The Roots of Judicial Review in Hungary

BRGÖ 2013 Beiträge zur Rechtsgeschichte Österreichs

IMRE KÉPESSY, Budapest The Roots of Judicial Review in Hungary

In 1848, during the initial phase of the Hungarian Revolution, the Parliament approved a reform package called “April Laws” thereby transforming the feudal-representative monarchy into a constitutional one. The aim of this legislation was to reform the entire legal system, and to make all necessary changes for the new economic and political system. Following the suppression of the Revolution in 1849, the Habsburgs established an absolutistic regime that lasted until 1860. The Hungarian historical constitution was suspended, and the entire country was divided into 5 provinces treated as territories of the Austrian Empire, and because of that, step-by-step the entire Austrian legal system was introduced in Hungary. As the international political crisis deepened in the late 1850s, Emperor Franz Joseph decided to restore Hungary’s constitutionality. The question was inevitable: which legal norms were in force? Were these the ones in use before the Revolution, the Acts made by the legislation in 1848, or the Austrian legal system as a whole?

In 1848, during the initial phase of the Hungari- nand V.4,5 could be characterized as a reform – an Revolution, the Hungarian Parliament ap- from a strictly legal perspective – even if the proved a reform package called “April Laws”, events that followed during 1848–1849 have transforming the feudal-representative monar- ultimately led to a revolution and a war for in- chy into a constitutional one.1 The aim of this dependence. legislation was to reform the entire legal system, These laws, in essence, set up the following sys- and to make all the necessary changes for a new tem: a Hungarian government shall be estab- economic and political system. Under the histor- lished which was to be responsible to the Par- ical circumstances -mostly because of the tense liament in Budapest; said Parliament – based on political situation- the last “feudal”2 Diet only popular representation – was to replace the feu- had the opportunity to amend the most urgent dal Diet previously seated in Pressburg. The Acts; which is why the April Laws could not be suffrage was based on wealth and certain basic considered as a whole Constitution.3 The adop- rights; among them the freedom of the press, tion of these Acts, which passed the vote in both were also guaranteed. The biggest change in the houses of the legislative assembly, and were economic system was the abolishment of the granted the royal assent to by King Ferdi- nobility’s tax exemption. Feudalism ended by abolishing the so-called robot – that is the labor owed by the serfs to their landlords.6 A law 1 ECKHART, Magyar alkotmány- és jogtörténet 418. made it obligatory to liberate all serfs; and enti- 2 This phrase indicates – in the Hungarian legal history – the era between 1000 (the foundation of the Christian state) and 1848, when the revolution took 4 Also called Emperor Ferdinand I. of Austria. 5 place. See: MEZEY, Magyar jogtörténet 10. ECKHART, Magyar alkotmány- és jogtörténet 420. 3 MEZEY, Magyar alkotmánytörténet 244–245. 6 MEZEY, Magyar alkotmánytörténet 246–247.

