discusses the views of moralists in the 16th to 18th centuries on the dignity of Native Americans and enslaved Africans in the Spanish Crown and the efforts to protect their human dignity on moral and religious grounds. The author concludes that human dignity is an inherent aspect of being human that should be exercised as a responsibility for both personal development and the betterment of society.[1] This is why the birth of social rights[2] was such an impactful development, particularly when it came to labor law.
In addition to AI and emerging (disruptive) technologies, the gig (sharing) economy poses challenges to the protection of human dignity and labor rights due to the lack of clear legal categorization and the influence of algorithms and artificial intelligence on the measurement of trust. Grzegorz J. Blicharz argues that universal moral assumptions should be applied in these relationships due to the fact that contractors are human beings with dignity and human rights, regardless of the legal classification. This is where the issue of the wage-gap between men and women also comes up, as a potential threat to the betterment of society.
The next chapter discusses the concept of ecological citizenship, which involves the obligation to protect the environment,[3] and the importance of reshaping the relationship between morality and law in order to address humanity’s vulnerability and ensure the preservation of the planet.[4] Hugo S. Ramírez-García also mentions the need to redefine concepts such as citizenship in the face of technological advances, wars, and pandemics.
The following chapter discusses the impact of COVID-19 on human dignity and the projection of the “Red Queen Effect” (i.e. the constant need to adapt and evolve in order to survive) on public health policies. María Luisa Gómez Jiménez discusses the importance of human dignity in the design and implementation of health policies and the need to consider the long-term effects on the public’s trust and the sustainable development of the health system.
The final chapter discusses the concept of “dignity in the end of life“, including the right to a dignified death, the role of palliative care, and the legal regulation of assisted suicide and euthanasia. Francesc Torralba discusses the need to respect the autonomy and dignity of individuals in end-of-life decisions and the importance of providing appropriate palliative care.
Conclusions
Seeing how many different threats our society has to face, the motto of the European Union, “Unity in Diversity,” has been called into question in recent years. Are we really ‘united in our diversity’? Or our diversity became a ground for distinguishing and dividing us? We are living in a very controversial world where our personal features and values have become our own enemies and they can be weaponized against us by the click of a button. As a result, societies became very polarized; politics and extreme rhetoric are circulating ideological themes wrapped in trendy new layers of the concepts of ‘human rights’ and ‘dignity’. Human rights are supposed to provide cohesion at the social level due to their universality. However, the interpretation of human rights content and applicability might vary in each state or region, so due respect should be given to particularity. Instead, this trivial truth led to reshaped processes designed to tilt the role of human rights and dignity, transforming then into political weapons to fight ideological battles. A new layer of this is the digitalization and the evolution of certain technological solutions, which all affect human nature, human dignity, and its legal and social evolution.
The book bravely deals with these sensitive issues and express their professional opinion about human dignity and its conceptual elements based on the lessons learned from Roman Law. The fact that most of these chapters deal heavily with Artificial Intelligence and digitalization as part of the broader conversation about human dignity conveys a message about the state of human rights and which direction we should move. If we wish to preserve our environment and maximize our chances of avoiding another pandemic and uphold our rights in the digital age, new perspectives must appear in conversations about the place law holds in today’s society. However, we have to keep an eye on the original concepts and from time to time, we should go back to the roots, reinterpret and rethink those in the light of our present.
‘Human Dignity and Law. Studies on the Dignity of Human Life’ starts an overdue conversation about new aspects of the challenges we are facing and, in our opinion, does a very good job. It is an intriguing work that presents revolutionary ideas grounded in extensive and in-depth research. Its 306 pages and 12 longer chapters contain intriguing data, necessary for the new generation of thinkers to prepare for the unique challenges to come. Since the Authors recognized that unilateral interpretation of human rights is a zero-sum game, where no win-win could be achieved, we applaud that they opened the floor for a fresh and much needed debate on human dignity, human rights, and their protection.
Human rights issues are often complex and multifaceted, requiring a nuanced and respectful approach. Unilateral interpretation and one-size-fits-all solutions can lead to injustice and further polarize society. In order to achieve a win-win solution, it is important to consider multiple perspectives and engage in open and respectful dialogue. Only by approaching human rights issues with an open mind and a willingness to find mutually beneficial solutions can we hope to uphold the universal respect for human rights and prevent societal disintegration.
Lilla Nóra Kiss, PhD, Visiting Scholar and Adjunct Faculty, Antonin Scalia Law School, George Mason University, USA; Founding Member, Freedom and Identity in Central Europe (FICE). Email: lkiss@gmu.edu
Mónika Mercz, JD, specialized in English legal translation, Professional Coordinator at the Public Law Center of Mathias Corvinus Collegium Foundation while completing a PhD in Law and Political Sciences at the Károli Gáspár University of the Reformed Church in Budapest, Hungary. Mónika’s past and present research focuses on constitutional identity in EU member states, data protection aspects of DNA testing, environment protection, children’s rights and Artificial Intelligence. Email: mercz.monika@mcc.hu
[1] L. N. Kiss – O- J- Sziebig, “Defining the Common European Way of Life”, HUNGARIAN YEARBOOK OF INTERNATIONAL LAW AND EUROPEAN LAW 9, 2021, p. 111-131.
[2] W. Rosen, “The Most Powerful Idea in the World: A Story of Steam, Industry and Invention”, University of Chicago Press. 2012. p. 149. ISBN 978-0-226-72634-2.
[3] O. J. Sziebig, “The Implementation of the Aarhus Convention’s Third Pillar in the European Union – a Rocky Road Towards Compliance”, EUROPEAN STUDIES: THE REVIEW OF EUROPEAN LAW ECONOMICS AND POLITICS 6, 2019, p. 205-218.
I. Olajos – M. Mercz, “The use of the precautionary principle and the non-refoulement principle in public law – Or how far the boundaries of constitutional principles extend”, Journal of Agricultural and Environmental Law, Vol. 17 No. 32, 2022, p. 79-97. DOI: https://doi.org/10.21029/JAEL.2022.32.79
M. Mercz, “Constitutional or environmental law?”, Constitutional Discourse, 2022, https://www.constitutionaldiscourse.com/post/monika-mercz-constitutional-or-environmental-law (access 09.01.2023)
[4] The concept of Environment as a Public Concern is underlined by Elliott and Esty’s paper on this issue, “imposition of a credible risk of a risk without someone’s informed consent, not merely provable actual injury, should be cognizable as a harm that environmental law should address to the extent practical”.
