strengthening of the natural law approach

It is worth noting here that today we can witness the slow strengthening of natural law concepts – interpreted in the broadest sense possible – again. in connection with law posi-tivism, which can still be considered to rule the suggestion according to which ‘law as a momentum belonging to a norm and value system, needs the justification of its validity, which is lifelike; and the fact that the changing world of positive experience cannot provide satisfactory justification could be hidden only until the philosophical spirit tied to the one-sided scientific erudition has regained its consciousness’.³³⁰

However, the natural law direction of the legal concept outlined today stands before us as a basically relative natural law argument that is strongly bound both in time and space, forits point of reference is often nothing else than the direct pressure created by a crisis, meaning the financial and other crises going on since 2008.

However, we should not think that the various natural law principles and ways of thinking have penetrated into Hungarian law/legal life in the recent years only; this is a phenomenon that is presumably a process, only the ‘strong thickening’ of which can be observed in the recent period examined by us. even the Hungarian compensation process was born from the ‘actualisation’ of certain natural law principles after the system change,³³¹ for the partial correction of the previous legitimate decisions could take place only because they were unfair and realised ‘arbitrary deprivation’ in a legitimate way.

the newest natural law – optionally with Christian foundation and content – is new in a way that it does not trace the provisions of the positive law back to the creator of the legal material or the principles strengthened in ‘legal history’ etc. but accepts the general principles and itemised expectations of the – worked out – system of belief, that has a wide social embeddedness – typically the Bible in our culture – as a direct justification and a necessary resultant of a certain regulation. of course today it is still a hard question to decide whether the references to the identity of god, the relation to him and religious heritage³³² in the domestic and EU laws are just symbolic acts of the legal system appearing as ‘residual items’ or the substantial formers of the legal way of thinking themselves?! Only time can give an answer to the questions but the direction of the change already seems clear. it is conspicuous observing the debate about Fundamental law that what a great number of refer-ences to Christianity and the Christian values appeared in order to support the raison d’etre

330 Kecskés Pál: Természetjog. In: Szabó Miklós (ed.): Natura Iuris. Bíbor Kiadó, Miskolc, 2002. 220.

331 In details see: Dr. Prugberger Tamás – Dr. Szalma József: A természetjog és polgári jogi kodifikáció.

[Natural law and civil law codification] Magyar Jog 2003/3. 129–139.

332 the preamble of act Xlv of 2010. act on the testimony about national Belonging: ‘We, the Members of the Parliament of the Republic of Hungary, who believe that god is the lord of history, and who try to understand the course of history from other sources, for our country and the whole of the Hungarian nation, in the spirit of our responsibility set in the Constitution (…)’.

113 feaTureSofThelegalSySTemandofTheSySTemofSocialnormSin hungary…

of the certain principles and provisions. this particular ultima ratio role of Christianity also prevailed in the circle of clearing the concept of historical constitution, and it is not a coincidence either that in the debates that evolved regarding the content of the preamble, the two most often raised – and questioned – elements were religion and the Sacred Crown.³³³

today, as was mentioned above, – in connection with the role of the state – the opinions that from the (new) Public Management state concept and the Neo-Weberian state concept strongly argue in favour of the latter are getting stronger; for as much as they state that instead of the aspects of cost efficiency and result orientation etc. and the ‘dismissal’ and

‘dis-magic’ of the state coming from that, and the bigger and bigger outsourcing of state functions, the creation of a stronger and more active state should be pursued. Since it became more and more common from the ‘70s that various governments financed a wide range of welfare services, but they often assigned for-profit or non-profit organisations to the actual service activity. this way the expansion of welfare care was temporarily available without the substantial increase of bureaucracy.³³⁴ opinions about the success of the new public management have been different from the ‘80s: some considered it a miracle, while others pointed out that with the introduction of the new theory, the best case scenario is/was the saving of 3% of the costs of public institutions.³³⁵

new approaches also consider the maintenance of the requirements of the rule of law important, and the further enforcement of certain efficiency aspects, but they consider the substantial involvement of the elements of strategic thinking and strategic planning into public politics inevitable. Followers of the strong state – that in the dispute about good government and good governance take sides more decisively in favour of the importance of the former – argue that transparency, accountability and responsibility that appear as basic requirements are only possible where the well rethought strategy of the cooperation between the state and the private sphere appears contrary to the uncertainties of, for exam-ple, outsourcing and PPP constructions that dismiss sharp boundaries. PPP constructions proved to be especially unsuccessful in Hungary: the studies prepared by the Development and Methodology Institution of the State Audit Office of Hungary clearly showed that market research necessary for the foundation of the projects and the impact study about the oppor-tunities of implementation were missing in the majority of the cases, moreover, no economic and cost-comparison calculations were made (!); most of the specific constructions did not meet elemental (classic) expectations – that had the state’s interest in view – imposed on PPP investments either, for during such an investment the implementation (construction), availability and operating risks (would have) had to be born by the investor.³³⁶

333 See in details: Antal Attila – Novák Zoltán – Szentpéteri Nagy Richárd (eds.): Az alkotmány arca:

preambulum tanulmányok. [Face of the constitution: preamble studies] L’Harmattan, Budapest, 2011.