http://dx.doi.org/10.1553/BRGOE2013-2s439 440 Imre KEPÉSSY tle them to land ownership - whilst imposing a the April Laws only stated the theory that en- duty on the state to compensate the landowners. tailment was to be abolished, and left it to the Some of the legal norms found in the April Laws new Parliament to adopt the Civil Code that (mostly the ones regarding the field of civil law) would have detailed its practical realization. For could be described as provisional and/or declar- the time being, a juridical recess was ordered in ative.7 A good example for that is the law8 that all cases affected by this change. This was also ordered the newly formed national assembly to supported by the politicians, who thought that adopt a new Civil Code, which would no longer the Parliament – which would have convened have been based on the entailment - the most after the democratic elections – should have important legal institution characteristic of the decided on such issues.11 The new democratic medieval Hungarian civil law that substantially Parliament however, never got the chance to restricted the alienation of the land owned by adopt these laws. In September of 1848, after nobilities. The roots of this legal institution can successfully suppressing the uprisings in the be found already in those rules and regulations entire Habsburg Empire except Hungary, King that existed prior to the Hungarian settlement.9 Ferdinand V. began to question the validity of The purpose of the entailment was to protect the the April Laws. Ferdinand V. wanted to dissolve unity of the property belonging to one (noble) the Parliament and appoint a new cabinet, clan. Since all relatives of the landholder were which is why he refused to participate in the entitled to inherit the estate, their prior consent lawmaking from then on.12 A month later, the was required for its alienation in whole or in war for independence broke out between Hun- part. The challenges involved for the individual gary and the Habsburgs.13 In December 1848, landholder in obtaining this consent – particu- King Ferdinand V. abdicated the throne to allow larly from distant cousins, minors and unborn – his nephew, Franz Joseph to succeed him. How- made it almost impossible to ensure that any ever, according to the Hungarian laws,14 the transaction was successful. Any of the relatives King should have asked for the affirmation of could challenge such actions and render it void the Parliament to make such an action, there- through his or her protest.10 In addition, the fore, the rule of Franz Joseph was not formally neighbors also had the right of preemption, and accepted until 1867.15 even the King had to approve such transactions. The situation became even more complicated This is why by the 19th century it had already following the suppression of the Revolution in become one of the greatest obstacles blocking August 1849, when the Habsburgs established the economic changes. an absolutistic regime that lasted until 1860. The During the Spring of 1848, the abolishment of Hungarian historical constitution was suspend- entailment was of highest priority but the legis- ed, and the entire country was divided into five lators were well aware that the adoption of a 11 new Civil Code (that would have changed the RÁTH, Az országbírói értekezlet a törvénykezés very foundations of the entire Hungarian civil tárgyában 52. 12 law) could not happen overnight. This is why ECKHART, Magyar alkotmány– és jogtörténet 422. 13 N.b.: the word ’independence’ refers to the Hungar- ians’ aim to preserve their rights in the Habsburg 7 MEZEY, Magyar jogtörténet 156. Empire and does not include a will to separate from 8 See: Act Nr. 15 of 1848 it. See: MEZEY, Magyar alkotmánytörténet 246. 14 9 TARJÁN, Nagy Lajos király kihirdeti az siség tör- BEKE-MARTOS, Az Osztrák Császárság 101. 15 vényét See: BEKE-MARTOS, Állami legitimációs eljárások 64– 10 MEZEY, Magyar jogtörténet 98. 73. The Roots of Judicial Review in Hungary 441 provinces treated as territories of the Austrian Austrian legal system was introduced. A situa- Empire.16 The Parliament was dissolved, so were tion like this wasn’t entirely unprecedented, the municipalities, and the courts were newly because under the rule of Joseph II. something organized on the grounds of the Austrian mod- similar had already happened: he refused to be el.17 Though the Viennese government support- crowned the King of Hungary, because he did ed the economic transition, it consequently de- not want to be bound by the Hungarian Laws, nied the acceptance of the April Laws, which which in his interpretation would have entitled served as the basis of the constitutional monar- him to change laws without the consent of the chy and paved the way towards the modern Parliament. Between 1780 and 1790, only the capitalistic regime.18 Nevertheless, even if they organization of the courts and the rules of pro- had accepted these laws, the main problem ceedings were changed. In contrast, the changes would have remained: the laws, that would after 1849 were much more substantial. Some of have allowed the definitive transformation, had these legal norms (particularly in the area of not yet been adopted. civil law) were much more advanced than their After the suspension of the Hungarian historical former Hungarian counterparts. They have even constitution one of the main goals of the Austri- introduced new legal institutions, like the mod- an government was the unification of the legal ern land register, which has not existed at all system. Therefore, the Austrian Criminal Code before 1855. The citizens started to enter into replaced the Hungarian medieval criminal laws, their contracts and prepare their last wills ac- and the Austrian rules of procedure were intro- cording to these regulations, and the judges duced also. The biggest problem was that with were forced to base their rulings on these laws. the abolishment of the entailment, practically no As the international political crisis deepened in applicable civil laws remained.19 The legislation the late 1850s, Emperor Franz Joseph decided to of 1848 granted a juridical recess regarding all restore Hungary’s constitutionality. He issued a affected cases, but this solution was not sustain- new constitution, the October Diploma, in 1860. able for a longer period. 20 In addition, the abol- This stated that every former Hungarian state ishment of entailment also brought about the organization (including the Parliament, the mu- disestablishment of a regulated line of inher- nicipalities, and the courts) should be restored, itance, so it became inevitable to address this but it did not say anything about the applicable issue. The emperor issued the letters patent in law.22 The question, however, was inevitable: 1852, which abolished the barriers of alienating which legal norms were in force? Were these the property, and also put an end to the distinction ones in use before the Revolution, the Acts made between the regulation of lands owned by nobil- by the legislation in 1848, or the Austrian legal ities or non-noble individuals.21 system as a whole? In 1853 the Austrian Civil Code (ABGB) came The emperor first attempted to answer this ques- into effect in Hungary, so step by step the entire tion when he decided to convene the Parliament. In his ordinance he specifically stated that ac- 16 MEZEY, Magyar alkotmánytörténet 253–255. 17 cording to his intentions, only a few Acts of the MEZEY, Magyar alkotmánytörténet 428. April Laws would remain in effect (like the one 18 MEZEY, Horváth Boldizsár az országbírói értekezleten 33. that abolished the fiscal immunity of noblemen). 19 KECSKEMÉTHY, Vázlatok egy év történetébl 26. This document was sent to the Judex Curiae (the 20 RÁTH, Az országbírói értekezlet a törvénykezés tárgyában 34. 21 22 MEZEY, Magyar jogtörténet 157. SZABAD, Forradalom és kiegyezés válaszútján 160. 442 Imre KEPÉSSY

