Silence of transitional constitutions: The "invisible constitution" concept of the Hungarian Constitutional Court

Abstract

This article first discusses transitional constitutionalism in East-Central Europe, which is represented in provisional constitutions as opposed to the conventional understanding of constitutionalism. The main part of the article deals with the activist jurisprudence of the Hungarian Constitutional Court in the early 1990s, filling the gap caused by silence of the 1989 transitional constitution. This part elaborates the concept of an "invisible constitution," which complements the text of the Hungarian transitional Constitution of 1989. Finally, the article tries to answer the question whether the concept of the invisible constitution of the first Constitutional Court contributed to the entrenchment of a constitutional culture or, as an element of elitist legal constitutionalism, prevented the establishment of participatory constitutionalism, and this way contributed to the backsliding of constitutionalism in Hungary. The article concludes that the invisible constitutional concept had no genuine effect on the constitutional culture of the country, but there wouldn't have been any other quick way to build up constitutionalism other than from above by the elite.