Volume 9 Number 4

Fall 2000

 

The Constitutional Basis of Hungarian Conservatism
Kim Lane Scheppele

On the first day of the new millennium, the Holy Crown of Saint Stephen was moved from the small, special room that had been constructed for it in the Hungarian National Museum to the giant ornate rotunda of the neo-Gothic Parliament building on the Danube. The royal blue armored car carrying the precious relic in a bulletproof case moved slowly through the streets of Budapest, greeted by an ecstatic crowd. As the traditional story goes, the pope gave this crown to Hungary’s first Christian king in the year 1000, and it was then used to legitimate every transfer of political power in Hungary from that moment until the end of the Second World War. Though the crown existed only as an important historical object without any living constitutional meaning during Soviet times and since, it has just resumed its position as the leading constitutional symbol of the nation with this move to parliament, at least in the eyes of contemporary conservatives and modern fascists. The crown is, therefore, at the center of an increasingly influential constitutional countertheory; it has become a symbol concentrating the dark passions of Hungarian conservatism, particularly those that move toward fascism.

The millennial law concerning the crown

In fall 1999, the conservative Federation of Young Democrats–Hungarian Civic Party (FYD–HCP) government put forward a bill intended to be the first law of the year 2000, suitable for marking the start of the new millennium. According to the draft Law on the Memory of the Foundation of the State by Saint Stephen and on the Holy Crown: “The Holy Crown lives in the consciousness of the nation and in Hungarian public-law tradition as a relic embodying the continuity and independence of the Hungarian state. . . . The Holy Crown symbolizes the unity of the Hungarian state.”

As the law was debated in the waning days of the twentieth century, the battle was joined. On one side, broadly favoring the restoration of the crown to a prominent position in Hungarian public life, were the conservative government parties and the far-right, arguably fascist, Hungarian Truth and Life Party (HTLP). On the other side were the liberals (the Alliance of Free Democrats [AFD]) and socialists (the Hungarian Socialist Party [HSP]), who opposed the law. While the latter argued that a crown had no place in a modern republic, because a crown was the symbol of the monarchy and a republic was decidedly not a monarchy, the various conservative groups thought that this narrow understanding of the crown missed the point. For them, the crown represented Hungary’s continuity with history. And they won.

In general, the crown’s defenders believe that it symbolizes Hungary’s glory days, which are located at various times in the past depending on the viewpoint expressed. But whenever they were, the glory days are most certainly not now. Worshippers of the Holy Crown generally believe that present-day Hungary is a shriveled and illegitimate version of a formerly great and moral power. But the crown’s defenders divide into factions over when the glory days were and what it would take to recover that glory. Some believe that the glory days were when Hungary was invited to join the other sovereign states of Europe as an equal by having a crown of its own. Others believe that the glory days were when (Roman) Christianity reigned (intolerantly) supreme in Hungary as Hungary held back the Eastern hordes from Europe. Still others focus on the times when the unity of ethnic Hungarians was expressed in the crown, which, in turn, had justified the clear supremacy of Hungarians over others in the neighborhood—not at least because the crown represented the chosen nature of the Hungarian people in the eyes of God. And still others focus on the crown’s association with the exclusive territorial sovereignty of Hungarians in the Carpathian Basin, in which the extensive crown lands are the inalienable property of the crown itself.

In the parliamentary debate over Law 1/2000, Minister of Justice Ibolya David (FYD–HCP), who introduced the bill for the government, straddled the line between the view that the crown united Hungary with Europe and the view that the crown was exclusively Christian. According to David, the crown was “a seal on our membership in Europe one thousand years ago. It was with this crown that Hungary was accepted among the member states of Europe as an equal. These countries form a religious and cultural unity in Christianity.” The essentially Christian nature of Hungary was raised in the debate by the Hungarian Democratic Forum and Christian Democratic Party representatives as well.

The conservative Independent Smallholders’ Party (ISP), however, saw the unity of ethnic Hungarians in the crown. According to Jozsef Torgyan, the Smallholders’ leader, “The Holy Crown . . . symbolizes the unity of the nation . . . I do not mean the territories, but the parts of the nation . . . who live in other countries, are citizens of other countries, and are members of the Hungarian nation. Now the Holy Crown has to symbolize that wherever a Hungarian lives, he is always an organic member of the nation through the Holy Crown.”

To HTLP, however, the crown recalled the time when Hungary ruled over all of the Carpathian Basin, when Hungary was “Greater Hungary,” before being reduced to its present, humiliating size by the Treaty of Trianon after World War One. As HTLP head Istvan Csurka argued, “The Hungarian Holy Crown is the symbol of Hungarian statehood, the symbol of how Hungary was at [an earlier] time, and [why] it cannot exist on any other territorial basis.”

