Hanley 1 The Living Laws of Legal Importation Michael Hanley Princeton University

The growth of transnational judicial networks has generally been lauded as one of the key stepping-stones towards a new world order under the rule of law. Judges are increasingly willing to cross borders for legal advice, and constitutional structures and norms often become the commodities shared among this diverse group of peers. Indeed, Anne-Marie Slaughter claims that judges around the world are coming together in various ways that are achieving many of the goals of a formal global legal system: the cross-fertilization of legal cultures in general and solutions to specific legal problems in particular, [and] the strengthening of a set of universal norms regarding judicial independence and the rule of law.1 While the growth of mutual understanding over important issues is an undisputed good, one must question the quality and applicability of these constitutional goods once they have crossed the border. Are imported norms, legal structures, and techniques of jurisprudence ever identical to the original once implemented in a new setting? Are the norms imported to fulfill the same purpose, or done so out of personal interest? This paper will wrestle with these questions, proceeding by negative example. The specific case study will focus on the Hungarian Constitutional Courts borrowing of an Italian interpretive norm, diritto vivente, to resolve a case involving guardian and family rights. To best illustrate this case study, I will first explain diritto vivente as has been developed and used in Italian jurisprudence. I will then turn to the Hungarian case, focusing on the Courts attraction to

Slaughter, Anne-Marie. A New World Order. Princeton: Princeton Univ. Press, 2004.

Hanley 2 the norm and its application in the ultimate decision. With this background, it will be clear that diritto vivente was incorrectly applied in this case, being used as a means to expand the Courts competencies rather than as an approach to evaluate the case at hand. As such, the use of living law overstepped both the boundaries of the Hungarian Constitutional Court and the intent of diritto vivente as developed by the Italian Constitutional Court. The lessons from this case study, when applied generally, will caution transnational judicial networks and other international legal institutions to practice fidelity and avoid self-interested motivations when importing legal norms.

Diritto Vivente in Italian Jurisprudence Before examining the case study in depth, it is necessary to first understand context in which the imported legal norm, diritto vivente, was first developed. Diritto vivente, or living law, most basically represents the view that, of all the interpretations possible of the text of a law, the court must primarily focus on that which has been previously interpreted in case law the law that lives in present legal interpretation.2 In Italian jurisprudence, this norm has been both developed in legal theory and reinforced through the structure and practices of the Constitutional Court. In theory, Italian legal scholars note that diritto vivente represents the present life of the legal norm, legitimated through the processes of institutions that employ legal interpretation in order to turn that norm from mere theoretical exegesis into a more determinate and applicable

Groppi, Tania. The Italian Constitutional Court: Towards a Multilevel System of Constitutional Review? Constitutional Courts: A Comparative Study. Ed. Andrew Harding and Peter Leyland. London: Willy, Simmonds, and Hill, 2009. Pp. 125-147. Print. Pg. 132.

Hanley 3 form.3 Since the institutions of law and the state are changing constantly, the interpretation that gains favor will naturally change over time. Citing Ehrlich, theorists contend that attempting to limit diritto vivente to one singular mode of interpretation would be as futile as trying to capture the current of a river in a pond [i]l diritto vivente comincia ad essere qualcosa che racchiuder e accomuna tutte quelle dimensioni e pretende, quindi, di non poter essere ridotto a territorio disciplinato dalle partizioni scientifiche. Sarebbe, aggiunge Ehrlich, come voler racchiudere limpetuosa corrente di un fiume in uno stagno.4 Since the living law is constantly changing, theorists argue that both jurisprudence and case law serve to justify and legitimate the interpretation, as it exists in the present. It is also argued that the standard of reasonableness at the level of the Constitutional Court hinges on the use of prior case law: Il ruolo della giurisprudenza sarebbe, allora, quello della nota interpretazione, applicazione in cui il diritto vivente giustificazione ex post. La stessa giustificazione interviene nelle sentenze della Corte Costituzionale in cui si fa ricorso alla metafora della ragionevolezza, che sempre da leggere come qualche altra cosa (il principio duguaglianza, ad esempio) e che configura un vero e proprio procedimento argomentativo che pu servire tanto per legittimare quanto per delegittimare una legge.5

