Introduction
‘All constitutions—or at least some provisions of constitutions—contain values of choice. Parts of these are fundamental values that define the identity of the constitution. Parts of these values are unamendable even if this prohibition is not incorporated explicitly in the text.
These are unamendable because the source of theF. Gardos-Orosz (&)
Hungarian Academy of Sciences, Center for Social Sciences,
Institute of Legal Studies, Budapest, Hungary
e-mail: fruzsina.orosz@gmail.com
© Springer International Publishing AG, part of Springer Nature 2018 231
R. Albert and B. E. Oder (eds.), An Unamendable Constitution?
Ius Gentium: Comparative Perspectives on Law and Justice 68, https://doi.org/10.1007/978-3-319-95141-6_9 amending power is in the constitution, it is derived from it, therefore it is not empowered to eliminate essential parts of it.’[928] ‘The amendment of the constitution cannot ruin the constitution itself’.[929] ‘For ruining the constitution a revolution is needed when the old constitution dies'.[930] [931]
The idea of inherent unamendability is mentioned not only in often cited case law, but also in mainstream, well-known constitutional doctrine: ‘Amending the constitution must stay within the constitutional framework, this competence is based on the constitution and it cannot override it. This competence cannot involve the adoption of a new constitution...’.4
In modern constitutions, the stability of constitutions is often guaranteed by eternity[932] or other entrenchment clauses.[933] These provisions provide some sort of an obstacle to fundamental amendments to constitutions by stating, in their strictest form, that one or more provisions are unamendable. If the prohibition is final, we talk about eternity clauses (Ewigkeitsklausel), and many jurisdictions show examples for this.[934] In Europe, the constitutions of Germany, Italy and France are typical models for other European constitutions, which explicitly limit or exclude amendments of certain provisions.
The said states experienced the harm, which totalitarian regimes cause to the individual, society and the state. The preventive function of such unamendability in these states and others copying them leaves no room for doubt,[935] although unamendability is firmly rebutted on the level of constitutional theory.[936] Unamendable provisions on the republican form of government, on the protection of fundamental rights or on territorial integrity, give the impression of legal certainty and the inviolability on the basis of the constitutional order.[937] Richard Albert validly points out that the expressive function of unamendability which affects significantly the constitutional culture of values is a leading function of unamendability in practice.[938] Unamendability demonstrates that there are core provisions in constitutions[939] which cannot be amended despite the will of the overwhelming majority. Research on implicit unamendability is about finding this core, the unamendable provisions of a constitutional design by way of judicial interpretation, by legal methodology.[940] The Indian Supreme Court was the first to discover implicit unamendability rooted in the basic structure of the constitution. The doctrine of unconstitutional constitutional amendments has spread the world over and attracted promoters amongst constitutional judges of the world.[941]Although unamendability has become increasingly fashionable in new consti- tutionalism,[942] most of the older and many of the new constitutions still do not contain such explicit provisions. This is the case with the 2011 Hungarian Fundamental Law, the newest constitution of the EU. When discussing such a contemporary constitution, one might argue that the fact that a fundamental law does not contain provisions qualified as unamendable shows the clear intention of the framers of the Fundamental Law to exclude unamendability. The question remains, however, whether it is possible at all to create a stable constitutional democracy in the twenty-first century with a completely amendable constitution. I shall take the Hungarian example and shall show different ways of legal reasoning to justify a certain degree of unamendability in the Hungarian constitutional system. I conclude that this experience might lead to the general conclusion that all constitutions must have at least one unamendable norm.[943]
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