Beküldve:

Bódi Stefánia: The Anglo-Saxon Interpretation of The Concept of The Rule of Law

“…A Constitution is not the act of a Government, but of a people constituting a Government; and Government without a Constitution is power without a right…”[1]

I. Introductory thoughts

The idea of good and just governance has been the subject of ongoing debate among people, statespeople, politicians, philosophers, Church Fathers, theologians and thinkers ever since independent states took shape. How to set limits to governance and avoid personal rule? Although the term ‘rule of law’ was not yet in use in earlier historical eras, some elements of it were already very close to being established in antiquity: see, for instance, the division of power in Aristotle’s works. It was in later eras, particularly the age of embourgeoisement, that many processes converged into a crystallization of the idea of human rights and the formulation of the ideal of a state regulated by law. Obviously, the nature of law also matters here: law must be supported by morality (material rule of law in terms of substance),[2] considering that even dictatorships have legal systems. Later on, the necessity of law being supported by morality was expressed by natural law theories, reaching their peak in the 17th and 18th centuries, but the connection between morality and law had already been discussed in antiquity as well. The ideals and principles of human rights, created by continental Europe, were demolished by the two world wars, dubbed “Europe’s attempted suicide” by Iván Halász. The far-right, i.e., so-called national socialist ideology as well as the far-left systems consisted of mixtures of horrific principles.[3] Europe cast aside all the values and results it had achieved so far. It would try to recover from this shock after World War II, creating the opposition of the Western and Eastern world in a political, ideological and economical sense.

As to the rule of law, this term obviously refers to a democratic state regulated by law and rights, which acknowledges and enforces human rights, and which is composed of countless elements.

In this article, I intend to present the theoretical aspect of the Anglo-Saxon approach to the often analyzed concept of the rule of law, primarily based on the ideas, works and oeuvre of English jurist Albert Venn Dicey (1835–1922) and American politician and thinker Thomas Paine (1737–1809). By Anglo-Saxon countries, I mean the former colonies of the Crown of England where the English way of legal thinking has taken hold (Ireland, Canada, Australia, New Zealand, the United States), and, naturally, the UK itself.

Many authors have listed the main components of the rule of law. The task is daunting, since the elements of this concept can vary or expand during each historical era. However, the concept cannot be indefinitely relativized. Components of the rule of law include:

    1. the existence as well as regular and substantially appropriate operation of certain institutions (Constitutional Court, ombudsman, independent courts, administrative courts, etc.),
    2. the existence as well as practical implementation of certain state organization principles (division of power, sovereignty),
    3. the enforcement of constitutional principles and values (legal certainty, clarity of norms),
    4. the human rights and their unconditional enforcement,
    5. the implementation of the principles of constitutional criminal law, and
    6. the operation of other democratic techniques (e.g., democratic elections, replaceability of the government) in the state.

A detailed elaboration of these components involves listings of loads of institutions and principles, a work already done by countless previous authors. In addition to the customary categories of the rule of law based on eras (liberal rule of law, social rule of law, constitutional rule of law), there is also an Anglo-Saxon, a German and a French approach to the concept.[4] The German term for the rule of law is Rechtsstaat, which means ‘a state regulated by law’, also reflected in the Hungarian term “jogállam”.

II. Thomas Paine and Albert Venn Dicey on the rule of law

In Thomas Paine’s (1737–1809) opinion,[5] when it comes to free states and states governed by the rule of law, “the law is king” in the state, while in absolute governments it is the other way around, “the king is law”. Paine believed in the idea and government form of republic and supported the independence of the United States of America. Born in England, he expressed his views in the United States, then passed away in France. He deemed the creation of a constitution absolutely necessary. He summarized his thoughts in his works Common Sense (1776) and Rights of Man (1791).[6] George Washington, the first president of the USA and commander of its army in the American War of Independence, was also deeply influenced by Common Sense. Paine rejected colonization policy and believed in an independent state existence. He considered government to be a necessary evil even at its best. He deemed it important that the elected would not sense their interests to be separate from those of the electors, and that the government should aim to provide freedom and security. He wrote: “I draw my idea of the form of government from a principle in nature which no art can overturn, viz. that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered; and with this maxim in view I offer a few remarks on the so much boasted constitution of England.”[7] In his opinion, the English system of monarchy was imperfect, tyrannical, and unable to make good on its promises. He stigmatized absolute governments as the disgrace of human nature, but acknowledged their advantage that, if the people suffered, they knew the head from which their suffering sprang. Although its legal system is of Anglo-Saxon origin, the USA opposed England during its pursuit of independence, and therefore its legal development is characterized by the rejection of monarchy from the very start. Paine deems the means of monarchy to be ridiculous inasmuch as it excludes people from information, so in a monarchy, the means cannot accomplish the end. However, he acknowledges that individuals are undoubtedly safer in England than in some other countries, which means that the crown is not as oppressive there as elsewhere.[8] In his opinion, everything that is ascribed to government is, in fact, rather the creation and will of society. The various interests of the community are embodied by the representative system, and this is what places the government in the state of constant monitoring.[9] In Rights of Man, Paine makes suggestions of economical measures[10] and state allowances as well. However, he thinks that “society performs for itself almost everything which is ascribed to Government”. “No one man is capable,” he writes, “without the aid of society, of supplying his own wants”, and this is what forces man into society.[11]

Albert Venn Dicey (1835–1922) considered the rule of law to be a characteristic of English law. This concept means that “the government has no arbitrary power”, that is, the arbitrariness of the government has to be excluded. Secondly, he means by this that “every man is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals” (equality before the law), and that the constitution is a result of the ordinary law of the land, i.e., not its source but its consequence, by which he refers to the fact that in foreign states the opposite is true, i.e., there is a Code of Constitution, unlike in England.[12] The actual implementation of the concept of the rule of law can be experienced through a number of freedoms. These rights (conditions), telltale signs of the presence or absence of the rule of law, are the following: the right to personal freedom, the right to freedom of discussion, the right of public meeting, the application of martial law, the rights and obligations of the army, the collection and expending of state revenue, and the responsibility of ministers.[13] The rule of law favors parliamentary sovereignty. Throughout his entire oeuvre, Dicey emphasizes the difference between the English concept of the rule of law and the French Continental concept, the former being preferable. In his opinion, the main fault with the French system is that civil servants are protected from “the ordinary law of the land”.[14]

