Apropiación de lo osuno en la Ciudad de México

In the era of the financial-economic crisis, terror threats, racism and segregation, impoverishment and famines, world-wide pandemics, climate change, environmental dangers and natural disasters, the question arises as to whether the motivation behind the measures planned, formulated and implemented with reference to combating the above-mentioned phenomena constitutes an effort merely to reduce, fight and eliminate the undesirable phenomenon or mitigate its consequences, or, underlying this primary motivation – as a secondary one – there is some common driving force.1

My starting point is that such secondary motivation could be solidarity. In the case of such hypothesis, the question presents itself to what extent law as a means and the constitution as a system of values can be used to serve the purpose of solidarity. For such an inquiry one may need to answer the following questions. What constitutes solidarity based on the general and normative approach? Is it defined by the constitution, in other words, can it be considered a legal or constitutional value in a democratic state governed by the rule of law? If it has relevance from the aspect of (constitutional) law, is it expressed in the norm content? When and how does it appear as reality, to what extent does it have an effect on law-making as a motivating factor or impulse? In the present essay, out of the enumerated ramifying questions, I will concentrate only on the quality of solidarity as a legal and constitutional value; at the same time, I consider that the exploration and evaluation of solidarity norms to be found in the legal system would be worth further research.

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Dr. Nóra Chronowski, PhD, associate professor, Department of Constitutional law, University of Pécs, Faculty of Law, [email protected]

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See the earlier Hungarian version of the essay in N. Chronowski and J. Petrétei, eds., Tanulmányok Ádám Antal professor emeritus születésének 80. évfordulójára [Essays Dedicated to the 80th Birthday of Professor Emeritus Antal Ádám] (Pécs, PTE ÁJK 2010)

1 _{The characteristic features of the era are comprehensively analysed in A. Ádám,} Alkotmányi értékek és alkotmánybíráskodás [Constitutional values and the practice of the Constitutional Court] (Budapest, Osiris Kiadó 1998) pp. 10-11.; A. Ádám, ‘Biztonság, felelısség, kötelesség’ [Security, responsibility, duty] 7-8 Jogtudományi Közlöny (2005) pp. 307-315.

Nóra Chronowski

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Before the interpretation of solidarity as a constitutional value, it is worth giving a brief overview of the conclusions of Hungarian dogmatics concerning constitutional values and how they permeate the practice of the Constitutional Court. Antal Ádám distinguishes between three layers of constitutional values.

‘Among the components of the first layer of constitutional values, one may find values having existed already before constitutional regulation or existing independently of it, values that are generally considered necessary, useful or advantageous. […] A large, wide-ranging group and, at the same time, also the second layer of constitutional values is made up of objectives, tasks, basic principles, basic requirements, basic rights, basic duties, essential prohibitions, qualities, responsibilities, executive and other organizations, organs, institutions defined or established by the constitution-making power. […] As the third layer of constitutional values one may consider the provisions of the basic law pertaining to the values of the former two layers. Professor István Losonczy from Pécs qualified basic provisions and other legal regulations grounded on them as legal instrumental values in his excellent work on values written in 1948.’2

By comparison, the Constitutional Court made an attempt at outlining the content elements of the ‘scale of constitutional values’ in its decision on the conferment of honours.3

‘The scale of constitutional values of the Republic of Hungary comprises primary (fundamental) values defined in a normative way by the Constitution, constitutional principles and values deduced through construction from the normative provisions of the Constitution (derived values), as well as further values contained in the codes (statutes and other regulations) of the individual branches of law […] – which give expression to (i.e., mediate) the primary and derived scale of values of the Constitution. These values are

See earlier A. Ádám, op. cit. n. 1, at p. 39., and for the quoted text A. Ádám, ’A rendırség az alkotmányi értékek között’ [The Police and Constitutional Values] in Gy. Gaál and Z. Hautzinger, eds., Pécsi Határır Tudományos Közlemények IX. Tanulmányok a „Rendészet és rendvédelem – kihívások a XXI. században” címő tudományos konferenciáról. (Pécs, Magyar Hadtudományi Társaság Határır Szakosztály Pécsi Szakcsoportja 2008) p. 10

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Decision 47/2007. (VII. 3.) of the Constitutional Court, ABH [Decisions of the Constitutional Court] 2007-I. 620.

Solidarity in and beyond the Constitution?

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present in the interpretations (decisions) of the Constitutional Court and, in the final analysis, in the whole constitutional culture.’4

The Court considers ‘the scale of constitutional values’ as a scale of values defined by the existing social, economic and political system, fixed in space and time, the basic elements of which are laid down in the basic law during constitution-making by Parliament.5 The values expressed in the Constitution are called terminal values by the Constitutional Court; while legal regulations detailing constitutional provisions and implementing those ends are considered instrumental values.6

Solidarity – from the aspect of constitutional law – may be either a value having existed prior to constitutional regulation or one formulated by the constitution-making power depending on whether it appears in an implied or express form in the basic law. However, this will be examined more closely only in Point IV, since in order to establish the quality of solidarity as a constitutional value, it is necessary to explore the notion and legal relevance of solidarity first.