The Importance of Comparison

Comparative constitutional law is an important tool in understanding differences between legal and political cultures, and in understanding our own legal systems. As Anna Conley argued very recently, “Comparative law provides a rich multi-dimensional lens through which to better understand originalism by juxtaposing it with other historical constitutional interpretation methods, identifying its interrelation with politics, culture and rights, and contextualizing its ramifications based on the type of constitution being interpreted.”

The interrelation of a constitution with politics, culture, and rights is—before focusing on interpretation—firstly a matter of constitutional design, which is also influenced by the theoretical influences on the founding constitutional moment. Thus, history is an important source of understanding different types of constitutional arrangements as well as legal and political cultures. We might suppose that different legal systems have historically been subjected to different moral and philosophical influences shaping them that have imprinted on contemporary political and legal culture and caused differences between constitutions.

In this post, I would like to point to certain similarities in the design of the world’s first written constitution, that of the United States (1789), and the very young Hungarian constitution. The latter was adopted in 2012, and it is Hungary’s second modern democratic constitution. The similarities between the constitutions will point to the similar intellectual influences at work at the time of the adoption of each, namely, ancient moral and political philosophy in different wisdom traditions. The similarities in the design of and influences on the American and Hungarian constitutions are not widely recognized or publicized.

Emotions and Virtues Guiding Constitutional Design

In constitutional texts, preambles are responsible for the expression of “emotions in constitutional design.” A look at both the American and the Hungarian preambles will shed light on the constitutional narrative unifying the respective nations and setting up the different historical, institutional, virtue-based, rights-based, and communitarian frameworks represented by the constitution as a covenant. (Yuval Levin uses this framework in his recent book on the U.S. Constitution, American Covenant.) Preambles also serve as an interpretive tool for the normative constitutional text; by looking at them, we might gain insight into the differences and similarities between the constitution-making and constitutional interpretation of the two countries.

Happiness is one of the key themes of American constitutionalism—inherited from the Declaration of Independence, but permeating American constitutional design. The pursuit of happiness has been subject to a myriad of dissertations in the U.S., most recently a book by Jeffrey Rosen. In this book, Rosen specifically deals with the philosophical influences on the American Founding and the Founders themselves.

Happiness can also be looked at in the light of Levin’s American Covenant, and we might ask whether the Constitution as a covenant based on a collective commitment to shared values and principles makes the people happy and whether it enables them to pursue their happiness.

In European constitutional, political, and legal theory, the original but heavily criticized Habermasian strand of Verfassungspatriotismus (constitutional patriotism) deals with this issue. This theory relates to the extent to which the political community subject to the constitution is able to identify with the history, culture, and values represented in the constitution. In other words, it measures what Levin looks at: the unifying power of collective commitment to shared values and principles as represented by the constitutional covenant. Since the Hungarian constitution was drafted and adopted, many have questioned whether the new covenant—defined in 2011 by the constitution-making power dominated by a conservative supermajority (one which still governs after winning four consecutive elections)—represents a collective commitment and identification with its shared values and principles.

What sort of philosophical influences were the American Founders and the Hungarian drafters exposed to that defined their value choices, principles, and the collective commitment to them, all expressed by the constitutional text?

Rosen suggests that the theory underlying the American Constitution holds that in order to live a virtuous life, personal self-improvement must be not only an “entitlement” (i.e. the “right to the pursuit of happiness,” a natural right rooted in natural law), but it must also be construed as an obligation. In addition, virtues need not only be interpreted and cultivated in a strictly religious sense or setting, but should be pursued through other communities as well, as the virtuous and thus happy life is lived through our relationships.

Applying these conclusions to the Hungarian Fundamental Law (adopted 222 years after the U.S. Constitution), do we find similarities? Yes. The Hungarian preamble is—by design and necessity—full of many emotional and emotive proclamations and statements that were absent from the previous constitutional text adopted at the time of the democratic transition in 1989. Most of these new statements in the Fundamental Law may be tied to those natural law foundations that influenced the Founders, as well as to self-improvement and the pursuit of happiness also represented in the American Constitution. These are (with emphasis added):

  • We hold that human existence is based on human dignity.
  • We hold that individual freedom can only be complete in cooperation with others.
  • We hold that the family and the nation constitute the principal framework of our coexistence, and that
  • our fundamental cohesive values are loyalty, faith and love.
  • We hold that the strength of a community and the honour of each person are based on labour and the achievement of the human mind.
  • We hold that we have a general duty to help the vulnerable and the poor.
  • We hold that the common goal of citizens and the State is to achieve the highest possible measure of well-being, safety, order, justice and liberty.
  • We hold that democracy (in the original Hungarian “népuralom” refers to “rule of the people”) is only possible where the State serves its citizens and handles their affairs in an equitable manner, without abuse and impartially.
  • We hold that after the decades of the twentieth century, which led to a state of moral decay, we have an abiding need for spiritual and intellectual renewal.
  • We trust in a jointly shaped future and the commitment of younger generations.
  • We believe that our children and grandchildren will make Hungary great again with their talent, persistence, and moral strength.

These provisions seek to map out all of those common principles and values that are conducive to happy life in a happy state. To compare some similar terms from the U.S. preamble: “to establish justice,” “to promote the general welfare,” and “to secure the blessings of liberty to ourselves and to our posterity.”

The pursuit of happiness (“boldogság” in Hungarian) may take many forms, prosperity (“boldogulás” in Hungarian) being one of them, which appears in the normative Hungarian constitutional text specifically in terms of the communities of trans-border Hungarians, those living outside of Hungary. Their prosperity—as a means the their pursuit of happiness—is supported by the motherland.  

The normative text in Hungary also expands on the importance of self-improvement defined as an obligation in so far as it sets forth that “Everyone shall be responsible for him- or herself, and shall be obliged to contribute to the performance of state and community tasks according to his or her abilities and possibilities.” Elsewhere, it declares that “Everyone shall be obliged to contribute to the enrichment of the community through his or her work, in accordance with his or her abilities and potential.” These provisions refer to the importance of communities through which individual freedom flourishes and a duty to impose on ourselves a certain responsibility for self-betterment with a purpose to contribute to society, and to work toward the common good.

With only twelve years of hindsight, I would not go as far as to call the 2012 drafters of the Hungarian Fundamental Law “Founders” in the American sense. However, it is interesting that the impressions left by these men and women on the Hungarian constitutional text resemble those impressions and elements that the Founders left on the fabric of the American constitution and its philosophical and moral underpinning.

Conclusions

There are many who are unhappy with the American Constitution’s design and practice. And there are many more who are unhappy with the Hungarian constitution, often without taking the time to get to know the exact contextual determinants leading to its adoption (i.e., its design) and the finer details of the cultural, historical, political, and institutional realities in which it operates (i.e., its practice) that are essential to understanding it.

Promoting the collective commitment to shared values and principles represented by the American Constitution on a global scale will become much easier if we practice the Founders’ inward-looking ways of life and self-reflection and if we understand that the American and Hungarian constitutions share very similar philosophical and theoretical underpinnings.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].