Symposium: The Influence of the 1920 Austrian Constitution and Austrian Constitutional Thinking on Hungary

Attila Vincze,

András Jakab &

Gábor Schweitzer

Andrássy University Budapest, University of Salzburg & Centre for Social Sciences Budapest

The birth of modern Austria also meant the dissolution of the former Austro-Hungarian monarchy and the end of a nearly 400 years long and very complicated relationship between these two countries. Even though they formed one empire, the two legal systems of Austria and Hungary have remained different and separate almost the entire time. Austrian laws (except a short period after the failure of the 1848/49 Hungarian independence war) did not apply to the Hungarian half of the Habsburg Empire. However, certain Hungarian and Austrian legal rules were very similar. In the area of civil and criminal law, there were concrete rules and institutions which could be traced back to their Austrian roots, but these were largely borrowed through judge-made law, and not by legislation. In the area of administrative law (including the administrative judiciary) though, the similarities were not due to a fertilisation by Austrian ideas or legal rules, but rather to the common (German and French) roots of both systems which were introduced approximately at the same time in both halves of the Austro-Hungarian Empire. Additionally, in the area of constitutional law, despite being in the same empire, there were hardly any Austrian influences on Hungary. The differences in Austrian and Hungarian constitutional law have been considered as an important part of constitutional autonomy during the time of the Austro-Hungarian Empire, therefore Hungarian constitutional lawyers took national pride in not borrowing anything from Austrian constitutional law.

Once the Austro-Hungarian Empire ended, after the First World War, the trajectory taken by the two countries became very different. This made the borrowing and even the influence of the text and the ideas of the 1920 Austrian Constitution difficult in Hungary. While Austria became a republic after the First World War, Hungary (after a short republican intermezzo between 1918 and 1920) remained a monarchy where the head of the state was Regent Miklós Horthy, the last Commander in Chief of the Austro-Hungarian imperial fleet. While Austria was built on democratic equality (where even nobility titles were forbidden by law), Hungary cherished feudalistic hierarchies (where the Upper House was re-established in 1926 and it consisted to a large part of hereditary and spiritual peers). Even though the Habsburg family was officially dethroned in 1921 by a statute of the Hungarian National Assembly (mainly on the pressure of foreign powers), the 1926 Upper House Statute stated that every adult, male member of the House of Habsburg (officially: House Habsburg-Lorraine), who resided in Hungary automatically became a member of the Upper House. While in Austria the Habsburg family was expelled from political life (as long as they did not renounce all their claims to the throne, they were expelled from the territory of the Republic of Austria), in Hungary Archduke Joseph August, a high-ranking member of the Habsburg family, and the last Field Marshal of the Austro-Hungarian Army, became a respected member of the Upper House. He was later elected President of the Hungarian Academy of Sciences. While Austria adopted a new, legally binding Constitution in 1920, in Hungary the historical constitution, i.e. a patchwork of non-secularised legitimacy doctrines, ancient customs and various centuries-old legal norms (dating far back even to the time before the Habsburgs), survived. Even though the 1920 Constitution had no direct impact on the Hungarian legal system between the two world wars, the Austrian Constitution attracted scholarly attention in Hungary. Several scholarly papers engaged with modern Austrian constitutional development by dealing with the provisions of the 1920 Constitution. Additionally, other scholarly papers focused on specific institutions of the 1920 Constitution (especially on the Administrative Court and Constitutional Court).

In the aftermath of the Second World War, Austria, due to some luck and good diplomacy, ended up on the luckier side of the Iron Curtain and could prosper as a democratic state with market economy. Hungary, on the other side of the Iron Curtain, was under the influence of the Soviet empire, opposing the ‘bourgeois’ ideas of the rule of law and separation of powers. One year after the Soviet troops left Austria, the Hungarian revolution of 1956 was defeated, and a new round of dictatorship began. Under these very unfavourable conditions Austrian constitutional thinking could not have much influence, but the Austrian Code of Administrative Procedure was taken as an example for the Hungarian Administrative Code of 1957 (also in order to soften the oppression and limit the arbitrariness of administration, as a symbol of a softer type of communist dictatorship under János Kádár). Only at the very end of the 1980s, with the beginning of regime change, the political conditions were ripe enough to make use of the Austrian constitutional experience. However, at this moment, the German constitutional influence was much more apparent, particularly because the German constitutional solutions were specifically designed for post-totalitarian situations. This made them more desirable to be borrowed than American, French or Austrian constitutional rules. The German influence was also partly due to the generous post-war German grant programmes (Humboldt, MPI and DAAD) which meant that from the 1980s, several Hungarian legal scholars spent long periods at German academic institutions, learning German (and not Austrian) concepts and doctrines.

