Kin-State Identity in The European Context Nationalism in Batory Agnes

NATIONS AND
NATIONALISM
J O U R N A L O F T H E A S S O C I AT I O N
FOR THE STUDY OF ETHNICITY
A N D N AT I O N A L I S M
AS
EN
Nations and Nationalism 16 (1), 2010, 3148.
Kin-state identity in the European

context: citizenship, nationalism and
constitutionalism in Hungary
AGNES BATORY
Department of Public Policy, Central European University, Budapest, Hungary
ABSTRACT. The broad objective of this article is to explore the interaction between
nationalism and Europeanisation, and the impact of this interaction on constitutionalism at the level of EU member states, using Hungary as a case study. The country
reasserted its identity as a kin-state after regime change in 1990, with the relationship
between ethnicity/national identity and political community repeatedly taking centre
stage in political life and in the eld of citizenship legislation. At the same time, the
country actively pursued integration into the EU, including a constitutional amendment allowing accession. Despite the potential implications of joining a supranational
political entity for the denition of political community, the two parallel processes
remained largely disconnected in the political discourse and the broader debate on
constitutionalism in the EU has found less resonance in domestic politics than
controversy over citizenship and national identity.
KEYWORDS: constitutionalism; Europeanisation; Hungary; kin-states; nationalism
Constitutionalism has recently been characterised as the only contemporary

political idea that enjoys almost universal acceptance (Preuss 1996: 11). While
this claim may be somewhat of an exaggeration, it is safe to say that
constitutions and constitutionalism have featured prominently in political
life in the last two decades or so. The third wave of democratisation was
marked by a preoccupation with the drafting of constitutions around the
globe (Huntington 1991). Having emerged from several decades of communism, countries in Central and Eastern Europe (CEE) marked the beginning of
a new era with the adoption of new constitutions, setting the rules of the game
for democratic transitions. About fteen years later, these constitutions were
amended as a number of these states joined the European Union, while some
of the old member states also changed their constitutions with successive
waves of EU treaty reform. More recently, the EU attempted to adopt a novel
legal document, a constitution beyond the nation-state. Although, as is well
known, the attempt failed, the objections to the Constitutional Treaty
themselves attest to the special symbolism and political signicance of
constitutions.
r The authors 2010. Journal compilation r ASEN/Blackwell Publishing Ltd 2010
NATIONS AND
NATIONALISM
32
J O U R N A L O F T H E A S S O C I AT I O N
FOR THE STUDY OF ETHNICITY
A N D N AT I O N A L I S M
AS
EN
Agnes Batory
Despite the urry of interest in constitutionalism, there has been relatively

little consideration of how these developments on the national and European
levels interact, how they might be linked to national identities and the postCold War resurgence of nationalism both East and West, and how constitutionalism may be shaped in the context of European integration. A particularly neglected aspect is how kin-state identity or, in other words, the fact that
a country is an external national homeland (Brubaker 1995) to a large group
of people who are not citizens of this country,1 may alter these relationships
and express itself in constitutionalism and politics. Despite the long list of
European countries that possess signicant groups of co-ethnics outside their
borders, and the detectable trend of [these] states adopting policies . . . in the
pursuit of what they perceive as a legitimate interest in the well-being of their
kin abroad (Sabanadze 2006: 245), studies tend to focus on the impact of
minorities on the constitutional order of the country of which they are
citizens. The broad objective of this article is thus to explore the interaction
between nationalism and Europeanisation, and the impact of this interaction
on constitutionalism in a kin-state, using Hungary as a case study. What is the
link between national identity, citizenship and constitutional identity? How
are different conceptualisations of nationhood and citizenship reected in
party competition and constitutional debates? And nally, how has integration into the EU affected the same?
Hungary is a suitable and interesting country case for an exploration of
these questions for a number of reasons. Approximately 2.53 million
Hungarian speakers in the Carpathian Basin are citizens of states other
than Hungary, which makes nationalism of obvious political and constitutional relevance. Different conceptualisations of nationhood and national
identity constitute one of the key fault lines in Hungarys party system, and
the relationship between ethnicity/national identity and political community
has often taken centre stage in political life. The 1989 constitution explicitly
declares Hungary to be a kin-state when it recognises responsibility for
Hungarians outside the countrys borders, thus claiming the right to monitor
and protect the interests of . . . ethnic co-nationals abroad (Brubaker 1995), a
dening feature of external national homelands. This kin-state identity was
also repeatedly reasserted in the course of the past two decades: rst in the
mid-1990s in relation to the conclusion of basic treaties with neighbouring
countries with signicant Hungarian minorities, then around the adoption of
the so-called status law granting certain social and cultural rights to
Hungarian-speaking citizens of other states, and nally in 2004 when a
referendum on dual citizenship took place. At the same time, successive
Hungarian governments actively pursued integration into the EU, with a
December 2002 constitutional amendment regulating how sovereignty was to
be exercised following accession in 2004. All this time, the simultaneous
presence of the ethno-politicisation of the nation and the Europeanisation of
the state and citizenship exerted a dual pressure on constitutional theory and
practice. Yet, in spite of the implications of this new context for how us and
Kin-state identity in Hungary
33
them was to be delimitated, the two parallel processes remained largely

disconnected.The article starts from a discussion of constitutionalism and
nationalism, unpacking both concepts and tracing the historical evolution of
their relationship. The following section provides some essential background
on Hungarys constitutional and political system as it evolved in the course of
regime change. Sections 3 and 4 discuss the implications of Hungarys kinstate identity and the impact of integration into the EU, respectively. A short
section concludes.
1. Constitutionalism, nationalism and Europeanisation

