Majtényi, Balázs

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How to Deal With Evil Law in Hungaryand ElsewhereBalázs Majtényi 2022-09-19T23:38:18The Hungarian authoritarian regime that arose in the populist wave of societalprocesses accompanying the 2008-2009 economic and financial crisis has createda legal system in Hungary which is flawed and compromised in numerous ways.But is it valid? Can the law this regime put into force be accepted as law at all?It appears that, with a few exceptions, the debates on restoring constitutionalismhave not addressed this issue in depth. This article intends to demonstrate that theHungarian legal system does indeed lack validity. To argue my point, I am using asimple formula that is easy to articulate and has symbolic meaning for practice indark times.According to the German legal philosopher Gustav Radbruch, Nazi Germany’s legalsystem lost its validity and legal character because it was in such blatant violationof the principles of equality and justice. Nazi law was evil in both ways: not wantingto follow moral rules (amoral), and following racist ideas (immoral). I assume ahistorical situation has now arisen when the invalidity of evil laws is proving to besimilar to the situation in 1946 when Gustav Radbruch coined his famous formula.The Hungarian regime, in its continuous search for enemies, often finds itself on acommon platform with racists; the aims of amoral and immoral politics often comeclose together in practice. My point is, however, that the amorality of a legal systemcan in itself define its invalidity without using the immorality test.I consider the applicability of the following formula: the validity of the basic rules ofan amoral legal order, i.e., that these rules exist and can influence practice, canbe rejected by anyone who follows moral principles, including organizations andcommunities that wish to live by moral principles. Therefore, I argue that a widerange of actions (from civil disobedience, and from judges reluctant to apply the law,to suspension of voting rights and withholding funds by the EU) are justifiable if thegovernment clearly does not wish to live by moral rules and its legal order reflectsthis.Amoral lawBy amoral law, I mean law that does not systematically follow moral rules. Thus,I am not concerned with the possibility of separating law and morality but try toevaluate legal systems that fail to follow even their own constitutional values. Forme, amoral legal systems are ones where the moral principles that are supposedto frame realistic politics are absent or not backed by deeds. In such regimes, theleader’s inner circle may resemble that of a princely court. However, they cannot becalled Machiavellian since the end-justifies-means principle does not work in them,- 1 -as these regimes have no moral purpose. Their actions are driven solely by the wishto maintain and strengthen their power.Let us take as our starting point that the legal rules of human communities arebased on moral values. In this, they certainly differ from the rules of board games.Thus, it is justifiable to reject a legal system that does not consistently reflect moralprinciples, just as the weathervane cannot serve as a moral compass. It is on thisbasis that the system guided by the interests of the passing moment, e.g., changingits refugee or foreign policies on a whim, can be rejected. This is precisely why wecannot act as unprincipled chess pieces in the games of amoral regimes. Moreover,unlike the rules of board games, in such regimes, the rules are constantly changing,and legal certainty hardly exists.Although an amoral system may well be governed by law, it is defined by an amorallaw (‘statutory lawlessness’) that is considered invalid in the absence of moralprinciples that restrict it. I argue that this formula is crucial and can be used whenmass support for constitutional democracy is not visible. It can also be used tojustify the measures taken after the fall of amoral regimes. Naturally, the practicalapplicability of the formula cannot be described in all cases, just as it is difficult torecognize a wolf in sheep’s clothing, or Carl Schmitt dressed as a human rightsdefender in a human rights costume party.The formula proposed by this article, i.e., that amoral law is invalid, is assistingprimarily those who oppose evil law. They may be people who fight using civildisobedience, for whom the legalistic answer that their actions are illegal isunacceptably simplistic. Their struggle may be supported by the knowledge thatthey are fighting statutory lawlessness. Alternatively, the formula may also assistcommunities based on moral values, such as the European Union. For them, itsprimary message could be that debates with amoral systems must be guided bymoral values. After all, the EU can only act against a realist policy by referring to itsvalues accepted by the Member States. In other words, reference to moral principlesshould not be a mere decorative element in their debate with the Hungariansystem. Thus, the formula is also a warning, drawing the attention of internationalorganizations and states to the dangers of realist politics.The rejection of immoral regimes serving exclusionary ideas is in many