Constitutional dialogue theories – extension of the concept and examples from Hungary

Abstract In this paper I try to enumerate and systemize dialogic theories worked out mainly in common law states and draw the attention to the possible existence of other

kinds of constitutional dialogue and dialogic interaction in civil law states. Common law constitutional dialogue theories are about how to solve the counter-majoritarian difficulty and how to give a proper normative account of the role of judiciary in the constitutional democracy and how to find the proper constitutional meaning, especially in the interpretation of human rights.¹¹ Bateup Christine, The Dialogic Promise. Assessing the normative potential of theories of constitutional dialogue, Brooklyn Law Review 71 (2006) 1109. The revision of the paper required by editors was supported by Bolyai Janos Research Scholarship. The major issues of common law constitutional dialogue (counter-majoritarian problem and the role of judiciary)²²After the emergence of these constitutional dialogue theories, scholarship, mainly still in common law states, started to expand its possible meanings to the interactions of organs beyond legislature and courts, as it “goes without saying that participants in the nation’s constitutional dialogue include more than the major governmental actors and their activities". Heise Michael, Preliminary Thoughts on the Virtues of Passive Dialogue, available at < http://www.uakron.edu/law/lawreview/v34/docs/heise341.pdf >, 1 Fn 1. are, however, more or less solved in civil law system, where Kelsenian theory of judicial review is acknowledged; however in a constitutional democracy it is always a goal to find the proper constitutional meaning. Exactly that is why a revised or modified idea of constitutional dialogue may be used to study the existing dialogic mechanisms in civil law states. Defining it as a complex decision-making process in a constitutional democracy will lead us to the recognition that judicial constitutional dialogue theories of common law states and constitutional dialogue theories at regulatory level may be regarded as its interconnected constituent elements. This kind of constitutional dialogue occurs in constitutional democracies but does not necessarily observe its substantial or material form as it, in certain circumstances, may transfer to a more formal constitutionalism resulting in an eroding democracy and more formal constitutional dialogue. There is a danger that this kind of process may have been started in Hungary since 2010.