—Dr. Gábor Spuller, Legal Advisor, Ministry for Infrastructure and digital affairs of Saxony-Anhalt, Germany; expert in International and European Institutional Law and Digital Law
I. The Problem: A Universal Tension and Its Pathology
The tension between external legal standards of supranational organisations and national sovereignty is not a European peculiarity — but the failure to define the normative boundary between them produces a distinct pathology.
One might call this pathology theidentity shield: with the argument of guarding national sovereignty, the state claims to immunise internal conduct from any external scrutiny. One of the most significant examples is the Hungarian model under former Prime Minister Viktor Orbán: through constitutional arrangements, he sought to place internal conduct beyond external jurisdiction by alleging it fell within national identity. The result was the systematic disregard of the procedural and institutional requirements of the rule of law, transparent management of European funds, freedom of media (Art. 2 TEU, the Conditionality Regulation, media law).
Two systems illustrate the spectrum. Within the Inter-American system the Inter-American Court of Human Rights (IACtHR) applies the control de convencionalidad as a powerful enforcement mechanism, but likewise without a formal identity protection clause, as Gelman v. Uruguay (2011), involving the international law limits on amnesty statutes, demonstrates. At the European level, Article 2 TEU is now directly justiciable — confirmed in Commission v. Hungary (C-769/22; the so-called pedofil törvény) — while the relevance of Article 4(2) TEU, which protects national constitutional identity, remains unresolved. This is not an enforcement gap but a normative gap: the boundary between external value standard and protected national identity remains judicially unresolved.
II. Existing Solutions and Their Limits
Three recurring solutions exist across all systems, and all are unsatisfactory. The supremacy thesis — external standard overrides national identity — is jurisdictionally coherent but politically unsustainable. The identity shield — national claim limits external standard — creates its own abuse potential. Judicial balancing produces case-by-case adjudication that is neither predictable nor principled.
None of these solutions distinguishes between identity claims substantively convergent with the external standard and those genuinely opposed to it.
What none of these approaches considers is the possibility that the tension between external standard and national identity may not be a conflict to be managed, but a convergence to be recognised.
III. A Third Way: Autochthonous Constitutional Tradition as Constitutional Collaboration
Where a national constitutional tradition has autochthonously developed the same substantive constraints the external standard demands, the normative conflict dissolves. External enforcement becomes constitutional collaboration — mutual confirmation of a shared commitment that was never externally created.
This resolves the pathology. It gives the identity shield substantive content: not a blanket sovereignty claim but an evaluable tradition. It gives external institutions a criterion for self-restraint: where internal tradition is substantively convergent, intervention is collaborative rather than intrusive.
Four criteria mark a qualifying tradition: historical depth and doctrinal development, substantive convergence with the external standard, consistent application and absence of selective deployment, and institutional enforceability or textual anchorage.
IV. Hungary: The Lead Case
Paradox 1
The most remarkable feature of Hungary’s constitutional transition in 1989–90 was not the change of regime, but the legal form in which it occurred. In a landmark decision, the newly installed Constitutional Court used, in AB 11/1992, a remarkable phrase: the “paradoxical revolution through the rule of law” (jogállami forradalom paradoxona). In Nr. 5 of the decision, the Court declared itself the embodiment (letéteményese) of this paradox. Although its authentic textual moment is singular — the principle radiated as a guiding touchstone across the Constitutional Court’s transition-era decision-making. This was an autochthonous achievement — not derived from European Community law, which barely touched Hungarian constitutional arrangements at that stage, and not externally imposed by the Council of Europe, whose Venice Commission was still in its infancy.
The paradox emerged immediately. The Court struck down in AB 11/1992 retroactive criminal legislation targeting offences committed under the communist regime (Zétény-Takács törvény). It held that even the morally compelling goal of historical accountability could not justify departing from the non-retroactivity principle. The tradition that now constrains the Tisza majority was articulated in the very moment it produced its most uncomfortable consequence: the non-retroactivity principle protecting those whose conduct the transition was meant to reckon with.
The paradoxical revolution through the rule of law could amount to a legal principle and serve as a yardstick for future constitutional amendments, given its procedural relevance to the exercise of constituent power.