Presiding Judge of the newly reorganized Hun- an easily solvable issue; because the regulations garian Royal Curia – the highest ranking Court which had previously related to noblemen could in the country), who was also ordered to organ- have been applied to the emancipated serfs as ize a debate over the “organization of the adju- well (this idea had already been used in the rev- dication”.23 The emperor declared that every olution of 1848).29 Another problem was that the Austrian Act should remain in effect until the abolishment of entailment also eliminated the (Hungarian) Parliament changes them.24 basis of the medieval civil law. If the Commis- To fulfill this request, a Commission was orga- sion, or later the Parliament had returned to this nized in 1861, the members of which were high- stage of legal development where the feudal law ranking judges and lawyers. The official duty of no longer existed but no new system had been this forum was to decide on the “organization of developed, the judges would have received dis- the adjudication” but the content of this term cretionary powers in most cases due to the lack was strongly debated.25 The narrow interpreta- of applicable law. Some suggested that the ex- tion would have only meant a proposal for the tension of the juridical recess imposed in the reorganization of the court system;26 while the April Laws would have solved this conflict, not broader content would have also entailed the many supported this however. validity-evaluation of all Austrian laws which The biggest obstacle nevertheless, was that the had previously entered into force. The situation Austrian legal norms which had already been in was getting more complicated by every passing effect for over 10 years in 1860, have introduced day, because most of the municipalities declared many important legal institutions, (for example the Austrian laws unconstitutional,27 and their the modern land registry in 1855), that had not newly reorganized courts started to base their existed in the medieval law, and the annulment rulings upon the old Hungarian laws.28 For the of which would have caused an economic disas- Habsburg-regime however, this was completely ter. This seemingly left two possible options unacceptable since it only recognized laws used open: the Commission could have advised the before the Revolution. Parliament to acknowledge the Austrian laws as The starting point for the Commission was to being constitutional, or could have pushed for a return to the state of April 1848. There were a return to the state of 1848, ignoring all the few problems stemming from the laws used drawbacks mentioned earlier. The prior option before Revolution, for example, differentiated was completely unacceptable for political and between noblemen and serfs – both in criminal professional reasons alike. (It has been cited for and the civil laws. It seemed impossible for the example that the Austrian Criminal Code was most part to revert to these laws without sub- too harsh, and the judicial processes took more stantial changes. Certain members thought this time based on the Austrian rules of procedure.)30 The latter option was also problematic which is