According to Dicey, the rule of law means basically four things: equality of all citizens before the law, uniformity of courts, unacceptability of raison d’état (state interest) as an excuse for an unlawful act, and observance of the old maxim nullum crimen sine lege.[15] He explains that the statutory rights or obligations of every person are, almost without exception, determined by the ordinary tribunals. He contrasts the idea of the rule of law to systems where any person has wide-ranging arbitrary or discretionary power. The concept of the “rule of law”, he adds, has been implemented in the United States and received a development commensurate with England; but it is an idea not so much unknown to as deliberately rejected by the constitution-makers of France, and of other Continental countries which have, in his opinion, followed French guidance.[16] “Dicey says that ‘constitutional law, as the term is used in England, appears to include all rules which directly or indirectly affect the distribution or the exercise of the sovereign power of the state.’ These ‘rules’ fall into two broad categories. The first category of rules are laws, strictly understood. These laws are written and unwritten, statutory and customary, which are usually called the Common Law. These laws are known and recognized to be laws, because—this is the important determining factor—they are enforced by the courts. The other broad category of rules are what Dicey calls ‘conventions’ of the constitution. The rules of this second category are not in strictness laws, they are not enforced or enforceable by the courts; but they are the usual and customary practice of politicians and civil servants, and represent what Dicey calls ‘political’ or ‘constitutional morality’. The law of the constitution, then, is of two pieces: the relatively unambiguous laws, derived from judicial decisions and Parliamentary enactments, precisely expressed and recognized by the courts and the relatively ambiguous, largely implicit, conventions, which are part of political practice and morality and enter into public opinion.”[17] Nowadays, Common Law is mostly synonymous to case law and considered to be the main source of English law.[18] Today, the importance of laws has increased, but precedents serving as a basis of laws still play a significant role. “When, however, an issue is regulated by law, this overrules any precedent possibly contradicting it. Therefore, even in the common law system, laws occupy a higher level in the hierarchy of the sources of law than judicial decisions.”[19]

Based on all this, the English view can be summarized as follows: “In the English way of development, parliament, king and justice had separate, sometimes even conflicting places. Although legislation was the parliament’s task, precedents applied in judicial practice were considered law. Therefore, their requirement of the rule of law was not simply subjection to the law, but primarily that any conflict should be able to be adjudicated by a judicial forum.”[20]

So, in the English view of the rule of law, judicial power receives a special emphasis. As Barna Horváth puts it: “The viewpoint of case law… only considers specifically applied law to be law, and legislation is only a prelude to lawmaking.”[21] Just like Ákos Timon, Barna Horváth also thinks that the English and Hungarian systems of law are similar, but from an entirely different viewpoint. With regard to the Holy Crown doctrine, Timon mentions that the greatness of Hungarian legal development can only be compared to England.[22] On the other hand, according to Horváth, English and Hungarian legal thinking are both opposed to the German one regarding the rejection of the theory of law.[23]

Reading through an English law, one can sense that it is less specific than Continental legal systems, and also has a different style.

Since this study is focused on the Anglo-Saxon trend of the idea of the rule of law and refrains from expanding on the German and French concepts of it, it must be pointed out that the rule of law can work even without the existence of some of the elements listed above. For instance, England has no Constitutional Court,[24] while in the case of the United States of America, built upon the English system of Common Law but following a partly different path, this task is fulfilled by the Supreme Court of the United States (this is the so-called decentralised model of constitutional justice) – still, both of these countries are governed by the rule of law. The absence or different operation of one (or a few) element(s) are no reason not to consider the operation of a state as rule of law. Similarly, it can be pointed out that some member states of the US have capital punishment, which is quite an exciting issue, since nowadays the majority of countries using capital punishment are not considered to be governed by the rule of law. On the other hand, this does not hold for the USA, characterized by a democratic technique of the exercise of power, and enforcing the principle of division of power as well as a multitude of human rights. Although I consider the above list of the elements of the rule of law to be valid, nowadays there are great differences between states in terms of their operation as well as the forms of state and government; therefore, some deviations are acceptable within the concept of the rule of law.

III. The interpretation of the rule of law in the practice of the Hungarian Constitutional Court

According to the Fundamental Law of Hungary, Hungary is an independent democratic state governed by the rule of law.[25] The Fundamental Law lists the principles of state organizations, the constitutional guarantees and the catalog of human rights ensuring the enforcement of the rule of law. I refrain from including the list here, as it has been analyzed by many authors before.

Although the decisions of the Constitutional Court before the acceptance of the Fundamental Law have been repealed, their legal effects are still valid. It cannot be excluded, either, that the Constitutional Court adopts a view that corresponds to its previous decisions. “The decisions of the Constitutional Court made prior to the entry into force of the Fundamental Law are repealed. This provision shall be without prejudice to the legal effects produced by those decisions,” says Section 5 of the Closing and Miscellaneous Provisions of the Fundamental Law. Let us examine the most important decisions of the Constitutional Court with regard to the rule of law, without aiming to give an exhaustive list.

Pursuant to Decision No. 34/1991. (VI. 15.) of the Constitutional Court, “in order that the principle of legal certainty, intimately connected to the rule of law, shall be completely enforced, it is indispensable that the publication of acts shall be in accordance with the constitutional requirement stated in Section 12 (2) of the Law on Legislation, i.e., that ‘with regard to the period prior to its publication, the act cannot establish any obligation and cannot declare any behaviour as unlawful’.” (DCC 1991, 170, 173.)

Pursuant to Decision No. 25/1992. (IV. 30.) of the Constitutional Court, “legal certainty is an important constituent of the rule of law that requires, among others, that the rights and obligations of citizens shall be regulated by legislation published in the way laid down by the law and accessible to anyone, providing a real possibility for entities to align their behavior to the requirements of the law. To that effect, acts shall not establish any obligation with regard to the period prior to their publication and shall not declare any lawful behaviour as unlawful with retroactive effect.” (DCC 1992, 131, 132.)

Pursuant to Decision No. 7/1992. (I. 30.) of the Constitutional Court, the requirement of legal certainty follows inevitably from the sentence of the Constitution declaring the rule of law. (DCC 1992, 45, 48.)

Pursuant to Decision No. 9/1992. (I. 30.) of the Constitutional Court, “The principle of the rule of law is detailed by the further provisions of the Fundamental Law; however, these rules do not explete the content of this basic value entirely; therefore, the interpretation of the concept of the rule of law is an important task of the Constitutional Court. The principles fulfilling the basic value of the rule of law are explained by the Constitutional Court gradually, on a case-by-case basis.” It also points out that legal certainty is an indispensable element of the rule of law. (DCC 1992, 59, 65.)

Decision No. 11/1992. (III. 5.) of the Constitutional Court is one of the most widely known decisions. Here, the Constitutional Court establishes that “the qualification of Hungary as a state governed by the rule of law is a statement of fact as well as a program. The rule of law is implemented by the Constitution really and unconditionally coming into effect. Not only shall the laws and the functioning of state bodies be strictly consistent with the Constitution, but the conceptual culture and values of the Constitution should permeate society as a whole. It is the rule of law that makes the Constitution a reality. Making the rule of law a reality is a process.” (DCC 1992, 77, 80.)

Pursuant to Decision No. 43/1995. (VI. 30.) of the Constitutional Court, legal certainty is the most important element of the rule of law, and the respect for vested rights is part of the rule of law as well. (DCC 1995, 188, 192, 193.)

Decision No. 5/1997. (II. 7.) of the Constitutional Court repeats the often voiced idea that legal certainty is considered the most important part of the rule of law. “Legal certainty, as interpreted by the Constitutional Court, requires from the state, from the lawmaker, that the entirety of law as well as each of its subdivisions and regulations should be clear and unequivocal, understandable and practicable for the addressees of the standard as well.” (DCC 1997, 55, 65.)

