2016_1_Rady

Martyn Rady

Nonnisi in sensu legum? Decree and Rendelet in Hungary (1790–1914)

 

The Hungarian “constitution” was never balanced, for its sovereigns possessed a supervisory jurisdiction that permitted them to legislate by decree, mainly by using patents and rescripts. Although the right to proceed by decree was seldom abused by Hungary’s Habsburg rulers, it permitted the monarch on occasion to impose reforms in defiance of the Diet. Attempts undertaken in the early 1790s to hem in the ruler’s power by making the written law both fixed and comprehensive were unsuccessful. After 1867, the right to legislate by decree was assumed by Hungary’s government, and ministerial decree or “rendelet” was used as a substitute for parliamentary legislation. Not only could rendelets be used to fill in gaps in parliamentary legislation, they could also be used to bypass parliament and even to countermand parliamentary acts, sometimes at the expense of individual rights. The tendency remains in Hungary for its governments to use discretionary administrative instruments as a substitute for parliamentary legislation.

Keywords: constitution, decree, patent, rendelet, legislation, Diet, Parliament

 

In 1792, the Transylvanian Diet opened in the assembly rooms of Kolozsvár (today Cluj, Romania) with a trio, sung by the three graces, each of whom embodied one of the three powers identified by Montesquieu as contributing to a balanced constitution.1 The Hungarian constitution, however, was never balanced. The power attached to the executive was always the greatest. Attempts to hem in the executive, however, proved unsuccessful. During the later nineteenth century, the legislature surrendered to ministers a large share of its legislative capacity, with the consequence that ministerial decree or rendelet often took the place of statute law. Deficiencies in the drafting of bills and calculated neglect left large areas of the law to the determination of government and its agencies, expanding the domain of administrative discretion (freie Verwaltung). Whereas in the French revolutionary tradition, where the law was silent the citizen was free, in Hungary the reverse circumstance applied. Where the law was silent, the executive and its surrogates retained the right to intrude, enacting measures that were potentially injurious to individual freedoms.2

The executive, in the sense of the royal government, historically claimed the right to legislative intervention in Hungary on two grounds. The first was through the plenitude of power that attached to the monarch by virtue of his office. The ruler’s right to alter the law was frequently invoked in the Middle Ages, but scarcely survived into the modern period.3 The royal plenitude was only used by way of justification in respect of land trusts, the grant of which by the crown ran contrary to the customary traditions of noble land holding. There emerged as a consequence a branch of equity jurisprudence, administered through the chancellery, which operated independently of the customary law practiced by the kingdom’s courts.4 Unlike the situation in Bohemia, in Hungary the royal plenitude was never invoked in the early modern period to support a superior ius legis ferendae belonging to the ruler (Leopold I ordered that a pamphlet suggesting this be publicly burnt).5 The second right of intervention derived from the so-called power of supervision or Aufsichtungsrecht, which was underpinned by the first article of the laws of 1526. This entrusted the monarch “to use the authority and power he has to do with mature deliberation all that concerns the governance of the realm, the proper collection, increase and correct spending of His Majesty’s revenues as well as everything else pertaining to the defense, liberty and other needs of the realm.”6 The Aufsichtungsrecht, as deployed by Hungary’s rulers, made specific appeal to this provision for its justification.7

The right of supervision was manifested in a range of instruments, whereby the monarch influenced administration and justice—intimatoria, normalia, circulars, and so on. The two most important were patents and rescripts. The first of these was intended to make up for statute law where the existing law was deficient; the second to assist the implementation of statute.8 There was, nevertheless, considerable overlap between all of these instruments, on account of which they were frequently included together under the name of mandates or benignae ordinationes. On the whole, we may observe that patents and normalia dealt with matters of general significance and were communicated through the chancellery; rescripts involved the application of the law in specific instances; judicial mandates instructed court procedure; and intimatoria were published on the ruler’s behalf by the regency council.9

In the vast majority of cases, decrees of the monarch or of his surrogates were unexceptionable, treating either upon matters of temporary significance (the movement of prisoners, quarantine restrictions, signs of rabies, and so on) or of minor administrative import (the proper care of triangulation stations, the danger of lighting candles in stables, the lidding of tobacco pipes, and so on). Rescripts addressed to the courts were usually intended to speed up the judicial process, lifting cases to the highest court so as to close off subsequent grounds for appeal or transferring adjudication on the grounds that the judges were potentially partisan. Even when the ruler caused a case to be stopped or pulled it into the chancellery for adjudication, considered reasons were still given.10 Rescripts were emphatically not used, as was later claimed, to subvert the judicial process, for there were better ways of doing this, most notably through the appointment of special tribunals.11 Nevertheless, there were occasions when decrees were deployed as a substitute for statutory legislation. Having failed, therefore, to regulate seigneurial relations through a law agreed by the Diet, Maria Theresa imposed her urbarial reform by patent. Her reform of education undertaken in 1777 was similarly imposed by decree, without the agreement of the Diet, even though it trespassed beyond the sphere which customarily belonged to the monarch. The entirety of Joseph II’s legislation was enacted by decree.