Modern Austrian constitutional thinking and the 1920 Constitution itself were heavily influenced by the ideas of Hans Kelsen (Kelsen himself being also a product of the Austrian imperial legalist tradition). This “pure” positivist understanding of the law was not compatible with the Hungarian monarchy or with the communist regime. Hungarian constitutional thinking was less conceptual and more context-oriented (context meaning during the monarchy a stylised value-laden Hungarian history, during communism an officially approved set of social-economic value-laden dogmas), both of them representing different strands of natural law traditions in the sense of Hans Kelsen. Although Kelsen and his thinking have been part of legal education (legal philosophy courses) in Hungary and he has been well-known as the father of constitutional review in Europe, his ideas were never really accepted in Hungary.

Even though it is widely acknowledged in Hungary that the institution of a constitutional court originally stems from Austria, and even though some uniquely Austrian elements were borrowed in 1989, the model of Austrian (as opposed to German) constitutional review was not understood in depth in Hungary. During the transition years, the Ministry of Justice had translated every piece of European legislation on constitutional review into Hungarian and tried to make a hybrid model. The result was what was branded as the most powerful constitutional court in the world. Some elements from the German, some from the French and some from the Austrian models were all amalgamated.

The Hungarian system of constitutional complaints was a legal transplant from the Austrian Constitution. This mechanism enabled citizens to challenge legislation (general norms such as statutes or decrees), but the application of these norms (ordinary court judgments) could not be made subject to review by the constitutional court. At the same time, however, Hungary also introduced an actio popularis, which allowed for a constitutional complaint without any personal interest in the case. This proved Kelsen to be right: in fact, Kelsen had warned of such a wide standing, as it can overwhelm the court with a very large case-load. The actio popularis has eventually been abolished with the Fundamental Law of 2011, which introduced a German-style constitutional complaint system against ordinary court judgments.

The influence of the Austrian model can still be found in the temporal scope of the constitutional court decisions. This is usually ex nunc (as opposed to the German model), and it is ex tunc only in case of a detrimental effect to the complainant (Ergreiferprämie - retroactive inapplicability privilege of the complainant).

The Hungarian Constitutional Court has rarely relied on the case-law of its Viennese counterpart. In the few instances in which it has done so, Austrian precedent serves mainly as preening which lacks in-depth knowledge of the legal context of Austria. For example, the heavily criticised practice of the Austrian grand coalition of constitutionalising unconstitutional legal norms by enacting them as constitutional norms was taken as a reason to justify the similar Hungarian practice after the 2010 Constitution was deemed to be constitutional. Hungarian constitutional thought is much closer to the German tradition, it often speaks of statehood (as sovereignty), human dignity and constitutional identity, which are typically German concepts.

In conclusion, although Austria and Hungary had been bound together by the same royal family for almost 400 years, the 1920 Austrian Constitution had very limited impact on Hungary. Furthermore, due to Soviet occupation, until the 1980s, the political climate was unfavourable for such a legal transplant. With the end of Soviet rule, Austrian constitutional thought seemed less appealing to those promoting democracy and the rule of law. Some minor elements of Hungarian constitutional thought can be traced back to Austrian roots (especially in the procedural law of the Constitutional Court), nonetheless, these are very few indeed.

Attila Vincze is Associate Professor of European Public Law at Andrássy University Budapest; Research Fellow at the Faculty of Social Sciences of Charles University Prague; Of Counsel at Provaris, Varga & Partners.

András Jakab is Professor of Constitutional and Administrative Law at the University of Salzburg; Honorary Fellow at Pázmány Péter Catholic University Budapest; Honorary Fellow at the Institute for Legal Studies of the Centre for Social Sciences Budapest.

Xabier Arzoz, ‘Spain and the 1920 Austrian Constitution’ IACL-AIDC Blog (27 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/27/spain-and-the-1920-austrian-constitution

Gábor Schweitzer is Senior Research Fellow at the Institute for Legal Studies of the Centre for Social Sciences Budapest; Associate Professor at the Faculty of Public Governance and International Studies of the University of Public Service Budapest.

Suggested citation: Attila Vincze, András Jakab & Gábor Schweitzer ‘The Influence of the 1920 Austrian Constitution and the Austrian constitutional thinking on Hungary’ IACL-AIDC Blog (29 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/29/the-influence-of-the-1920-austrian-constitution-and-the-austrian-constitutional-thinking-on-hungary