Pursuant to Decision No. 62/2003. (XII. 15.) of the Constitutional Court, “requirements of the democratic rule of law include the division of power, the obligation of the separated constitutional bodies to cooperate, the mutual respect of the procedural and decision-making autonomy and the decision-making of the separated bodies, and the existence of and adherence to procedural rules resulting from the Constitution.” It also adds that, in a state governed by the rule of law, there is no unlimited or unlimitable power. (DCC 2003, 637, 644.)

In Decision No. 12/2006. (IV. 24.) of the Constitutional Court, a previous statement is repeated, i.e., that “the constitutional requirements of a democratic rule of law determine the framework and limitations of the activity of the National Assembly and the Government as well as of the exercise of public power in general”. It is repeatedly emphasized that democratically accepted procedural rules and decision-making in compliance to these rules are prerequisites to the rule of law. (DCC 2006, 234, 245, 247.)

Pursuant to Decision No. 131/2008. (XI. 3.) of the Constitutional Court, in a state governed by the rule of law, any political pursuit can only be implemented within the framework of the Constitution. A reform of the public administration system cannot be implemented by setting aside the provisions of the Constitution. (DCC 2008, Vol. I., 1072, 1078.)

Decision No. 8/2011. (II. 18.) of the Constitutional Court emphasizes the respect for vested rights and the subjection of public administration to the law as parts of the rule of law. It states that “Any violation of the procedural rules of decision-making forming part of the rule of law may result in the decision being formally invalid under the public law.” (DCC 2011, 49, 65.)

Decision No. 12/2013. (V. 24.) of the Constitutional Court states that “the Constitutional Court has established in several decisions that the procedural guarantees of lawmaking result from the principles of the rule of law and legal certainty; therefore, valid laws can only be made in adherence to the rules of the formalized procedure. A lawmaking procedure with a formal error serves as a base for nullification of the law with retroactive effect from the day of its publication, so any violation of the constitution committed during lawmaking in and of itself enables the annullability of the law. Adherence to each procedural rule of the lawmaking process is a requirement of the validity of the law under the rule of law; any serious procedural irregularity causes formal invalidity under the public law, which, in turn, results in the nullification of the law {Decision No. 6/2013. (III. 1.) of the Constitutional Court, Justification [63–72.]}.” The decision emphasizes the closed and contradiction-free nature of the Fundamental Law, which means that any amendment to the constitution must be integrated into the text of the Fundamental Law. This is the commandment of integration. [24] [166][26]

IV. Closing thoughts

With regard to their key elements, the Anglo-Saxon and Continental legal systems recognized the greatest legal and moral achievements of humanity and defined these as parts of the rule of law. All the democratic countries of the world have attained the level of development where they recognized the achievements produced by human thought and entrusted to mankind as a synthesis of ancient Greek philosophy, Roman law, the Enlightenment, Christianity, and Jewish law and religion.[27]

However, there may be a difference in how these are enforced in practice, since, for instance, the judicial system is totally different in the precedent-based English-speaking Anglo-Saxon legal systems compared to the Continental (Hungarian, Spanish, French, Italian, German) ones in use across the rest of Europe, based on the foundations of Roman law. The Anglo-Saxon system is characterized by the key role of precedents, unlike in the Continental countries relying on the law, where legal certainty is guaranteed by the law. Additionally, England has a historic (unwritten) constitution based on about 350 constitutional documents, as well as customary law, while in the Continental systems, legal certainty is guaranteed by the law. These two views differ in legal education, in the role of lawyers[28] and in judicial practice as well. In Anglo-Saxon law, lawyers play a more active role in lawmaking and law application, while in the Continental legal systems, the influence of judges and jurists is more significant. In the Continental systems, the separation of public and private law is more pronounced.

As Csaba Varga points out, the rule of law became a widely used term, a trendy catchphrase with great differences in its content, “as all kinds of authors ‘use it as a wildcard slogan for any imaginable trend they might want to follow’”.[29] Not to mention that this term has gained a very diverse interpretation in today’s Europe, in the European Union, since, while some deem certain things to be part of liberal democracy and the rule of law, other states consider the same to be dangerous threats and aim to implement the rule of law on a Christian national basis. Rule of law is not the only trendy catchphrase around. Similarly, human rights, globalization and digitalization are being mentioned all the time. The standards for the rule of law are determined by the international conventions on human rights and the organizations aiming to enforce them, the guarantee of which is primarily the Council of Europe[30] and, at an international level, the UN. These organizations can be considered to represent an objective standard. Originally, the European Union was not created with the aim of protecting rights, but by today, it gradually expanded the scope of its attention to encompass human rights[31] and the closely related rule of law, which, however, each member state interprets differently. Tension and different visions among the states were evoked by issues like migration or the Russian–Ukrainian war. Today, this mindset has created a gap between the Western and Eastern half of Europe. However, the values and elements of the rule of law cannot be indefinitely relativized; therefore, we must find a common criterion as the base of law. The only thing that can serve as the criterion of law is morality; however, law does not include moral correctness, which is an addition from outside, as Gyula Moór points out. By morality, he means “the ultimate measure of the correctness of human actions and wills”.[32] This criterion should be Christian morality, says Moór, which is the moral view of the entire Western culture, with key values such as the love of neighbor, the idea of justice and the respect for the nation.[33] Nowadays, the European Union advocates a global set of values contrary to nation-state policy; therefore, the fundamental rights fulfill a different role: they have become limitations of nation-state policy.[34] The relationship between the rule-of-law paradigm and globalization is complex, complicated and manifold. Globalization exerts an influence on the rule of law, since the increasing international concentration sets new political and economical challenges to legal systems. At the same time, the rule of law plays an important role in globalization, since it ensures legal certainty and adherence to rules in international relations. A balance between the two concepts would be a key element to shaping a sustainable and just world order.

In my opinion, the common criterion today should be the moral standard crystallized as a result of the values mentioned above (i.e., ancient Greek philosophy, Roman law, the Enlightenment, Christianity, Jewish law and religion), advocating people’s equality before the law and courts, a ban on all kinds of negative discrimination, human dignity, and the inviolability of absolute rights and prohibitions.[35]

Bibliography

Bellamy, Richard: Political Constitutionalism: a Republican Defence of the Constitutionality of Democracy, Cambridge–New York, Cambridge University Press, 2007.

Dicey, Albert Venn: Bevezetés az angol alkotmányjogba (Introduction to the Study of the Law of the Constitution), Budapest, A Magyar Tudományos Akadémia Könyvkiadó (New Publications of the Hungarian National Academy Publishing House), 1902.

Dicey, Albert Venn: Introduction to the Study of the Law of the Constitution, Indianapolis, LibertyClassics, 1982.

Gát, Ákos Bence: Az európai uniós jogállamiság-közpolitika kialakulásának átfogó jogi és politikatudományi elemzése (A Comprehensive Legal and Political Science Analysis of the Development of the European Union’s Policy on the Rule of Law), PhD thesis, Budapest, Ludovika University of Public Service, Doctoral School of Public Administration Sciences, 2021.