Nationalism and constitutionalism are often seen to be conicting
notions, and yet this relationship is both historically contingent and
dependent on what precisely is meant by these terms. Constitutionalism is
used to denote a wide variety of concepts in the literature. Sometimes it
seems to stand simply for the body of constitutional law. Other times it refers
to the adoption of a particular set of institutions; the establishment of
genuine, multiparty democracies, committed to the rule of law and the
protection of individual and minority rights (Pogany 1996: 156) and is thus
practically indistinguishable from liberal democracy itself. Preusss substantive denition captures the distinctive features of constitutionalism in the
institutional devices and procedures which determine the formation, structure and orderly functioning of government, and the basic ideas, principles
and values of a polity which aspires to give its members a share in the
government including, most importantly, the recognition by those governing the governed . . . as the ultimate source of political authority. An
additional element is the durability of the framework (Preuss 1996: 12,
245). Inherent to the concept is thus the idea that a constitution cannot be
unilaterally revoked by a ruler to suit the political interests of the day, and
that certain norms bind even the most powerful or, in essence, the idea of
limited government.
Constitutionalism is clearly a liberal concept, centred around civil rights
and liberties that serve to protect society from the excessive power of the state
(Arato 1994: 168). This substantive understanding of constitutionalism, i.e.
one that presupposes a strong link with liberalism, may give rise to a tension
with nationalism, or more precisely with certain kinds of nationalism. A
common distinction to make is Gellners (1983), between civic nationalism,
which involves allegiance to a set of specic, civic institutions, and ethnic
nationalism, where the nation is dened in terms of culture, language and,
ultimately, blood (MacCormack 1996: 1501). Whereas a civic conception of
nationhood opens the possibility for others to join the community and
partake in rights and liberties, and is therefore generally seen to be compatible
with liberal values, ethnic nationalism is closed and exclusionary (see
Kymlicka 2000: 200).
34
Agnes Batory
Turning to the historical evolution of the concepts, the relationship of

nationalism and constitutionalism has changed considerably since the time
modern liberal democratic nation-states emerged in post-revolutionary Western Europe. In the nineteenth century, constitutions, embellishing universal
rights, were promulgated as expressions of the will of the people, with
nationalism as the ideological glue that demarcated and held together the
people on behalf of whom those ideals were articulated (Bellamy and
Castiglione 1996: 111). In this context, nationalism was primarily about
inclusion in the political community, a principle on the basis of which rights
and duties are conferred, which suggests a mutually supportive relationship
with constitutionalism. Two world wars and the rise and fall of national
socialism and fascism in Europe, however, overwrote this interpretation,
turning nationalism from an essentially progressive idea about grounds for
inclusion in, to one about exclusion from, the political community, contradicting liberalism and undermining modern constitutional democracy. During
the Cold War, this tension was put to rest or at least muted. In the Eastern
half of the continent communism rendered both nationalism and constitutionalism temporarily obsolete, and in Western Europe the presence of a
common enemy, the Soviet Union, and vivid memories of the war provided
strong incentives for overcoming historical animosities and starting down the
path of European integration.
By the 1990s, however, the tension had re-emerged and was exacerbated by
several factors. In CEE, new constitutions were written just as countries
regained de facto or de jure independence after nearly half a century or more
of Soviet domination, with both inter-state relations and domestic domains in
a state of ux. The power of the state was to be limited vis-a`-vis (civil) society
when in some cases, such as Yugoslavia or Czechoslovakia, the states borders
or the existence of the state itself was in question. There were demands to
protect political rights and liberties, when the basis of citizenship, which
would entitle individuals to exercise those rights, was contested. There was an
aspiration to catch up with contemporary Western democracies, but also a
drive to rediscover these nations pre-communist historical and cultural roots
(see e.g. Elster 1991). The notion of returning to Europe brilliantly captured
both of these aspirations, but left open the question of which Europe: the
Europe of 1919, 1947, or 1989?
And herein lay the problem for much of CEE. Ideally, national heritage
and contemporary models would have been combined, as the articial
copying or imitation of existing liberal democratic constitutions had some
obvious limitations for the legitimacy of the constitutional process (Arato
1994: 1767). At the same time, the restoration of historical national
constitutions was inherently problematic in the absence of a suitable historical
precedent, as most countries in the region had little, if any, experience of
liberal democracy. There was also a question mark next to the constituent
political community: the predominantly ethnicist notion of the People in
Eastern Europe, as Preuss (1996: 152) puts it, essentially would have called
35
for the creation of ethnically homogeneous states. Constitution-making in