Resta, Eligio. Diritto Vivente. Diritto Vivente: Il ruolo innovativo della giurisprudenza. Ed. Alarico Mariani Marini and David Cerri. Pisa: Pisa Univ. Press, 2007. Pp. 73-83. Print. Pg. 74. 4 Ibid 78. My own translation as follows: The living law begins to be something that encloses and unites all of these dimensions, and demands to not be able to be reduced to a discipline by being systematically partitioned. It would be, Ehrlich adds, like wanting to enclose the impetuous current of a river in a pond. 5 Ibid 80. My own translation as follows: The role of jurisprudence/law would be, then, that of the mark interpretation, application in which the living law is justified ex post. The same justification steps in in the decisions of the Constitutional Court, in which use is made of the metaphor of reasonableness, that is always read as something else (the principle of equality, for example) and that amounts to a true process of argumentation that can serve to legitimate or delegitimize a law.

Hanley 4 In practice, diritto vivente serves as an integral part of both the judicial structure and the interpretive processes of the Constitutional Court. As Tania Groppi notes, the average citizen can only access the Court via a posteriori review, often arising from a constitutional question in the case of a lower court.6 In accord with the theory of living law, this ensures that the topic of constitutional importance has seen some interpretation in the judicial process, and that a judge with legal training submits the constitutional challenge. Indeed, the challenge submitted to the Constitution must indicate the relevance and plausibility of the question, the law challenged, and the constitutional provision that it allegedly violates.7 To bolster the importance of prior case law on the issue, the Court focuses not on the issue in the abstract, but rather on the interpretation of the lower court constitutional review is limited to the question presented and must be carried out within the limit of the challenge.8 Not only does the Court ground its standard of reasonableness on interpreting the living law, its decisions also focus on the interpretation of lower courts, rather than ruling on the abstract issue. Sentenze di rigetto reject the constitutional challenge in the form in which it was raised, however they do not declare the law constitutional. Meanwhile, sentenze di accoglimento accept the interpretation of the lower court, and declare the law in question unconstitutional, nullifying it in a universal manner.9 In either scenario, the lower court is then left to decide the case, and,

Groppi 128-129. A posteriori review means, importantly, that the Italian Constitutional Court does not hear constitutional complaints, a mode of general access often seen in other European countries. The Italian Court does have other means of access, but these apply primarily to disputes between regions, or branches of the government. 7 Ibid 128. 8 Ibid 129. 9 Ibid 129.

Hanley 5 in the case of a sentenza di rigetto, is free to employ a wholly new interpretation of the constitutional challenge in its ruling.10 Overall, the doctrine of diritto vivente is dense and expansive, and this brief survey cannot possibly cover every aspect of this norm.11 For our present purposes, however, we have gleaned several important points. Most obviously, diritto vivente represents the interpretation of the law of the lower courts, and serves as the version of the law focused on by the Court. Less obvious, however, is the level to which this legal norm is intricately tied to the judicial structure of the Italian system. Not only does conform to the means by which most can access the Constitutional Court, it also guides and, in a way, limits the scope through which the Court can interpret a constitutional question. We will see how these factors become relevant in the Hungarian experience of living law.

The Family Act Case of the Hungarian Court Adopted in 1952, the Act IV on Marriage, Family and Guardianship (henceforth referred to as the Family Act) allowed, under section 43(5), children within one year of the age of majority to challenge the presumption of paternity. However, since minors are not considered as having standing, section 44(1) of the Act allows for statutory agents i.e. parents for minors to act as the party initiating the case. Yet as the 1952 Act III on the Code of Civil Procedure provides, judgments against the defendant are not allowed retrial if, following the judgment, the

10 11

Ibid 133. Indeed, this survey represents one of the first overviews of the norm in the legal language, as most legal theory on the topic remains in its Italian original!

Hanley 6 child is legally recognized by someone conferring the force of parental authority.12 Interpreted together, as had been done by the Supreme Court, these laws effectively meant that the right conferred by section 43(5) of the Family Act exists as a mere formality if ones parental authority had already been questioned as a child, since an effective right to clarify his or her parentage would no longer exist, even after reaching adulthood.13 Prior to the case, the child of Mr. Jnosi Antal initiated proceedings, via a guardian at litem, against his father, which resulted in the father having to turn over his custody of the child. After having lost his appeal to the Hungarian Supreme Court, Jnosi Antal submitted a constitutional complaint to the Hungarian Constitutional Court. In the complaint, he argued that the effective denial of the rights conferred by section 43(5) of the Family Act runs contrary to the guarantees conferred by Article 67(1) of the Constitution.14 After acknowledging its capacity to accept the complaint, the Hungarian Court immediately cited the applicability of living law to the facts on the ground: the Constitutional Court should not compare the normative text in itself with the content of the provisions of the Constitution, but the norm which prevails, becomes effective and is realized namely, the