Well before Joseph II’s reign (1780–1790), there had been considerable disquiet over the use of decrees. Statutes had, therefore, repeatedly stressed that mandates which contravened the kingdom’s liberties and laws should be neither enforced nor observed—Mandata contra Jura et Leges Regni non expediantur, Mandata contra Decreta Regni non observentur, and so on.12 The Revisionsklausel, included after 1687 in either the royal oath or the inaugural diploma (or both), likewise insisted that the monarch observe the political community’s “immunities, liberties, rights, privileges and approved customs as the king and the assembled estates shall agree on the interpretation and application thereof.”13 Nevertheless, the fundamental rights of the kingdom’s nobility were put beyond discussion, with the implication that they could not be altered either by decree or indeed by statutory law.14 Even monarchomaniacs, like the Judge Royal (országbíró, Landesrichter) Antal Mózes Cziráky (1772–1852), who otherwise claimed a royal right of suprema inspectio that applied to all bodies within the kingdom, conceded that the royal power could only be exercised in accordance with the law.15

Monarchs might, nonetheless, ignore these constraints with impunity. Maria Theresa’s chancellor, Miklós Pálffy (1710–1773), opined that decrees which were not in conformity with the kingdom’s laws were likely to lapse on account of their “lack of weight,” but his appeal to the principle of desuetude hardly carried conviction.16 Accordingly, in the aftermath of the Josephinist experiment, the newly-convened Hungarian Diet sought to hem in the powers of Joseph’s successor by having Leopold II (1790–1792) formally commit himself to govern in accordance with Hungary’s laws and customs and not to publish decrees unless they were in conformity with the kingdom’s laws—nonnisi in sensu legum.17

The problem was that the content of the kingdom’s laws and customs was uncertain. Notwithstanding its reputation as the bible of the nobility, large parts of István Werbőczy’s Tripartitum were no longer relevant (indeed, chunks of its text had from the very first been ignored by the courts). The Corpus Juris Hungarici, in which the kingdom’s statutes were printed, was moreover known to be defective and also to include materials that had been superseded by practice. Hungary was still a customary jurisdiction, on account of which the efficacy of the written law rested upon the degree to which its provisions had themselves been customized by use. In view of this, the Diet that assembled in 1790 instructed that the entire body of the kingdom’s law be revised and published so that its content be henceforward known and rendered immutable, even by royal decree. The Diet accordingly appointed nine committees or Deputationes Regnicolares to work out a thorough legislative settlement, which was to include not only the elaboration of codes of criminal, civil, commercial and procedural law, but also public administration, taxation, peasant obligations, the national economy, mining, ecclesiastical matters, education and culture, and the miscellaneous complaints of the Diet.18 The plan, as originally envisaged, was for the committees to work together to produce a body of draft legislation that would be put to a future Diet for approval as “a single uniform scheme […] all parts of which should make up an orderly and coherent whole.”19

The committees were uncertain whether their task was to accomplish a concentration of the laws as currently found or to devise a program of legislative reform. Leopold pushed for the latter, hoping thereby to force the modernization of the kingdom’s institutions.20 Although the committees entrusted with overseeing economic and cultural policies were innovatory, the majority assumed a largely conservative stance. The committee entrusted with judicial organization managed, therefore, little more in respect of the civil law than a rewriting of the Tripartitum and of János Kitonich’s early-seventeenth-century manual on procedure.21 The committees completed their work in good time, with most of their drafts ready by 1793 (the judicial committee took longer, finishing only in 1795). Nevertheless, the drafts that the committees had composed languished. The Jacobin trials of the 1790s and the climate of repression that followed made all thought of change not only otiose but also dangerous. Although the drafts were occasionally dusted off, and in the 1820s published in an emended edition, only very little of their content was converted by the Diet into statutory legislation.22 In the legislative gap, decrees of the monarch continued to intrude. Ignác Kassics’s Enchiridion, which listed the decrees of the ruler that were considered to be of general application, ran to over 4,000 items for the period between 1790 and 1824.23