Halász, Iván: Az emberi jogok civilizációs meghatározottsága (The civilisational definition of human rights), in Bódi, Stefánia – Schweitzer, Gábor (eds.), Alapjogok: Az emberi jogok alkotmányos védelme Magyarországon (Fundamental Rights: The Constitutional Protection of Human Rights in Hungary), Budapest, Ludovika Kiadó, 2021.

Horváth, Barna: A Common Law ideológiája és a jogismeret ideológiája (The Ideology of Common Law and of Legal Knowledge), Társadalomtudomány (Social Sciences), Vol. 10, No. 3, 1930.

Horváth, Barna: Angol jogelmélet (English Theory of Law), Budapest, Magyar Tudomány Akadémia (Hungarian Academy of Sciences), 1943.

Keating, Michael: A Constitutional Court? Centre of Constitutional Change, September 2019, https://www.centreonconstitutionalchange.ac.uk/news-and-opinion/constitutional-court

Kelemen, Katalin: A common law jogrendszerek (The Common Law Legal Systems), in Jakab, András – Fekete, Balázs (eds.): Internetes Jogtudományi Enciklopédia (The Internet Encyclopedia of Jurisprudence), 2018, http://ijoten.hu/szocikk/a-common-law-jogrendszerek

Longstaff, Grant: Barrister or solicitor – What’s the difference? The University of Law, October 2022, https://www.law.ac.uk/resources/blog/the-difference-between-a-barrister-and-solicitor/

Michener, Roger E.: Foreword, in Dicey, Albert Venn: Introduction to the Study of the Law of the Constitution, Indianapolis, LibertyClassics, 1982.

Moór, Gyula: A helyes jog problémája (The Problem of the Rightness of Law), in Moór, Gyula – Püski, Sándor: Jogfilozófia (Philosophy of Law), Budapest, Püski, 1994.

Paczolay, Péter: A jogállam káprázatától az angol jogelmélet valóságáig Horváth Barna írásaiban (From the Mirage of the Rule of Law to the Reality of English Theory of Law in the Writings of Barna Horváth), Jog – Állam – Politika (Law, State, Politics), Vol. 3, No. 4, 2011.

Paine, Thomas: Common Sense. Of the Origin and Design of Government in General, with Concise Remarks on the English Constitution, USHistory.org, https://www.ushistory.org/Paine/commonsense/sense2.htm

Paine, Thomas: Rights of Man, London, J. M. Dent & Sons Ltd. / New York, E. P. Dutton & Co. Inc., 1966.

Patyi, András: A jogállamiság (jogállam, alkotmányos jogállam, demokratikus jogállam; a magyar alkotmányosság jogállam-értelmezése és jogállam-tartalma) [The Rule of Law (State Governed by the Rule of Law, Constitutional Rule of Law, Democratic Rule of Law; The Interpretation and Substance of the Rule of Law in Hungarian Constitutionality)], in Halász, Iván (ed.): Alkotmányjog (Constitutional Law), Budapest, Dialóg Campus Kiadó, 2018.

Timon, Ákos: A Szent Korona elmélete és a koronázás (Theory of the Holy Crown and the Coronation), 2nd, enhanced edition, Budapest, Stephaneum Nyomda R.T., 1920.

Tóth, J. Zoltán: A jogállamiság tartalma (The Substance of the Rule of Law), Jogtudományi Közlöny (Journal of Legal Studies), Vol. 74, No. 5, 2019.

Varga, Csaba: Joguralom, jogállam: eszményiségtől a zsarolásig (The Rule of Law: from Idealism to Blackmailing), Iustum Aequum Salutare, Vol. 17, No. 2, 2021.

Paine on the idea that the law is king (1776), The Online Library of Liberty, https://oll.libertyfund.org/quote/paine-on-the-idea-that-the-law-is-king-1776

