Cservák Csaba: The historical constitution: a kind of unique legitimacy and a particular division of powers

The three basic types of legitimacy are traditional, charismatic, and rational legal. In the past, legitimacy of tradition was typical. Present days, the legitimacy of rationality is typical. The development of the Hungarian Historical Constitution was characterized by a kind of compromise between the two.

Although the theory of the distribution of power is a product of the Age of Enlightenment, its practical manifestation has been in existence for centuries. The divided power is necessarily restricted which is a prevention of the abuse of power and an institutionalized form of the protection against autocracy. Therefore, it is unequivocal that the real implementation of the distribution of power had been in the center of efforts, much before it was defined.

Contrary to popular belief, Montesquieu didn’t establish the classic three branches of powers, but Aristotle did so. He mentioned deliberative body of public affairs, magistrates and judiciary which – considering the complex role of the parliament – is completely equal to the trinity of legislative, executive and judicial powers. Politeia was declared as the appropriate structure of power which is a mixture of democracy and oligarchy.

Cicero, in his work The State, committed himself to such type of it in which there is an intermediate structure among the monarchy, the rule of aristocracy and the democracy. These two theories can be confidently regarded as a preliminary concept of the distribution of power, because the mixed state can only exist through the precise delimitation of the authority of various factors by involving them into the power in sociology-political sense.[1] Polybios went even further. His theories came up to the conclusions of the ’classical Greek philosophers’. According to his point of view, the different social forces must check and restrict each other, which adumbrates the system of ’checks and balances’.[2]

Beside the legislative and the executive powers John Locke mentions a third-one, the federal power. It can be regarded as the equivalent of the head of state power which is considered a factor of the government system and possess a role of foreign policy as well.[3]

The great oracle Montesquieu distinguishes the legislative power, the power which falls within the scope of international law and executive power related to civil law issues. The latter mentioned is the judicial power and the second mentioned is referring to the monarch/head of state power, which is eventually equal to the trinity-system of Locke’s. (It should be noted that in this era the depositary of the executive power was the monarch, or the administration appointed by him. In the absence of the welfare state, the principal executive tasks tended to the foreign policy.) As an affirmation Montesquieu separates the legislative power into a bicameral National Assembly.[4]

For several aspect in the theory of the distribution of power, it may be more appropriate to use the concept of the separation of the functions of power instead of the concept of the separation of powers. Because on one hand these patrons of the idea practically envisaged the separation of the function of legislative, executive and judicial powers among different bodies. They fought against the concentration of these three functions in one node, so that their aim was not the abolition of the relation of powers.

On the other hand, this proposed concept is more compatible to the system of checks and balances. Latter mentioned can not only be achieved through the rigid separation of constitutional factors, but also by their legally institutionalized relationship-system. The theory of Montesquieu underlying the distribution of powers is also based on this principle. An important factor of the balance is that the individual branches of power, is that one branch should not overpower the other ones, which is guaranteed by the system of authorities of the various bodies controlled by each other. For instance, the dismissal of the government and the potential of the dissolution of parliament. (By the motion of censure in the Hungarian government system and the exclusion of the dissolution of parliament could be mentioned as the distribution of powers, but it is not possible, because of the political identity in between the two concepts).

Let us briefly examine how specific the division of powers was in the system of the Hungarian historical constitution.

There is an interesting dichotomy between the Hungarian Historical Constitution and the former “province of Transylvania”. On the one hand, Transylvania was an inseparable part of the once-was Hungarian state. On the other hand, in the period of the “country torn into three parts” (1526-1686), according to some approaches, Transylvania embodied and represented the independent Hungarian state. Thus, a Hungary without Transylvania can no longer be a successor to the old Hungary. Because of this bifold relationship, we need to have a closer look at the Historic Constitution.

Hungary had a specific constitution: the Historical Constitution based on the Holy Crown.[5] According to this, the Holy Crown serves as the material embodiment of the supreme power of the state and sovereignty.[6] It is not only a symbolic carrier of those, but also provides the legit source from where the state’s supremacy stems. This is a very early appearance of the concept of the legal entity in European legal culture. In the Historical Constitution, moral standards played a major role.[7]

Historic constitutions are also commonly referred to as unwritten constitutions, as opposed to written constitutions, which form the other major category. In the former group, the constitution is not a single document but a collection of norms that are partly customary, and there is a public agreement between the state and its people that elevates them to a constitutional level (in this respect it is similar to the historical constitution of Great Britain, or New Zealand, which became an independent British colony). In case of the written constitutions, there can almost always be found a fundamental document which was intended to be a constitution at the time of its creation.

The historical constitution contains moral and logical principles of popular reasoning which are the limits of future legislation. They cannot be changed, amended, and if they were to be changed, it would have to be explicitly declared that this or that guiding principle is now inapplicable.

The idea of the continuity of law is also intertwined with the Holy Crown. In other words, existing legislation can only be amended in accordance with the rules already in force.