The April Laws of 1848 borrowed from the Belgian constitution the principle that decrees of the monarch required counter-signature by the relevant minister. The executive power was accordingly to be exercised by the monarch “through an independent Hungarian ministry, in accordance with the laws [a törvények értelmében].”24 Hungary’s defeat in the War of Independence (1849) rendered these provisions redundant. Relying upon the doctrine of constitutional forfeiture (Verwirkungstheorie), Franz Joseph now administered Hungary in the manner of his other kingdoms, imposing legislation in the form of decrees. The Neo-Absolutist regime that he introduced may well have been radical and modernizing, carrying into effect the social revolution begun in 1848, but it relied upon instruments the constitutional validity of which had been previously voided by the terms of the April Laws. Neo-Absolutism proved, however, as unworkable in Hungary and the Habsburg Monarchy as in France. Military defeat and the refusal of the banks to extend loans to maintain the regime forced the retreat to constitutionalism begun by the October Diploma of 1860.

After several false starts, a constitutional solution was reached in Hungary in 1867. Legislative competence in most matters of domestic policy belonged to the legislature, which now became a recognizable parliament. The right of the monarch to legislate by decree was converted into a right that belonged to individual ministers, on the basis of which they might henceforward exercise executive power “on the basis of the laws and the constitution.”25 In the chaos surrounding the establishment of the new Hungarian government, ministerial decrees or rendelets took the place of statutory legislation, for there was simply no time to put through the parliament the bills necessary for the collection of taxes and military recruitment.26 The efficacy of rendelets was subsequently qualified by Law IV of 1869, “On the Exercise of Judicial Power,” which declared that the courts should “proceed and judge according to the laws, rendelets that rest on the law and have been proclaimed, and on custom that has the force of law. They cannot call into doubt the validity of properly proclaimed laws, but the judge shall decide on the lawfulness of rendelets in individual cases.”27 Both this and the requirement laid in 1867 that the executive power be exercised in accordance with the laws and the constitution were filled with holes. There was no constitution in the sense of a set of rules that adumbrated the competences belonging respectively to the legislature, judiciary and executive. Nor was there any normative statement regarding the rights and duties of the citizen. The customary law to which the 1869 law made reference was contested and its provisions were far from settled.28 The status of rendelets that were lawfully proclaimed, but which rested on neither custom nor statute, being intended to make up for a legislative deficiency, was not addressed. Plainly, much was left to the courts to decide, and the 1869 law endeavored to ensure that these should be as free as possible from governmental interference. Nevertheless, the right of the minister of justice to appoint to the bench compromised judicial independence and ensured that the courts were usually led by reliable (and badly paid) placemen.29

Hungary’s parliaments were never less than busy. Altogether, between 1870 and 1890, one thousand bills became law, a number that would more than double by 1930.30 Some of these were intended to lay the liberal foundations of a modern civil society—regulating the rights of members of national minorities (less than half of the citizens of Hungary were native Hungarian-speakers in 1910), establishing religious toleration, renewing the kingdom’s commercial legislation, enacting a new criminal code, and so on. Nevertheless, the legislation that was passed tended to be piecemeal rather than comprehensive. Large parts of the law, particularly those affecting legal equality and the remaining encumbrances on peasant tenures, were dealt with in a fragmentary fashion.31 Still, at the beginning of the next century, there were categories of woodland where the rights of peasant usufruct had not been legally resolved.32 The overwhelming share of legislation passing through parliament was given over to measures of only fleeting significance, being nuts-and-bolts administrative and financial provisions. Possibly as much as 80 percent of parliamentary legislation fell into this category.33

Legislation was not only partial, it was also often derivative. It was much easier to borrow foreign legislative acts than to draft bills from scratch. The problem was that the importation of models from abroad introduced a vocabulary and distinctions in law that were not applicable to Hungary. In copying the German Strafgesetzbuch of 1871, the criminal code of 1878–79, devised by Károly Csemegi, introduced a threefold classification of crimes, dividing these between bűntett, vétség and kihágás (corresponding to the German Tat, Verbrechen and Vergehen), that had no basis in Hungarian practice.34 The commercial legislation of the late 1870s was similarly taken from German law and smuggled in provisions of consumer protection without establishing a context for their implementation.35 A further round of borrowing saw the eventual establishment in the 1880s of a financial-administrative court for the resolution of disputes over taxation, fines and exemptions. Its competence was extended to other branches of the administration in 1896 and included most cases for legal redress against excesses or derelictions of duty by organs of state and local government. The inspiration for this development came primarily from the examples of the Austrian Reichsgericht (1869) and Verwaltungsgerichtshof (1875). Even at the time, however, the introduction of administrative courts was considered contrary to established Hungarian practice.36

