In his tiny room at the legal faculty of Oxford University, Mos Maiorum's Ferenc Hörcher and Kálmán Pócza met John Finnis to discuss issues about legal transitions, the European constitutional process and the Vatican.

John Finnis, legal philosopher

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MM - As a legal philosopher, how do you see the debate about the new Hungarian Fundamental Law, particularly about the provision declaring the previous constitution invalid ab initio?

 JF – I think legal philosophers should be very cautious in commenting on the constitutions of other peoples.  I do see a prima facie problem with the enactment of a new constitution by a legislative body established under the very constitution which its new one declares to have been invalid ab initio (and therefore invalid at the time of the constituting and electing of the legislature or constituent body).  But I assume that that problem is dealt with in the express or implied provisions of the new constitution about the validity of enactments, orders and judgments made during the period before its adoption.  Since a main function and justifying purpose of law is to link a community’s present and future to its past, the presumption of continuity of law is very strong.

MM - Is there anything you find problematic in the new provision of the constitution which refers to the achievements of the historical constitution, and if so, what?

 JF – I do not securely understand the terms of the provision.  A priori I do not see why a constitution should not refer, and refer favourably, to one or more of the constitutions or arrangements which preceded it.  How that would count in judicial interpretation of the present constitution is something that could not be settled without a knowledge of your country’s traditions and doctrines of interpretation.

 MM - In Hungary, both the founding and the present presidents of the Constitutional Court already expressed doubts about the incorporation of the reference to the historical constitution into its own interpretative practice. They seem to share Kelsen’s positivistic and voluntaristic approach to the law. What is your view on this matter?

 JF – Well, Kelsen’s approach to law, although it is in some respects in line with the legitimate interest of lawyers in finding the validitating criteria of present law in past acts of application of yet prior and “higher” norms of authorisation, is nevertheless unsatisfactory in various ways.  One of its most serious weaknesses relates to constitutional foundations, where it sets aside continuity in some respects and exaggerates it in other respects.  I explored some of these weaknesses of the Kelsenian approach in the 1960s, when various courts in the English-speaking world attempted to apply it in the aftermath of coups d’état, attempts which had unconvincing results.  But having said all that, I do not see why a Kelsenian positivist should not accept this part of the constitution as part of the “frame of interpretation” and as a legitimate part of the necessary or appropriate interpreting of authorising norms prior to applying and enforcing them.

MM - Hungary is struggling since its transition from Communist rule to freedom with its constitutional legitimacy. In an earlier article I claimed that one of the possible causes of the present crisis of trust among political participants is that its earlier constitutional reforms created a value-deficient constitution, which focused solely on legal security. You earlier published on continuity and change in constitutional law in times of political transition. Do you still hold the views you expressed there?

 JF --  Yes, as I mentioned in my previous reply, I worked on these matters in various publications of the late 1960s, and summed up my juristic and legal-philosophical thinking about it in 1971, in  “Revolutions and Continuity of Law”, now republished in volume 4 of Collected Essays of John Finnis (Oxford University Press 2011).  But the essay does not deal with all the issues at stake.  So in the 2011 republication of the essay I therefore appended an endnote which, among other things, quotes a passage from an earlier discussion of mine concerning the duties and authority of judges after a coup d’etat:

            "The jurisprudence available in standard books seems inadequate … For it suggests that legal systems stand or fall as a whole, so that if a judge recognises the unlawful dissolution of one constitutional rule he must recognise the dissolution of the rule empowering him to act judicially. But why should it not be the case that, during and after a revolution, judges have a genuinely lawful authority to determine, in a lawyerlike and principled fashion, what is, and what is to be, the principle or rule of recognition on which a sufficiently systematic body of rules of change (legislation) can be reconstructed to deal with the necessities of the common good? They have this authority because it was bestowed on them by law, and because nothing need have occurred which, in a sound jurisprudence, need be deemed to have divested them of it. To pick and choose among rules of recognition does not divest them of that authority; in common law jurisdictions a principled picking and choosing among substantive or primary rules of law—on the basis of equity, public policy, justice and the common good—is a recognised judicial function."

That passage is far from being the last word of wisdom!  But I would still approach the matter in this sort of way.

 MM - In recent years also in Europe we witness efforts to establish a new constitutional order. This might accelerate as a result of the economic crisis. As a British citizen, and as a legal commentator what is your view on that?

 JF - First of all, I really have no foreknowledge of the future in general or the future of Europe in particular. All I can do is guess, and hope. As I see it, the long term effort to integrate Europe in a constitutional way will probably fail. The Euro may fail relatively soon, and that failure, if it occurs, will reveal the inadequate foundations of the European integration process. That process was ill conceived from the very start, dependent on conditions which do not obtain and are unlikely to obtain for several generations, at best.

As to the Euro:  When in 1999 a leading German banker, about to take up very high office in the soon-to-be established European Central Bank, came to give a big public lecture about it in Oxford, he made it clear several times – but nobody seemed to take any notice! -- that several of the principal historical pre-conditions for a sustainable currency union were unfulfilled. He was hinting, though not bluntly saying, that it was not going to work. No workable arrangement, sustainable over decades and economic cycles, could omit to require member states to give up their powers of fiscal and budgetary control.  But these are functions essential to sovereignty – and all the more essential in mass democracies obsessed with economic performance and financial, fiscal, and welfare benefits (and indeed, objectively, facing very serious long-term economic problems for a number of reasons, not least demographic). 

The European political elites have been trying – and will continue to try until they manifestly fail -- to create something for which the historical preconditions of linguistic and cultural unity do not exist.  So I believe the venture of “ever closer union” to be hubristic and unrealisable, or at least unsustainable in the foreseeable future.  Its early failure would please me if it resulted in disintegration of the EU, abrogation of its main Treaties, and a new beginning in relations between European states.  To mention only one reason among several:  The EU project of admission of Turkey and in due course other Mediterranean Islamic states would if successful be, in all likelihood, a disaster of unprecedented magnitude, from which European civilization, and our peoples, would not, I believe, recover.  I regard the pursuit of this project (which in relation to Turkey, at least, has the support of the UK and US governments too) as a very grave injustice to the peoples of Europe and a manifestation of either a deeply improper attitude to the common good of each of the nations of which the architects of this project are individually citizens, or sheer thoughtlessness about what the results of the project would probably soon be.

 MM - A third theme of interest for us is the recent Vatican scandal. Earlier you had some professional links with the Vatican. How do you see the effects of the scandal?

 JF – I do not know much about the Holy See in recent years, and never had any really inside knowledge or insight. We know that there has been criminal acquisition and improper leaking of sensitive documents.  I know no more than anybody else about its institutional significance.

 MM – Do you not find this scandal devastating for the reputation of the Vatican State, and more generally for the Church?

 JF – No.  The Church has serious problems, but these scandals are not by any means the gravest.  On the whole, the standing of the Holy See itself is higher than it was in 1930 or 1890