IMPORTING THE LAW IN POST-COMMUNIST TRANSITIONS This book, one of the very first monographs on the Hungarian Constitutional Court available in English, is a unique study of the birth of a new legal system after the collapse of communism in Central and Eastern Europe. It shows that the genesis of the new legal order was determined by massive Western involve- ment and an unprecedented level of exportation and importation of law. Anchored in a detailed comparative study of German and Hungarian constitu- tional case law on human dignity, this book argues that law importation was a deliberate strategy carried out by the Hungarian Court in the early years of its operation. It explains how the circumstances of the transition and the back- ground of the importers determined the choice of German case law as a model and how the Court used it to construct its own version of the right to human dig- nity. It highlights the Hungarian Court’s instrumentalisation of imported law in order to lay the foundations of a new conception of fundamental rights. While focusing on the Hungarian experience, this book engages with international debates and provides an original theoretical framework for approaching the movement of law from the importers’ perspective. Volume 1 in the series, Human Rights Law in Perspective Human Rights Law in Perspective General Editor: Colin Harvey The language of human rights figures prominently in legal and political debates at the national, regional and international levels. In the UK the Human Rights Act 1998 has generated considerable interest in the law of human rights. It will continue to provoke much debate in the legal community and the search for original insights and new materials will intensify. The aim of this series is to provide a forum for scholarly reflection on all aspects of the law of human rights. The series will encourage work which engages with the theoretical, comparative and international dimensions of human rights law. The primary aim is to publish over time books which offer an insight into human rights law in its contextual setting. The objective is to promote an understanding of the nature and impact of human rights law. The series is inclusive, in the sense that all perspectives in legal scholarship are wel- come. It will incorporate the work of new and established scholars. Human Rights Law in Perspective is not confined to consideration of the UK. It will strive to reflect comparative, regional and international perspectives. Work which focuses on human rights law in other states will therefore be included in this series. The intention is to offer an inclusive intellectual home for significant scholarly contributions to human rights law. Volume 1 Importing the Law in Post-Communist Transitions Catherine Dupré Importing the Law in Post-Communist Transitions The Hungarian Constitutional Court and the Right to Human Dignity CATHERINE DUPRÉ OXFORD – PORTLAND OREGON 2003 Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © Catherine Dupré 2003 The Author has asserted her right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: mail@hartpub.co.uk WEBSITE: http//www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1–84113–131–8 (hardback) Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain on acid-free paper by Biddles Ltd, www.biddles.co.uk This book is dedicated to my grandparents [...]... General Definition: Case 8/1990 2 Importing the Various Components of the Right to Human Dignity 2.1 The Right to Life and Human Dignity 2.2 Human Dignity and the General Personality Right (a) The Right to Free Fulfilment of the Personality (b) The General Freedom of Action (c) The Right to a Private Sphere (d) The Right to Self-Determination 3 Conclusion 4 Choosing the Right Model 1 Prestige 1.1 Modern... the Court from the beginning, since its eighth ruling in 1990 and throughout the transition The repeated reliance on human dignity enabled the Court to develop an elaborate construction of this right and to use it as the basis for a system of protection for the other new fundamental rights set out in the Constitution Finally and crucially, the interpretation of human dignity in Hungarian case law is... one of the main characteristics of these transitions: in order to become liberal democracies, post-communist countries imported the institutions and the law of the democracies of the West 4.2 Strategy This study is anchored in the analysis of the importation of the right to human dignity by the Hungarian Constitutional Court However, rights are not the only law imported and the term law has to be... of the wider reality of building a new legal system, ie one single constitutional right The lack of translations meant that in order to do this I had to learn Hungarian (at least enough to be able to read the constitutional rulings) because I was and remain convinced that this was the best way to understand the reasoning of the Court and to follow its development My second priority was not to read Hungarian. .. that the scope of the transformation is such that it amounts to an instrumentalisation of the foreign model on the basis of which the Court developed its own, autonomous concept of human dignity The aim of importing foreign law is highlighted by the particular use of the imported right, and as explained in chapter 6, this involved overcoming the communist legacy and introducing a new type of rights... the difficulties of understanding the changes is reflected in the lack of one satisfactory term to label them.2 The people involved in these changes often preferred not to use the word ‘revolution’ to refer to the events of the 1990s In countries such as Czechoslovakia and Hungary, this term was very soon qualified, as in ‘velvet revolution’ or in ‘refolution,’ in an attempt to represent the idea of the. .. interpretation of human dignity by the Hungarian Court This close comparison confirms that the Hungarian Court imported German law The comparison also makes it possible to measure the scope of this importation and to question the differences existing between the two interpretations of human dignity The second level of comparison is temporal and involves considering the socialist conception of rights which... transitions and it is 15 C Dupré, The Perspective of Law Importation: the Hungarian Experience’ in A Harding and E Örücü (eds), Comparative Law in the 21st Century (The Hague, Kluwer Law International, 2002), 267 Introduction 11 argued in this book that this is best understood in terms of the export/import of law The exporters were experts from the West: individual countries (European and American) and institutions... family law for example, to the post-communist context Similarly, post-communist law has now been integrated into the study of European (Union) law as the enlargement issue and its related problems have come to include the issue of the Union’s external borders and what lies beyond them On its own, none of the disciplines outlined above (or of the other disciplines that I may have omitted here) can claim to. .. read Hungarian constitutional case law in isolation from the context in which it was developed, so I regularly travelled to Budapest and spent time there In this way I was able to meet those directly involved with the cases, mainly the judges themselves, as well as their assistants I extended this narrow circle to include outsiders at the Court and met other people generally involved in the constitutional . Transitions Catherine Dupré Importing the Law in Post-Communist Transitions The Hungarian Constitutional Court and the Right to Human Dignity CATHERINE DUPRÉ OXFORD. IMPORTATION: THE RIGHT TO HUMAN DIGNITY IN HUNGARIAN CASE LAW, 1990–98 3. Importing Human Dignity from German Law 65 4. Choosing the Right Model 87 5. Instrumentalising