Unamendability as a Judicial Discovery? Inductive Learning Lessons from Hungary

Abstract

The chapter argues that, if we understand constitutionalism as a legal concept, the unamendability of certain constitutional norms becomes party independent of explicit constitutional declarations. The Hungarian case explains that unamendability can be justified as a judicial discovery even when the constitution does not adopt explicit rules on unamendability. Moreover, even if there is no explicit rule in the constitutional text or even if there is no explicit declaration of unamendability in constitutional court case law, legal interpretation methods help to argue that some sort of unamendability is a basic feature of constitutionalism awaiting its legitimate judicial discovery. In analysing the Hungarian example, while bearing in mind the comparative and the theoretical context of the discussion, I arrive at the inductive conclusion that unamendability might belong to the nature of legal constitutionalism. Turning a rule of law democracy into an autocracy, e.g., by constitutional amendments is not a valid legal solution in most constitutional democracies regardless of whether their constitution contains eternity or other entrenchment clauses or not. This is so because, in a rule of law democracy, a living constitution is partly a judicial construction and, in applying a legal doctrine, one finds normative requirements applicable to fundamental constitutional changes. I argue that these requirements can validly be enforced by the guardians of the constitution.