1989 was thus faced with, on the one hand, a push forwards, towards
Western democratic institutions (liberal constitutionalism) and on the other
a pull backwards, to (ethnic) nationalism. Both patterns were present
throughout the region, but the balance between the two varied from country
to country in some cases tilting disastrously towards the latter.
Meanwhile, the traditional concepts of constitutional democracy, such as
sovereignty, citizenship and representation, which have depended for their
coherence on the notion of individuals as equal members of a relatively
homogeneous nation state, have also been challenged in Western Europe
(Bellamy and Castiglione 1996: 112). On the one hand, the challenge came
from below, in the form of a similar resurgence of ethnic nationalism and
separatist movements on sub-state levels in some Western European countries, such as the UK, Spain or Belgium, as was witnessed in the multi-ethnic
states of Eastern Europe. On the other hand, national constitutions and
constitutionalism have also been challenged from above by the process of
European integration. Competencies have been transferred from the member
states to supranational institutions, as critics claim, without matching constitutional guarantees put in place at the EU level.2 This sort of constitutional
vacuum has prompted governments and judicial bodies in some member
states to seek to limit the extent to which national constitutional frameworks
can be changed to allow for a further transfer of powers (MacCormack 1996:
143). It is also a reason for the requirement in most if not all member states
that a constitutional act of some sort authorises membership of the EU and
subsequent treaty revisions.
In addition to these procedural aspects determining the scope of affairs
falling under (or remaining within) national constitutional authority, EU
membership has also posed explicit requirements for the content of constitutions in terms of norms and values. The Unions membership criteria, set by
the Copenhagen European Council of June 1993 for the countries aspiring to
join, require the stability of institutions guaranteeing democracy, the rule of
law, human rights and respect for and protection of minorities. The same core
values were incorporated into the Treaties with Article 6 of the 1997
Amsterdam Treaty, which declared that [t]he Union is founded on the
principles of liberty, democracy, respect for human rights and fundamental
freedoms and the rule of law, principles which are common to the Member
States. In this sense it is possible to talk about the EU creating a pluralist and
internationalised constitutional paradigm, which prescribes that constitutional guarantees upholding these values be present in the political and legal
systems of the member states.
In the case of the Central and Eastern European countries, the conditionality of EU accession and specically democratic conditionality (Schimmelfennig, Engert and Knobel 2005; Schimmelfennig and Sedelmeier 2005) had
major constitutional implications, as seen in a number of conicts between
European norms and the legal order of the candidates in the course of the
36
Agnes Batory
accession process. Many of these involved questions of inclusion in/exclusion

from the political community or safeguards of individual and collective rights.
Examples include the citizenship of Russian speakers in the Baltic republics,
minority rights for instance in Slovakia under Meciar, or widespread
discrimination against the Roma throughout Central and Eastern Europe.
These issues tap into conicts between civic and ethno-centric understandings
of what (who) constitutes the nation, brought to the surface by encountering,
and needing to adapt to, a pluralistic, universalist, internationalised legal
order. In other words, they evidence the same sort of tug-of-war between
liberal constitutionalism and (ethnic) nationalism as was present in constitution-making in 1989.
2. Hungarys political and constitutional system