In these debates, the crown came to stand either for various visions of exclusion, where those who were not Catholic nor ethnically Hungarian were excluded from its purview, or for a vision of territorial revision, where claims on formerly Hungarian territory were justified in its terms. But the socialists and the liberals argued against the law, saying that the law would make the crown an important present-day symbol of the state, one that would alienate some Hungarian citizens living in contemporary Hungary and that would anger Hungary’s neighbors.

“We hear many times in this parliament . . . that those who do not love their country and do not think about history in the way that FYD–HCP does . . . are guilty or commit a crime and cannot love this country as others do who are of a different opinion [about the crown], . . .”  said Ivan Peto, AFD leader, in the parliamentary debate. “But questions of history cannot be a task of legislation.”

Tamas Bauer, also from ADF, cut to the quick by asking the government parties whether the bill’s real agenda was to “continue Hungarian history where it was stopped in 1944 and 1945,” when a Nazi puppet government ruled in the name of the crown. Continuation of the state from that moment would mean beginning over with fascism. The question was never answered, but the thought was left hanging in the air.

In the end, the bill passed, omitting the sentence that the crown symbolized the unity of the Hungarian nation. Patently, the crown did not create unity in parliament. But, on January 1, 2000, the crown was moved from the National Museum to the parliament building pursuant to Law 1/2000, which, apart from incorporating a statement about the crown’s glorious past, also required the crown to be housed in parliament and to have a committee for its defense appointed on its behalf.

The law was challenged immediately following its passage by means of various petitions from the parliamentary minority, which appealed to the Constitutional Court, claiming (among other things) that the law had changed the legal status of the crown in Hungarian public law by a simple majority in the parliament. According to the petition, such an act should have required instead a two-thirds majority, as is usual for laws with constitutional significance. The Court answered these petitions in midsummer, declaring that the law was unproblematic because the crown had no constitutional significance and therefore a two-thirds law was not necessary. Instead, the Court declared, without further reasoning:

[T]he Holy Crown as an object does not have a public-law function, and the state as its owner can dispose over it. The Holy Crown is the property of the state; it is the property of the treasury and thus is regulated by Law 38/1992 on public finances. . . . The Constitutional Court points out that there is no obstacle to the state disposing of its property within the bounds of the law. There can be no constitutional objections to its entrusting any institution or body with the exercise of certain of its property rights.

In short, as far as the Constitutional Court was concerned, the crown was like any other object of state property and had no independent constitutional significance whatsoever.

This decision had the ironic result that, even though the parliamentary majority won, a condition of its winning was that the point of their law—that the crown has special significance in Hungarian public law—was nullified along the way. If it indeed had such a significance, then a two-thirds law would have been required. But as a result of this decision, the crown now sits in parliament and a committee has been named to defend it—both states of affairs that indicate that the crown does, in fact, count for more than any other piece of state property. (The crown-protection committee consists of the president, the prime minister, the president of the Academy of Sciences, the speaker of parliament, and the president of the Constitutional Court. One other aspect of the constitutional challenge was that parliament had added to the constitutionally listed responsibilities of the president, but the Court found this constitutionally unproblematic as well, and the Court’s president did not find his own involvement significant enough to justify a recusal in the case.)

The Constitutional Court’s decision might be the end of the story, but the deeper constitutional issues are only now just becoming clear. Though the government denied that Law 1/2000 meant anything other than the fact that the crown would be celebrated along with Hungary’s millennium, there is a more ominous reading that can be given to this law. The crown is the central focus of a competing conception of the Hungarian Constitution, a counterconstitution, as it were, waiting in the wings. Voices outside the parliamentary debate make it quite clear what dark forces support the crown from the sidelines of Hungarian politics.

Constitution and counterconstitution

As is true of much of the post-Soviet world, those who have found themselves at the margins of the new regimes as they hurtle toward Europe, or toward a universalist democratic liberalism, feel a sort of nostalgia. Hungary’s dominant form of nostalgia is not a longing for the period of socialism, as it is in other parts of the former Soviet empire. Hungarian nostalgia harkens back to earlier times, when Hungary was territorially bigger and Hungarians politically fiercer. Hungary’s nostalgia, then, is not a nostalgia of the left but a nostalgia of the right. And the strongest symbol of this new nostalgia is the Holy Crown of Saint Stephen.

