The post-2010 ‘Democratic Rule of Law’ practice of the Hungarian Constitutional Court under a rule by law governance

Abstract

The paper focuses on the democratic rule of law principle as it appeared in the practice of the HungarianConstitutional Court under the 1989 Constitution and the 2012 Fundamental Law. The rule of law doctrinehad a paramount role in the argumentation of the Court in the 1990s as a normative fact and a programmeof the Hungarian state. Under the Fundamental Law introduced in 2012, however, it has been somewhatrelegated to the background in case law. The study first recalls the main achievements and characteristics ofthe democratic rule of law state interpretations of the Constitutional Court and then focuses on de-velopments since the introduction of the Fundamental Law. On the one hand, it outlines the constitutionaland institutional capacity of the court regarding the protection of the rule of law principle. On the otherhand, it reveals the characteristics of the post-FL interpretation through case studies in the field of legalcertainty and judicial independence, both of which were representative elements of the pre-2010 consti-tutional practice from the point of view of the democratic rule of law state doctrine.

The paper focuses on the democratic rule of law principle as it appeared in the practice of the HungarianConstitutional Court under the 1989 Constitution and the 2012 Fundamental Law. The rule of law doctrinehad a paramount role in the argumentation of the Court in the 1990s as a normative fact and a programmeof the Hungarian state. Under the Fundamental Law introduced in 2012, however, it has been somewhatrelegated to the background in case law. The study first recalls the main achievements and characteristics ofthe democratic rule of law state interpretations of the Constitutional Court and then focuses on de-velopments since the introduction of the Fundamental Law. On the one hand, it outlines the constitutionaland institutional capacity of the court regarding the protection of the rule of law principle. On the otherhand, it reveals the characteristics of the post-FL interpretation through case studies in the field of legalcertainty and judicial independence, both of which were representative elements of the pre-2010 consti-tutional practice from the point of view of the democratic rule of law state doctrine.