March « 2022 « Views and works

…so I publish it here… Long live free science!

Society has the Right to Abolish Authoritarian Laws by Simple Majority

A Call Against Positivist Fundamentalism

It is naïve to think that the only way to abolish the oppressive laws of the Hungarian government is to respect the legal framework created by the same oppressive government. Scholars are wrong when they suggest that this is the only available route we can take: this rigid interpretation of ‘law’ will only lead us deeper into the autocratic prison. The choice of whether or not a nation should overstep autocratic laws and, if so, how it should be done is an intrinsically political question, and the job of lawyers is not to limit the means that the nation could use by repetitively iterating the clichés of positivist legal fundamentalism; instead, lawyers should try to highlight divergent options for the Hungarian society and show how the society could return to democracy.

The present situation

Unlike the suggestions of many mainstream commentators, Hungary is neither an illiberal democracy nor a hybrid regime, but is already an electoral autocracy. This means that scholars should stop whitewashing Hungarian governance and use the model developed by Levitsky‒Way to this system. Andreas Schedler explained the functioning of electoral autocracies in his book The Politics of Uncertainty, and his general observations can be used far more precisely to explain the governance of Hungary. This also means that all or most of the state’s institutions are ‘emptied’, and they only function like a façade of democracy to hide oppression.

A perfect example is the Constitutional Court of Hungary: Can we call a court that follows the government’s demands most of the time and has a Head who makes a political argument defending the system of Fidesz, while others would ban opposition parties, a constitutional court at all? In my opinion, we cannot: such an institution is an empty shell without proper content. Fidesz has already abolished the Constitutional Court of Hungary and what we see is the façade, a bad caricature of a former institution. In electoral autocracies like Hungary, elections are strongly manipulated: the opposition cannot and will not receive the two-thirds majority needed to change the most important laws; in fact, in most cases, it cannot win at all, and the positions of opposition politicians strongly depend on the favour of the government. Hungarian elections are not competitive (in my opinion, they are neither free nor fair – elections cannot be free if they are not fair). The opposition will necessarily lose, and claiming that it has a mathematical chance to win is a rather bad argument (even in China, the opposition has a mathematical chance to win, but this fact does not tell us anything about the system). Any time something would endanger the power of Fidesz, the latter makes the necessary changes in the electoral laws to remain in power. In the last two elections, Fidesz was not able to receive the majority of votes, and it could still govern because it had a majority in the Parliament. The fact that the opposition does not protest against this manipulation reveals a lot about the opposition itself, and shows how it became part of Fidesz’s System of National Cooperation. Moreover, even if the opposition could receive the power to govern, it could not effectively do so, because Fidesz occupies the leading positions within the state and the society (the Constitutional Court, public prosecutor, media, business, etc.).

The changes the government has made to the whole of the legal system follow a post-fascist ideological pattern in that they go strongly against the basic principles of enlightened legalism. Fidesz engaged in a palingenesis (rebirth) of the legal system, and in a unique way in European history, changed all the major laws of the country – not even the dictatorships of the 20^th century changed so many laws so drastically.

This means that scholars who play down the problem or claim that we are over-generalising, too emotional and not nuanced enough are wrong. The limited freedom they praise in such a system is not a freedom at all, and many of them praise this small amount of freedom because they accept some lighter forms of authoritarianism as normal. As shown as well by the changes to the academic system in Hungary, the relatuve freedom of autocracies does not exist, at least not in the sense many like to portray it.

Positivist Legal Fundamentalism is Not the Only Available Option for Hungary

In Hungarian mainstream legal thinking, oppressive laws are still overtly respected, just as they were in Germany after World War II. As Radbruch put it with regard to Germany, ‘positivism, with its principle that “a law is a law”, has in fact rendered the German legal profession defenceless against statutes that are arbitrary and criminal’. The same thing is happening in Hungary today.

