Informal Institutional Elements as Both Preconditions and Consequences of Effective Formal Legal Rules: The Failure of Constitutional Institution Building in Hungary

Abstract

Abstract Institutions are made up of the interplay of three components: (i) formal rules, (ii) actual practices, and (iii) narratives (the last two are referred to jointly as informal institutional elements). However, lawyers in post-socialist countries do not see law through institutionalist lenses, but often nurture a false and simplistic idea of the law: they consider it to be the sum of rules, often disregarding the actual practices of the rules’ addressees and the narratives attached to the law (encompassing everything from the raison d’être and goal of the institution, its symbolism, the public discourse surrounding it, to social attitudes toward the institution). This restricted view makes Hungarian lawyers blind and to a certain extent also defenceless against recent authoritarian tendencies. Institution building has been a moderately successful feat in Hungary. To put it more pessimistically, it has partially failed since the end of socialism, in particular when it comes to actual practices and narratives. In the Hungarian context, consideration of the problems of institution building suggests two general conclusions: on the one hand, the lack of unison among the individual elements (rules, practices, narratives) renders institutions less stable and consequently less capable of inducing compliance with the law; on the other, the institutions that have been established have failed to deliver prosperity to the political community. This Article describes the constitution making of 2010–2011 from the perspective of institution building. This institutionalist view of the law yields two main specific findings: First, historical experience shows that in addition to honest determination, a swift, radical institutional overhaul of a complete legal system can only be sustainable in the presence of an external pressure, the effect of which has unfortunately decreased with Hungary’s accession to the European Union. That is, institution building should go hand in hand with effective international and EU obligations undertaken in more sober political moments to guarantee that the political community will not later enter into a self-destructive mode. Second, if they took more consciously into account elements beyond mere rules, such as actual practices and narratives in the realm of legislation, the application of the law and legal training would ideally result in the gradual reinforcement of substantive cultural elements. This, however, requires political action, more precisely the adjustment of formal rules. Since this is not in the interest of the incumbent decision makers, overcoming the impasse seems unlikely for the time being.