References

  1. Thomas Paine: Rights of Man, London, J. M. Dent & Sons Ltd. / New York, E. P. Dutton & Co. Inc., 1966, 182 ↑
  2. As J. Zoltán Tóth puts it, all the requirements of the formal rule of law are prerequisites to the material rule of law. See J. Zoltán Tóth: A jogállamiság tartalma (The Substance of the Rule of Law), Jogtudományi Közlöny (Journal of Legal Studies), Vol. 74, No. 5, 2019, 201. ↑
  3. See Iván Halász: Az emberi jogok civilizációs meghatározottsága (The civilisational definition of human rights), in Stefánia Bódi – Gábor Schweitzer (eds.), Alapjogok: Az emberi jogok alkotmányos védelme Magyarországon (Fundamental Rights: The Constitutional Protection of Human Rights in Hungary), Budapest, Ludovika Kiadó, 2021, 24. and 31–32. ↑
  4. See András Patyi: A jogállamiság (jogállam, alkotmányos jogállam, demokratikus jogállam; a magyar alkotmányosság jogállam-értelmezése és jogállam-tartalma) [The Rule of Law (State Governed by the Rule of Law, Constitutional Rule of Law, Democratic Rule of Law; The Interpretation and Substance of the Rule of Law in Hungarian Constitutionality)], in Iván Halász (ed.): Alkotmányjog (Constitutional Law), Budapest, Dialóg Campus Kiadó, 2018, 25–39., 28. ↑
  5. Paine on the idea that the law is king (1776), The Online Library of Liberty, https://oll.libertyfund.org/quote/paine-on-the-idea-that-the-law-is-king-1776 ↑
  6. See Paine: The Rights of Man ↑
  7. See Thomas Paine: Common Sense. Of the Origin and Design of Government in General, with Concise Remarks on the English Constitution, USHistory.org, https://www.ushistory.org/Paine/commonsense/sense2.htm ↑
  8. See Paine: Common Sense ↑
  9. Paine: Rights of Man, 157., 177. and 182. ↑
  10. Paine: Rights of Man, 157. ↑
  11. Paine: Rights of Man, 157. ↑
  12. Albert Venn Dicey: Bevezetés az angol alkotmányjogba (Introduction to the Study of the Law of the Constitution), Budapest, Magyar Tudományos Akadémia (Hungarian Academy of Sciences), 1902, 177–191. / Albert Venn Dicey: Introduction to the Study of the Law of the Constitution, Indianapolis, LibertyClassics, 1982, 110–120. ↑
  13. Dicey: Bevezetés az angol alkotmányjogba, 192–193.; Dicey: Introduction to the Study of the Law of the Constitution, 121–122. ↑
  14. Dicey: Bevezetés az angol alkotmányjogba, 184.; Dicey: Introduction to the Study of the Law of the Constitution, 115. ↑
  15. Roger E. Michener: Foreword, in Albert Venn Dicey: Introduction to the Study of the Law of the Constitution, Indianapolis, LibertyClassics, 1982, xxii. ↑
  16. Dicey: Introduction to the Study of the Law of the Constitution, 315; Michener: Foreword, xxi. ↑
  17. R Michener: Foreword, xix. ↑
  18. Cf. Katalin Kelemen: A common law jogrendszerek (The Common Law Legal Systems), in András Jakab – Balázs Fekete (eds.): Internetes Jogtudományi Enciklopédia (The Internet Encyclopedia of Jurisprudence), 2018, http://ijoten.hu/szocikk/a-common-law-jogrendszerek, [2], [6] ↑
  19. Kelemen: The Common Law Legal Systems [22] ↑
  20. Csaba Varga: Joguralom, jogállam: eszményiségtől a zsarolásig (The Rule of Law: from Idealism to Blackmailing), Iustum Aequum Salutare, Vol. 17, No. 2, 2021, 165–166 ↑
  21. Barna Horváth: Angol jogelmélet (English Theory of Law), Budapest, Magyar Tudomány Akadémia (Hungarian Academy of Sciences), 1943, 5. ↑
  22. Ákos Timon: A Szent Korona elmélete és a koronázás (Theory of the Holy Crown and the Coronation), 2nd, enhanced edition, Budapest, Stephaneum Nyomda R.T., 1920, 7. ↑
  23. Péter Paczolay: A jogállam káprázatától az angol jogelmélet valóságáig Horváth Barna írásaiban (From the Mirage of the Rule of Law to the Reality of English Theory of Law in the Writings of Barna Horváth), Jog – Állam – Politika (Law, State, Politics), Vol. 3, No. 4, 2011, 17.; Barna Horváth: A Common Law ideológiája és a jogismeret ideológiája (The Ideology of Common Law and of Legal Knowledge), Társadalomtudomány (Social Sciences), Vol. 10, No. 3, 1930, 90. ↑
  24. It should be pointed out, though, that it has been acting like a constitutional court for years. Cf. Michael Keating: A Constitutional Court? Centre of Constitutional Change, September 2019, https://www.centreonconstitutionalchange.ac.uk/news-and-opinion/constitutional-court ↑
  25. The Fundamental Law of Hungary, Foundation, Article B) ↑
  26. Personal opinion of Constitutional Court Judge Dr. István Stumpf ↑
  27. See Halász: The civilisational definition of human rights, 20. ↑
  28. A well-known difference is the distinction between solicitors and barristers. Solicitors offer specialized legal advice to their clients, be they individuals or organizations. The bulk of a solicitor’s activity takes place outside the court, although there may be cases where their presence is mandatory.Barristers represent their clients in court and are also often consulted for advice in their specialized area of law. Barristers often use legal work done by solicitors at trial or during their preparation before trial. See Grant Longstaff: Barrister or solicitor – What’s the difference? The University of Law, October 2022, https://www.law.ac.uk/resources/blog/the-difference-between-a-barrister-and-solicitor/ ↑
  29. See Varga: The Rule of Law, 159–160.; see also Richard Bellamy: Political Constitutionalism: a Republican Defence of the Constitutionality of Democracy, Cambridge–New York, Cambridge University Press, 2007, 54. ↑
  30. “The governments signatory hereto, being members of the Council of Europe, (…) being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration, have agreed as follows…” Convention for the Protection of Human Rights and Fundamental Freedoms, Law XXXI of 1993 on the Publication of the Convention for the Protection of Human Rights and Fundamental Freedoms Dated 4 November 1950 and Its Eight Amendment Protocols ↑
  31. “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law.” Charter of Fundamental Rights of the European Union, Preamble ↑
  32. Gyula Moór: A helyes jog problémája (The Problem of the Rightness of Law), in Gyula Moór – Sándor Püski: Jogfilozófia (Philosophy of Law), Budapest, Püski, 1994, 245–247. ↑
  33. Moór: The Problem of the Rightness of Law, 252. ↑
  34. See Ákos Bence Gát: Az európai uniós jogállamiság-közpolitika kialakulásának átfogó jogi és politikatudományi elemzése (A Comprehensive Legal and Political Science Analysis of the Development of the European Union’s Policy on the Rule of Law), PhD thesis, Budapest, Ludovika University of Public Service, Doctoral School of Public Administration Sciences, 2021, 39–48. ↑
  35. These rights are included in the Fundamental Law and are in accordance with international conventions such as ICCPR or CPHRFF. ↑
Beküldve:

Cservák Csaba: Reflections on the Historical Roots and Contemporary Meaning of the Concept of the Rule of Law

Looking back through history, the concept of the rule of law meant the prohibition of authoritarianism. Even in the Middle Ages, no king could do everything. At least not easily when it came to the nobles. And unlike slaves in antiquity, serfs couldn’t be sold as chattel. The aim of the struggle against the arbitrary rule of the ruling class was to democratise power. This ideological struggle is where the concept of the rule of law first emerged.

The term ‘rule of law’ is often translated in Hungarian law as ‘Rechtsstaat’[1], which is the German word for a ‘state, based on law abidance’. (A mirror translation in Hungarian would be ‘law-state’.) A similar concept is the French a ‘État de droit’.[2] This certainly suggests a close connection between the law and state. ‘Law’ as an adjective defines the state, as the entire functioning of the constitutional state is governed by law. (The hallmark of the concept of law, in relation to all norms, is its enforceability by the state.[3]) There is, therefore, an inseparable unity between the two.

There is a dual requirement that law must both correspond to the interests and will of society (this is the external context on the part of the state) and correspond to its own internal context, as this, too, serves the long-term interest of society.[4] The literal translation of the term “rule of law” might be “the supreme power of law”. This implies, through indirect logic, that the law rules, not the people. People, regardless of their office, are equal under the law. A person can decide a matter not because they are inherently ‘superior’ but because they hold the authority in that particular case. (Hence the prohibition against the arbitrary removal of competency, which is also linked to the issue of separation of powers.)

A constitution’s legitimacy can stem either from the will of the people as a whole or from legal continuity.[5] (Ideally, the former would involve every citizen voting on each provision of the constitution.) The latter connects to the formal rule of law. But how far back can this continuity be traced? In many Central and Eastern European states, regime change occurred on based on legality and legal continuity. This raises the question: how far can the formal rule of law be traced back? What is the legal basis if the starting point was a system that was substantively questionable one? After all, the predecessors of any state developed on the basis of legal continuity, from today’s perspective, were undemocratic.

Given these challenges to the formal rule of law, the substance of the rule of law could serve as a standard, but its subjectivity could poses a problem.[6] The rule of law is not a goal in itself, but a tool. It is a tool to ensure that society should continue to exist, and its will shall be carried out (this is the foundation of the state), including the guarantee of human rights (this serves as the foundation of law).

In legislation, two competing trends can be identified: the exemplary (a principled model) and the casuistic (an enumerated model of regulation). Their appropriateness varies across legal domains and is quite different in criminal law, in administrative law (which also imposes sanctions), and in civil law.[7] (While the choice of regulatory style is not only a question of legality but also of expediency, this decision should be made by consulting a legal expert. The legal profession is important, but the system must not become a ‘juristocracy’.[8] A risk of subjectivity arises when the internal context of the law is used to question legitimate state legislation or the application of the law. To address this, it is recommended that the most important legal principles be enshrined in a constitution with strong legitimacy.)

