According to the long-standing practice of the Constitutional Court, the requirements of foreseeability and predictability are integral parts of rule of law and legal certainty. When applying the law, this translates to the requirement that the courts adopt same or at least similar judgements in cases based on same facts. In the last few years, the question of legal uniformity has come to the fore in our legal system. The two supreme judicial forums, the Curia and the Constitutional Court put special focus on the facilitation and preservation of the uniformity of their respective case law. The workgroup for case law analysis calls the attention to issues based on which even a procedure for the adoption of a uniformity decision or an act of law may be launched. In addition, by creating the legal basis of this constitutional requirement and the institution of uniformity complaint, and by establishing the Council of Uniformity Complaints, the judicial forums may actually pass “precedent-setting” decisions.
In the light of the above one might rightly ask whether our legal system or in a broader sense the continental legal systems are taking on an Anglo-Saxon character. It is a characteristic feature of the continental legal systems that the court applies the law adopted by the legislator, that is, in the words of Montesquieu, it plays a certain “bouche de la loi” role. By contrast, in “common law” systems the judge plays a central role in finding the law “existing since time immemorial”. In other words, the judge also takes on a law forming or even a legislative role.
In this regard it can be concluded that the Hungarian legal system – just as other continental legal systems – is taking on in a certain sense an Anglo-Saxon character. The Constitutional Court used the word “precedent” in more than a dozen resolutions, primarily with reference to the force of their own decisions both in a national and in an international context. There is a parallel opinion that formulates as a requirement -in accordance with the predictable and foreseeable operation of the law – that any division from the precedent resolution shall be justified. Although the wording is not precisely defined, aspects of case law can be found in the practice of the Constitutional Court. Think, for example, of far-reaching decisions that have provided guidance, through the interpretation of the constitution, in timely public law dilemmas affecting the country. In addition, the growing number of decisions can also be included here that identify unconstitutional interpretation of the law on the basis of specific cases and establish, as remedy, constitutional requirements with erga omnes effect. Last, but not least also the dialogue between courts can be included here, that has both national and European aspects. Dialogue between international, EU and national supreme courts is increasingly becoming such a multidirectional interaction that does not have any alternative in the European region.
Such dialogue between courts is quasi an imprint of the interaction of legal systems, which, moreover, is facilitated by the globalization of information. The effect of the Anglo-Saxon conception of law- and, thus, the role of the judge-made law – can be observed in the Hungarian and other continental systems, just as the reverse is also true: statutory law has also gained ground in the “common law” culture. When adopting good and effective solutions this is both welcome and desirable. On the other hand, however, this does not and cannot mean the dissolution of legal systems as the law is always built on the foundations of a unique culture. Healthy dialogue provides an opportunity for developing and enriching our legal culture.
With kind regards,
Prof. László Trócsányi
Barnabás LENKOVICS: The Invisible Constitution: Between Power, Law and Interpretation