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6 February 2017

Constitutional Governance and the Common Good


As a specialist in civil and commerical law, I am glad to have the opportunity to contribute to the restoration to political thinking in Hungary, after several years of conspicuous absence, of the notion of service of the common good as a legitimate aim and obligation of the state.

It is particularly important to address questions concerning the service of the common good now, at a time when it has become abundantly clear that over the past several years Hungary has found itself in the grip of an increasingly dire economic, social, and moral crisis. Corruption has caused the social fabric to fray at an ever more rapid pace. We face a demographic crisis as well. The birth rate continues to drop, leaving the country with a shrinking workforce that will hardly be able to sustain the systems providing financial support and health services for the elderly. Finally, institutions of higher education, charged with the tasks of passing on knowledge to the next generation and fostering critical, analytical thinking skills, find themselves in an ever more desperate situation compared with similar institutions in the rest of Europe.

In my attempt to suggest a perspective from which to consider these issues, I begin by offering a few words on the notion of the common good in general.

I then address the significance of the common good in the course of good governance and the presence of this notion in the draft principles of the new Hungarian constitution. I examine the question of the balance between individual rights and the common good and conclude with a discussion of the means through which to serve the common good on the one hand and the obstacles and risks that must be taken into account on the other. Given the complexity of the issue at stake, my various observations must be understood as part of a larger coherent approach. Any individual remark taken in isolation will invariably distort the cogency of my suggestions.

In Hungarian, the terms “jó” (“good”) and “jog” (“right,” “justice,” and “law”) are etymologically related. “Jog” is an ancient Finno-Ugric word, and a variant of “jó.” The word was reintroduced into common usage in the early 19th century by the so-called language reformers, a generation of linguists and writers who sought to make Hungarian an effective language of state by coining new terms or reviving old ones. Thus “jog” became the Hungarian term for jus. The word is related to “jó” in much the same way that the words “right” in English and “Recht” in German mean “correct,” “proper,” or simply good. It is therefore perhaps not uninteresting to consider the relationship between the common good and rights, justice, and the law.

This relationship has been a prominent topic in the history of ideas for over two-thousand years. In Plato’s Republic the power of the state is based on moral principles, the recognition and selfless service of justice and the common good. According to Quintillian, the great master of rhetoric among the ancients, the most fundamental question will always remain whether a given law is morally right and useful. Saint Augustine also approaches the law from this perspective by formulating law as a matter of natural morality, which according to his faith was rooted in divine law. Saint Thomas Aquinas developed the notions of Plato and Augustine further, emphasizing unambiguously that only laws that serve the common good can be considered just. For a law, he wrote, “is an ordinance of reason for the common good, made by him who has care of the community.”

Naturally in order for us to be able to consider the question of the common good and rights, the common good and law, we must believe that there exists a common good which is not simply the sum of individual interests, rights, and freedoms, but embodies rather the good of the whole of a community. Furthermore, we must believe that this common good can be intelligently and intelligibly formulated, represented, and realized in the course of political initiatives. Thus “common good” is not merely a legal category, but rather a philosophical, political, and economic concept of value, which has served as a reference point for centuries. One could refer, as the culmination of this historical process, to an example from recent times: In an encyclical letter entitled Caritas in Veritate, Pope Benedict XVI again emphasized that, “Alongside the good of the individual there is a form of good that is connected to the communal lives of peoples: this is the common good. The common good is the good of ‘all of us,’ a community comprised of individuals, families, and intercultural groups that have united into a social collectivity.”

Unquestionably it would be difficult and perhaps well-nigh impossible to specify the precise meanings of common good, not least of all because these meanings vary from culture to culture, community to community, and epoch to epoch. But equally unquestionably the notion itself indicates that, like the individual, any given community has rights and possessions that warrant safeguarding, independent of time and place. Common good is not synonymous with common interests, for it bears unambiguously positive values. The difference between the two is roughly the difference between “good” and “interest” themselves, which are not, after all, always identical.

An approach to the law based on common good, in other words an approach founded on ethics, is relevant not simply when considering matters of public concern, but also in determining the framework of economic policy and activity. Economics cannot simply be conceptualized according to the logic of market forces and the profit motive. The common good must play an important role as well, and the service and protection of the common good is not exclusively the task of market players. Indeed it is not even the primary task of market players, but rather of the political community and its leaders.

The common good figures in the course of governance both implicitly and explicitly. In democratic societies the governing body acts implicitly in the interest of the common good when it endeavours to develop state structures and formulate systems of governance that serve the effective and durable establishment, guidance, and defence of the political community, as well as the promotion of its interests, while at the same time guaranteeing the rights and freedoms of its citizenry.