Before we consider how this sort of tension between Europeanisation and
nationalism impacted on constitutionalism in Hungary, it is worth describing
the context briey. The obvious place to start is regime change and the
circumstances in which the countrys post-communist constitution was
adopted in 1989, but the roots of the debate on nationhood go much further
back. In fact, just how far back in history one should go (exactly what sort of
historical legacy to draw on), and how one should dene nation-ness was
perhaps the main underlying debate structuring divisions within the camp
pushing for regime change. The anti-communist side was divided between the
civil rights movement, known as the Democratic Opposition, which considered contemporary liberal democratic political systems as appropriate blueprints for Hungarys development, and a more heterogeneous camp of
national-conservatives which tended to look for a more indigenous model
in the nations past. Both fought for democracy and self-determination, but
while the principal aim of the former was the liberation of civil society, the
emphasis for the latter camp was on the independence of the nation
(Korosenyi 1999: 40). By implication, the formers main concern was the
link between citizens and their state, and the latters the fate of the national
community dened primarily in cultural terms.
It is the rule rather than the exception in CEE that the two groups that is,
citizens and members of the national community in the cultural sense are not
congruent, which is particularly evident in the case of Hungary. Around 2.5
million Hungarian speakers live outside Hungary in the Carpathian Basin,3
whose families ended up on the, from the ethno-centric point of view, wrong
side of the borders in the wake of the dissolution of the multi-ethnic AustroHungarian Monarchy. In the Paris peace settlement large chunks of territories
inhabited by multi-ethnic populations were transferred from the Hungarian
Crown to other successor states of the Habsburg Empire. The population of
Hungary is currently over ten million, 314,000 of whom declared themselves
to be from a minority in the latest census.4 While the treatment of minorities
37
within Hungary was not subject to too much political debate, the Hungarian
governments failure to stand up for the rights of ethnic Hungarians
particularly in Romania (and perhaps to a lesser extent in Slovakia) was a
key grievance of the anti-communist forces in Hungary in the 1980s. The
national question was a taboo subject in the relations of countries within the
Eastern bloc, supposedly sharing an internationalist ideology (Stewart 2004)
and the ction of an ethnoculturally neutral state (Kantor 2005: 47), even as
the regime of Nicolae Ceausescu, for example, thrived on fostering interethnic tension in Romania.
This neglect of Hungarians outside Hungary became a touchstone of
dissent within the anti-communist camp, albeit on somewhat different
grounds. For the Democratic Opposition the issue was framed as a universalistic call for respecting and defending the rights of minorities (external
or internal to the state), whereas the national-conservative camp made a claim
for Hungarys moral obligation to act as a kin-state towards ethnic Hungarians wherever they live. By the late 1980s, the camps fragmented into political
parties: the Alliance of Free Democrats and the Alliance of Young Democrats
(Fidesz) on the liberal side, and the Hungarian Democratic Forum and a
number of reconstituted historical parties on the conservative side. In 1989 the
former ruling party, the Hungarian Socialist Workers Party also split, with the
larger reform wing re-establishing itself as the Socialist Party. In the early
1990s the Socialists rmly anchored themselves in the liberal camp in terms of
nationalism/identity politics, forming governing coalitions with the Free
Democrats in 1994 and later in 2002 and 2006, while the initially liberal
Fidesz became the leading force of the conservative camp and the government
from 1998 to 2002. All this time, differing conceptualisations of nationhood
constituted a key fault line in the party system.
The Hungarian Constitution, adopted in 1989, shows evidence for both a
civic denition of political community, creating rights and obligations
between the state and its citizens and providing for minority protection,
and an ethnic/cultural denition of nationhood. The text clearly recognises
that the political (civic) and the cultural (ethnic) nations do not coincide. The
Constitution vests supreme power in the People (Article 2), and explicitly
acknowledges that the nation in a political-legal sense is multicultural:
national and ethnic minorities living in the Republic of Hungary participate
in the sovereign power of the People: they represent a constituent part of the
State (Article 68). At the same time, the Constitution declares Hungary a kinstate among its rst provisions in what is known as the responsibility clause:
The Republic of Hungary bears a sense of responsibility for the fate of
Hungarians living outside of its borders and shall promote and foster their
relations with Hungary (Article 6).5 What sort of policies this responsibility
should be expressed in was left undened at this stage, but later indirectly gave
rise to the debate around the status law, as further discussed below.
The Constitution itself was drafted in the course of the National Roundtable negotiations between the ruling communist party and the (then still
38
Agnes Batory
united) opposition forces, and made into law by the last communist-era
parliament, paving the way for the rst free elections in 1990. The main goal
of the anti-communist side was to create an institutional formula limiting
government power, as at the time it was widely expected that the reformcommunists would be returned to ofce (Sajo 1996). The elections proved this
assumption wrong, and some provisions were amended. The combined result
is a parliamentary system reminiscent of Germanys chancellor democracy,
with Parliaments power constrained by the prospective use of direct democracy; a wide-ranging and rigid protection of fundamental rights and liberties
(Sajo 1995: 261); a wide range of legislation designated to be of quasiconstitutional standing and therefore subject to qualied majority support in
parliament; and the creation of a powerful Constitutional Court.
The last two features in this system of checks and balances also had the
(perhaps unintended) consequence that the scope of constitutional norms was
very wide, and has become even wider over time. In addition to the
Constitution, the long list of legislation needing qualied majority support
in Parliament requires consensus regarding a wide range of issues, effectively
giving opposition parties of any signicance a veto. Equally importantly, the
Constitutional Court is vested with strong powers which the Court used in an
activist manner, particularly when headed by the legal scholar and current
President of the Republic, Justice Laszlo Solyom in the 1990s (Scheppele
1999). The Court at times based decisions on its reasoning of what the
Constitution implies, with, perhaps most controversially, the Chief Justice
making reference to the idea of an invisible constitution. Embodied in
this notion was the Court acting as guardian of principles it deemed to be
an essential part of constitutionalism, which guided its jurisprudence to
the extent that, as Andras Sajo (1995: 266) observes, it even tend[ed]
to disregard the written constitution. In short, constitutionalism was established as a powerful and politically potent concept early on after regime
change.
3. Citizenship and kin-state identity