12

All of the applicable laws are further explained in the English version of the decision: Decision 57/1991: 8 November 1991. Constitutional Judiciary in a New Democracy. Ed. Lszl Slyom and Georg Brunner. Ann Arbor: Univ. of Michigan Press, 2000. Pp. 171-177. Print. Pg. 171. 13 The reasoning is as follows: Since a child is not considered a standing party in court, he or she must be represented by a party with standing a parent or guardian at litem for the case of minors. However, this renders the rights of the child under section 43(5) as a mere formality in some cases. For example, if a guardian or interested party initiated a case while the child in question was still a minor, then the prohibition against retrial, under Act III of 1952, deprived the child of the right to initiate a trial personally later on, especially after reaching adulthood, since section 43(5) had been interpreted to imply that the child has a nineteen-year window to challenge his or her parentage. 14 Article 67(1) of the Pre-2012 Constitution reads: In the Republic of Hungary, every child has the right to enjoy the care and protection on the part of their families, and by the State and society, that is necessary for satisfactory physical, mental and moral development. Argument of the defendant cited in: Slyom and Brunner 171-172.

Hanley 7 living law.15 Following this definition of living law, the Court stated that it must follow the interpretation of the Supreme Court, as not doing so would intrude the competencies of that court: If, however, the given interpretation of the legal rule is dependent upon the guiding determination of the Supreme Court as is also the case with the legal rules challenged by the current petitions then a determination of the normative content diverging from the Supreme Courts interpretation would encroach upon the Supreme Courts competence.16 Having set these background boundaries of interpretation in accord with their definition of living law the Court proceeded to interpret the relevant case law in the same manner as the Supreme Court had done. In doing so, the court effectively decided that the relevant law means that the child has no legal possibility whatsoever upon reaching the age of majority to establish or clarify his or her family status.17 In ruling on the constitutionality of this situation, the Court first focused on the challenge as issued by the petitioner that the inability to ascertain ones biological heritage violates Article 67(1) of the Hungarian Constitution. The Court quickly dismissed this claim, noting that the provision of Art. 67(1) of the Constitution may not be interpreted to contain a childs right to ascertain his or her parentage. From the aforementioned constitutional provision only a right to receive actual family care can be derived.18 In short, then, the specific challenge submitted by the petitioner was invalid.

15 16

Ibid 174. Ibid 175. 17 Ibid 176. This applies to cases mentioned in the above interpretations of the case law, where a proceeding had already been initiated, and Act III of 1952 prohibits retrial, even if it is the child doing so after reaching adulthood. 18 Ibid 176.

Hanley 8 However, the Court then continued to view the matter from a different angle through Article 54(1) of the Constitution, which guarantees a general right to life and human dignity that cannot be arbitrarily deprived. From this view, the Court argued that: [T]he right to self-determination and self-identification is also part of the general right of personality. And the right to self-determination and self-identification encompasses that most personal right of every person to ascertain, discover or question his or her parentage and to demand that nobody apart from the directlyaffected blood relatives should question his or her origins. Depriving him/her of this right by legal proceedings initiated by third parties, having unquestionable and unreviewable consequences, violates the childs right to identity and therefore concurrently results in a violation of the constitutional right of personality. For this reason the Constitutional Court holds that the irrevocable forfeiture of a childs right to ascertain his or her parentage by conferring upon the statutory agent an unqualified right to sue is unconstitutional.19 By these means, and not those contained in the original petition, the Court moved to strike the section 44(1) of the Family Act, and ordered the reinstatement of Jnosi Antal as the designated father on his sons birth certificate.20 The dissenting opinion, authored by Justice Kilnyi, criticized the use of living law as an interpretive tool in this case. He argued that the use of living law encroaches upon the ability of the legislatures to establish a rule of law that would be respected and given effect. As Kilnyi

Ibid 176. Ibid 172. In a sense, the Court nullified the rulings of the lower courts via the order to reinstate Mr. Antal as the father for the sake of establishing a more general right to know ones parentage.
19 20