Democratic elections are of paramount importance for the legitimacy of the law. This includes preventing fraud and establishing a proper electoral system. States have considerable leeway in designing their electoral systems. However, it is crucial to emphasize that the minority must not prevail over the majority. This principle is upheld partly by a sound electoral model and partly by a system of legal remedies with guaranteed elements. Otherwise, democracy becomes merely a formality. Furthermore, it is essential to establish constitutional requirements, such as the provision that changing the electoral system immediately before elections without sufficient preparation time constitutes a violation of legal certainty.[9]

It is essential that the general rules established by law be the best possible for society. However, it has its individual victims. In legislative terms, this occurs as a result of loopholes. A legal loophole exists when there is no rule governing a specific situation, but a rule should exist based on a higher principle or norm. According to Larenz, a hidden legal loophole occurs when a rule exists, but a higher-level provision or legal principle would justify a more specific law (lex specialis). In such cases, applying the general rule may be problematic. “The loophole here consists in the absence of the imposition of a limitation.”[10] The legitimate interests of those adversely affected by such loopholes must be protected by law. Additionally, we cannot ignore the fact that legislation can be ‘flawed’. Whether due to a typographical error or poor drafting, a law’s effect my differ from its intended purpose. (We will not address ‘deliberate errors’ arising from personal interests, though, it is not always easy to distinguish between an unintentional mistake and a deliberate legislative act that disregards certain interests.)

This may be attributable to:

    • The legislators themselves.
    • The codification of legislation. It is a sociological fact that, especially with law containing hundreds of paragraphs, the drafters become quasi-decision-makers.
    • The emergence of loopholes. These can be either original or ex post, depending on when they arise. In the former case, the legal loophole had already existed at the time the legislation was drafted; the latter occurs when social, technical, or scientific developments necessitate regulating an area that previously did not require regulation. This was the case when criminal codes still usually punished the counterfeiting of coins; when paper money suddenly became widespread in Europe and began to have a high value, the principle of ‘nullum crimen sine lege’ meant that the most serious offenders could not be punished. (It is less common for a rule to be repealed in an area that was originally regulated. This is most conceivable with a detailed rule in a complex legal relationship. One long law is replaced by another long law – and one legal relationship is not thought of.) For this reason, there is a constant need for correction.
    • This is primarily the purpose of the creation of ‘lex specialis’ – the creation of specific rules alongside general ones. In this context, feedback from citizens, practitioners and the legal profession becomes particularly important. (In addition to the strict legality reviews, the ombudsman’s legal protection offers a form of correction for legality. This is most relevant to our subject in relation to administrative acts. The ombudsman investigates abuses of fundamental rights; they can draw attention not only to unlawful but also to ‘unfair and objectionable’ rules.)
    • Constitutional review, particularly genuine constitutional complaints, also serves to protect the victims of legal loopholes.
    • In a certain sense, the protection of individual interests is also a means of control exercised by the head of state, such as the right of veto and the right to pardon.[11]

It should be pointed out that democracy is not just the rule of the majority, but the rule of the majority with the protection of minority interests. Attentive legislation indirectly protects the interests of minorities, but autonomy remains the most powerful instrument for the national minorities. The motto of all this should be: law for the people, not the people for the law!

Democratic deficits, which the literature tends to mention mainly in the context of the European Union, can cause significant problems.[12] However, in my view, the concept can also be of great importance for individual states.

We must also stress that the rule of law means that the law cannot leave people unprotected. Where necessary, it must intervene in social relations. Otherwise, some people could maintain some dysfunctional ‘rule’ over society instead of upholding the law. Here, we must refer to the many infringements freely committed on the Internet as a pressing problem of our time.

A ‘Laboratory-level clean’ rule of law exists only in theory, in legal literature. Compared to the ideal, it is possible to find fault with the norms of any state, both as an outsider and as a suffering citizen. Furthermore, it must be said that ideas of constitutional law ‘independent of time and space’ are very difficult to adapt to concrete situations. The legal continuity of a country–, i.e. its existing rules and legal culture – largely determines the direction of any reforms. Moreover, law is very difficult to separate from its social context, specific sociological conditions, and the political situation.

The literature on the internal logic of law (even legal doctrine), the professional criteria that determine staff training are often universal. It is precisely the non- contradictory dogmatics of constitutional law that is lacking in some literature, in comparison with civil or criminal law.[13] In other words, the legitimacy of jurist-professional expectations that supersede substantive law may be called into question on several occasions, especially if those expectations are of international origin and diverge from the will of the electorate in the country concerned. A legal thesis can only be regarded as uncontroversial if it is presented consistently in all relevant textbooks and monographs and if there is no authoritative professional opinion to the contrary. (In case of doubt, of course, the authoritative character would be disputed by some…)

To sum up, we must categorically distinguish between decisions of expediency and decisions of legality. The former must be legitimized, and this can only be done at the highest level of the state based on popular sovereignty. In this spirit, general norms are created in the interests of society as a whole – with the interests of the minority being protected. The primary means of protection are human rights. (This does not include, for example, regulations within the framework of laws as ‘detailed rules of expediency’. The framework for this is, however, freely defined by Parliament.) Here, the internal logic of the law and the personnel of the legal profession are particularly important.[14] The application of the law must not be biased, especially when it has to be decided between opposing parties.

However, the above-mentioned corrective mechanism can (also) play a role here if a ‘legal error’ occurs. In a broad sense, this could also include cases where the legislator did not take into account the legal interests of the persons concerned in a specific situation. In this case, there is an ad absurdum possibility of what is, very worrying in the application in continental law: namely, the application of the law in a contra legem manner. (The Constitutional Court may use this instrument when ruling on a constitutional complaint.)

The cornerstones of what we have outlined are:

    • The separation of powers, which guarantees that decisions are taken in accordance with the rule of law, separately from legislation.
    • To achieve the former, the judiciary must be independent and unbiased.
    • As well as a broad constitutional judiciary, but one that does not become dysfunctional. In other words, it does not create the possibility – because of the lack of social legitimacy – of making expediency decisions instead of lawful decisions.
    • (And all of this is based on an electoral system that validates the real popular will.)

The binding force of law does not only derive from the fact that it is formally expressed as law (as a law, as a decree, in the usual form, with the legal concepts that are regularly used.) This support can, of course, only be challenged – in the spirit of the rule of law – through the appropriate procedure. The law speaks to the people, so they need to be able to understand it; it needs sufficient preparation time and clear, unambiguous language. On the other hand, law is for the people, so it must also meet the abstract standards of human rights that have evolved organically over centuries.

The greater the separation of powers (especially regarding bodies independent of the government), the more the rule of law is guaranteed.[15] From the perspective of our topic, the more independent bodies established in a state, the more certain that no dysfunction – i.e., no operation outside the internal logic of law – will occur. It is easy for a body, or in particular a single leader, to ‘go astray’ and fall under the influence of certain political forces. If power is shared between several bodies, there is a greater guarantee of independence. However, the wider the division of power, the less effective its operation. As in constitutional law in general, the instruments of effectiveness (the strengthening factors) compete with the guarantees (the weakening factors). The two aspects must be balanced, and this is a free choice for the state concerned. Since, in many cases, there is no separation of powers between government and parliament, and in many states the ordinary courts are constitutional judges, I believe that the following should be stated as a minimum international requirement: the greatest danger is the subjective decision of exact legal questions by political influence. The separation of powers between political power and judicial power must be upheld. In other words, let us separate the bodies at the highest level that decide on expediency and legality! And within the judiciary branch, the independence and impartiality of individual judges should be guaranteed!