Regime change brought a very visible change in Hungarys relationship with
both Hungarian minorities and the states of which they are citizens. In
accordance with the responsibility clause of the Constitution, successive
Hungarian governments sought to signal to the minorities that the mother
country cares about them. However, rst, the basis, in terms of conceptions of
nationhood on which such attention was shown and second, the extent to
which it took priority over other (foreign) policy goals differed sharply
between liberal/leftist and conservative/rightist governments, respectively.
The three basic foreign policy goals for successive governments were promoting the interests of Hungarian minorities, developing good-neighbourly
relations with countries in Hungarys geographical proximity, and pursuing
39
EuroAtlantic integration whether in this order or any other way round being
the crux of the matter. The rst two refer to two legs in what Brubaker (1995,
1996) describes as a triangular conguration between kin-states (external
national homelands), co-nationals/minorities, and host states, and they often
involve a trade-off, for instance when direct communication by kin-states with
co-nationals, cutting out the host state, results in inter-state tensions.
One strikingly clear expression of the contraction/expansion of the political
community according to civic or ethnic denitions of nationhood is the way
Hungarian prime ministers profess loyalty to constituencies of a particular
size when they enter ofce. The tradition was started by the rst postcommunist prime minister, Jozsef Antall of the conservative Democratic
Forum, who famously said upon his 1990 election that he felt, in spirit, the
Prime Minister of fteen million Hungarians (see e.g. Fowler 2002; Schopin
1992, 2000). Given that this was about ve million more than the number of
Hungarys citizens, the comment made very clear that the new government
dened nationhood in cultural/ethnic rather than political/civic terms
which, in turn, gave rise to claims in the neighbouring countries of a revival
of Hungarian revisionism. It is unclear how Antall arrived at this gure, but
the fteen million Magyars nonetheless became a contested national myth
(Schopin 2000: 371).
In spite of the, from the point of view of bilateral relations with the
neighbouring states, unpromising start, the Democratic Forum-led conservative coalition succeeded in concluding a basic treaty with Ukraine, which
recognised the inviolability of the existing border between the two countries,
in exchange for minority rights for Hungarians living in the Trans-Carpathian
region of Ukraine. The treaty (also) served the purpose of reassuring the
international community, mainly the EU, which made it clear that it had no
intention of importing potential conicts with enlargement. The deal, however, came at a high political price: the extreme nationalists in Antalls party
split off to form their own political party, the Hungarian Justice and Life
Party. As the name suggests, with its reference to the perceived injustice of the
Paris peace settlements relevant part, the Trianon treaty, the party more or
less openly grounded itself in revisionism. The next election proved that in
1994 this was not a winning platform: the Justice Party received less than two
per cent of the vote, although in 1998 the party passed the ve per cent
electoral threshold to spend a four-year spell in Parliament.
The fate of the Democratic Forum was similar to that of its radical splinter:
its electoral support shrank from twenty-six to twelve per cent in 1994, and the
reform-communist Socialist Party returned to power. Despite their robust
parliamentary majority the Socialists formed a coalition with the liberal Free
Democrats. One common element in the otherwise rather dissimilar parties
proles was a rejection of ethnic politics. The Socialist Prime Minister, Gyula
Horn promptly declared himself to be the prime minister of only ten million
Hungarians signalling that the Socialist-liberal concept of political community was dened by citizenship rather than blood or language. Basic treaties,
40
Agnes Batory
along the lines of the Ukrainian treaty, were signed with Romania and
Slovakia, the two countries with the largest Hungarian minorities, and with
this the government clearly felt they had removed any doubts the EU may
have had about the Hungarian governments intentions. In 1998 negotiations
for EU membership duly opened.
In the same year, the electoral pendulum swung again, and the centre-right,
this time with the by then national-conservative Fidesz in the lead, returned to
ofce. The nation consequently expanded again: Prime Minister Viktor Orban
said in 2000 that the border of the [Hungarian] nation extends as far as the
Hungarian language is understood (quoted in Fowler 2002: 37). But unlike
his predecessors, the Fidesz government did not stop with rhetoric but
attempted to create, again to quote a 2001 speech of then Prime Minister
Orban, after eighty years of waiting a bond, in a legal sense as well, . . .
between the parts of the Hungarian nation torn from each other, so that links
may emerge that go beyond the existing spiritual ties (in Kovacs 2005: 70; see
also Kis 2004).
The policy instrument designed for creating this bond was a piece of
legislation, Act LXII of 2001 on Hungarians living in Neighbouring States,
widely known as the status law from an earlier drafts title. The law was to
provide access for co-ethnics to higher education with the came conditions as
Hungarian citizens as well as the possibility of obtaining temporary work
permits in Hungary. These benets would be available to persons in possession of Hungarian ID cards, certifying the persons cultural (ethnic) identity,
issued on the recommendation of organisations located outside Hungary,
such as Hungarian minority organisations in the neighbouring states. This
latter aspect in particular prompted Romania and Slovakia to reject the law as
interference in their internal affairs.
Status laws, i.e. laws regulating kin-states relationships with, and providing a certain range of rights to, co-nationals living outside their borders, are
not uncommon Slovakia and Romania also passed similar legislation, for
instance. The Hungarian case is differentiated from most other status laws,
however, by several factors. The rst is geography and sheer scale: approximately a quarter of Hungarian speakers live outside Hungary, but in
Hungarys close proximity. Second, and closely connected to this, the host
states were more violently opposed than is normally the case indeed, no
other status law received nearly as much international attention as the
Hungarian one, including the involvement of the Council of Europe (CE)
and the EU. Romanias and Slovakias reactions were somewhat inconsistent,
both having passed status law equivalent on ethnic grounds: Romania has
asserted its kin-state role vis-a`-vis Moldova while rejecting Hungarys
assumption of kin-state role vis-a`-vis the Hungarian minority in Romania
(Fowler 2002: 26; see also Sabanadze 2006).
Third, while in other countries there tends to be a domestic consensus on
the underlying principles of support for co-ethnics (Kantor 2005: 45), in
Hungary the issue was anything but consensual. The issue of compatibility
41
with European norms was from early on a central plank of the debate (see e.g.
Fowler 2002; Kovacs 2005). Interestingly, both sides the centre-right
conservative government introducing the legislation and the centre-left
socialist-liberal opposition contesting it explicitly invoked European integration to support their arguments. Quite apart from the prime ministers
national unication discourse, the government tried to create a parallel
discourse on the law, portrayed to be precisely in the spirit of a future
borderless Europe a place where territorially dened statehood ceases to be
the basic organising principle, where, to quote the reasoning of the Hungarian
foreign minister in 2001, there wont be minorities, only communities . . . and
our continent will become a community of communities (quoted in Fowler
2002: 5). The opposition, for their part, dismissed this as empty rhetoric and
contended that the law harmed the national interest both the interest of the
cultural nation, because it encouraged ethnic Hungarians to leave their
historical homelands and relocate to Hungary, and the political nation,
because it risked the disapproval of European institutions and therefore the
ultimate prize of EU membership.
Scholarly analyses also interpret the status law in completely opposed
ways. Most notably Brigid Fowler (2002) considered it, in line with the
governments ofcial position, as the expression of a post-modern idea of
non-territorial fuzzy citizenship. Others, such as Michael Stewart (2004) saw
it as the expression of soft revisionism giving more credence to the prime
ministers national unication rhetoric, which suggests not the end of the
nation-state but rather its resurrection along ethnic lines. The latter interpretation seems to have gained wider currency, being shared by, with some
differences, the Hungarian opposition, Hungarys neighbours affected by the
law, and both the EU and the Council of Europes European Commission for
Democracy through Law (the Venice Commission), which, while recognising
kin-states interest in their co-ethics fate as legitimate, reinforced the point
that responsibility for the protection of minorities rests primarily with host
states (Sabanadze 2006: 253). In response to criticism from the CE and the EU
(the former played a more visible part than the latter), the law was watered
down in 2003.
But rather than putting the issue of the triangular relationship to rest, the
intention to create a legal bond between kin-state and co-ethnics merely came
back in a somewhat different guise: this time as the proposal to grant
citizenship to non-resident ethnic Hungarians. In 2004 a non-governmental
body for Hungarians outside Hungary, the World Federation of Hungarians,
launched a popular initiative by collecting the constitutionally required
number of signatures from citizens backing a referendum.6 The Federation
had been opposed to the status law, because it felt it fell short of citizenship,
whereas the Orban government advocated the law precisely as a substitute for
full citizenship. Initially Fidesz and the centre-right, in opposition since the
2002 elections, were consequently hesitant in supporting the initiative, but
then joined the Federations campaign for a yes to the referendum question,
42
Agnes Batory
which was whether ethnic Hungarians should be given Hungarian citizenship

