Vol. 14 No. 2 (February 2004)

IMPORTING THE LAW IN POST-COMMUNIST TRADITIONS: THE HUNGARIAN CONSTITUTIONAL COURT AND THE RIGHT TO HUMAN DIGNITY, by Catherine Dupre. Oxford, UK: Hart Publishing, 2003. $63.00 Hardcover. 224pp. ISBN: 1841131318.

Reviewed by Spencer Zifcak, La Trobe University School of Law, Melourne, Australia. Email: s.zifcak@latrobe.edu.au

As noted previously in these review pages, in its first nine years the Hungarian Constitutional Court was a remarkable and radical one. It paved the way in the creation of a new, central European constitutional jurisprudence in the post-communist era. In doing so, it created constitutional law at breathtaking speed and, under the circumstances, with admirable rigor. Its powers were great and its decisions were far-reaching. These decisions encompassed rulings concerning the powers of the President of the Republic, the separation of judicial power, the death penalty, abortion, compensation for actions taken under the communist regime, freedom of speech, privacy, the status of the media, lustration, the constitutional status of international treaties, and economic reform. Its judgments, particularly with respect to economic and social rights, did not always meet with parliamentary and governmental approval. The politics were often tense. Nevertheless, no one can doubt that the first Court made a pivotal contribution to Hungarian democratization generally, and to the entrenchment of human rights more particularly.

For outside observers, an obvious question arises. How was it that the Hungarian Constitutional Court was able to develop a body of constitutional jurisprudence, in less than a decade, which rivalled in breadth and depth that which other Western European Constitutional Courts took many decades to achieve? A second, concomitant question has also presented itself. That is, how successful legally has the enterprise been in the end? In her most interesting book, Catherine Dupre makes a substantial contribution to answering both. There are still far too few monographs in English on the notable work of this Court, and Dupre's effort therefore is very much to be welcomed.

In her book, Dupre suggests a straightforward answer to the first of these questions. The strategy chosen by the Court to entrench constitutional principle and make the very numerous consequential decisions required in a very compressed time-frame was to import its constitutional law from outside. But this importation did not take place from just anywhere. The Court relied on, to a far greater extent than on any other source, the jurisprudence of the German Constitutional Court to provide it with relevant precedents and examples. The German Court, of course, had been established for more than forty years. It had elaborated German Constitutional law, therefore, at a more leisurely pace than the Hungarian Court was allowed. Its thoughtful jurisprudence was also recognized internationally as amongst the best yet formulated in the civil law context.

It is unsurprising, then, that the Hungarian Court should turn to its neighbor for guidance and inspiration in the development of a new, democratic, post-communist constitutionalism. Dupre argues that there were three principal reasons that informed this choice. First, there was the obvious prestige of the German Court. This prestige was such as to make the importation of German law credible and acceptable. The regard in which it was held also allowed the Hungarian Court to suggest that in looking to the German model it was selecting not just one nation's constitutional law for consideration but was in fact choosing jurisprudence that was the exemplification of that surrounding and contained in "modern constitutions." This characterization was important in drawing a line in the sand between old, discredited communist constitutionalism and a new, modern and democratic version.

Secondly, Dupre proposes that the Hungarian Court's choice was informed by its knowledge of German law and its involvement in Germany's political and cultural sphere of influence. As the first President of the Court remarked, "Hungary belonged to the traditional sphere of influence of the German language and culture. Accordingly, German law and culture were well known…In the course of the last two centuries, German sources have been drawn upon whenever the need to modernize arose" (p.96 ). More prosaically, most of the judges also spoke German fluently and, together with their advisers, had an extensive network of legal friends and colleagues across the German border.

Thirdly, Dupre suggests that German constitutional law provided the model most suitable for application to the Hungarian circumstance. Institutionally, Germany had a powerful Constitutional Court with a structure and powers similar to that of the new Hungarian tribunal. Jurisprudentially, the German Court had developed a very strong and copious human rights law, focusing upon the protection of the individual against the state. This was clearly an attractive orientation in a new, post-communist democracy. Constitutionally, the countries were sufficiently similar to permit ready comparison and cross-fertilization to occur.