On one level, the Holy Crown is merely a physical object that, as legend goes, was given by Pope Sylvester II in the year 1000 to Hungary’s first Christian king, Stephen I. Through a long and complicated history, in which it was lost, stolen, ransomed, buried, damaged, rescued, and even stored in Fort Knox, the crown has come to be seen literally as a holy object. The physical object’s history is in many ways Hungary’s political history. Contests over the crown’s provenance—scarcely influenced, much less moderated, by the fact that professional art historians universally agree that the crown is at least partly Byzantine in origin and that the current crown could not have been Stephen’s original headdress anyway—degenerate quickly into competing stories of the origin of the Hungarian people and the Hungarian state. The physical object is both revered and contested.

On another level, however, the crown is seen as the symbolic source of political authority and as the ultimate legal person in Hungarian constitutional law. Hungarian kings could not rule legitimately without this particular crown; no one held power authoritatively in Hungarian history without swearing allegiance to it. By the fifteenth century, the crown was seen as a source of authority independent of the king himself, so it was the crown and not the king who was the bearer of the historic Hungarian Constitution. Hungarian kings, even foreign kings through the end of the Habsburg period, got leave to govern by swearing allegiance to the crown. Only Joseph II in the late eighteenth century refused to put himself under the Hungarian crown. As a result, he was widely hated and his laws were subsequently repealed upon his death. Or, at least, this is what the reverent histories of the crown emphasize to show that the crown always wins against indignities in the end. With the rebirth of an independent, though substantially smaller, Hungary after the First World War, Admiral Horthy governed kingless Hungary as a regent and publicly flaunted his authority by flaunting the crown. Over many centuries, competing legal theories of the crown have developed, some stressing Hungary’s long-standing democratic tendencies and others emphasizing Hungary’s dependence on (a Catholic) God. Some attribute the authority of the crown to Mary, Hungary’s special protector, while others see in the doctrine of the Holy Crown the origins of the country’s secular legal philosophy.

Whenever Hungary’s postcommunist governments have moved toward the right, the crown has reappeared as an indispensable symbol of state. In the Antall government, parliament was tied in knots over whether the image of the crown should be restored to the flag (in the end, no) and to the state seal (in the end, yes). But during the HSP–AFD government from 1994 to 1998, the crown lay peacefully in the National Museum, undisturbed either by the government or by crowds. (ISP, though, showed its allegiance to the crown in its constitutional draft in 1995 by declaring that Hungarian sovereignty resided in it.) When the FYD–HCP government came to power in 1998 with the necessary help of ISP, however, the crown reappeared as part of a revival of an older form of Hungarian constitutionalism. Since ISP allowed FYD–HCP enough parliamentary seats to govern, they became kingmakers in the new government, so to speak—and insisted on the crown’s return. As a result, in Hungary there are now competing conceptions of the Hungarian Constitution, one based on the 1989 text (the proposed amended socialist-era constitution) that emerged from the roundtable negotiations and the other based on the doctrine of the Holy Crown.

The constitutional conception rooted in the 1989 text was the dominant constitutional view in Hungary throughout much of the 1990s and remains the official view of the Constitutional Court and the government even now. The constitutional history that goes with this prevailing constitutional conception emphasizes that the current, democratic regime acquired power from a nondemocratic one through a “rule-of-law revolution” in which the principles of legality were never violated in the move from the party-state to the republican one. The rule of law, here, stood for continuity of legality, and that meant treating all Soviet-era laws as valid unless they conflicted with the new Constitution. Hungary’s 1989 Constitution takes its inspiration from internationally respected norms of human rights and the Hungarian Constitutional Court frankly adopted the precedents of other European constitutional courts in deciding what the Hungarian Constitution meant. This has led to a dominant “transnational constitutionalism,” in which the principles of the Hungarian constitutional order are assessed against the backdrop of internationally agreed-upon ideas of what a constitutional, rule-of-law democratic republic should be. Soviet-era laws were selectively struck down as unconstitutional only if, upon review, they were found to violate some specific aspect of the new, liberal, democratic Constitution. (In fact, the Court’s current president, Janos Nemeth, has argued that the Court’s current, relatively passive role in Hungarian politics stems from the fact that the prior Solyom Court already did what was necessary to make the legal system a fully constitutional one and so there is relatively little constitutional work left over for his court.1

As one might imagine, the appeal of contemporary liberal, democratic constitutionalism to the defenders of the crown is pretty slight. Instead, they see the post-1989 changes in constitutional government in Hungary as illegitimate, precisely because the “system change” did not begin from the premise that the ancient Constitution of Hungary, residing in the crown, had to be restored in order for the new government to be established as a valid continuation of earlier constitutional governments. In the view of the crown’s defenders, the first act of the freely elected government in 1990 should have been to restore the crown to the center of public life and also to the center of public law. And it grates on them endlessly that the crown has been treated as a mere museum object.