23 RÁTH, Az országbírói értekezlet a törvénykezés why some members of the Commission opted tárgyában 1. for a third solution, a compromise between these 24 KECSKEMÉTHY, Vázlatok egy év történetébl 64. two. 25 RÁTH, Az országbírói értekezlet a törvénykezés tárgyában 8. 26 RÁTH, Az országbírói értekezlet a törvénykezés 29 tárgyában 16. RÁTH, Az országbírói értekezlet a törvénykezés 27 RÁTH, Az országbírói értekezlet a törvénykezés tárgyában 13–18. tárgyában 5. 30 RÁTH, Az országbírói értekezlet a törvénykezés 28 SZABAD, Forradalom és kiegyezés válaszútján 160. tárgyában 38–40. The Roots of Judicial Review in Hungary 443

The members aiming for the third option argued The advocates of the compromise thought that that a distinction shall be made between public legal security was just as valuable a principle as and private law. In the prior field it would have that of legality, and therefore, if they restored been unacceptable to let any Austrian laws re- the state of 1848, such an action would be un- main in effect, because everything that hap- constitutional because it would create a jurisdic- pened before 1849 had been forced upon the tional anarchy.35 What they could not have country and had therefore been unconstitution- known was that the Parliament has only started al. Whenever there was a revolution, it was the to exercise its right to adopt new laws from normal reaction that the public law followed the 1867, when the Austro-Hungarian Compromise changes in the political system.31 After the sup- consolidated the relations between Austria, pression of the 1848–1849 Revolution, the Habs- Hungary and the Habsburgs. That also meant burg forced their constitution on Hungary, cre- that six years had passed without any result in ating an absolutistic regime - which is why eve- lawmaking.36 ryone should have opposed anything that In its proposal, the Commission wrote that the would have been less than the return to the basis Hungarian civil laws should be applied - but in of the April Laws. In the field of private law those cases where they would not be applicable however, these rules could not be applied in the (e.g. the Act abolishing the entailment) the same way. courts should base their judgments on the tran- Both Ferenc Deák, and Boldizsár Horváth32 ar- sitory rules set up by the Commission for such gued, that the main goal and principle of civil purposes. This collection was called the Transi- law is to protect the rights of the individuals, so tional Rules of Adjudication, and its proposi- they must be cautious with this issue.33 They tions could be divided into three main catego- said that all of those legal relations that had ries: in some cases they introduced the old Hun- originated from the basis of the Austrian legal garian legal norms (that was the case with the norms should then, in effect, have been evaluat- Bankruptcy Act or with the criminal laws), in ed and judged on those bases. In addition they other cases they modified the former Hungarian claimed that until the Parliament would be ca- laws (like in law of succession or of family law), pable of making laws, certain Austrian legal and – perhaps most importantly – they norms should be kept in effect, because their acknowledged that some of the Austrian legal abolishment would be for the disadvantage of norms should stay in force (like the ones intro- the individuals. (This could happen because ducing the land register, and resolving the legal both the October Diploma and the February relations between the noblemen and their for- Patent treated Transylvania and Croatia as sepa- mer serfs). rate countries34 and the legislators did not want Following the issuance of the Commission’s to adopt any laws until the integrity of Hungary proposal, a Committee was established by the has been completely restored.) House of Representatives, which proposed to accept these transitional rules without changes.