334 Lester M. Salamon: The rise of the non-profit sector. Foreign Affairs (1994) vol. 73, no. 4, 2.

335 Hosszú Hortenzia: Az állam szerepe a kormányzásban. [The state’s role in governance] In: Hosszú Hortenzia – Gellén Márton(eds.): Államszerep válság idején [State role in crisis] COMPLEX Kiadó, Budapest, 2010. 51.

336 Báger Gusztáv: A köz- és magánszféra együttműködésével kapcsolatos nemzetközi és hazai tapasz-talatok. [international and domestic experiences in connection with the cooperation of the public and the private sphere] Állami Számvevőszék Fejlesztési és Módszertani Intézet, Budapest, 2007. 63.

114 TheTranSformaTionofThe hungarian legal SySTemafTer 2010

in connection with good governance theories it is unavoidable to state that this trend does/did not react to the problems coming from the Western european development, but it is/was an artificial requirement system established for the developing world the primary aim of which is/was the increase of the subsidy absorbing and utilising the capacity of the beneficiary countries, in a way that the ‘right’ regulation methods of the relationship of the state and the society and the desire for the introduction of appropriate market mechanisms were defined, urging the takeover of the model compatible with the Western democracies.³³⁷ nevertheless, the expression good governance is a construction appearing in the attempts to describe the features of Western countries’ economic development.³³⁸

We can state that the ‘market turn’ reduced to privatisation and outsourcing at the very end of the 20^th and the very beginning of the 21^st century did not result in real competition in Hungary. ‘Public institution monopoly was often replaced by private monopoly. the pri-vatisation of public services resulted in the formation of a client system; outsourcing often became a source of increasing corruption. (…) So, the efficiency of public services was not increased significantly by the application of market mechanisms. The common thesis that private companies are more efficient in public services than public institutions was not jus-tified by practice in any country in the modern world so far.’³³⁹ the embeddedness of these ideas was strengthened by the factthat according to the neoclassical economic perception, the state has to intervene only in the case of services – like home defence, education, public and asset safety, environmental protection etc. – where the market does not operate perfectly or at all. until recent times it was also presumed in Hungary that the tasks performed by the state are expressedly second-class compared to tasks performed by private companies working according to the instructions of the market.³⁴⁰

of course the ‘rediscovery’ of the state is not a direction that can be absolutised; if the state has solved all tasks through the central bureaucracy it could hardly avoid critics regard-ing the totalitarian – and what is at least as important, the less efficient – state. Basically this is the reason why the tasks acknowledged and undertaken by the state are just partly solved by the state itself, according to the principle of subsidiarity, and in many cases the state relies on the help of institutions of the economic and civil sphere and religious institutions.

an important fact that is not closely related to what i have said, is that such forms of state intervention can be possible that do not curb the autonomy enjoyed in the private sphere, but – in certain cases – they expand it. the expansion, centralisation, lets say na-tionalisation of education, social and healthcare are typically good examples of this. We see this direction being realised in all three fields in Hungary based on the current political commitments and regulation intentions.

Magyary Zoltán Public administration Development Programme – which was started with the intention of making public administration to be of national nature equal to the previously favoured efficiency aspect – became one of the frames, and the continuously

337 Hosszú (n 335) 53.

338 Mark Bevir: Key Concepts in governance. Sage, Delhi, 2009. 95.

339 Jenei (n 159) 95–96.

340 Csáki György: A fejlesztő állam – új felfogásban. [The developing state – in new perception] In: Csáki györgy (ed.): A látható kéz. A fejlesztő állam a globalizációban. [the visible hand. the developing state in globalisation.] Napvilág Kiadó, Budapest, 2009. 13–14.

115 newconTenTSofnormScreaTedandmainTainedbyTheSTaTe

renewing and ‘rephrased’ base – beyond public administration – of the Hungarian govern-ment’s ideas regarding the good state after 2010.³⁴¹

By today it has become clear also in Hungary that changes within the traditional ad-ministrative (public administration) institutional system did not solve the problems alone anywhere. the answer, therefore, is twofold, on the one hand the reinvention of the state is going on (the replanning of the catalogue of public duties and the replanning of the public task performer), on the other hand the performance of public duties, especially public ser-vices – which cannot be fitted into the scope of a narrow public administration and system of tools – is realised through organisations, tools and methods with constantly renewing shapes and types.