The author examines the tension that exists between the various components of the separation of powers (in particular the ideas of independence and separation, and the system of checks and balances). He analyses different ways of solving them. Attention is paid, for example, to attempting to supplement the separation of powers with some other normative thesis. The author rejects previous approaches and argues that the components of the separation of powers can be understood as separate principles. Conflicts between these principles should be resolved through proportionality.
{"title":"The twilight of the separation of powers: Proportionality as a method of solving institutional issues","authors":"M. Hapla","doi":"10.1556/2052.2020.00227","DOIUrl":"https://doi.org/10.1556/2052.2020.00227","url":null,"abstract":"The author examines the tension that exists between the various components of the separation of powers (in particular the ideas of independence and separation, and the system of checks and balances). He analyses different ways of solving them. Attention is paid, for example, to attempting to supplement the separation of powers with some other normative thesis. The author rejects previous approaches and argues that the components of the separation of powers can be understood as separate principles. Conflicts between these principles should be resolved through proportionality.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47949360","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Plague was a frequent visitor to early modern England, ravishing the whole country six times between 1563 and 1666. The plague problem was, however, definitely not just an English peculiarity. Plague, due to its recurrent and devastating outbreaks, was one of the central themes of late sixteenth-century medical scholarship and social policymaking. Plague was regulated mainly at the local levels, but most of the continental regulations and contemporary guidance seems to endorse two common features. They placed considerable emphasis on contagion and drew certain correlations between contacting plague and poverty on the one hand and meagre living conditions on the other hand. In some desperate attempts, the Elizabethan and Jacobean governments, set out to contain the spread of the disease, missing some marked features of these novel continental practices, issued various ill-suited regulations which dominated English plague control from 1578 to 1666. Despite these regulations' remarkably egalitarian overtone and seemingly charitable resolutions, this paper argues that the Elizabethan and Jacobean policies of plague control were destined to failure chiefly because of their elitist and inconsiderate measures, reducing them effectively to a harsh policy of confinement of the infected poor masses, taking almost no account of their health or well-being.
{"title":"Plague discourse, quarantine and plague control in early modern England: 1578–1625","authors":"Ákos Tussay","doi":"10.1556/2052.2020.00001","DOIUrl":"https://doi.org/10.1556/2052.2020.00001","url":null,"abstract":"Plague was a frequent visitor to early modern England, ravishing the whole country six times between 1563 and 1666. The plague problem was, however, definitely not just an English peculiarity. Plague, due to its recurrent and devastating outbreaks, was one of the central themes of late sixteenth-century medical scholarship and social policymaking. Plague was regulated mainly at the local levels, but most of the continental regulations and contemporary guidance seems to endorse two common features. They placed considerable emphasis on contagion and drew certain correlations between contacting plague and poverty on the one hand and meagre living conditions on the other hand. In some desperate attempts, the Elizabethan and Jacobean governments, set out to contain the spread of the disease, missing some marked features of these novel continental practices, issued various ill-suited regulations which dominated English plague control from 1578 to 1666. Despite these regulations' remarkably egalitarian overtone and seemingly charitable resolutions, this paper argues that the Elizabethan and Jacobean policies of plague control were destined to failure chiefly because of their elitist and inconsiderate measures, reducing them effectively to a harsh policy of confinement of the infected poor masses, taking almost no account of their health or well-being.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49520410","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Corrigendum: Rule of law vs. Poland and Hungary – An inconsistent approach?","authors":"N. Daminova","doi":"10.1556/2052.2021.11111","DOIUrl":"https://doi.org/10.1556/2052.2021.11111","url":null,"abstract":"","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44586506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper aims to highlight the nature and the relevance of the reference to constitutional traditions in the building of populist constitutionalism, with special regard to the Hungarian case. In Hungary the goals and effects of this reference – especially the references to the achievements of the historical constitution – must be discussed at the level of the constitutional text and with regard to the formation of the new constitutional jurisprudence and, furthermore, to the creation of the constitutional identity. Outstanding political theories have been built about the elements of national populism and all include a political emphasis on a nation's pride in its culture, history and traditions. This paper examines the normative legal consequences of this in a state where the populist political forces have consecutively gained a majority in the Parliament which enables them to adopt and amend a constitution and decide on the personal make up of the constitutional court. It examines the role of the reference to constitutional traditions in the transformation of the constitutional system. The illustrative case studies from Hungary show one element of the alternative to mainstream liberal constitutional democracy: a constitutional perception of the sovereign people with a strong common constitutional heritage, this latter to be respected by all state organs and by domestic, European and international law. The paper offers an understanding of this constitutional concept and assembles disclaimers and serious legal concerns that must be taken into account, at least in Hungary, but probably in many other national populist regimes as well.
