The article makes use of new institutionalism, where ideas articulated in the constitutional courts case law have a potential to influence the political regimes the constitutional courts are located in.
Max Steuer, Associate Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India; Department of Political Science, Comenius University in Bratislava, Bratislava, Slovakia.
In democracies, individuals are free to develop their own conceptions of values, and try to persuade others of their viability. However, some of these conceptions carry greater weight than others. In particular, centralized constitutional courts (CCs) authoritatively interpret fundamental values as they are typically entrusted by constitutions to do so. This article introduces a new approach to examine how CCs advance particular value conceptions, via scrutinizing the understandings of procedural rights and social rights by the two formally most powerful in Central Europe: the Hungarian (HCC) and the Slovak (SCC) Constitutional Court.
While procedural rights capture the minimum standards of equal treatment, social rights signal more robust readings of democracy which raise expectations of improved well-being. The two jurisdictions offer windows into the working of CCs operating in regimes with a history of authoritarianism—whereas Slovakia is currently a fragile democracy at best, Hungary has regressed into an illiberal regime. The article makes use of new institutionalism, where ideas articulated in the CCs’ case law have a potential to influence the political regimes the CCs are located in.
Using a case selection method based on keyword search, its two case studies, covering the period between the 1990s and 2017 and 77 majority opinions show how the SCC seldomly connected procedural and substantive rights to democracy, but this went unnoticed in the broader public. For the HCC, however, the absence of the connections between democracy and justice, especially when interpreting social rights, appears to have contributed to its image as distant from the public, locked in abstract legal discourses.
The findings prompt questions about the impact of public perceptions of the CCs on the capacity of actors with authoritarian ambitions to launch successful assaults on the CCs, as well as on the potential of the CCs to prevent these assaults by articulating particular value conceptions.
Published in: Constitutional Review
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