In my view, one of the most important components of the rule of law today is judicial independence.

To analyse this complex subject, we are launching a series of research projects. Due to space limitations, the independence of regular courts will only be touched upon in passing during the upcoming study; this topic is also richly developed in academic literature, primarily due to Attila Badó’s efforts. The institution of the constitutional complaint is of especial importance.[16] It is to be emphasised that if the European Court of Human Rights (ECHR) classifies national constitutional courts as „effective courts of appeal”, then it unequivocally places them within the realm of the traditional justice system.[17] It stands to reason that if the „groundbreaking” Constitutional Court in Germany, with its own constitutional complaint procedure,[18] was given such a status, then the same should be afforded to its counterpart in Hungary.[19]

It is very difficult to pass objective, national-level judgment on the impartiality and allegiances of the many legal personnel providing justice at independent local courts. The most purist understanding of impartiality would technically deem all Constitutional Court justices ‘partial’ because they are nominated and elected by members and factions of the parliament.

Other than showcasing the traditional judicial functions of the Constitutional Court,[20] the cases mentioned in the publication are important for the following reasons.[21] The relationship between constitutional courts and the question of impartiality is made even more relevant because the Constitutional Court does not only judge its own cases,[22] but through constitutional complaint procedures, it also evaluates questions of impartiality in the regular court system. When discussing decentralised constitutional courts, the matter of regular judicial impartiality is inherently connected to the core tasks of a constitutional court. The impartiality of the institutions dealing with international justice would also make for an interesting research topic.[23]

The categories of impartiality and independence are often invoked inaccurately in the academic literature available on the topic. They are sometimes deemed synonyms, sometimes jointly defined as ‘twin principles’.[24] According to the ‘six-pack theory’, the attributes necessary for judges to fulfil the moral obligations of their profession are the appropriate perception of their roles, courage, impartiality, independence, the pursuit of justice[25] and temperance.[26] Possessing the virtue of ‘impartiality’, judges can distance their own personal lives and opinions from the case at hand. Impartial judges can detect and ignore their interests, prejudices, anger and various subjective entanglements. ‘Independence’ is closely connected to courage, referring to the independence of judges from external factors and pressure. This attribute gains especial importance when a case faces heavy moral judgment from society or when its parties are considerably powerful.[27] Therefore, judicial independence is a right and obligation of judges to rule according to the law only, without the fear of criticism or reprisals, no matter the difficulty or the sensitivity of the case.[28] Impartiality, on the other hand, means that the basis of judicial rulings can only be objective circumstances. Rulings that are biased, prejudiced or deliberately favouring the interests of one party are to be avoided.

In Hungary, Act CLXII of 2011 on the status and benefits of judges mandates a general psychiatric and psychological assessment of judge aspirants. This law defines twenty different attributes and competencies – such as decision-making ability, integrity, independence, objectivity, etc. – that must be taken into account when evaluating such applications.[29]

Bibliography

Arató Balázs: Alkotmányjogi panasz a német jogrendben, különös tekintettel a befogadhatóság kérdésére. In Anon (ed.): Az Alaptörvény érvényesülése a bírói gyakorlatban II.: Alkotmánybírósági panasz – hatáskörrel kapcsolatos kérdések, Budapest, HVG-ORAC, 2019.

Barna Lili (et al.): Milyen a jó bíró? Miskolci Jogi szemle, Vol. 13., No. 1. (2018)

Csink Lóránt: Mozaikok a hatalommegosztáshoz, Budapest, Pázmány Press, 2014.

Darák Péter: Az alkotmányjogi panasz bírói szemmel, Alkotmánybírósági Szemle, No. 1. (2012)

Domselaar, Iris van: Moral Quality in Adjudication: On Judicial Virtues and Civic Friendship, Netherlands Journal of Legal Philosophy, No. 1. (2015)

Gát Ákos Bence: Az európai uniós jogállamiság-közpolitika kialakulásának átfogó jogi és politikatudományi elemzése, Doktori értekezés, Budapest, Nemzeti Közszolgálati Egyetem, Közigazgatás-tudományi Doktori Iskola, 2021.

Halász Iván: Nemzetközi bíráskodás, in Pásztor Péter (et al.) (eds.): Magyar politikai enciklopédia, Budapest, Mathias Corvinus Collegium – Tihanyi Alapítvány, 2019.

Kilényi Géza: A köztársasági elnöki tisztség a nemzetközi jogösszehasonlítás tükrében, Magyar Közigazgatás, Vol. 44., No. 10. (1994)

Kilényi Géza: A köztársasági elnöki tisztség a nemzetközi jogösszehasonlítás tükrében II., Magyar Közigazgatás, Vol. 44., No. 11. (1994)

Körösényi András: Demokráciadeficit, föderalizmus, szuverenitás, Az Európai Unió politikaelméleti perspektívából, Politikatudományi szemle, Vol. 13., No. 3. (2004)

Paczolay Péter: Az alkotmányjogi panasz mint hatékony jogorvoslat, Alkotmánybírósági Szemle, No. 2. (2017)

Pokol Béla: A jurisztokratikus állam, Budapest, Dialóg Campus Kiadó, 2017.

Pokol Béla: Jogelmélet, Budapest, Századvég Kiadó, 2005.

Schanda Balázs: Kérdések az Alkotmánybíróság és az Európai Emberi Jogi Bíróság kapcsolatához, Alkotmánybírósági Szemle, No. 2. (2017)

Smuk Péter: Az Alkotmánybíróság “önvédelmének” lehetséges irányai, in Ambrus István (et al.) (eds.): Dikaiosz logosz – Tanulmányok Kovács István emlékére, Szeged, Pólay Elemér Alapítvány, 2012.

Szigeti Péter: A jogállam társadalomtörténeti változatai, in Takács Péter (szerk.): Államelmélet, Miskolc Bíbor Kiadó, 1997.

Tilk Péter – Kovács Ildikó: Gondolatok a kellő felkészülési idő számításának kezdőpontjáról, Jogtudományi Közlöny, Vol. 70., No. 11. (2015)

Tóth Zoltán József: Egyes észrevételek az Alaptörvény értelmezéséhez, Polgári szemle, 2013/1-3.

Trócsányi László: Az alkotmánybíráskodás és az igazságszolgáltatás kapcsolatának egyes kérdései, Alkotmánybírósági Szemle, No. 1. (2010)

Varga Attila: Az igazságtól az igazságszolgáltatásig, Korunk, Vol. 23., No. 7. (2012)

Varga Csaba: A jog mint folyamat, Budapest, Osiris Kiadó, 1999.