{"title":"The reference to constitutional traditions in populist constitutionalism – The case of Hungary","authors":"Fruzsina Gárdos-Orosz","doi":"10.1556/2052.2021.00298","DOIUrl":"https://doi.org/10.1556/2052.2021.00298","url":null,"abstract":"The paper aims to highlight the nature and the relevance of the reference to constitutional traditions in the building of populist constitutionalism, with special regard to the Hungarian case. In Hungary the goals and effects of this reference – especially the references to the achievements of the historical constitution – must be discussed at the level of the constitutional text and with regard to the formation of the new constitutional jurisprudence and, furthermore, to the creation of the constitutional identity. Outstanding political theories have been built about the elements of national populism and all include a political emphasis on a nation's pride in its culture, history and traditions. This paper examines the normative legal consequences of this in a state where the populist political forces have consecutively gained a majority in the Parliament which enables them to adopt and amend a constitution and decide on the personal make up of the constitutional court. It examines the role of the reference to constitutional traditions in the transformation of the constitutional system. The illustrative case studies from Hungary show one element of the alternative to mainstream liberal constitutional democracy: a constitutional perception of the sovereign people with a strong common constitutional heritage, this latter to be respected by all state organs and by domestic, European and international law. The paper offers an understanding of this constitutional concept and assembles disclaimers and serious legal concerns that must be taken into account, at least in Hungary, but probably in many other national populist regimes as well.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46880227","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 1 January 2018, a new act entered into force in Hungary. This act is the new code of private international law in Hungary. The basic purpose of this article is to present the jurisdictional rules of the new law. In the description I discuss how the new act differs from the rules of the old code. In addition, I focus on international and European trends in private international law. I also examine the extent to which the new Hungarian code complies with these trends, as well as discussing the peculiarities of the Hungarian regulation. The new Code uses the concept of jurisdiction as a rule for the ‘international distribution’ of cases and in the sense of public international law. Therefore, I also address in this article the definition of jurisdiction and other conceptual issues, the doctrines of immunity and the description of the jurisdictional system of the Code. I present the relationship between international, European and Hungarian rules which are relevant in private international law. In addition, I provide an overview of the novel system of jurisdictional rules in the Code.
{"title":"Rules of jurisdiction in the new Hungarian private international law","authors":"K. Gombos","doi":"10.1556/2052.2021.00285","DOIUrl":"https://doi.org/10.1556/2052.2021.00285","url":null,"abstract":"On 1 January 2018, a new act entered into force in Hungary. This act is the new code of private international law in Hungary. The basic purpose of this article is to present the jurisdictional rules of the new law. In the description I discuss how the new act differs from the rules of the old code. In addition, I focus on international and European trends in private international law. I also examine the extent to which the new Hungarian code complies with these trends, as well as discussing the peculiarities of the Hungarian regulation. The new Code uses the concept of jurisdiction as a rule for the ‘international distribution’ of cases and in the sense of public international law. Therefore, I also address in this article the definition of jurisdiction and other conceptual issues, the doctrines of immunity and the description of the jurisdictional system of the Code. I present the relationship between international, European and Hungarian rules which are relevant in private international law. In addition, I provide an overview of the novel system of jurisdictional rules in the Code.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48892484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Courts conducting constitutional review do not work as ‘ivory towers’ any longer: they are part of the global dialogue on constitutional ideas and thoughts. This dialogue includes an exchange of experiences with fellow constitutional and apex courts, as well as the close observation of developments in foreign constitutional and legal systems, scholarship, and international trends. The Constitutional Court of Hungary has been an active participant in this dialogue since the Court's establishment in 1989, albeit with varying levels of intensity and goals. Moving beyond the often anecdotal observations in this field, the paper aims to conduct a deep analysis of how the Court uses comparative law in its work (during the preparatory phase and the drafting of final decisions) and examines the factors that may influence the Court's practice in this area. Such a clear overview can assist proponents of the use of comparative reasoning to contravene the increasing amount of criticism of the practice's legitimacy and selectivity.