Hanley 9 stresses, the legal rule which is subject to an ex post facto norm control by the Constitutional Court is the text published in the Hungarian Official Gazette and not the version corrected and thereby distorted by the practice of its application. Any contrary interpretation amounts to a recognition of the legitimacy of a customary law to corrupt and amend the law.21 The dissent also argued that the Court, should it accept the theory of living law, would have to constantly monitor its application across the lower courts to ensure consistency and conformity, a task for which the Court would not have the resources nor the competency.22 Finally, the dissent expressed disdain that the legislature, its competency, and the law in question were punished simply because the application of the law in the lower courts seemed to violate a broad interpretation of the Constitution.23

The Attraction to Use Living Law Before transitioning to a more systematic evaluation of the import, it would be fruitful to first touch on the attraction to this norm that caused the Hungarian Court to use it in the first place. This attraction was twofold first, Hungary, as an emerging democracy at the time, often drew from other constitutional democracies during this formative period in order to establish a solid foundation of jurisprudence. Secondly, the facts of the case seemed to lend themselves to the use of diritto vivente as a means of resolving the issue. I will address each of these in turn. By the time this case emerged, the Constitutional Court had only had less than two years of experience in interpreting case law and establishing constitutional norms. As a court

21 22

Ibid 177. Ibid 177. 23 Ibid 176.

Hanley 10 functioning in a post-communist state, the Constitutional Court had minimal knowledge of constitutional interpretation, and thus depended on its democratic peers for advice and hermeneutical techniques. As post-communism scholars have noted, imported law represented the alternative ideal of justice, ie an alternative ideological justification to that prevailing under communism. In most post-communist countries, the change of regime had to time to elaborate an alternative set of values on which to rebuild their societies.24 Judges on the court have even commented that from time to time the American doctrine of compelling state interest and the German doctrine of proportionality appear in the practice of the Constitutional Court, and the institution of the living law is obviously from Italy.25 Additionally, German influence also existed in the through the judges, who were mostly taught law in Germany.26 Thus, borrowing a foreign norm seemed normal and appropriate, and the Hungarian Court was reportedly eager to balance out foreign influences when selecting diritto vivente in Italian jurisprudence.27 Another way that the use of diritto vivente seemed appealing concerns the actual facts and applicable laws of the case. At issue was the fact that section 44(1) of the Family Act seemed to lend itself to multiple interpretations. With a certain interpretation, that given previously by the Supreme Court, the section seemed to pose a set of laws that were selfcontradictory. Thus, some normative interpretation seemed appropriate, especially one that addressed the supposed purpose of the law. Such a blank check in deciding the norm behind the

24

Dupr, Catherine. Importing Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity. Oxford: Hart Publishing, 2003. Pg. 161. 25 Fzr, Katalin. The Invisible Constitution: The Construction of Constitutional Reality in Hungary. International Journal of Sociology. Vol. 26(4): 1996-1997, pp. 48-65. Pg. 50. 26 Slyom, Lszl. The Role of Constitutional Courts in the Transition to Democracy. International Sociology. Vol. 18(1): March 2003, pp. 133-161. Pg. 144-145. 27 Ibid 145.

Hanley 11 law seemed to grant the Court a formidable amount of power in this case. The Hungarian Constitutional Court thus decided that the living law should be useful in deciding on the issue in the abstract.

Evaluation of the Hungarian Import Despite these attractions to diritto vivente, a comprehensive evaluation shows that the norm was out of place with the Hungarian judicial structure and competencies. As a result, it becomes clear that the norm was applied in this case, detached from its contextual judicial structure, as a means to access a competency not available to the Hungarian Constitutional Court at the time, rather than as a means to properly practice an Italian legal concept. In the end, the Hungarian use of living law hangs in some limbo, between its correct usage in Italian jurisprudence on one side, and the judicial activism of the first Hungarian Court on the other. I will elaborate this argument below. The application of diritto vivente went wrong in that it did not adequately recognize that the judicial structures of Hungary and Italy differ significantly from one another. While this point has been implied throughout the paper, it deserves a more detailed consideration here, focusing on two key differences between the Hungarian and Italian Constitutional Courts the means to access and the consequences of each courts rulings. One important difference between the two courts concerns the means of access. As aforementioned, the Italian Court exercises, with few exceptions, a posteriori review, which

