—Marina Bán, Postdoctoral Researcher, Centre of Excellence for International Courts, and Jennifer Pullicino Orlando, PhD Student, University of Copenhagen

Introduction

Hungary’s 2011 Fundamental Law is exemplary of mnemonic constitutionalism and the shaping of identities through the deployment of a defensive nationalism. However, it is also a constitutionalism built on the importance of selective remembrance and forgetting – of repurposing history – and serves to exacerbate a crisis of identity gripping Hungary and its constitutional contract. Hungary’s constitutional document accents its European prospects, whilst simultaneously asserting its Europeanness and independence – it rejects all that conflicts with this narrative. This happens by adopting and using both the mantel of former empire (as a leading part of the 19^th century Austro-Hungarian Monarchy) and imperial subject (as a subject of the Soviet Union as well as a spoiler in the EU). An understanding of this dynamic is vital, as is applying a postcolonial lens to provide a platform for critical engagement with this past. It could possibly serve to disentangle some of the reasons behind the country’s current political situation.

Hungary, as much of the Central Eastern European (CEE) region, lies in the ‘space between’ the canon of European constitutionalism and its other, with a legacy that cannot be ignored. It exists on the periphery – not ‘West’ enough to be considered occidental, not oriental enough to be thought of as ‘the East’. This ‘otherizing’ has persisted, compounded by the Cold War, cementing Hungary’s uncomfortable stasis in Europe’s fluctuating (intellectual and geographical) edges.

The legal identity dialectics generated are evident in Hungary’s past and current constitutional setups, and debates. They contain implicit and sometimes explicit references to pre-Habsburg, Austro-Hungarian, Interwar, Soviet, post-Soviet Hungary, and European Union/present periods. The journey of history’s inclusion and instrumentalization in Hungarian constitutionalism, shows how the country struggles to come to terms with its self – over relying on historical narratives to shape it. The self, we argue, remains a self in adolescence.

Postcolonial Theory and European Constitutionalism

The lacunae in constructive engagement with the ‘Other’ has arguably undermined European constitutionalism. It has largely failed in the quest to provide a full-bodied and contextual account of the intellectual legacy of the continent. It is striking that studies of post-colonialism remain unchartered territories in law and particularly when it comes to analyzing the impact of imperial experiences that are not part of the ‘traditional’ canon (e.g., British, French etc.). This is the case in international law but is even more stark in European law.

Furthermore, the continued division between Western and Eastern Europe has brought with it intellectual polarization – one that evidently impacts the constitutional imaginaries of CEE and abet their peripheralization. In the CEE case, the loaded regional appellation and designation – itself a Western construct – continues to be in common usage even now. The shape of narratives around the division of Europe, and the tussles with identity they inevitably encourage, are part of the history of power and hegemony in the European order.

Hungary: The Identity Conundrum

Constitutional debates in Hungary have been riddled with the assertion of memory and identity through the continuous rejection or embrace of the historical past. The interaction of history and constitutionalism has emerged out of a reliance on historical documents and the symbolism of the ancient Holy Crown. This served to construct a history-based self-identification in the early 19^th century debates. Such historical identity has been crucial part of asserting and protecting the country’s independence and sovereignty over the course of Hungary’s history, where it played different roles on the historical stage. It acted as the quasi-colonizer of Austria-Hungary’s Eastern half in the late 19^th century, as the quasi- colonized ally of the oppressing Soviet communist ideology post-1945. It toyed with a near complete abandonment of historical narratives to create a post-transition constitutional order in the 1990s.

In the footsteps of all these different debates and past experiences, the Fundamental Law’s instrumentalization of the country’s identity as both historical, colonizer and colonized, while leaving all efforts to divorce from history behind, is at once fascinating and perplexing. On the one hand, the Fundamental Law and, at its core the entire legal system, is filled with nostalgic references to the Golden Age of late 19^th century imperial Austria-Hungary. On the other, an unmistakable narrative is present outlining Hungary’s historical past as an eternal struggle against oppression, subjugation, and colonization, mostly focusing on the oppressive ideology of communism and country’s suffering under 20^th century totalitarian dictatorships. Its preamble, for all intents and purposes, functions as a treatise of Hungarian identity. And, indeed, its present politics turns on this tendency – invoking narratives of subjugation to set itself apart from the EU.

The Fundamental Law is arguably a by-product of civilizational bordering made evident by its insistent recourse to emphasizing its Europeanness and Christian credentials. Its history-riddled conception was not, in fact, a ‘return to Europe’ but a determined and perhaps confounding path to the return to self – a self that existed, it seems, in suspended animation waiting to be revived. This self continues to struggle to find a place in Europe. The tone is one that celebrates the survival instinct of the Hungarian people and glorifies resilience and power – a strange dynamic that both empowers and victimizes the country. This ambivalence is an exceptional feature of Hungarian constitutionalism.

A Case for Identity Constitutionalism

Taking the shadow(s) of Empire seriously means accepting that this dialectic between memory and identity, as seen through a postcolonial lens, is something of a reality that requires further attention. The focus on memory, though merited, cannot go unaccompanied by identity. This statement is self-evident in the Hungarian case. Memory and identity coexist in parallel to one another – they are impossible to disentangle. Previous research on the legal governance of historical memory have alluded to the particular use of such means of constitutional expression in CEE , particularly among in countries described as ‘illiberal democracies’, through the theory of mnemonic constitutionalism. However, what has emerged by peeking at Hungary’s historical constitutions is that relying on memory alone cannot accommodate a full-bodied understanding of its constitutionalism. This is particularly the case when constitutionalism is taken as a process that incorporates the past into present constitutional contracts to generate identification and buy-in. To simplify this process as a just means of government control would be to neglect as essential feature of decolonization.

We propose a new area of inquiry in constitutionalism that focus on identity and mutually reinforces mnemonic constitutionalism. Identity constitutionalism, thus termed, is the process of identity-formation and -shaping that is generated, promulgated, and structured through constitutional expression, relying, knowingly or unknowingly, on the historical past and the state’s collective memory. It expands from mnemonic constitutionalism as the latter considers its foundation the idea that history and memory are tools in the hands of governments to control historical narratives on the constitutional level and undermine the rule of law. Thus, anchoring mnemonic constitutionalism as a modern phenomenon, which is particularly relevant in the context of current European developments that see democratic backsliding in some EU Member States. This interpretation certainly has merit. However, in addition to these factors, identity constitutionalism’s grounding idea lies in the inevitability of divorcing history and memory from constitutionalism. These originate long before the Hungary’s current rule of law problems.

European constitutionalism must engage in fundamental self-reflection. To do so, it cannot brush aside Europe’s long imperial legacy. If it is seeking to successfully incorporate and bring together Europe’s offerings in a manner that transcends orientalist/colonialist dichotomies, a closer (and decolonized) look at its past is needed. The current academic discussion of European constitutionalism turns in age of a global reckoning. Power structures that until now have been de-historicized and considered the default are increasingly challenged. In this context, identity constitutionalism, substantiated by Hungary’s experience (though not singularly so), provides additional insight not only into the country’s ongoing rule of law crisis, but further extends towards a more expansive understanding of the relationship between law and history.

Suggested Citation: Marina Bán and Jennifer Pullicino Orlando, Understanding Identity and the Legacy of Empire in European Constitutionalism: The Case of Hungary, Int’l J. Const. L. Blog, Sept. 5, 2021, at http://www.iconnectblog.com/2021/09/understanding-identity-and-the-legacy-of-empire-in-european-constitutionalism-the-case-of-hungary/(opens in a new tab)