Discussion of the crown’s role in contemporary Hungarian politics went on through the 1990s in bookstores before it spilled over into debates in parliament. In conservative or theological bookstores, one could find an array of monographs on the crown. The liberal bookstores in Budapest carried almost none of this outpouring. At least seven such books (some of which were thick anthologies) were published in the second half of the 1990s alone by a wide range of authors: former members of parliament, conservative historians, amateur scholars, Catholic theologians, and, in one case, a former Constitutional Court judge. Several picture books, with close-ups of the crown, aimed at a more popular audience, were also produced in some quantity during this period. And the conservative press was full of articles celebrating the crown.

The crown’s reappearance in public life focuses a number of counterconstitutional views upon a single object, and this becomes even more evident when one reads the crown literature than it is when one hears the relatively sanitized debate in the parliament. What is this literature saying? While the dominant constitutionalism of the 1989 text emphasizes the way in which Hungary is like the rest of Europe, crown constitutionalism converges on the ways in which Hungary is, was, and has always been distinctive and special.

The mildest version of the crown theory can be seen in those who try to reconcile the doctrine of the Holy Crown with liberal social-contract theory. Janos Zlinszky, formerly a justice on the Constitutional Court and dean of Hungary’s Catholic law school, emphasizes that the crown was historically associated with a compact between the king and the nobility, one that made absolutism impossible in Hungary—and it is this sharing of power that the crown should represent as a set of constitutional ideas:

The theory of the Holy Crown remained the defining constitutional thought in this country, simply so that it could be established that our ruler is a ruler only together with the Hungarian nation and not by divine right as was the case across the border [in the Holy Roman Empire]. We do not receive grace from him [the ruler], but legislate together with him.2

This form of social-contract theory, while unique to Hungarians, can sit quite comfortably with the liberal constitutional law that the Constitutional Court has defined and that Zlinszky himself helped to create. But once one gets past this version, the rest of the crown theories are much less compatible with the dominant Hungarian constitutionalism. One version that emphasizes the distinctiveness of the Hungarian people can be seen among those who emphasize Hungarians’ ancient roots in Asia, making them unlike other Europeans. Lajos Csomor’s book Olfelege: A Magyar Szent Korona (Her highness: The Hungarian Holy Crown; 1996) was distributed to the members of the government parties on the eve of the parliamentary debate. He claims that the crown was forged in the fourth or fifth century when Hungarians were on the move from their original home on the eastern slopes of the Urals to the Carpathian Basin. But when he gets to the present, he drops all emphasis, for example, on shamanism and emphasizes, instead, the very different current “requirements” of the Holy Crown, which include the restoration of the monarchy, the empowerment of the Hungarian church, the “conversion of non-Hungarians,” and the reversal of privatization since all property must be held by the crown and not by aliens (pp. 314–15). In Csomor’s view, the crown’s restoration should mean the restoration of a Greater Hungary for Hungarians only.

Zsolt Zetenyi, a former member of the postcommunist parliament and author of one of the anticommunist lustration laws struck down by the Constitutional Court, tells a story of the way in which the Hungarian crown enabled Hungarians to avoid dependence on any foreign power. He wrote in his book A Szentkorona-Eszme Mai Ertelme (The meaning of the Holy Crown today; 1997) that the crown was given to Saint Stephen by the pope but Stephen was too clever to become dependent upon the papacy as a consequence. While obedience to the pope meant pledging the crown to Saint Peter (and the church he started), according to Zetenyi, Stephen created a doctrinally complicated situation because he pledged the crown to the Virgin Mary instead. Her acceptance of it created the first of the Hungarian constitutional contracts, in Zetenyi’s view. In religious-legal terms, this loosened the hold that the Catholic Church in its formal capacity had on Hungary, and it gave Hungary a direct line to God without going through any human intermediary. The country, in this view, was Mariaorszag (the “country of Mary,” a word play on Magyarorszag—the name of Hungary in Hungarian which means, literally, the “country of the Hungarians”). The current problem, according to Zetenyi, is that present-day Hungarians refuse to recognize the inspiring power of the crown:

We live in a transitional, provisional state, not only constitutionally but economically, morally, and culturally as well. The parliament and the political system, in our opinion, enjoys only provisional and conditional legitimacy, authenticity, and acceptance. Such a state shall continue to exist [as such] until continuity is either restored or rejected. (P. 260)

The obvious conclusion to draw about the present is that the public-law theory of the crown should be the legitimate constitutional theory in Hungary. Unless and until the crown (and its history) is accepted as the source of legitimacy for Hungarian government, the county will drift in this amoral, perhaps immoral, state.