Nevertheless, it is accompanied by international obligations. Hungary’s AB 53/1993 developed a categorical distinction between crimes against humanity under international customary law, which prevail over the domestic non-retroactivity principle, and ordinary crimes. Thereby it achieved an autochthonous reconciliation between domestic and international law. It held that “the gravity of war crimes and crimes against humanity … is irreconcilable with leaving their punishability within the ambit of domestic laws.”
Paradox 2 — The Annulment and the Survival of the Invisible Constitution
The Fourth Amendment (2013) formally annulled the pre-fundamental law jurisprudence (Nr. 5 of the Closing and Miscellaneous Provisions). Yet the deeper tradition it sought to erase proved more resilient than the annulment assumed. The cornerstone is the invisible constitution itself: the body of constitutional doctrine elaborated from 1990 onwards, which predates and exists independently of any written constitutional text. The Preamble and Article R(3) give this tradition textual expression, canonising the achievements of Hungary’s historical constitution as a binding interpretive principle — but they are expressions of the pre-existing unwritten constitutional law, not its source. Several further signals confirm its survival. The Court itself signalled continuity in AB 13/2013 no. 28. AB 12/2013 recognised international obligations and thus reiterated AB 53/1993. AB 22/2016 adds a further indication: the Constitutional Court established that Hungary’s constitutional self-identity is a fundamental value that was not created by the Fundamental Law — the Fundamental Law merely acknowledges it. If identity predates the written law, then it cannot be extinguished by amendment to that law. These are hints: the invisible constitution survived.
Further Pillar: The Invisible Constitution, Objective Law, and the Limits of Subjective Right
AB 7/2004 points — in obiter — toward the cycle-spanning mandate of constitutionally named officials as a functional institutional guarantee of the democratic order. This idea was not explicitly cancelled by AB 12/2013, although the transitional regulations of the Fourth Constitutional Amendment, and likewise those of the 17th Amendment, terminated several official terms retroactively — a dimension the Commissioner’s application did not include, and which the Venice Commission likewise did not address, having already stated its position on the retroactive termination of judicial terms in its prior Opinion CDL-AD(2012)001 (paras. 111–115).
The decisions — AB 11/1992, AB 53/1993 and AB 7/2004 — belong to the “invisible constitution”: the body of constitutional doctrine beyond the written text, forming the backbone of Hungary’s autochthonous constitutional tradition. As the Commissioner for Fundamental Rights and several dissenting opinions in AB 12/2013 acknowledged (Kiss László, para. 149), the legal effects set out in AB 11/1992 “continue to subsist.” These principles survive as objective law (objektives Recht) within the autochthonous tradition: they are alive, but not currently enforceable as subjective rights (subjektives Recht) — because the institutional preconditions for their judicial application have been dismantled by the constitutional amendments (especially the fourth amendment, see here) they would otherwise constrain.
Prof. Dr. József Petrétei’s essay “On the Situation of the ‘Orbán Puppets’” (jog.tk.elte.hu, June 2026), written by a former non-partisan Minister of Justice, confirms independently that the invisible constitution is still alive in current Hungarian constitutional scholarship, applied symmetrically to both majorities — and without the taint of personal interest.
This is where Article 2/Article 4(2) TEU becomes operative: the same procedural principle — that a rule-of-law state cannot be built against the rule of law — is simultaneously an expression of Hungary’s national and constitutional identity and a requirement of Article 2 TEU. Where the domestic institution is paralysed, European institutions — the Venice Commission and the CJEU in any future Article 2 TEU proceedings — may and should take this into account. The tension between Article 2 and Article 4(2) TEU dissolves precisely here: the constraint on the Tisza majority does not come from Brussels. It comes from Hungary’s own constitutional tradition, confirmed by European standards, and enforceable — where domestic mechanisms fail — through constitutional collaboration. The real test of Hungary`s return to the rule-of-law will be, whether the new constituent majority neutralize the effects of the Fourth Amendment.
V. Uruguay:Gelman v. Uruguay and the Limits of Implicit Tradition
Uruguay’s expiry law (Ley de Caducidad de la Pretensión Punitiva del Estado) was confirmed twice by referendum. It prevented the investigation and punishment of severe human rights abuses committed by state authorities. It was part of the 1984 agreement (Pacto del Club Naval) between the Uruguayan military and the political parties in order to install democracy. The Ley de Caducidad was the counterpart to the Ley de Pacificación, which granted amnesty to the rebellious Tupamaros.