respectsmore difficult to justify than the rejection of amoral law and order since, in the formercase, the masses may indeed consider the rules of the system and the leader’scommands morally acceptable. In such cases, in addition to setting aside theinfluential arguments of moral relativism, the Radbruch Formula should be appliedto assess whether the regime violates equality and justice to the extent that itsrules can be denied. Since the moral standard set is unclear, strong arguments canbe made both for and against applying the Radbruch Formula to an authoritariansystem that does not reach the brutality of the Nazi regime. As already mentioned,the formula’s main shortcoming is that it cannot describe what constitutes statutorylawlessness for the practitioner. Therefore, it cannot be decided whether in Hungaryequality and justice are violated to such an extent that the formula could be applied.Nevertheless, I argue that there is a strong need for a formula that goes beyond the- 2 -legalistic arguments that can only provide simplistic answers to such issues as, forexample, the Hungarian regime’s arguments in defence of sovereignty.Applying the formula I am proposing may be more straightforward than Radbruch’ssince in concrete cases it is much easier to capture the amorality of a law than todetermine statutory lawlessness. In addition, when applying it, we need not say whatmoral standard we are applying. If we talk about the absence of morality, we neednot arrive at a common understanding about what morality requires (e.g., the moralfoundations of the international protection of human rights). I think that, in the case ofamoral law, a crystal-clear line of conscience can be drawn. To apply the formula, itis sufficient to accept that law and political morality cannot be separated, and there isno law without political morality.The Hungarian CaseThis formula can be applied to various legal systems: for example, to former statesocialist states. It can be shown that, at various points in time, the former statesocialist states departed in an institutionalized way from the communist ideology andits moral principles. In the following, however, I will examine the applicability of theformula to the current Hungarian regime. I argue that this system does have rules,but in the absence of any serious moral principles they do not have to be obeyed. Mystarting point is the precondition that law must remain within the concept of justice.However, there is no underlying political morality in the Orbán system to control it.The Orbán regime is based on a realist Schmittian politics where anyone canbecome an enemy (refugees, human rights defenders, civilians, Soros, the EU,universities, academia, LGBTIQ people, etc.). The system operates rationally in thesense that it consistently serves the regime’s interests of power, sees politics as acontinuous struggle, and its actions are thus determined by the need to maintaincontrol over society and by a relentless lust for power, as well as by the knowledgethat all power is fragile and in constant need of reinforcement. The regime appliesa nepotistic distribution of wealth and positions to retain power, creating an unevenplaying field by limiting political opponents‘ access to information. I am not arguingthat amoral regimes defined by statutory lawlessness do not use moral argumentsbut that their operation is not constrained by a particular moral conception of thepolitical community.The Orbán regime appears to be working and enjoying social support even thoughits functioning cannot be described in terms of moral principles. The basic values inthe Fundamental Law are freely shaped by the leaders’ will, which is supposed tobe „the will of the nation“. The values listed in the Fundamental Law, such as fidelity,faith, and love, can be shaped at the whim of power-hungry politicians and can serveas building blocks for Christian ethical arguments as well as for the leader’s personalcult.Although I regard the system amoral and think that its rules may be denied, thisdoes not mean that the system is failing. As I will explain, I see my proposed formulaas a kind of instrument of militant democracy that may be a shield against evil law.- 3 -For example, international institutions could apply it in their disputes with Hungary,and once the regime falls, it could also, with sufficient social support, be used toeradicate the remnants of the regime. Also, the acceptance of positivist arguments(a law is a law) or moral relativism made the Hungarian legal profession defencelessagainst evil law in much the same way as it happened in Nazi Germany. Thisformula may have convincing force for legal scholars reluctant to engage in moralreasoning about the legitimacy of the legal system.Applying the formulaObviously, the denial of the validity of the legal order does not mean that all itslegal institutions are invalid, as long as private autonomy is tolerated within certainlimits. In addition, the argument of legal certainty also justifies the maintenance ofinstitutions. Private autonomous contracts are little affected by the lack of politicalmorality, and institutional practices can be maintained by invoking the principleof legal certainty in order to avoid