under a preferential naturalisation procedure. The governing socialist-liberal
coalition campaigned for a no, warning voters about the economic impact
i.e. that existing tax-payers would have to pay for the costs associated with a
potential inux of migrants, whatever their ethnic prole.
But what really polarised the parties was that, while perhaps more in
conformity with international practice,7 dual citizenship would have gone
further than the status law-proposed fuzzy citizenship in one crucial respect:
granting voting rights to minority Hungarians, including those not wishing to
take up residence in Hungary. The minority Hungarian vote in turn could
have swayed elections in the future, as was widely believed, in favour of the
centre-right (Fidesz). In the event, this theory was not put to the test, as most
existing Hungarian citizens, feeling torn between conicting loyalties (to coethnics and to their purse), decided not to vote. With 51.6 per cent for, 48.4
per cent against, but only a 37.5 per cent turnout the referendum was invalid8
widely interpreted by Hungarian minorities in the neighbouring countries as
the mother country turning its back on them. In the aftermath of the
referendum, a widely quoted letter of the Socialist Prime Minister, Ferenc
Gyurcsany, re-stated the Lefts interpretation of the responsibility clause: The
most important goal of the Hungarian state is to help Hungarians abroad
preserve their communal identity in their homeland, in cooperation with the
political nation in which they are a minority, preserving at the same time an
unhindered connection with the mother country to which they are bound by
language, culture and tradition (quoted in Halasz 2005: 84). The dividing line
of the Hungarian party system along ethnic/cultural vs. civic/political conceptions of nationhood was reafrmed.
How should dual citizenship be seen in this context? It is not uncommon
that European countries give preferential treatment in naturalisation to
applicants sharing the titular nations cultural (ethnic) identity (Sabanadze
2006). However, the consequence of this practice, in the case of Hungary and
other kin-states, is the reinforcement of the link between ethnicity and
citizenship. This contrasts sharply with the perhaps more common use of
dual citizenship legislation to allow the naturalisation of immigrant populations wishing to maintain the citizenship of their countries of origin, which
primarily serves to de-ethnicise membership in the political community. Put
another way, while allowing dual citizenship normally means not insist[ing]
that to be a true member of the nation one must renounce all other national
identities, and should therefore be seen as a liberal practice (Kymlicka 2000:
198), in the context of a kin-state the same can be seen as the expression of an
ethno-centric conception of national identity (see also Kovacs 2005: 60). The
litmus test should be not how a kin-state behaves towards co-ethics (who
stand to gain from a liberal stance on dual citizenship, for instance), but how
it behaves towards ethnic minorities internally. On this count, it is telling that
the discourse on Hungarian minorities in the neighbouring countries remains
largely disconnected from a discussion of the situation of minorities in
43
Hungary, particularly the Roma, who continue to suffer widespread discrimination in all spheres of life.
4. Europeanisation and constitutionalism

The EU had a practical impact on identity politics in terms of constraining the
policy options available to CEE governments for regulating their countries
legal relationship with co-ethnics (Johns 2003). EU and CE concerns had a
major impact on the development of the Hungarian status law. However, the
discussion has so far neglected changes directly related to EU accession in the
constitutional realm. The reason is that these developments took place in
isolation from the discourse on identity politics and were altogether less
salient in the domestic debate, despite the fact that their legislative object was
at times strikingly similar. An interesting example of this disjuncture is the
fact that while preferential naturalisation was very controversial in the context
of kin-state relations (ethnic Hungarians acquiring Hungarian citizenship),
the same governmental intention of stretching citizenship law in the context of
European integration, towards European Economic Area citizens, provoked
no debate at all (Toth 2005: 23). In other words, joining the European Union
appears to have had barely any bearing on the delimitation of political
community at all, despite the fact that membership had very real implications
in terms of transferring rights, exercisable in Hungary, to persons not
belonging to the nation in either a legal or cultural sense, on grounds of a
shared belonging to a new, in some aspects clearly supranational, political
entity.
The constitutional amendment authorising EU membership was on the
other hand a stormy affair, and as such it is the only (partial) exception to this
pattern of low salience. Arguably this has more to do with the strategic
interests of a major player on the political scene than with the, from the point
of view of constitutional law, enormous signicance of the amendment itself.
The debate on the so-called European clause, authorising the joint exercise of
sovereignty within the EUs framework, came a few months after the spring
2002 elections, the most bitterly fought elections in Hungarys post-communist history, which Fidesz lost. The qualied majority requirement for the
amendment and the fact that EU membership was to be put to a referendum
offered an ideal platform for Fideszs recovery, made strategically even more
attractive because of the high prole the issue of European integration had
gained in the partys prole. Once freed from governmental responsibilities,
Fidesz visibly distanced itself from the other parliamentary parties, all
converging on a strongly pro-membership platform, by taking a Eurosceptic
turn. This expressed itself in strong criticism of the conditions of membership
on offer from the EU, although not the rejection of membership per se.
The debate on the European clause apparently centred on the wording of
the government proposal for the amendment, according to which Hungary
44
Agnes Batory
would relinquish or transfer sovereignty to the EU, which Fidesz strongly