The overstepping of oppressive laws has a great historical tradition. First, if we take the application of the Radbruch formula, many laws of the Nazi regime (for example, which seized the property of Jews or which revoked their citizenship) were overstepped by the courts. In Hungary, however, the citizenship of those who were deprived of it during the communist regime was never automatically and retroactively restored, which shows the tendency of the legal/political elite to relatively easily accept and host authoritarianism. The same is true of crimes: in Germany after World War II, people were prosecuted because they reported others to the Nazi authorities, thereby leading to murder or personal limitations on the freedom of those affected. After 1945, these people were found guilty of crimes which were fully legal at the time they committed them. Later, a reinterpretation of the principle occurred when German Democratic Republic border guards shot people trying to flee the country and were sentenced for murder. Similar approaches have always been unimaginable in Hungary where lawyers support the ‘a law is a law’ approach. Here, e.g. tortures committed during communist or nazis times were not investigated after 1990. This resulted into a lack of facing the crimes of the former regimes, in my opinion.

In another shift later, the Constitutional Court of the Czech Republic in and after 1990 also overstepped the laws and practices of the former regime, claiming that the institutions were so strongly penetrated by the communist regime that they could not be judged by the same principles as neutral, democratic institutions. In Romania, the trial and execution of Ceaușescu also greatly overstepped the framework of the former system.

In Hungary, however, a fundamentalist approach was used even after the regime change from 1990 onwards – there has been no real encounter with the sins set in legal provisions by the communist regime, and the Constitutional Court has found attempts to show the arbitrary, ‘non-legal’ nature of the system (the Zétényi-Takács Bill) unconstitutional.

One reason for the doctrinal rigidness could be that in the country, the legal profession has always historically been used by oppressive governments to justify their systems, and legal scholars perfectly adhere to this demand. Even legal education, which stresses the senseless conning of provisions strengthens this. Lawyers do not really receive a proper education in social issues or basic political science, and they think they are omnipotent regulators of the country. The political system also reflects this. For example, if the nationalisations of private assets was ‘criminal’ during the communist regimes, these assets must be given back – the refusal to take this approach has had a broad consensus in the aftermath of the change in the system in 1990.

Returning to Normal: the Radbruch formula, the Vörös formula and the Scheppele formula

At this point, I must stress that I do not argue that the Radbruch formula in its unchanged format would be useful for Hungary. As Radbruch put it,

[T]he positive law, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches such an intolerable degree that the statute, as ‘flawed law’, must yield to justice… Where there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law’, it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice.

In fact, as Alexy perfectly explained, the Radbruch formula contains two formulae: the first is the intolerability formula. According to this, positive law loses its validity when it goes against the basic principles of justice. In my interpretation, hundreds of Fidesz laws go against basic justice, but we do not receive much help: Which ones are they, and which should not be applied? Second is the disavowal formula: if the law goes against the basic principles of equality, it is no longer a law. Theoretically, this could be used, for example, in the case of Fidesz creating hunger among asylum seekers or mixing paedophilia and homosexuality in its latest propaganda law. But even in these latter cases, the contours of the Radbruch formula are rather shady. This, does not mean that we always have to follow certain existing theories: as the palingenesis of Fidesz is unique, we can invent unique solutions. Furthermore, commentators have never really stressed that the Radbruch formulae are not intrinsically legal in nature, but instead are political. Where is the border of ‘justice’? What laws can be overstepped, and which ones would lead to chaos if they were abolished? This is a political decision and not a legal one. We can give answers to this question, but their acceptance is only based on the social and political environment.

One way of solving the problem of oppressive laws has been suggested by Imre Vörös. He refers to Article C of the Fundamental Law of Hungary, which claims that no government shall be allowed to exercise power in an autocratic form (the original Hungarian text talks about the exclusive exercise of power). Vörös would use this provision to nullify oppressive laws. This is a reinterpretation of an article in the Fundamental Law which could be used to justify the abolishment of authoritarian elements in the legal system and, in my opinion, could to a certain degree become the new Hungarian Radbruch formula. Its advantage is that it binds the changes to a legal provision instead of to a generalised ‘justice’.