At the same time the common good figures in a far more direct form in the course of governance when the authors of a constitution establish values fundamental to the survival of a community over the course of changing periods of history. The proposal concerning the principles of the new Constitution quite appropriately offers numerous examples, several of which are worth citing. According to the proposal:

as the most fundamental and natural community between a man and a woman, marriage enjoys particular protections, as does the family which is built on its foundation;

as a basic human right, every human life is guaranteed protection from the moment of conception; human life and dignity are inviolable;

the constitution must address the care of those in need and the protection

of youth as a goal of the state;

it must formulate the obligations of national defence and the shared bearing

of the burdens of public need as obligations of the citizenry;

its basic provisions must include the stipulation that the allocation of public property and public monies serve the public interest, without however impeding future generations from satisfying their own needs;

service of the common good means strengthening the identity of the nation as a political community and reference to the Crown of Saint Stephen as the symbol of Hungarian statehood.

Clearly we are not speaking merely of abstract ideas or principles, but rather the establishment of strategic national aims. When, for instance, we speak of the defence of the life of an embryo, we must consider the responsibility born by the Hungarian nation for several million abortions and several million innocent lives extinguished over the past fifty years, not to mention the psychological, social, and economic consequences of abortion, which may well throw into question the survival of the community. One cannot help but wonder if perhaps the price of our transgressions will be the fate prophesized by a Cheremiss folk song:

 

The waters flow, the banks are still.

We leave this place, others remain.

We leave this place, others remain.”

 

The most complex and sensitive question is undoubtedly the relationship between common good and human rights, an unavoidable issue in the course of responsible governance. The question is hardly new. The classic example, a subject of debate now for centuries, is the question of the right to property and its limitation in the name of the social responsibilities of ownership. Over the course of the past decade lawmakers in Europe and the United States have had to address this question in the search for appropriate and effective means to address problems of organized crime and the threats of terrorism. One thinks of the new branches of electronic communication, where it is crucial to find the balance between the preservation and accessibility of information and protection of the right to privacy. But one must also measure – to mention a particularly sensitive example – the freedom of the press on the one hand, as a self-evident right and value, and on the other the protection of human dignity and the defence of the youth.

It is frustrating to acknowledge that there are no entirely satisfactory solutions. There is no universal formula or standard. Neither the fundamentalist, essentialist protection of basic rights nor the simple expansion, in the name of the common good, of state power to the detriment of individual rights is an acceptable solution to the challenges Hungary is compelled to face at the beginning of the 21st century.

The Constitution of the Hungarian Republic was fundamentally revised in 1989. In the text, which formulates the foundations of the constitutional state, there was a provision that made it possible to limit fundamental rights. According to the provision, “The exercise of fundamental rights can only be subjected to restrictions established in constitutional laws that are necessary in the interests of the protection of the security of the state, domestic order, public safety, public health, public morals, or other fundamental rights and freedoms.” In 1990 Law XL was passed, deleting this paragraph from the Constitution.

Yet the experiences of the past two decade demonstrate that we cannot build a balanced, well-ordered community if we endeavour exclusively to attain and guarantee maximal freedoms and rights understood on the level of the individual. This can lead only to a diffuse, atomized society, lacking internal coherence and incapable of the minimal self-defence necessary for survival. As it strays towards libertinism, absolute liberalism dissipates community.

Recognition of this fact appears in the principles proposed for the new constitution, where one again finds the notion that, “in the interests of the defence of the good reputation of others or other fundamental rights, and the defence of the security of the nation, public safety, public health, and public morals, there is a place for the restriction of fundamental rights to the degree necessary to achieve these goals.”

This principle contains – with emphasis on and respect for the importance of proportion and degree – the possibility of the restriction of fundamental rights in the interests, essentially, of the common good. I must refer here, however, to a warning given several decades ago by Hungarian specialist of civil law, professor Endre Nizsalovszky, in his inaugural address to the Hungarian Academy of Sciences: “The jurist must remain aware that his certainties are only certain according to abstract theories, but the sources of his illumination cannot compete with sun of God in the heavens.”

The search for the common good and the attempts to formulate its significance thus do not end with legislation on the Constitution. In the course of legislation, or even the application of the law and the consideration of the facts of specific cases, the problem of the precise meaning of the common good and the best means of its service will again arise. An individualistic conception of freedom may conflict with and even contradict a communal conception, thus in practice we may well have to weigh the good of the individual against the good of the community, or vice versa. Where can we look for guidance? What sources of illumination can cast light on the path we tread in our search for the common good?

Having considered the importance and the complexity of the service of the common good as an obligation of good governance, I would now offer answers to questions that will inevitably arise if we attempt to meet this obligation. Is it possible, one might begin, that we will fumble and blunder in our search for the common good? It is unquestionably possible. Will the other countries of Europe and the world support our intention to serve the common good in Hungary? Not necessarily. International economic life, the media, and the world of diplomacy often strive to achieve different aims in the service of other interests. Would it then be better for us to abandon our search for the common good? Unquestionably no, we must not abandon our search. The search for the common good is an elemental national interest and part of the essence of responsible governance, but we must pay close heed to the rules of the art of governance as well.