31 After a debate, the representatives adopted it, as RÁTH, Az országbírói értekezlet a törvénykezés did the House of Lords. A few days later, the tárgyában 32–33. 32 For more information see: KENYERES, Magyar Életra- Hungarian Royal Curia ordered the courts to jzi Lexikon 35 33 RÁTH, Az országbírói értekezlet a törvénykezés RÁTH, Az országbírói értekezlet a törvénykezés tárgyában 33–36. tárgyában 34. 34 ECKHART, Magyar alkotmány- és jogtörténet 427. 36 MEZEY, Magyar jogtörténet 158. 444 Imre KEPÉSSY base their rulings on the basis of said rules.37 As state of 1848 as the standard.41 The reason for a consequence, many Austrian legal norms re- this decision was that according to the laws of mained in effect, thanks to the judges, who 1790/1791 – that summarized the most im- based their decisions in civil law cases on the portant rules of the feudal constitution – the Austrian Civil Code, when they could not find King was entitled to legislate but only together any applicable laws. In my opinion, the Com- with the Parliament, and he could only issue mission made a wise decision – even if that decrees (letters patents) with content that was in seemed the only real option. accordance with the Acts.42 After 1850, the Viennese government however, introduced Acts and Codes foreign to the Hungarian legal tradi- Conclusion: tions in an absolutistic manner (that is without calling the Parliament together).43 Such a severe The most important (and so far left unanswered) breach of the legislative procedure would today question regarding the Commission of 1861 was be deemed void from a public law perspective, exactly what this forum conducted as an activi- and according to the practice of the Constitu- ty; a Commission, whose status was hard to tional Court, it would surely lead to the nullifi- determine from a constitutional law perspective. cation of the law.44 Because of this role, we are It received its mandate from the King, who or- here facing an organ that acted with the authori- dered the members to discuss the organization ty of judicial review,45 that evaluated the consti- of adjudication and make recommendations tutionality of the laws based on the (historical) relating thereto.38 Among the members was the constitution’s regulation on the legislative pro- Judex Curiae, who was the Chief Justice of Hun- cess. gary at that time, and the appointed judges of Regarding those (Austrian) laws of which the the Hungarian Royal Curia as well as other in- validity was maintained temporarily, the mem- vited individuals, mainly lawyers and legal bers supported their action with legal security scholars. The fact that only the 60 most reputa- and the need to provide the security of the ble lawyers of the country were invited to the property and ownership of the private individu- Commission shows its real significance.39 als. The Constitutional Court, even today, often During the sessions, the members argued about uses the tool of setting a moratorium for the two main issues: the organization of a court Parliament in order to have it change the uncon- system (including the Curia) that should be set stitutional norm and guarantee legal security.46 up, and about the law that these courts should We nevertheless need to take into consideration apply. Regarding the first matter, the court sys- that the Commission did not exclusively act as a tem that had existed prior to 1848 was restored “negative” legislative forum, since apart from based on the recommendation of the Commis- sion.40 The members decided similarly regarding 41 RÁTH, Az országbírói értekezlet a törvénykezés the validity – or more precisely the constitution- tárgyában 58. ality – of the Austrian laws: they deemed the 42 See: Act Nr. 12 of 1790/1791 43 RÁTH, Az országbírói értekezlet a törvénykezés 37 MEZEY, Magyar jogtörténet 159. tárgyában 11, 20. 38 KECSKEMÉTHY, Vázlatok egy év történetébl 63–64. 44 KUKORELLI, Alkotmányjog 111–113. 39 MEZEY, Horváth Boldizsár az országbírói 45 SZABÓ, Jogállami forradalom és a büntetjog alkot- értekezleten 33. mányos legitimitása 40 RÁTH, Az országbírói értekezlet a törvénykezés 46 SÓLYOM, Az alkotmánybíráskodás kezdetei Ma- tárgyában 60–61. gyarországon 376–377. The Roots of Judicial Review in Hungary 445 rendering the Austrian laws ineffective, it more ian judicial review can be traced back to this than once also amended those rules and regula- Commission. tions. When it comes to a forum exercising the authority of judicial review no positive legislation is possible since that would mean taking Korrespondenz: over the duties of the legislature. In my opinion, Imre Képessy however, and taking the historic circumstances Eötvös Loránd University into consideration, it is understandable why this Faculty of Law and Political Sciences Commission could and did amend the existing Department of the History of Hungarian State and laws, because only the uncertainty was palpable Law Egyetem tér 1-3, 1053 Budapest, Hungary surrounding the convening and operation of the [email protected] Parliament and without an adequate reorganization of the laws a jurisdictional anarchy could 47 have easily come about in the country. This is Literatur: why the Commission first modernized the content of the earlier Hungarian laws (e.g. they Az 1861. évi magyar Országgylés, 3 Bde. (Pest 1861). eliminated the differences between noble and Judit BEKE-MARTOS, Állami legitimációs eljárások és államfi jogkör 1867–1918 között (Budapest 2012). non-noble individuals which can be seen as ad- Judit BEKE-MARTOS, Az Osztrák Császárság története herence to a constitutional requirement), and és az államfi ceremonális hatalomlegitimáció they have also redrafted those parts of the Aus- hiánya, in: Századvég folyóirat 65 (Budapest trian laws that were not in compliance with the 2012). Hungarian legal traditions. During the debates, András BRAGYOVA, Az alkotmánybíráskodás elmélete (Budapest 1994). the question of what the mandate of the Com- Ferenc DEÁK, Adalék a magyar közjoghoz (Pest, 1865) mission includes has been repeatedly raised, Ferenc ECKHART, Magyar alkotmány- és jogtörténet and the members have often emphasized that (Budapest, 1946). legislation was the duty of the Parliament which Aurél KECSKEMÉTHY, Vázlatok egy év történetébl they could not take over. (Pest 1862). Based on its activity, I believe, that the Commis- Ágnes KENYERES (Hg.), Magyar Életrajzi Lexikon [http://www.mek.iif.hu/porta/szint/egyeb/lexikon/ sion was a forum with the authority of judicial eletrajz/html/] (2000, retrieved on: 15. 1. 2013). review and can therefore be considered as a Manó KÓNYI (Hg.), Deák Ferencz összes beszédei predecessor of a constitutional court. It acted, on (Budapest 1886). the one hand, as a control over the executive István KUKORELLI (Hg.), Alkotmányjog, Bd. I power, which had aimed at solving the above (Budapest 2007). mentioned issue by upholding the validity of the Stefan LIPPERT, Felix Fürst zu Schwarzenberg. Eine politische Biographie (Stuttgart 1998). Austrian laws. On the other hand, the fact that Barna MEZEY (Hg.), Magyar alkotmánytörténet (Bu- this forum debated the relationship of the Hun- dapest. 2003). garian and Austrian laws with a consequent Barna MEZEY, Horváth Boldizsár az országbírói consideration for the principles of legal security értekezleten, in: Jogtörténeti Szemle (2005/3). and legality proves that the roots of the Hungar- Barna MEZEY, Horváth Boldizsár az 1861. évi or- szággylésben, in: Jogtörténeti Szemle (2007/1). Barna MEZEY (Hg.), Magyar jogtörténet (Budapest 2007).