Of course, even if we accept this approach, its content must be carefully drafted, more carefully than in the case of the Radbruch formula (Radbruch died in 1949, and unfortunately, legal scholarship did not do much to provide answers to these complex problems). On the other hand, I do not understand the reason former interpretations of the Fundamental Law should bind the next government – why should we have to respect the former framework when it was intended to create an autocracy out of the country? Arguing against reinterpretation of laws seems quite weird to me: the US Supreme Court would be unable to develop interpretations of law with such a dumbed-down originalist approach. Interpretation and reinterpretation is the normal way in which law develops, and I do not know why we should disapprove of such a solution. If there could be a reinterpretation of the Charter of Fundamental Rights to purely domestic situations as suggested by Jakab, even though the black letter of the law (Article 51 of the Charter) suggests something completely different, why could not we reinterpret provisions of the former constitution, or the Fundamental law?

Apart from the Vörös formula, I also support the use of international law and European law, such as has been suggested by Kim Lane Scheppele. This method also contains a kind of re-interpretation, but a different one: it re-interprets the role of the EU and international law in the Hungarian legal system, and I strongly support it. Of course, it cannot answer all the questions raised. For example, it will not answer the question how we should handle the manipulated electoral laws, but, as Scheppele carefully showed, it could cure a wide range of issues.

My Suggestion for a Plural Discourse

The aim of legal professionals at this point should not be to crank up senseless alarmism, which has become so common among positivists, but to highlight methods to escape the jungle of the legislative prison. I am not against legal positivism if it helps to restore democracy, but in this case, scholars should explain how they will receive support from Fidesz to abolish oppressive laws – another political question to be answered. If the system starts to collapse, I do not believe this support would be unattainable – the same, consensus-centred approach made the change from the communist system to a democratic one so fluent. If lawyers like András Jakab or László Majtényi believe this is the only option, they should draft their versions of the return to democracy. Fortunately, there are many of us, including Imre Vörös, Zoltán Fleck and Tóth Gábor Attila, who do not believe this will suffice. Our job is to highlight other scenarios and find the crucial laws that could be modified or repealed by the Parliament with a simple majority.

I personally would immediately change the electoral laws from a majoritarian to a proportional electoral system and find the idea to hold a national referendum on these changes to be a good idea. You cannot have proper elections without this, and no party has ever had the right to manipulate elections in the way Fidesz has done it. Do we seriously believe that if around 70% of the Hungarian people would support an opposition party or parties, yet they would only receive around 45% in the parliament because of the manipulation of Fidesz, that this result should be respected as democratic and in conformity with the rule of law? I do not think so. These are not proper elections. Furthermore, I would immediately nationalise the assets of oligarchs at the start of new governance – it is nonsense to think about this problem from a formal, legal perspective. Institutionalised legal stealing is still stealing. We should not unduly respect provisions which make stealing accepted as normal; this is a fundamentalist approach which is in a collision with basic justice.

Against all of the above, we are always answered with extra-legal, political arguments: there is no public support for such changes and they would lead to a collapse of the state. However, overstepping autocratic laws would not necessarily lead Hungary to civil war. This is another rather dumb argument which is sometimes raised by lawyers and which, by the way, has little to do with law as this is a political question. Those who repeat this naïve cliché should at least read the basics of the academic literature on civil wars. I do not see the weapons and the people willing to murder each other on either side.

Lawyers are not political scientists. It is not up to us to predict whether or not the nation will accept a solution to its problems. If it does not, then these changes cannot be made; without public support, they cannot take place. You cannot create democracy if the majority of a society refuses it. However, to set the level of necessary, appropriate public support is not up to us as this is another political question with which we do not have to deal. Our job is only to highlight the fact that positivist legal fundamentalism is not the (only) option that can be used to escape the prison of autocracy.