Hanley 12 means that the cases mostly arise from lower court proceedings.28 In focusing on a posteriori review, the Italian Constitutional Court gradually developed a competency to focus only on the challenge and interpretations of the lower court when making its decisions.29 The Hungarian Court, on the other hand, has a much wider range of access, including a posteriori review, abstract review, retrospective abstract norm control, advisory opinions, and constitutional complaints.30 Importantly, as defined by the codification of complaint procedures in 1989, constitutional complaints require the Hungarian Court to employ a strict reading of the law to see whether it complies with the related abstract constitutional norm. At the time, constitutional complaints were not codified as a means of legal redress.31 Since this case was a constitutional complaint, the Hungarian Court, by its own formative laws, could only evaluate the challenged textual law in relation to an abstract constitutional norm. Thus, by its own codified procedures, the Constitutional Court could not have used diritto vivente in evaluating the merits of this complaint. Another way that the Courts differ concerns the consequences of the decisions between the two. The Hungarian Court, in deciding a case, upholds a law as either constitutional or unconstitutional.32 By contrast, the Italian Court rules on the challenge submitted by the lower court judge. While a sentenza di accoglimento rules the contested law unconstitutional, a

28 29

Groppi 128. Ibid 129, 132. 30 Halmai, Gbor. The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court. Constitutional Justice, East and West, Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective. Ed. Wojciech Sadurski. New York: Kluwer International, 2002. 189-211. Pp. 230-233. 31 Halmai 244. 32 In other words, the Hungarian Court rules similar to most Constitutional Courts in the continental system, and the Supreme Court in the common law system. Of course this does not include more nuanced techniques of avoiding the issue altogether, although these lie outside the scope of our consideration.

Hanley 13 sentenza di rigetto does not necessary declare the law in question constitutional it merely declares the judges interpretation unfounded. Such a measure seems to encourage multiple challenges on the same issue over time, which effectively allows the Constitutional Court to gauge what the diritto vivente actually is.33 Importantly, the ability to declare lower court interpretations as unfounded in sentenze di accoglimento shows that the Italian Constitutional Court can, if necessary and appropriate, issue interpretive decisions, even when the case law on the matter is quite limited. In these rulings, called sentenze interpretive di rigetto, the Italian Court deems the interpretation of the lower court to be out of line with the Constitution, and proceeds to offer an interpretation of the law in conformity with the Constitution.34 This alternative interpretation of the Italian Court does not immediately become living law, as it has not seen consistent interpretation in the courts. Rather, the new interpretation offered by the Court is relayed back to the lower judge, who then decides the case. Should the judge rule in favor of this new interpretation, it would then have the established authority in case law that constitutes diritto vivente.35 By contrast, the Hungarian Constitutional Court, by focusing on what it perceived to be the living law in the case, locked itself into considering only the Supreme Courts interpretation of the Family Act in the decision. Since the Hungarian Court has no mechanism for sending unfounded interpretations back to the lower courts, it was instead left to consider the

33

Indeed, most of the controversial issues in the Courts jurisprudence including church-state relations, abortion, adultery, and the immunity laws have each seen multiple cases submitted to the Court over time. See, Alito, Samuel. An Introduction to the Italian Constitutional Court. Princeton: Princeton Univ. Press, 1972. 34 Groppi 134. 35 Ibid 134-135. This mechanism essentially serves as a check against the power of the Constitutional Court, ensuring that any alternative interpretations that they offer are put through further court interpretation before becoming living law.

Hanley 14 constitutionality of the relevant Family Act previsions without the possibility of offering other possible interpretations of the text. Altogether, these differences between the two Constitutional Courts beg the question why did the Hungarian Court feel it appropriate to use diritto vivente in the first place? Not only was a textual interpretation of the law the requirement for Hungarian constitutional complaints, but the Court also did not have the judicial structure to adequately give all other possible interpretations of the law the opportunity to become the living law. The answer, I suggest, is that the Court did not use diritto vivente to incorporate an Italian practice into Hungarian jurisprudence. Rather, the Court opted to employ diritto vivente as a means of expanding its competencies. By invoking living law, the Hungarian Court asserted that it has the right to evaluate the constitutionality of both the textual law and the applied version of that law, even though the Court never did have the capacity to evaluate the latter. As members of the legal community have argued, by examining the Supreme Courts reasoning in the context of a constitutional complaint, the Constitutional Court slipped into the forbidden territory of legal enforcement, thereby infringing the jurisdiction of the Supreme Court to pass judgment and determine the proper legal remedy.36 Incidentally, in its argument for using the concept, the Court suggested that living law could preserve the competencies of the Supreme Court. Plus, in an atmosphere where borrowing foreign legal concepts was the norm for this young Court, it seemed plausible for the Court to offer the Italian model as a justification for expanding its competencies. As it turns out, however, the Italian model imported was detached

36

Halmai 244-245.

