Game of Values: The Threat of Exclusive Constitutional Identity, the EU and Hungary

• Published in: German law journal Vol. 18; no. 7; pp. 1721 - 1744
• Main Authors: Körtvélyesi, Zsolt, Majtényi, Balázs
• Format: Journal Article
• Language: English
• Published: Toronto Cambridge University Press 01.12.2017
• Subjects: Constitutional law; Democracy; Discourses; Equality; National identity; Otherness; Political systems; Populism; Redefinition; Reliance; Rhetoric; Trends; Values; Hungary
• ISSN: 2071-8322; 2071-8322
• DOI: 10.1017/S2071832200022513

There is an increasing, or increasingly visible, societal trend in the EU and beyond—often followed by constitutional changes—that challenges inclusive constitutional values. The discourses underlying these changes emphasize the inviolability of national identity and redefine it with a strong reliance on exclusive constitutional values. This Article asserts that exclusive constitutional values—that are defined as values that question the moral equality of some members of the community—necessarily shrink the room for inclusive values, and a critical mass of exclusive values can lead to a hallowing out of a democratic order, both on the national and on the supranational level. The Article presents Hungary as a case where the populist-exclusivist elements of political rhetoric—that are also present elsewhere—became part of constitutional law and have transformed the political system. The case study shows how the redefinition of Member States' constitutional identities, along recent societal trends and exclusive constitutional values, could clash with the inclusive values of the European Union and relegate European institutions to the position of “the Other,” thereby endangering constitutional democracy. In particular, the Article shows how the rule praising and recognizing diverse Member State constitutional identities can work to embolden the already strong trend to challenge inclusive constitutional values.