abrupt changes. Thus, there are numerousinstitutional practices in Hungary the maintenance of which is justified despite theinvalidity of the foundations of the legal system. For example, the system has hardlyharmed private law relationships because the persons involved take autonomousdecisions. In other words, applying the formula does not mean that after the regime’sfall, sales contracts or marriages concluded under the Orbán regime will be invalid.However, its Fundamental Law and its basic rules can be rejected.I contend that for rejecting the Fundamental Law and the political system in Hungary,it is sufficient to accept that the current constitutional system is wronged by atotal indifference to what is right and what is wrong, which, in conjunction with themasses of disinformation the authorities continually spread, corrupts the politicalcommunity. Nevertheless, it is still an open question whether amorality stemsfrom the Fundamental Law itself, or the Fundamental Law does not have anyreal influence on everyday politics that amend it. It is possible that the politics oftampering with the law stems from the leader himself, who has run the gamut ofpolitical careers from the left to the far right. However, to reject the Fundamental Lawand the system’s major rules, we can leave this question unanswered for now.One manifestation of this indifference is the fact that, in its communication, theregime regularly associates Christian values with hate campaigns against varioussocietal groups. Another characteristic feature of the Fundamental Law is thatthere are provisions contrary to international and European law, though it declarescompliance with them. It should also be noted that the lost cases before theStrasbourg and Luxembourg courts have not prompted the Hungarian government tobring its anti-refugee and anti-NGO policies into line with the European Conventionon Human Rights or EU law. In addition, the indifference to moral issues manifestsitself in the hunger for power, the theft organized from above, the pandering tovarious dictators for political advantages in foreign policy, and in the intensivedestruction of institutions in the name of conservative values. In contrast, Polishpoliticians at least give the impression of rock-solid faith in destroying theirconstitutional institutions and in being consistently anti-Putin, sometimes even anti-Russian in their politics.- 4 -Take an example of apparent hypocrisy: Hungary claims to be cooperating withinternational human rights mechanisms and uses the persuasive language of humanrights. In fact, however, when demanding transparency, it is not about making stateoperations more transparent, rather about putting extra administrative burdenson independent NGOs. In doing so, it follows the logic, devoid of moral principles,that human rights violation occurs only where conduct conflicts with the regime’sinterests. Internationally, however, the Hungarian regime acts mainly in defence ofits sovereignty, linking it to the protection of national identity. In this respect, it seemsto be succeeding because, for example, changes in Hungarian refugee policy after2015 were practically unaffected by international refugee protection, the internationalprotection of human rights, or EU law. However, the Hungarian state openly violated,among others, the principle of open borders, the prohibition of discrimination, and theprohibition of inhuman treatment – by first starving and illegally detaining refugeesin the transit zones, and later by closing its southern borders to asylum seekers(including the transit zones). The state later distinguished between refugees fromAfghanistan, Syria and similar countries, on the one hand, and those arriving fromUkraine, on the other, when it opened the Ukrainian border to asylum seekers whilekeeping the southern border closed.The European Union, for example, in its disputes with the Hungarian system, couldtake the view that the Hungarian government’s arguments are not about protectingthe country’s values and national identity but about the government’s momentaryinterests. International organizations could argue that the international protectionof human rights and the foundations of global justice cannot be overridden bystate politics that does not consistently follow moral values. This would requireinternational organizations to return to purely moral arguments in these debates, andthe entire spectrum of their own policies should be determined by the principles ofglobal constitutionalism.Rejecting the current Hungarian legal order can also be separated from the humanrights issue. Opponents of the system may be able to find a moral basis other thanhuman rights for their struggle, such as adopting the principles of „don’t starve yourfellow human being“, „don’t steal“, or „don’t lie”. Nor do the regime’s opponents haveto agree on the possibility of adapting the Radbruch Formula to the Hungarian case.Suffice it to say that an amoral legal system, insensitive to good and evil, does notexist.- 5 -

How to Deal With Evil Law in Hungary and Elsewhere

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How to Deal With Evil Law in Hungary and Elsewhere

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