How can we then address the tensions between the questions and the answers listed above? How shall we proceed in our search for the common good? The first rule – which I have mentioned once already – is respect for proportion and degree. For, as John of Salisbury notes in his Policraticus, the principal work of political theory of the 12th century, “To incline to the right hand signifies to insist too enthusiastically on the virtues themselves. To incline to the right is to exceed the bounds of moderation in the works of virtue, the essence of which is moderation. For truly all enthusiasm is the foe of salvation …; nothing is worse than the immoderate practice of good works. Wherefore the heathen author says:

 

The wise man will get the name of mad, the just man of being unjust,

If he pursue virtue itself beyond the measure of what is sufficient”

 

Mutatis mutandis, this golden rule should be a standard in the realization of the common good. We cannot go as far as the politicians of happier lands in happier times, such as another Salisbury, the conservative British Prime Minister in the 19th century, according to whom “good government consists of doing as little as possible.” In Hungary this never would have been expedient or practicable. In this part of Europe the organizing power of the state is essential. But proportion and degree, circumspection and caution are also necessary in the course of endeavours to serve the common good. For as a Chinese wise man once said, there are paths that one should not tread and cities one should not besiege.

There is an organic corollary to this rule according to which one must always acknowledge and assess political realities. One of these political realities for Hungary, a reality we must accept, understand, and make an integral part of our thinking, is that we are part of a European and trans-Atlantic political community, institutional structure, integrated economic whole, and community of values. And let there be no doubt about it, whatever particular disadvantages there may be, in the aggregate we benefit from the economic and political unification of this part of the world. It would be a tremendous and even tragic loss if Europe were again to “fall apart into some thirty-one jealous and suspicious states,” as Hungarian author Sándor Márai once wrote.

Should one seek a counterexample, it suffices to consider the desperate and on the whole fruitless foreign policy efforts of the Hungarian state between the two World Wars to break free of the international isolation in which the state found itself folllowing the signing of the Treaty of Trianon. This should be compared with the scope of action and influence offered by Hungary’s position now as the state that holds the Presidency of the European Union. One should also consider that France and Germany, countries geographically and demographically several times larger than Hungary, have twenty-nine votes each in the Council of Ministers of the European Union, while Hungary has a disproportionately high twelve. Rarely if ever in its history has the country had such a formally codified ability to influence European affairs.

Many have cherished the dream of attaining the position we have reached today, and for at least some twenty-five years many have worked devotedly to realize this dream. But when of our own will we become members of the club, we must of course recognize its rules. Paragraph 2/A of the Constitution now in force makes reference to this: “The Republic of Hungary can exercise the authorities deriving from the Constitution together with the other members states; this exercise of authority can be effected independently or through the channels of the institutions of the European Union.” This provision is quite rightly included in the principles of the new Constitution. It would be a serious error to think that national interests are relegated entirely to the background in the European Union; rather they simply become part of a new frame of reference and are realized in accordance with new rules.

The values embodied in the European constitutional tradition and the norms established in the European Convention of Human Rights and the European Union Charter of Rights are part of this common frame of reference. These, however, define limits, not regarding the notion of the common good so much as the means through which the common good can be achieved. Legislation and the pursuit of the common good through legislation therefore is not taking place in some kind of terra incognita or no man’s land of international politics, but rather within integrative frameworks established by law in which strong institutions invested with supranational powers (first and foremost the European Commission and the European Court of Justice) safeguard the enforcement of European law. Their decisions are not merely expressions of pious political aspirations, but rather rulings and verdicts bearing consequences that in given cases can cost several billion forints.

Naturally one could write a separate article on the question of the extent to which the Union itself has served the common good of its citizens. Such an article might begin with the fact that the Union does not dare espouse, even on the level of political rhetoric, the Judeo-Christian religious tradition that constitutes the cohesive cultural essence of the continent. It could continue with criticism of bureaucracy and conclude by noting that the Union has still not shown adequate resolve in addressing questions of demographic decline, the problems of multiculturalism, or the conditions of historical national minorities. Instead the European Court of Human Rights and the European Court of Justice have devoted considerable attention in their rulings to relationships between homosexual, lesbian, and transsexual individuals, and perhaps even homosexual, lesbian, or transsexual marriage.

But this does not essentially change the situation: Hungarian politicians and the governing party, even in its best-intentioned quest to discern and serve the common good, must recognize and take into consideration the concrete realities delimiting its scope of action, including the institutions of the European Union and legal systems in effect. For there is little hope of changing these fundamentally at one fell swoop. Rather we must prepare ourselves to work with resolution and resilience if we seek to achieve our aims, and we must be equally prepared to show abiding patience in our attempt to serve, however possible, the common good through legislation and diplomacy. We must remind ourselves of the words of poet Sándor Reményik, “However possible, …”

(This English text is based on a presentation to the Batthyány Foundation Conference at the Hungarian Academy of Sciences, 20 January 2011.)




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