The establishment of administrative courts created an artificial division between public and private law that opened up new problems of jurisdiction and of the appropriate forum for adjudication. This is precisely what we might expect, given that the “continental distinction” between public and private law was as foreign to Hungary then as it is to England today.37 Rather than tackle the problems of competence head on, however, successive governments chose not to legislate at all. Whole areas of activity were thus not covered by legislative provision, particularly in respect to the rights that belonged to individuals and their relationships to the offices of state power. Of these, the most signal involved the rights of association and assembly.38 There was, however, a similar legislative void in respect of the burgeoning number of land trusts (an individual right gifted by the monarch on the advice of the Minister of Justice) and the post office (a public body trusted with the delivery of private communications).39 The law of mortmain (holtkéz), affecting the individual right to give property to the churches, which were conceived of as public bodies, remained notoriously without any guidance in modern statute. It was ultimately left to the courts to determine that the restrictions on mortmain inherited from the Middle Ages had lapsed through desuetude.40

Further difficulties attended the civil law. The April Laws (1848) had promised a civil code to regulate land ownership and inheritance following the abolition of the antique rules of entail, inherited from the Middle Ages. No code, however, had been forthcoming. During Neo-Absolutism, the Austrian Civil Code had been imposed by decree of the monarch. It had been replaced in 1861 by the Provisional Judicial Rules, drawn up by a specially-convened assembly of lawyers and former judges (the High Judge Conference, Országbírói Értekezlet). By referring back to the Austrian Civil Code, the Provisional Judicial Rules provided the means whereby chunks of the Code were readmitted into Hungarian law.41 Moreover, the Provisional Rules did not apply to Transylvania, as a consequence of which the Austrian Civil Code continued to operate there, notwithstanding the reunion of Hungary and Transylvania in 1867. No new civil code, however, was forthcoming. A committee established in 1869 produced a mishmash of provisions that satisfied no one. A second committee was formed in 1894 with the brief of “elaborating a unified and systematic draft of the Civil Code, taking into consideration Hungary’s statutes affecting the private law and its customary laws, the drafts that have been already compiled, Hungarian judicial opinion and literature, and legal developments in other civilized states.”42 The committee took five years to produce a text running to more than 2,000 paragraphs. This was then published in a five-part edition in 1901–2, and sent out for comment. A revised draft was commenced in 1909, which on account of the need to accommodate criticisms resulted in an expanded text—the section on inheritance law doubled to 1980 paragraphs. The amended version was put before the Lower House in 1913 and revised by a parliamentary committee in 1915, but on account of the war it never received legislative sanction.43

There were two responses to the deficit in the kingdom’s statutory law. The first was judicial activism. The courts filled in the gaps by publishing decisions that might serve to guide subsequent judgments.44 Since, however, Hungary did not have a tradition of case law jurisprudence, these anterior decisions were not compelling. It was only after 1912 that a full session of Hungary’s highest court, the Curia, was empowered to issue decisions that were binding on the lower courts.45 In respect of the civil law, the courts relied for the most part on the drafts published after 1901. These had no basis in statutory law, but were instead comprehended as customary (and thus within the terms of the 1869 act), insofar as they were considered to derive their authority from court practice.46 In a similar fashion, the courts relied for their knowledge of criminal procedure on Csemegi’s draft of 1871 (the so-called Yellow Book or Sárga könyv), which was only superseded by a parliamentary statute in 1896.47

The second response was to rely upon ministerial rendelet with the consequence that a good part of Hungarian law was not parliamentary or even judicial in origin, but derived instead from administrative fiat. From the very start, however, ministerial rendelet was abused. First, parliamentary law making was invariably sloppy and more concerned with establishing general principles than with providing a thorough explication of the ways in which the law should be applied. It was intended that ministerial rendelet should make up for deficiencies in the drafting process, fleshing out on an ad hoc basis the details that the legislative instrument lacked. The law of hunting illustrates this trend. The two statutes published in 1883 that regulated hunting and hunting grounds consisted of only a few pages of text, altogether just over a hundred short paragraphs. Within eight years their statutory content had been amplified by several hundred ministerial interventions and rendelets that ran to almost two hundred pages.48 Year after year, issues of the Woodland Gazette (Erdészeti Lapok) and the Hunter’s Almanach (Vadászati Zseb-Naptár) carried pages of further administrative orders with which the dutiful huntsman and forester should comply. He was well advised to do so. Csemegi’s criminal code of 1878–79 had not defined the offences that fell within the category of kihágás (Versprechen). These were left blank; to be filled in by ministerial rendelet as the occasion arose.49