{"title":"The use of comparative law in the practice of the Hungarian Constitutional Court: An empirical analysis (1990–2019)","authors":"E. Bodnár","doi":"10.1556/2052.2020.00306","DOIUrl":"https://doi.org/10.1556/2052.2020.00306","url":null,"abstract":"Courts conducting constitutional review do not work as ‘ivory towers’ any longer: they are part of the global dialogue on constitutional ideas and thoughts. This dialogue includes an exchange of experiences with fellow constitutional and apex courts, as well as the close observation of developments in foreign constitutional and legal systems, scholarship, and international trends. The Constitutional Court of Hungary has been an active participant in this dialogue since the Court's establishment in 1989, albeit with varying levels of intensity and goals. Moving beyond the often anecdotal observations in this field, the paper aims to conduct a deep analysis of how the Court uses comparative law in its work (during the preparatory phase and the drafting of final decisions) and examines the factors that may influence the Court's practice in this area. Such a clear overview can assist proponents of the use of comparative reasoning to contravene the increasing amount of criticism of the practice's legitimacy and selectivity.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46310158","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scientific discussions concerning local governments are pervaded by paradigms at all times, which are questioned from time to time (paradigm crisis). As a result, participants of these discussions either defend their points, or a new paradigm appears (change in paradigm). I examine the system of local governments from this aspect. What kind of and how many paradigms characterise the system of local governments? Are these explainable by the paradigm? If not, is there another explanation? In this study, I gather all the current and emerging (perhaps former) characteristics of the local government system. In that regard, I determined the principles that, in my opinion, either apply at the level of the local government system, or they are in crisis.
{"title":"Paradigmatic Changes, or are Local Self-Governments Before or After Changes in Hungary? •","authors":"Klára Gurdon-Nagy","doi":"10.1556/2052.2019.00021","DOIUrl":"https://doi.org/10.1556/2052.2019.00021","url":null,"abstract":"Scientific discussions concerning local governments are pervaded by paradigms at all times, which are questioned from time to time (paradigm crisis). As a result, participants of these discussions either defend their points, or a new paradigm appears (change in paradigm). I examine the system of local governments from this aspect. What kind of and how many paradigms characterise the system of local governments? Are these explainable by the paradigm? If not, is there another explanation? In this study, I gather all the current and emerging (perhaps former) characteristics of the local government system. In that regard, I determined the principles that, in my opinion, either apply at the level of the local government system, or they are in crisis.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44041980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The universality of human language above the diversity of vernaculars as theorized by Noam Chomsky creates the temptation to adapt the same idea to law. There are parallels between language and law, e.g., Latin language and Roman law, the universality, formality, and generativity of the two and the embeddedness of law in language. Chomsky’s universal generative grammar is applicable to law in a direct way but the theory is still extendable to semantics and pragmatics of law. The claim is that generating constructions of elemental constituents is an approved technique of law and jurisprudence as much as of linguistics. The pragmatic dimension of semiotics of law shows the significant contribution of law to consolidating social role of speech acts.