Gyorgy Fekete, another former member of parliament, edited a book with Sylvia Sunyovszky called A Szent Korona Ezer Arca (A thousand images of the Holy Crown of Hungary; 2000) in which they reprint one thousand reproductions of images of the crown, ranging from the crown’s appearance on postage stamps to statues of Saint Stephen wearing his crown to images of the crown in architectural details to household objects that honor the crown. What captured them was the miracle that the crown represents:

There is hardly any nation outside Hungary that legitimates rule of all kinds through the thousand years of its history with the same crown. . . . And in periods when it was lost sight of, it was committed to the memory of the respectful nation, for decades, or for a whole century, supported by legends of its origins, stories, and descriptions of the vicissitudes that marked its history, and the mystery of its almost inexplicable survival. Its indestructibility, and its image, miraculously reviving from the depths of faith, whenever necessary, soon became synonymous with the survival of the nation. (P. 12)

For Fekete and Sunyovszky, the crown is an object of mystery, and in that mystery is the legitimacy of government. Without the crown, Hungary can have no legitimate government.

Istvan Kocsis, who has written two books on the crown, concentrates on what has happened historically to Hungarians when they turned their backs on the protections offered them by the Holy Crown. In what is a modern cautionary tale, Kocsis describes a condition he calls the Trianon psychosis: “We can conceive of Trianon [when Hungary was divided at the end of the First World War] as punishment for the repudiation of the theory of the Holy Crown.”3 The contemporary lesson? Hungarians should embrace the Holy Crown:

The historical Hungarian state could be preserved for 1000 years primarily because, on the basis of the principle that “infringement of law does not create new law,” legal continuity had always been restored in Hungarian history. The most important step in this has always been that after the period of tyranny, the lawful representatives of the Hungarian nation declared that all that was accomplished by quasi legislation had not happened. (P. 8)

And the Soviet-era laws, perhaps even those enacted since then, were “quasi legislation” since they were enacted outside the spirit of the Holy Crown. The only thing that contemporary Hungarians can do is to start over, repudiate the law that has been enacted without guidance of the crown, and place their faith in the Holy Crown as the source of state authority.

The people who become most excited about the crown are, by and large, a quite tiny group on the right wing of Hungarian politics who seek the restoration of the crown as the source of Hungarian political authority and, with it, either doctrinaire Christianity (Jews not welcome) or ethnic Hungarian-ness (other groups need not live here, unless as subordinates) or Hungarian territorial entitlement (watch out Slovakia, Croatia, and Romania). To these strong crown supporters, the crown represents the real Hungarian constitution—the one that makes Hungary a distinctive nation with a claim to govern a historically large territory where Hungarians, because of their natural superiority as a chosen people, deserve to be the constitutional rulers.

The debate over the crown reveals, in sharpest relief, the views of the dissenters from contemporary constitutional orthodoxy, an orthodoxy currently represented by the post-1989 Hungarian Constitution and the decisions of the Hungarian Constitutional Court. Supporters of the crown put forward the most coherent, and profoundly alternative, constitutional vision in Hungary today. But it is a vision that is scarcely a liberal, republican one. Defenders of the crown live in a parallel constitutional world, one in which Hungary should be reunited with its former territory, where Hungarians should once again be ruled only by Hungarians, and where the new Hungarian head of state should continue to wear the crown of Saint Stephen as his direct descendant in constitutional legitimacy. While not all defenders of the crown believe all these things, the discourse surrounding the crown does typically emphasize Hungary’s distinctiveness and refuses common cause with Europe or with a constitutional sensibility validated by its appeal to universal human rights. Since much of this discourse emphasizes the ethnic purity and territorial ambitions of the ideal Hungarian state, it is but a short step from there to the justification of fascist politics. That is what defenders of transnational constitutionalism have to fear from the new Hungarian constitutional conservatism. The crown stands, simply enough, for much of what is dangerous in contemporary Hungary.

Kim Lane Scheppele is professor of law and sociology at the University of Pennsylvania.

NOTES

1. See my previous article on “The New Hungarian Constitutional Court,” East European Constitutional Review 8, no. 4 (fall 1999).

2. Janos Zlinszky, A Szentkorona-eszme es tortenet (The idea and history of the Holy Crown), in A Magyar Szent Korona es a Szentkorona-tan az Ezredfordulon (The Hungarian Holy Crown and the theory of the Holy Crown at the turn of the millennium) (1999).

3. Istvan Kocsis, A Szent Korona Tana (The theory of the Holy Crown), 2d ed. (1996), p. 7.

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