The crown expresses abstract supreme power separate from the king’s personal one, and therefore the monarch cannot privately own the country (This was a highly developed abstraction in the context of patrimonial-feudal medieval thinking!) The king does not exercise power alone, but together with the noblemen – so we can observe the germ of the principle of popular sovereignty in this context.

The historical constitution is not a sign of ossified conservatism, but it also contains the potential for change, but only allows for organic, continuous development that is in accordance with its own rules. The principles of the historical constitution, which can be traced back to the feudal era and even to the blood oath, thus corresponded to the idea of the state in the bourgeois era. The ‘liberty of the one and equal noblemen ship’ declared in 1351 was an early manifestation of non-discrimination.

The reforms of April 1848 did not abolish this, but rather extended it.[8] The serfs and the bourgeoisie – the first group had been previously oppressed and the latter one which had undergone anemic development -, were brought into power. They did not take away the rights of the privileged but gave privileges to virtually all citizens. But the core of the ancient constitution, its logical-ethical inner basis, remained unchanged. They did not even try to change it, but proudly referred to its timelessness and almost eternal characteristic.

For almost a millennium, Hungary’s form of government was a kingdom headed by a king. However, unlike many medieval states, the power of the monarch was controlled from very early on by what is now called ‘checks and balances’, and the parliament played a significant role in law-making from very early on. The king could only rule once he had been crowned and had accepted the constitutional conditions at the same time as the ceremony. Compared with other states of the time, the powers of the Hungarian Parliament were broader than those of the other states of the time.[9] The development of the legal status and administration of the various ‘bordering provinces’, however, took interesting turns very early on.

The Transylvanian princes, in their treaties with the Hungarian king, repeatedly acknowledged their obligation not to alienate parts of their possessions in order to protect the territory of the Holy Crown, and declared that Transylvania was an inalienable part of the Hungarian Crown.[10] The Treaty of Speyer, signed on 16 August 1570 by Maximilian and Janos Zsigmond, stated that ‘…nothing of the property that the sovereign prince holds of the crown of the country shall be alienated, although he and his successors shall be free to mortgage or pledge it to the benefit of others if necessary (retaining the clause prohibiting perpetual alienation.)’ ‘Neither Transylvania, nor any other counties long since subordinate to it, nor their castles or fortifications be alienated from the crown of Hungary other than as it now possessed’ – declares a similar agreement between Gábor Báthori and Matthias II.[11]

The most important guiding principle of the historical Hungarian constitution was the Doctrine of the Holy Crown. Under its aegis, the backbone of the nation was made up jointly by king and nobility. In other words, the king does not rule; the crown does. (This can be understood as an early prototype of the separation of powers.) As a consequence, legally speaking, the king did not own his country as private property. It is to be noted that de iure, Hungary and Bohemia were frequently in personal union. This spurred Wenceslaus III, King of Bohemia and one of the pretenders for the Hungarian throne of the eventually triumphant Charles Robert of Anjou to lay claim to parts of the country.[12]

Sigismund of Luxemburg was elected Holy Roman Emperor as the king of both Hungary and Bohemia, with later shared rulers of these countries usually inheriting both titles simultaneously. Matthias Corvinus (r. 1458-1490) occupied parts of Bohemia and declared himself king of that country, but de iure, Bohemia remained intact as an independent entity. The Jagiellonian kings of Hungary (Vladislaus II and Louis II) also reigned in Bohemia, thereby holding both titles themselves. In 1526, Hungary broke into three parts.[13] The legitimate successors to the Kingdom of Hungary became the House of Habsburg, who also constantly bore the title of Bohemian kings. Upon the outbreak of Rákóczi’s War of Independence, Francis II Rákóczi was elected ruling prince. Even though his forces occupied a significant portion of the country, the Habsburgs still considered themselves its heads of state.[14]

For a short time after the dethronal of the House of Habsburg during the War for Independence of 1849, Lajos Kossuth was exercising the power of the head of state (and, in practice, the head of government) as Governor-President in which amounted to a presidential state model. After crushing the revolution and before being compelled by historical circumstances to sign the Austro-Hungarian Gerat Compromise of 1867, the Habsburgs a military dictatorship. The Gerat Compromise created a real union between Austria and Hungary.[15] Interestingly, despite its historical role and economic importance, Bohemia was not made an equivalent constituent state of the Empire. It begs the question whether a triadic rather than a dualistic state model would have proven more durable in withstanding the storms of history looming ahead…

During the period following defeat in WWI, forms of government in Hungary followed one another as rapidly as the coups d’état that brought them about. Initially, Mihály Károlyi became president of the republic in what was intended to be a parliamentary system, followed by the 133 days of dictatorship by the Hungarian Soviet Republic. Upon the fall of the latter, the powers of head of state were taken over by Rear admiral Miklós Horthy, elected on March 1st, 1920, as Governor of Hungary. His jurisdiction was continuously extended, and his mandate was life-long. As his legal powers over the parliament strengthened, he gained the ability to return legislation for deliberation and was granted the right to dissolve the government. He could also nominate members (more and more of them) to the second chamber of parliament. His legal powers were a peculiar “alloy” between those of a semi-presidential president and a constitutional monarch. Horthy even attempted to pass on his powers via dynastic succession. He had his own son elected Deputy Governor who, upon meeting certain criteria, would have been able to take over the office of Governor after the death of the head of state.[16] Following WWII, Act I of 1946 was accepted. Even though it was referred to by many in later times as a ‘Little Constitution’, it did not explicitly declare a form of government despite reinstituting the office of president of the republic.

