Mirosław Granat

Human Dignity in Regard to  Human Rights in Illiberal Constitutionalism

This article deals with the relationship between human dignity and human rights in constitutionalism that labels itself ?illiberal?. This relationship is assessed on the basis of the Hungarian Basic Law of 2011. It is argued that this type of constitutionalism creates logical correlations that affect the approach to human rights. As a consequence, it seems that one can apply human dignity against human rights. Illiberal constitutionalism introduces systemic changes that cannot lead to changes in freedoms and rights as such; for instance, limitation of the freedom of speech because of the dignity of the nation.
The notion of dignity in the Hungarian Constitution is ?overburdened? as it encompasses many notions that remain in certain ?tension?. For instance, linking the dignity of the nation with human dignity leads to the limitation of the freedom of speech. The paradox of illiberal constitutionalism is that the role of human dignity increases at the expense of human rights. The logic of this constitutionalism is thus not only an attack on institutions (e.g. courts), but also an inevitable change in the approach to human rights.
The illiberalism of the illiberal constitutionalism expresses itself, foremost, in its different approach to an individual and his or her position in the state. In a liberal order the individual is autonomous and, in a certain way, separated from the nation. In an illiberal order, the individual is connected to the nation: a human being is not only an individual but an individual immersed in the nation and the dignity of the nation.

Balanced budget as a principle of law in the financial crisis case law of the Constitutional Tribunal

This article deals with the judgments of the Constitutional Tribunal, issued during the financial crisis, concerning citizen’s social rights.

Without doubt, the Constitutional Tribunal’s judgments issued during the financial crisis took into account the importance of state’s balanced budget. The Constitutional Tribunal applied and promoted this principle in process of balancing of the constitutional principles. Despite being controversial, the judgments in question were issued in a particular situation and were a consequence of a rational discussion. Each case of balancing of principles of law by a constitutional court takes place in a concrete moment, and therefore is not abstract in its character.

The author explores the value that the Constitutional Tribunal ascribes to balanced budget and to the goods that were endangered during the crisis, such as valorisation of pensions. The article shows that the Constitutional Tribunal treated balanced budget as a principle of law and interpreted it narrowly. In this sense, budget balance signified a balance between the income and expenditure of the state. Such an interpretation of the balanced budget led to the understanding of the balanced budget as an economic indicator, that is to say as a type of financial bill of the state.

The author argues that this understanding of the balanced budget (as a balance between the income and expenditures of the state) – in contrast to Constitutional Tribunal’s understanding – does not have a rank of a constitutional principle. In such case, balanced budget is an instrument of state’s economic policy, or has a character of a rule of law. The author states that in constitutional law the principle of balanced budget should be understood as a responsible economic policy of the public authorities. In this sense, balanced budget is anchored in the principle of common good (Article 1 of the Polish Constitution). A (responsible) economic policy of the state is one of the dimensions of this common good.

Questions about the Future of Constitutionalism. The Strength and the Weakness of Comparative Law

The future of constitutionalism revolves around two critical issues which we see against the backdrop of the crisis of liberal democracy. The first issue concerns the conflict between the “judicial” constitutionalism and “political” constitutionalism. The “judicial” constitutionalism assumes a strong role of courts in a democratic system. Only courts can decide on compatibility of law with the constitution. In turn, the “political” constitutionalism assumes that the parliament decides on constitutional law. The rivalry between these two constitutionalisms seems to be the matrix of contemporary political dilemmas. The result of this rivalry is important for the efforts to end Polish constitutional crisis, as we will have to decide on the constitutional benchmarks applicable after the crisis. The second issue concerns the limits of constitutionalism. The author argues that the current digital era created a new phenomenon of digital constitutionalism. It operates in the sphere of private law relationships, dominated by private entities (big corporations). The relevant provisions for the digital world are the private law provisions. Comparative law and comparativists are crucial for answering the questions on the future of constitutionalism. The conflict of the two visions of constitutionalism and the extension of its limits are a great “training ground” for the comparativists.