{"title":"The Possibility of Universal Semiotics of Law","authors":"Miklós Szabó","doi":"10.1556/2052.2019.00019","DOIUrl":"https://doi.org/10.1556/2052.2019.00019","url":null,"abstract":"The universality of human language above the diversity of vernaculars as theorized by Noam Chomsky creates the temptation to adapt the same idea to law. There are parallels between language and law, e.g., Latin language and Roman law, the universality, formality, and generativity of the two and the embeddedness of law in language. Chomsky’s universal generative grammar is applicable to law in a direct way but the theory is still extendable to semantics and pragmatics of law. The claim is that generating constructions of elemental constituents is an approved technique of law and jurisprudence as much as of linguistics. The pragmatic dimension of semiotics of law shows the significant contribution of law to consolidating social role of speech acts.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44470399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Sustainability, as comp ared to the rule of law, human rights, sovereignty or democracy, is a relatively new constitutional key concept. It is mentioned explicitly more and more in constitutional discourses, and – even more importantly – it helps to reconstruct a number of current constitutional debates under one conceptual umbrella. Sustainability comprises different responses to long term social challenges which cannot efficiently be responded to via democratic mechanisms. Democratic mechanisms are based on election terms and which are, consequently, structurally short-sighted. By ‘European constitutional law’, I mean in this paper both the primary law of the EU and domestic constitutional documents. In the present paper is am first going to sketch the nature and the types of the sustainability challenges that contemporary societies face, with a special focus on Europe (environmental, demographic and financial). In the main part of the paper, I am going to show possible constitutional responses to these challenges. Finally, I will summarise the main argument of the paper which is a suggestion to set up an economic constitutional court consisting of economists with the power to annul laws if these contradict the principles of sustainability.
{"title":"An Emerging Key Concept in European Constitutional Law: Sustainability","authors":"A. Jakab","doi":"10.1556/2052.2019.00020","DOIUrl":"https://doi.org/10.1556/2052.2019.00020","url":null,"abstract":"Sustainability, as comp ared to the rule of law, human rights, sovereignty or democracy, is a relatively new constitutional key concept. It is mentioned explicitly more and more in constitutional discourses, and – even more importantly – it helps to reconstruct a number of current constitutional debates under one conceptual umbrella. Sustainability comprises different responses to long term social challenges which cannot efficiently be responded to via democratic mechanisms. Democratic mechanisms are based on election terms and which are, consequently, structurally short-sighted. By ‘European constitutional law’, I mean in this paper both the primary law of the EU and domestic constitutional documents. In the present paper is am first going to sketch the nature and the types of the sustainability challenges that contemporary societies face, with a special focus on Europe (environmental, demographic and financial). In the main part of the paper, I am going to show possible constitutional responses to these challenges. Finally, I will summarise the main argument of the paper which is a suggestion to set up an economic constitutional court consisting of economists with the power to annul laws if these contradict the principles of sustainability.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43996652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The issues of continuity and discontinuity are rather complex in case of the minorities’ legal status. The main focus of the paper is the transition from the monarchy to the republic in 1918. During the first Czechoslovak Republic (1918–1938) the legal status of minorities was substantially influenced by the traditions from the period of monarchy as these were used by the new state. The most extensive legal regulation of minorities’ status in Czech history existed in interwar Czechoslovakia.
{"title":"The Continuity and Discontinuity of the Austro-Hungarian and Czechoslovak Solution to the Minority Issue","authors":"René Petráš","doi":"10.1556/2052.2019.00023","DOIUrl":"https://doi.org/10.1556/2052.2019.00023","url":null,"abstract":"The issues of continuity and discontinuity are rather complex in case of the minorities’ legal status. The main focus of the paper is the transition from the monarchy to the republic in 1918. During the first Czechoslovak Republic (1918–1938) the legal status of minorities was substantially influenced by the traditions from the period of monarchy as these were used by the new state. The most extensive legal regulation of minorities’ status in Czech history existed in interwar Czechoslovakia.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42584207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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