Varga Zs. András: Az egyedi normakontroll iránti bírói kezdeményezések eljárási feltételei, Eljárásjogi szemle, No. 1. (2016)

Varga Zs. András: Eszményből bálvány? – A joguralom dogmatikája, Budapest, Századvég Kiadó, 2015.

References

  1. For the content of the two concepts see. Péter, Szigeti: A jogállam társadalomtörténeti változatai, in Péter, Takács (ed.): Államelmélet, Miskolc, Bíbor Kiadó, 1997, 152–169., ill. 162–168. ↑
  2. The English, German and French terms are similar, but they do not have the same meaning. See Ákos Bence, Gát: Az európai uniós jogállamiság-közpolitika kialakulásának átfogó jogi és politikatudományi elemzése, Doktori értekezés, Budapest, Nemzeti Közszolgálati Egyetem, Közigazgatás-tudományi Doktori Iskola, 2021, 11. ↑
  3. The now-evident thesis that law is an abstract rule is rooted in the European “people’s conception of law”. Even in casuistic Roman law, the written law, e.g. the laws of Table XII, was applied to the particularities of the case according to the praetorian evaluation (and jurisprudential opinion). It was only from the imperial period that law became an abstract norm, and from then on the fiction of the continuity of law was used. Since then, the distinguishing features of law have been authority, the intention of universal application, obligation (i.e. the bilateral nature of the relationship) and sanction. See Csaba, Varga: A jog mint folyamat, Budapest, Osiris Kiadó, 1999, 150. ↑
  4. The former aspect is manifested in the system of popular representation and the corresponding state legislation and is therefore more tangible. The latter content filter is more subjective and can be approached objectively through constitutionalism. ↑
  5. Because then the will of society can be traced back to the creation of the state itself. On the continuity of law see. Zoltán József, Tóth: Egyes észrevételek az Alaptörvény értelmezéséhez, Polgári szemle, 2013/1-3, 13–40. ↑
  6. According to some approaches, some people can explain their own subjective will into the malleable concept of the rule of law at will. Cf. Zs. András, Varga: Eszményből bálvány? – A joguralom dogmatikája, Budapest, Századvég Kiadó, 2015, 228. ↑
  7. Furthermore, if the legislator regulates in an area using only abstract standards, then the legislators themselves will start to fill in the gaps with more precise rules. Béla, Pokol: A jurisztokratikus állam, Budapest, Dialóg Campus Kiadó, 2017, 117. ↑
  8. The essence of juristocracy is the “rule of jurisprudence” instead of democracy, i.e. legislative activity wrapped up in a dysfunctional way in the application of law. In other words, making unauthorised (subjective) expediency decisions instead of lawfulness decisions. See Pokol: A jurisztokratikus állam 160. ↑
  9. Obviously, this raises the issue of adequate preparation time. For an excellent general discussion of the latter, see. Péter, Tilk – Ildikó, Kovács: Gondolatok a kellő felkészülési idő számításának kezdőpontjáról, Jogtudományi Közlöny, Vol. 70., No. 11. (2015), 549–555. ↑
  10. Béla, Pokol: Jogelmélet, Budapest, Századvég Kiadó, 2005, 143. ↑
  11. Presidents of the republic may have a number of such powers by international standards, for example to release irrecoverable state claims and (in a quasi-extension of the right to pardon to other areas of law) to grant derogations from the general application of the law. See Géza Kilényi: A köztársasági elnöki tisztség a nemzetközi jogösszehasonlítás tükrében, Magyar Közigazgatás, Vol. 44., No. 10. (1994) 577–584.; valamint Géza Kilényi: A köztársasági elnöki tisztség a nemzetközi jogösszehasonlítás tükrében II., Magyar Közigazgatás, Vol. 44., No. 11. (1994) 641–648. ↑
  12. See for example András, Körösényi: Demokráciadeficit, föderalizmus, szuverenitás, Az Európai Unió politikaelméleti perspektívából, Politikatudományi szemle, Vol. 13., No. 3. (2004) 143–161. ↑
  13. See Pokol: Jogelmélet 80. ↑
  14. For this see. ibid. ↑
  15. Some experts analyse independent bodies in the executive branch, such as the Media Council. And although they have both a dispute adjudication and a legislative function, they do indeed have the functions originally attributed to the executive. See Lóránt Csink: Mozaikok a hatalommegosztáshoz, Budapest, Pázmány Press, 2014, especially 72–80. ↑
  16. Péter, Darák: Az alkotmányjogi panasz bírói szemmel, Alkotmánybírósági Szemle, No. 1. (2012) 70–72. ↑
  17. See: Péter, Paczolay: Az alkotmányjogi panasz mint hatékony jogorvoslat, Alkotmánybírósági Szemle, No. 2. (2017) 91–95. ↑
  18. See: Balázs, Arató: Alkotmányjogi panasz a német jogrendben, különös tekintettel a befogadhatóság kérdésére. In Anon (ed.): Az Alaptörvény érvényesülése a bírói gyakorlatban II.: Alkotmánybírósági panasz – hatáskörrel kapcsolatos kérdések, Budapest, HVG-ORAC, 2019. ↑
  19. Balázs, Schanda: Kérdések az Alkotmánybíróság és az Európai Emberi Jogi Bíróság kapcsolatához, Alkotmánybírósági Szemle, No. 2. (2017) 101. ↑
  20. See also: László, Trócsányi: Az alkotmánybíráskodás és az igazságszolgáltatás kapcsolatának egyes kérdései,Alkotmánybírósági Szemle, No. 1. (2010) 120–126. ↑
  21. Cf.: András Zs., Varga: Az egyedi normakontroll iránti bírói kezdeményezések eljárási feltételei, Eljárásjogi szemle, No. 1. (2016) ↑
  22. See also: Péter, Smuk: Az Alkotmánybíróság “önvédelmének” lehetséges irányai, in István, Ambrus (et al.) (eds.): Dikaiosz logosz – Tanulmányok Kovács István emlékére, Szeged, Pólay Elemér Alapítvány, 2012. 107–113. ↑
  23. Iván, Halász: Nemzetközi bíráskodás, in Péter, Pásztor (et al.) (eds.): Magyar politikai enciklopédia, Budapest, Mathias Corvinus Collegium – Tihanyi Alapítvány, 2019, 417–418. ↑
  24. According to Article XXVIII (1) of the Fundamental Law of Hungary: Everyone shall have the right to have any charge against him or her, or his or her rights and obligations in any litigation, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act. ↑
  25. Cf.: Attila, Varga: Az igazságtól az igazságszolgáltatásig, Korunk, Vol. 23., No. 7., 102–110. ↑
  26. Iris van Domselaar: Moral Quality in Adjudication: On Judicial Virtues and Civic Friendship, Netherlands Journal of Legal Philosophy, No. 1. (2015) 24–46. ↑
  27. Above-quoted. ↑
  28. Lili, Barna (et al.): Milyen a jó bíró? Miskolci Jogi szemle, Vol. 13., No. 1. (2018) 84–98. ↑
  29. Above-quoted. ↑