Assessing Constitutional Resilience: The Performance of the 2011 Fundamental Law in Fulfilling Constitutional Functions

Szente, Zoltán (2024) Assessing Constitutional Resilience: The Performance of the 2011 Fundamental Law in Fulfilling Constitutional Functions. In: The Resilience of the Hungarian Legal System since 2010. A Failed Resilience? European Union and its Neighbours in a Globalized World (5). Springer Nature, Wien, pp. 19-36. ISBN 9783031704505; 9783031704536; 9783031704512

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Abstract

This chapter examines the resilience of the 2011 Fundamental Law through a functional analysis. For this purpose, it first presents the basic functions of modern constitutions. Among these, it deals with a regulatory function, whereby the constitution contains the main rules for the exercise of public power as well as fundamental rights. However, the paper examines constitutional functions not only in a formal sense, but within the framework of modern European constitutionalism. For this reason, it also defines the requirements for constitutional regulation, such as its stability, coherence, effectiveness, and, above all, the limitation of public power and state intervention. It also identifies the representation of national identity as a further function, i.e. the social integrative function of the constitution. The Fundamental Law is a full-fledged, modern written constitution, but has fallen far short of what was expected of it: it is ‘the most flexible constitution in the world’, which is burdened with many internal contradictions, and many of its provisions have remained only on paper, i.e. have not been put into practice. The authoritarian transition since 2010 and the usurpation of power by the governing parties show that it has been completely unable to limit public power, which is perhaps the most important constitutional requirement of all.

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