Uruguay had a genuine democratic tradition — the batllismo heritage, the 1985 constitutional restoration, the institutional memory of democratic continuity. But that tradition did not lead to any modification of the Ley de Caducidad in conformity with international and constitutional law. In its February 2011 decision, the IACtHR found in Gelman v. Uruguay that Uruguay had violated the Convention. The Court stated in very general terms (para. 239): “the limits of the sovereignty of the majority lies, essentially, in two aspects: the guardianship of the fundamental rights… and the subjection of the public authorities to the law.”
Crucially, the Court held that even democratic confirmation by referendum could not legitimise the complete amnesty for activities by military and police authorities. Before 2011, courts had implicitly distinguished between classifiable domestic offences and the international law category of crimes against humanity — an unconscious distinction that Law 18,831 then collapsed by classifying all dictatorship-era crimes uniformly. Yet on 22 February 2013, the Supreme Court declared two articles of Law 18,831 unconstitutional for violating the principle of non-retroactivity. Both did not distinguish between offences subject to international obligations and ordinary crimes subject to domestic limitation periods and thereby failed to supply the doctrinal reconciliation between domestic and international law that the situation required. Factually, the Supreme Court´s decision operated as an institutional shield against international obligations.
What followed was non-linear constitutional collaboration: judges invoking the control de convencionalidad, NGO pressure, and the creation of a Specialized Prosecutor for Crimes Against Humanity (2018). Yet Uruguay secured consistent compliance neither with its international obligations nor its domestic law, as courts lacked a coherent framework for determining which acts qualified as crimes against humanity — exempt from limitation periods under international law — and which constituted ordinary offences subject to domestic time bars. This dogmatic deficit was shared: Parliament bears responsibility for Law 18,831’s blanket classification and the Supreme Court for failing to supply that distinction through partial unconstitutionality. The rule of law in Uruguay suffered precisely where doctrinal clarity was most needed.
But nevertheless, the external standard activated the autochthonous tradition — sustained by victims’ organisations with procedural standing before the IACtHR to demand investigation and prosecution, a lever entirely absent in Hungary, where a single symbolic prosecution of Biszku ended without verdict and the invisible constitution’s objective law found no enforcing actor.
VI. Conclusion: Constitutional Collaboration as a General Framework
A genuine revival of Hungary`s invisible constitution requires at least the restoration of the constitutional architecture the Fourth Amendment dismantled — a question the Venice Commission’s current examination of the 17th amendment cannot fully answer without addressing that prior act.
The deepest lesson across both systems is that autochthonous traditions and external standards are not alternatives. They are partners in constitutional collaboration, each compensating where the other fails. The pathology is not inevitable: it is a product of an absent normative boundary. Autochthonous constitutional tradition, where it exists and is substantively convergent with the external standard, provides that boundary from within rather than from without.
Unlike Hungary’s AB 53/1993, neither the Uruguayan Parliament with its Law No. 18,831 nor the Supreme Court of Uruguay recognised the distinction between crimes against humanity under international law and ordinary crimes, resulting in a lasting structural conflict. Yet a striking paradox emerges: while Hungary developed the more rigorous dogmatic framework, its practical enforcement remained largely symbolic. In contrast, the real-world enforcement of international human rights obligations in Uruguay proved more effective, resulting in the actual prosecution and imprisonment of senior dictatorship figures.
Constitutional collaboration works best where the internal tradition has developed the principled solution and its enforcement is supported by governmental institutions, NGOs and judiciary. The external standard can then confirm — not where the external standard must substitute for an absent internal doctrine. For the Venice Commission examining Hungary’s 17th amendment, the framework developed here offers an internal Hungarian anchor for its opinion — one grounded not merely in European imposition but in Hungary’s own national and constitutional identity.
The views expressed in this article are the author´s own and do not represent the position of any employer or institution.
Suggested citation: Gábor Spuller, Between Values and Identity: Autochthonous Constitutional Traditions as a Bridge in Supranational Systems, Int’l J. Const. L. Blog, Aug. 15, 2026, at: http://www.iconnectblog.com/between-values-and-identity-autochthonous-constitutional-traditions-as-abridge-in-supranational-systems/