To summarize, we can say the following. The Holy Crown is the transfigured depository of Hungarian royal power. All powers derive from the Crown. The members of the Holy Crown are Hungarian citizens with full rights, i.e., the noblemen.


Arató Balázs: Az osztrák-magyar „álladalomról”, in Lajos Edina (ed.): Alkotmányosság a pandémia korszakában, Lícium-Art, Debrecen, 2021.

Balogh Elemér: Alkotmányunk történetisége, kitekintéssel az Alkotmánybíróság judikatúrájára, in Balogh Elemér (ed.): Számadás az Alaptörvényről, Magyar Közlöny, Budapest, 2016.

Bölöny József: Történelmi alkotmányunk és az 1848-as fejlődés. M. Közig., Budapest, 1941.

Horváth Attila: A Szent Korona-tan története, in Arató Balázs. (ed.): Jogalkotási tükör 2010–2018, Patrocinium, Budapest, 2018.

Lajos Edina: A jog és erkölcs összefüggésének alapjai, KRE-DIt, 2023/1.

Lajos Edina: A Szent Korona és a legitimáció, KRE-DIt, 2023/1.

Máthé Gábor: Die Problematik der Gewaltentrennung, Gondolat Verl., Budapest, 2004.

Sári János: A hatalommegosztás, Osiris Kiadó, Budapest, 1995.

Szilágyi Sándor (ed): Erdélyi Országgyűlési Emlékek, VI. (1608-1614), Budapest, 1880.

Sakmyster, Thomas: Admirális fehér lovon, Helikon Kiadó, Budapest, 2001. (Original title: Hungary’s Admiral on Horseback: Miklós Horthy, 1918-1944.)

Zetényi Zsolt: A történeti alkotmány. Magyarországért Kulturális Egyesület, Budapest, 2009.


  1. See. Sári János: A hatalommegosztás, Osiris Kiadó, Budapest, 1995, 19–21. (Hungarian)
  2. János Sári mentioned that after, Sabine és Louis Fisher insights. See Sári: Hatalommegosztás, 18.
  3. See Sári: Hatalommegosztás, 30–34.; Máthé Gábor: Die Problematik der Gewaltentrennung, Gondolat Verl., Budapest, 2004, 15–64.
  4. See Sári: Hatalommegosztás, 37–40.
  5. See Balogh Elemér: Alkotmányunk történetisége, kitekintéssel az Alkotmánybíróság judikatúrájára, in Balogh Elemér (ed.): Számadás az Alaptörvényről, Magyar Közlöny, Budapest, 2016, 541–543.
  6. Lajos Edina: A Szent Korona és a legitimáció, KRE-DIt, 2023/1, 169–175. (Hungarian)
  7. Lajos Edina: A jog és erkölcs összefüggésének alapjai, KRE-DIt, 2023/1, 164–169. (Hungarian)
  8. Bölöny József: Történelmi alkotmányunk és az 1848-as fejlődés. M. Közig., Budapest, 1941, 16. (Hungarian)
  9. Zetényi Zsolt: A történeti alkotmány. Magyarországért Kulturális Egyesület, Budapest, 2009, 54. (Hungarian)
  10. Horváth Attila: A Szent Korona-tan története, in Arató Balázs. (ed.): Jogalkotási tükör 2010–2018, Patrocinium, Budapest, 2018, 45–70. (Hungarian)
  11. Szilágyi Sándor (ed): Erdélyi Országgyűlési Emlékek, VI. (1608-1614), Budapest, 1880, 269. (Hungarian)
  12. In Hungary, he reigned as Wenceslaus I, while in his native Bohemia (following the death of his father, Wenceslaus II), he was known, between 1305 and 1306, as Wenceslaus III.
  13. A significant portion of the country was occupied by the Ottoman Empire, while the Principality of Transylvania practically functioned as a ‘second Hungary’.
  14. Leopold I (1657-1705), Joseph I (1705-1711) and Charles III (1711-1740). It is to be noted that the latter was also known as Charles II as King of Bohemia and Charles VI as Holy Roman Emperor.
  15. Arató Balázs: Az osztrák-magyar „álladalomról”, in Lajos Edina (ed.): Alkotmányosság a pandémia korszakában, Lícium-Art, Debrecen, 2021, 99–104. (Hungarian)
  16. See: Thomas Sakmyster: Admirális fehér lovon, Helikon Kiadó, Budapest, 2001, 255. (Hungarian) (Original title: Hungary’s Admiral on Horseback: Miklós Horthy, 1918-1944.)