Hungary and the quest for a Schmittian constitution: the constitutionalized states of emergency

The developments that have marked Hungarian constitutionalism in the past fifteen years have generated vigorous scholarly debates hinging on the analysis of its most alarming features. The new course has evoked the dreadful threat of the authoritarian legalism that Europe experienced between the two world wars; thus, it comes as no surprise that Carl Schmitt’s cursed authority has been often and on multiple grounds invoked to qualify the intellectual underpinnings that drive Prime Minister Orbán’s illiberal democracy. This assumption is mostly based on Schmitt’s doctrine of sovereignty. Indeed, it may be tempting to envision the constitutionalization of the many states of emergencies in which the nation might incur – and the related dramatic widening of already slightly restrained executive powers – as the defining concepts of the renewed Hungarian constitutional order. I will argue that the legal discipline of states of emergency and the government management of them in concrete circumstances may be correctly regarded as a limit test to assess the system’s compliance with rule of law cornerstones. However, I will also contend that reliance on Schmitt’s teachings to explain or justify Hungary’s transition from a parliamentarian democracy to a Regierungsstaat (“governmental state”) may be considered seriously flawed. To defend this claim, I will provide an in-depth comparative analysis of both the German legal theorist’s leading writings and the Hungarian Basic Law discipline of states of emergency – also in light of the most recent constitutional amendments – confronting the last-mentioned with the government’s extensive use of emergency decrees in recent times. Evidence will prove that the Schmittian sovereignty concept is still far from being appropriate to elucidate the Hungarian constitutional framework, nevertheless placing the latter in a new legal dimension, as a hesitant wanderer on the grim border between governmental and authoritarian State.