Secondly, rendelet was used not only to supplement existing legislation but also in place of it.50 Where the law was silent, ministerial regulations might be applied, which almost always worked to the state’s advantage. Since ministerial decrees of this type were not explanatory of an existing legislative instrument, their legality could not be challenged in any court, which permitted all sorts of abuses. The ministerial requirement that associations fulfill only single purposes was therefore used to harass trade unions and to ban societies that promoted the cultural interests of national minorities.51 The ministerial right to disband associations on the grounds that their goals were contrary to public moral (erkölcsellenes) was recognized at the time as entirely discretionary, even by one of the leading advocates of the state’s expansive right of supervision.52 An Interior Ministry rendelet of 1898 provided for imprisonment and a fine for the continued participation in a disbanded association.53 Restrictions on assembly, imposed by the Interior Minister or on his behalf by local police chiefs, often led to violent confrontations and deaths.54 Parliamentary challenges to the arbitrary power wielded by ministers came to nothing.55

According to the Law of 1869, the courts were obliged to take heed of rendelets that were in accordance with statute law and properly proclaimed. Not only, however, were rendelets deployed in the absence of law, to fill in a void deliberately left open by government, but their efficacy did not depend upon their publication. Confidential circulars of the Interior Ministry laid down requirements necessary for meetings, with which the courts were bound to comply. The right, moreover, of ministers to adjust the application of rendelets on grounds of expediency was also affirmed, and this permitted the terms of a published ministerial rendelet to be altered without notice.56 A rendelet might on occasion even be used to overturn the provisions of statute law. In 1871, therefore, the Ministry of Commerce decreed that Hungarian was the only language that might be spoken in an official context on the railways, even though this regulation contradicted if not the letter then certainly the intention of the 1868 Nationalities Law.57 A series of ministerial rendelets further hemmed in the language rights previously accorded by statutory legislation to the nationalities.58

The reliance on extra-statutory instruments, which marked the Dualist period, continued into the twentieth century. It was characterized by such egregious nonsense as the Interior Ministry rendelet of 1927, “On the defense of public morals,” that, among much else, forbade the “chatting up” on the streets of “respectable” women and, later, by the disregard shown by the Communist government for any distinction between statutory legislation and ministerial instruction.59 In the consolidation of communist rule, statutory legislation took second place to ministerial decree, with often the most important measures being implemented by order of the presidential council.60 The Constitutional Court, which took office in 1990, accordingly demanded from the outset that gaps in the law, which might be exploited to the detriment of the rights of the citizen, be filled with statutory legislation. The Constitutional Court’s “jurisdiction of omission” forced governments to proceed through parliamentary acts rather than through ministerial instruments.61

Notwithstanding the Constitutional Court’s activism, a tendency remains for governments in Hungary to proceed through decree and administrative fiat. It was estimated in the late 1990s that 80 percent of the regulations currently then in force originated in administrative rather than parliamentary acts.62 Many of these measures consist of technical provisions that are explanatory of statute, but some plainly substitute for parliamentary legislation. Therefore, when a bill aimed at establishing regional governments was blocked in 2006, parliament was simply bypassed and the necessary implementation inaugurated by governmental decree.63 Likewise, after 2010, the details of legislation and its subsequent application were in areas of particular controversy devolved to agencies of government, rather than originating in statutory provision. If the rights of the citizen are to be protected, the executive branch needs to show forbearance in its use of administrative instruments, in which respect the will of the electorate, as translated into a government majority in parliament, is not the same as a democratic mandate. As György Schöpflin argued more than twenty years ago, a successful democracy requires “self-limitation, the readiness to exercise a self-denying ordinance on the part of all those who exercise power, in society as well as in the state.” Schöpflin’s conclusion is, however, as pertinent now as it was at the time: “There is considerable evidence to suggest that self-limitation is barely understood by the post-communist systems and only occasionally practiced.”64 In this respect, the concert of the three graces remains as discordant today as it was more than two hundred years ago in Kolozsvár.

 

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