Hanley 15 entirely from its place in the Italian judicial structure, making its presentation in the Hungarian decision seem entirely out of place.

An Italian Approach to the Family Act Case To make the most recent point clear, and as a means of summation, let us speculate how the Italian Court would have approached this case, as it had been submitted to the Hungarian Court. In the interest of demonstrating the extent to which the two Constitutional Courts are different, I will allow for alterations to the Family Act Case so as to allow the case to proceed through the Italian Court as fully as possible. As had been implied before, the case, had it been submitted to the Italian Court in the exact same manner as it had been to the Hungarian Court, would not have been accepted in the first place, as the Court does not have the competency to hear constitutional complaints. To get around this issue, let us assume that the complaint had been submitted by a judge from the Corte di Cassazione instead. For now, let us also maintain the complaint in its original form, assuming that the judge had contended that the realization of the laws contained in the Family Act ran contrary to an article similar to Article 67(1) of the Hungarian Constitution.37 Additionally, we could allow the judge to contend that the applicable laws, if interpreted as they have been in this case study, mean that the child only has a nineteen-year window to ascertain his or her parentage.

37

Such an article could be Art. 30 or Art. 31 of the Italian Constitution, which establish duties of the parent to support his or her children, and the right to support and protection of the family by the government, through benefits and laws. Interestingly, Art. 30 also provides that the law shall establish rules and constraints for the determination of paternity.

Hanley 16 Allowing for the case to be heard, the Court would then examine the living interpretation of the Family Act provisions, and see if they violate any section of the Constitution. Relative the original challenge the Italian Court would agree with the Hungarian Court in that Art. 67(1) has little to do with the constitutional question at hand.38 The Italian Court would then reject this part of the challenge out of hand. If the living law in this matter did render the applicable rights of the Family Act unattainable, the Court would then focus on how it was interpreted, rather than assuming that the law must be stuck down. As briefly mentioned before, the Italian Court often finds itself issuing sentenze interpretative di rigetto, in which the Constitutional Court offers the ordinary courts an interpretation that would render the statute consistent with the Constitution, thereby saving it from unconstitutionality.39 In this case, the Court would offer an interpretation of the Family Act that does not contradict itself and allows for the right to know ones parentage, arguing that the constitutional challenge issued by the lower court had incorrectly interpreted the applicable law. Should this sentenza be accepted and applied by the lower Court once issued, it would have the precedent within court procedure required to become living law. Even if the Court could not find an alternative interpretation, it would not immediately strike down the law as the Hungarian Court did. Rather, the Italian Court would likely cite the last part of the 30th Amendment, which notes that the law shall establish rules and constraints for the determination of paternity. In not wanting to intrude on the competencies of the legislature, the Court would issue an additive di principio. With this sentenza, the Court does
38

It could also be said, for the sake of consistency, that the Italian Court would reject the challenge if it were framed relative to Article 31 of the Constitution. If the challenge were presented relative to Article 30, the result would be different, as explained below. 39 Groppi 134.

Hanley 17 not insert new rules into the legal system, but only principles, rather like a framework legislation, that the legislature must give effect to with statues that are universally effective, indicating a deadline within which the legislature must act.40 In practice, the Court would uphold the challenge, yet would allow the legislature to redraft a law before the decision comes into effect. These decisions both safeguard the Constitution, and also ensure that the Court does not encroach upon powers expressly given to the legislature. This thought process serves to show how diritto vivente, when applied within its own context, could have reasonably ended up with greatly divergent results from that experienced by the Hungarian Court. The Italian Court, having had nearly fifty years of experience in ruling on living law, would not have diverged so greatly from the case so as to derive a general right of personality from an abstract right to dignity. They also would not have suddenly used diritto vivente as a means of expanding their competencies of review. On the other hand, the Hungarian Court, looking to both define itself in the first years of its operation and to draw from the successes of many other jurisprudences, saw the use of diritto vivente as an opportunity. In citing living law, the Hungarian Court looked to justify an expansion of its competencies so that it may review relevant case law during constitutional complaints, and so that it may expand its jurisprudence on dignity to include a general right to personality.

