MTA Law Working Papers

A Jogtudományi Intézet műhelytanulmányai

Gábor Mészáros: Carl Schmitt in Hungary: Constitutional Crisis in the Shadow of Covid-19

There is an emergency model which can be called ‘autocratic’ emergency model in which the government’s main aim is to create an emergency regime without a real threat. In this model, which can be discernible in the Hungarian regime, the so-called threat is not present or even real instead the government tries to maintain some kind of fear in the society in order to make the extra-legal measures more acceptable. That was the case in Hungary before 2020, but as the new coronavirus flourished the Hungarian constitutionalism and the rule of law withered. In Hungary the fictitious emergencies were simply tools in the hand of the Government. The first step was the new category of ‘mass migration crisis’, which enabled the use of extra-legal measures in the ordinary legal order. The second step was the sixth Amendment of the Fundamental Law of Hungary which supplemented the Special Legal Orders chapter with the ‘Emergency Response to Terrorism’. Finally, by the year 2020 it became evident that, regardless of the strict state of emergency regulations, the Government uses the emergency measures as blank cheque in order to gain more and more political power. As the article asserts the declaration of the state of danger was unconstitutional because human epidemic is not involved in the listing of the constitution. The constitutional concerns have become even more complicated after the acceptance of the “Enabling Act” which gave unconstrained power for the Government. The spirit of Carl Schmitt’s theory of the sovereign is again emerged. As the coronavirus and its immediate effect necessitated extra-legal measures, the threshold between the rule of law and exceptionalism was fading swiftly and legal constitutionalism became a pleasant memory.