opposed. But behind the controversy on the wording is a clash of two different
conceptions of European integration, the socialist-liberal coalitions idea of a
supranational political entity on the one hand, and Fideszs vision of a Europe
of nation-states on the other (the latter somewhat at odds with the community of communities vision espoused by the Fidesz government when pushing
for the status law). Reecting Fideszs strong bargaining position, the
European clause Act LXI of 2002 eventually inserted into Article 2 of the
Constitution declares that, on the basis of international treaties, the Republic
of Hungary may exercise certain competencies stemming from the Constitution jointly with the other [EU] member states; this exercise of competencies
may also take place independently, through the institutions of the European
Union.9 The sovereign powers of the People thus remain with Parliament.
The amendment also authorised Parliament to endorse the accession
treaty, and any international treaty referred to above, with a qualied
majority, and included a new provision according to which Hungary would
cooperate in the building of European unity in the interest of European
peoples freedom, prosperity and security. Also on Fideszs insistence, a new
clause stipulated that EU membership would be subject to a binding
referendum, whereby on 12 April 2003 the electorate would be asked whether
they agreed for Hungary to become a member of the European Union. In the
event, the answer to this rather loaded question was a less than convincing
yes: while the overwhelming majority (eighty-four per cent) of those who
bothered to vote endorsed membership, the turnout was only forty-ve per
cent, the lowest of all referendums ever held on EU membership (Szczerbiak
and Taggart 2004: 561). It is safe to say that this result had little to do with the
rather abstract debate about sovereignty or conceptions of nationhood,
although kin-state politics entered the campaigns to some extent (Batory
2008: 12747).10 But for voters economic arguments and a strongly held sense
of the country culturally belonging to Europe probably mattered far more.
After this spell of controversy on Europe, Hungarian politics reverted back
to form in that integration-related developments of a constitutional nature,
even of the magnitude of the Unions Constitutional Treaty, barely made a
mark on the domestic discourse. Using the authorisation of the European
clause for parliamentary adoption, Parliament quietly ratied the Treaty in
December 2004, way ahead of the majority of other member states, and
months before the upheaval associated with the failed referendums in France
and the Netherlands. Parliament found the proposal suitable for plenary
debate after a discussion of a few hours, and in the nal vote the Treaty was
endorsed by an overwhelming majority (Rozsa 2004). The parliamentary
parties agreed that the referendum on EU membership was sufcient popular
endorsement, evidently assuming that the public would nd the changes
introduced by the Treaty too subtle to appreciate. Essentially the same goes
for the Lisbon Treaty, which was also easily ratied by Parliament in
December 2007, having been subject to hardly any political debate.
45
There was nonetheless one constitutional issue on which Hungarian

politicians made a stand; the protection of minority rights in a European
framework. Having done all that could be done to regulate the triangular
relationship on a bilateral level (with co-ethnics, and with host states) in the
sphere of citizenship, the Hungarian government tried to Europeanise the
issue by insisting during the Intergovernmental Conference drafting the EU
Constitution that the Treaty make reference to the rights of national
minorities. Due to opposition from a number of member states, the nal
text refers to the rights of persons belonging to minorities i.e. individual
rather than collective rights (Vizi 2005: 90). Nonetheless, this attempt to
transpose the Hungarian Constitutions responsibility clause into the Treaty is
probably the most notable recent instance of a connection in constitutionalism between the national and the European level. The question is salient
because this is where Europeanisation and identity politics, or more precisely
Hungarys kin-state identity, intersect.
Conclusion
The Hungarian Constitution, when drafted in 1989 amidst the democratic
transition, succeeded in doing what constitutionalism in substantive terms
implies by limiting the power of the state vis-a`-vis society, and by empowering
society through guaranteeing civil rights and liberties vis-a`-vis the state. At the
time for the drafters the state still meant the communist party, which had been
for four decades prior to this a ruler largely unconstrained by rules. The
checks on executive power include both direct democracy, which has been
used to great effect by political forces outside government, and a powerful and
pro-active Constitutional Court, strongly committed to safeguarding its ideals
of constitutionalism. Both the scope of constitutional norms and their acting
as real constraints on power in constitutional practice make this a liberal
arrangement.
At the same time, the Constitution is not civic in the sense of being
completely devoid of references to nation and people. It recognises that the
latter, the source of the sovereign power the state exercises, is not identical
with the former. But the Constitution does not go much beyond the mere
recognition of this fact reecting a lack of consensus on what matters more
for the denition of political community, universal principles and citizenship
or the particularism of language and blood. This also means that Hungary is a
country where questions of national identity and boundaries between us and
them loom large in political life and, to a considerable extent, continue to
structure party competition. This may go some way towards explaining why
electoral contests have been so bitter, and the trenches separating the camps
so deep.
The narrow strip of ground on the national question that liberals and
conservatives, or Left and Right, share is a vague sense of responsibility
46
Agnes Batory
towards Hungarians outside Hungarys borders, which appears as one of the