Conclusion General Lessons So what general lessons can we glean from this case study? The first lesson, one that applies to transnational judicial networks, is that those that seek to import or export

40

Ibid 136.

Hanley 18 constitutional norms must take into account the target constitutional structure when doing so. Second, this case study provides a surmountable amount of skepticism towards policy projects that purport to provide the rule of law to developing countries. In some ways, the first lesson represents a narrowed version of the golden rule of legal translation. As legal scholars have aptly argued that the law is deeply contextual and that it cannot be detached from its social and political environments.41 As our case study shows, judicial structure could be added to the list of things from which law cannot be detached. Both translators and policymakers alike should have their respective translations deemed unethical if they do not adequately take into account the context of the original text, custom, or law. In a sense, it was for this reason that the Hungarian Court was so strongly criticized for its use of diritto vivente in a decision that seemed completely out of context with the jurisprudence of the Court. Secondly, this case teaches us to be skeptical of institutionalized practices that completely disregard this golden rule of legal translation. Ironically, many rule of law policy projects, claiming to have the noble purpose of establishing the rule of law in developing countries, are most often operating in defiance of this rule. Rather than implementing structures of governance that conform to the culture of the target country, policy projects have instead worked on imposing Western legal norms on other societies.42 Such an approach has been met with few tangible results, even resistance from the target country in most cases. The fact that
41

Upham, Frank. Mythmaking in the Rule of Law Orthodoxy. Promoting the Rule of Law Abroad. Ed. Thomas Carothers. Washington, D.C.: Carnegie Endowment, 2006. Pp. 75-104. Pg. 75. 42 Kleinfeld, Rachel. Competing Definitions of the Rule of Law. Promoting the Rule of Law Abroad. Ed. Thomas Carothers. Washington, D.C.: Carnegie Endowment, 2006. Pp. 75-104. Pg. 52.

Hanley 19 these organizations have not changed their approach in response to these failings suggests that other motives may be at play. As the Hungarian case showed, the importation of diritto vivente was necessarily incomplete, as it was being used as a means of expanding the powers of the Court. A fully faithful rendering of the norm, as has been shown, would have lead to a different result. Perhaps this notion of fidelity in legal translation can serve as a measure of whether institutions have ulterior motives in importing or exporting legal norms.

Hanley 20 Works Consulted Alito, Samuel. An Introduction to the Italian Constitutional Court. Princeton: Princeton Univ. Press, 1972. Decision 57/1991: 8 November 1991. Constitutional Judiciary in a New Democracy. Ed. Lszl Slyom and Georg Brunner. Ann Arbor: Univ. of Michigan Press, 2000. Pp. 171-177. Dupr, Catherine. Importing Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity. Oxford: Hart Publishing, 2003. Fzr, Katalin. The Invisible Constitution: The Construction of Constitutional Reality in Hungary. International Journal of Sociology. Vol. 26(4): 1996-1997, pp. 48-65. Groppi, Tania. The Italian Constitutional Court: Towards a Multilevel System of Constitutional Review? Constitutional Courts: A Comparative Study. Ed. Andrew Harding and Peter Leyland. London: Willy, Simmonds, and Hill, 2009. Pp. 125-147. Halmai, Gbor. The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court. Constitutional Justice, East and West, Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective. Ed. Wojciech Sadurski. New York: Kluwer International, 2002. 189-211. Kleinfeld, Rachel. Competing Definitions of the Rule of Law. Promoting the Rule of Law Abroad. Ed. Thomas Carothers. Washington, D.C.: Carnegie Endowment, 2006. Pp. 31-73. Resta, Eligio. Diritto Vivente. Diritto Vivente: Il ruolo innovativo della giurisprudenza. Ed. Alarico Mariani Marini and David Cerri. Pisa: Pisa Univ. Press, 2007. Pp. 73-83.

Hanley 21 Slaughter, Anne-Marie. A New World Order. Princeton: Princeton Univ. Press, 2004. Slyom, Lszl. The Role of Constitutional Courts in the Transition to Democracy. International Sociology. Vol. 18(1): March 2003, pp. 133-161. Upham, Frank. Mythmaking in the Rule of Law Orthodoxy. Promoting the Rule of Law Abroad. Ed. Thomas Carothers. Washington, D.C.: Carnegie Endowment, 2006. Pp. 75104. Pg. 75.

This paper represents my own work in accordance with University regulations. Michael K. Hanley 15 January 2013