Having established this framework, Dupre then engages in a detailed case-study to demonstrate her more general thesis. She does this by concentrating on the manner in which the concept of human dignity has been elaborated by both Courts. This is the best part of the book. In the central chapter she describes first the similarities between the manner in which human dignity has been defined and then applied in particular cases in Germany and then Hungary. She concludes that much that was good had been imported. Further, what had been imported had provided the Hungarian Court with a powerful tool for the elaboration of many important subsidiary rights, including a right to the free fulfilment of one's personality and all that follows from that.

This discussion, however, is balanced by a clear appreciation of important differences in the Hungarian Court's approach to the elaboration of human dignity. These stemmed in part from differences in the constitutional texts and in part from the different ground in which the concept had necessarily to be implanted. Unsurprisingly, the immediate post-communist context in which the Hungarian Court worked led it to place greater emphasis than its German counterpart on the autonomous and self-determining character of individuals and on their entitlement to protection from state incursion upon their private domains.

Human dignity, then, constituted a powerful conceptual tool with which and through which the communist legacy could be laid quickly and credibly to rest. As Dupre concludes:

The Hungarian Court addressed this challenge by using its imported concept of human dignity in order to eliminate possible confusion with the concept of rights inherited from the previous communist constitution and to spell out a liberal concept of rights. In so doing, the Court replaced or reinterpreted the rights inherited from communism on the basis of human dignity…The new concept of rights developed by the Court led judges to nullify, almost systematically, the rules enacted under communism which were challenged before the Court (p.134).

Dupre's discussion of the constitutional standing and interpretation of the idea of human dignity is lucid and informative. Its reading will benefit anyone, whether professional or academic, with an interest in comparative, constitutional human rights law.

Some other parts of the book, however, are not in my view as strong. The core argument, which I have briefly described, is surrounded in front and at the back with theoretical chapters that make a great deal out of not very much. So, for example, a whole chapter in the early part of the work is devoted to the definition of the "importation" and "exportation" of law. As will readily be perceived from the précis above, the process of importing German constitutional law and the reasons for its adoption were not terribly complex. This is quite different from saying that the law itself and its application in particular cases were not replete with complexity. Clearly they were. But as a scholar who worked for some years at the Court, I found the process of importation was reasonably apparent and readily explicable. I did not find, therefore, that it was terribly useful to read many pages devoted to the idea of "legal transplants," their twelve key characteristics, the relationship between this notion and that of "transjudicial communication," and the placement of one or both within larger metaphors of surgical and botanical grafts. To be fair to the author, I recognize that the work originated as a Ph.D thesis and, therefore, that a discussion of relevant literature with respect to comparative law theory had necessarily to be included. But the theoretical elaboration here, I think, stretched points that could much more plainly have been dealt with.

Later in the book, Dupre seeks to argue that the importation of German law constituted a modern substitute for the derivation of legal principle from natural law. Citing "modern constitutions" and their exemplification in the German model, the Hungarian Court, she suggests, adopted a convenient strategy for introducing Western conceptions of constitutionalism into a formerly Eastern bloc country, without the necessity to justify such a change in purely ideological or philosophical terms. This is an interesting thesis, but again the point is stretched somewhat when she seeks to extend her argument, on the basis of a single case study, into a broader one concerning the contemporary characteristics of the process of legal globalisation generally.

In a similar vein, I think that the explanatory content of the work might have been strengthened considerably had the author extended her theoretical reach beyond that of pure comparative law to embrace and incorporate at least some philosophical and political treatments of the post-communist transition in Central and Eastern Europe. I think here of the quite marvellous body of work by Martin Krygier and Kim Scheppele in particular.

None of this, however, is to minimize the contribution that Dr. Dupre has made to our understanding and appreciation of the work of the Hungarian Court. Plainly, in answer to the second question I posed above, the Court met the very considerable challenges it faced thoughtfully, strategically and, ultimately, successfully. The case-study contained here provides a persuasive account of how and why this success was achieved. Its discussion of the concept of human dignity and what may follow constitutionally from its liberal explication is also of considerable analytical and practical value.

With the minor qualifications previously expressed, I would have no hesitation in recommending the book to anyone who wishes to know more not only about how the Hungarian Constitutional Court went about its formidably difficult work but also about what this experience can teach every other comparable jurisdiction about making and interpreting new constitutions in transitional times.

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Copyright 2003 by the author, Spencer Zifcak.