Péter PACZOLAY (Hg.), Alkotmánybíráskodás- 47 RÁTH, Az országbírói értekezlet a törvénykezés alkotmányértelmezés (Budapest 1995). tárgyában 34. 446 Imre KEPÉSSY

György RÁTH, Az országbírói értekezlet a György SZABAD, Forradalom és kiegyezés válaszútján törvénykezés tárgyában, 2 Bde. (Pest 1861). (Budapest 1967). Emil RÉCSI, Magyarország közjoga 1848–ig s mint az András SZABÓ, Jogállami forradalom és a büntetjog 1848–ban fennállott (Buda–Pest 1861). alkotmányos legitimitása, in: Büntetjog László SÓLYOM, Az alkotmánybíráskodás kezdetei alkotmányossága (2000) 11–28. Magyarországon (Budapest 2001). Tamás M. TARJÁN, Nagy Lajos király kihirdeti az László SÓLYOM, Az alkotmánybíráskodás tizedik siség törvényét. évfodulójára, in: Tíz éves az Alkotmánybíróság. [http://www.rubicon.hu/magyar/oldalak/1351_dec Tudományos-szakmai konferencia (Budapest ember_11_nagy_lajos_kiraly_kihirdeti_az_osiseg_ 2000). torvenyet/] (retrieved on: 15. 1. 2013) János SUHAYDA, Magyarország közjoga (Pest 1861).