rst provisions of the Constitution. But, again, there is a lack of consensus on
what sort of, if any, governmental action this responsibility should imply,
which has repeatedly turned citizenship legislation into a battleground. The
squeeze between EU conditionality and constitutional obligation as kin-state
resulted in fuzzy citizenship (Fowler 2002), neither-citizen-nor-foreigner,
neither fully us nor fully them denitions of co-ethnic status. However,
initiatives like the status law suggest not a post-modern ethos superseding the
idea of the nation-state, but rather an attempt to reconnect, at least
normatively, the state with the nation in a cultural sense. Ethno-politics, in
short, is alive and well, both externally, with respect to Hungarians outside
Hungary, and internally, with respect to internal minorities, primarily the
Roma whom many in Hungary would exclude from the Hungarian nation
based on the perception that they are ethnically or racially different.
Hungarys constitutional identity as a kin-state is salient in domestic party
debate to an extent that Hungarys newer constitutional identity as an EU
member does not quite match. Relations with co-ethnics have been framed in
volk-ish terms of language, history, and tradition, whereas integration into the
EU is framed in statist terms, which does not give rise to the same degree of
controversy, despite the obvious potential of supranational integration to
challenge traditional notions of inclusion in/exclusion from the political
community. This is also to say that the debate on constitutionalism in the
EU has largely passed Hungary by, with the exception of the narrow circle of
those directly participating in EU policy-making within the political elite.
Where an interaction still exists and where therefore we can talk about a
multi-level constitutionalism of sorts is where kin-state identity and
Europeanisation does, or can be portrayed to, intersect, in the eld of a
European minority protection regime.
Notes
1 The term kin-state is from Schopin (2000). The equivalent by Brubaker (1995: 108), external
national homeland, refers to a state to which a group of people who hold the citizenship of
another state can be construed as belonging, by ethnocultural afnity, though not by legal
citizenship. For a discussion of kin-state identity see also Sabanadze (2006).
2 Moreover, it is argued that the full constitutionalisation of the EU is problematic, if not
illegitimate, in the absence of a European people or demos (MacCormack, 1996; Weiler, Haltern
and Mayer 1995).
3 The gure is from the website of the Government Ofce for Hungarians Abroad, accessed at
http://www.hhrf.org/htmh/en/?menuid=08&news020_id=1201 on 9 March 2009. Of the approximately 2.5 million Hungarian speakers the vast majority live in Romania (1.4 million) and
Slovakia (500,000). The gures are contested.
4 This gure probably under-represents minorities as the relevant questions in the census were
voluntary for data protection reasons. The largest minority according to the census, approximately sixty per cent, is the Roma/Gypsy, the rest of the 314,000 are Germans, Slovaks, Croatians, Romanians and various other nationalities. The census is available at http://www.
nepszamlalas.hu/hun/kotetek/04/tabhun/tabl05/load05.html (accessed on 7 April 2008).
47
5 English version of the Constitution as quoted in Majtenyi (2005).

6 This paragraph draws on Kovacs (2005).
7 On the shift of the CE regime from banning to encouraging multiple citizenship see generally
Vink (2001).
8 Figures from the National Election Ofce, www.valasztas.hu
9 Authors translation.
10 Proponents argued that the expanding EU would create the possibility of national unication
by dissolving borders, whereas sceptics feared that the Unions external borders would erect new
barriers between the mother country and co-ethnics remaining outside the EU for the foreseeable
future, notably in Ukraine and Serbia.
References
Arato, A. 1994. Dilemmas arising from the power to create new constitutions in Eastern Europe,
in M. Rosenfeld (ed.), Constitionalism, Identity, Difference and Legitimacy: Theoretical
Perspectives. Durham, NC: Duke University Press.
Batory, A. 2008. The Politics of EU Accession: Ideology, Party Strategy, and the European
Question in Hungary. Manchester: Manchester University Press.
Bellamy, R. and Castiglione, D. 1996. The communitarian ghost in the cosmopolitan machine:
constitutionalism, democracy and the reconguration of politics in the New Europe, in R.
Bellamy (ed.), Constitutionalism, Democracy and Sovereignty: American and European Perspectives. Aldershot: Avebury.
Brubaker, R. 1995. National minorities, nationalizing states, and external national homelands in
the new Europe, Daedalus 124, 2: 10733.
Brubaker, R. 1996. Nationalism Reframed: Nationhood and the National Question in the New
Europe. Cambridge: Cambridge University Press.
Elster, J. 1991. Constitutionalism in Eastern Europe: an introduction, The University of Chicago
Law Review 58: 44682.
Fowler, B. 2002. Fuzzing citizenship, nationalising political space: a framework for interpreting
the Hungarian status law as a new form of kin-state policy in Central and Eastern Europe,
ESRC One Europe or Several Programme Working Paper 40/2.
Gellner, E. 1983. Nations and Nationalism. Ithaca, NY: Cornell University Press.
Halasz, I. 2005. Dual citizenship as an instrument of the Hungarian policy towards the nation?,
in Z. Kantor, C. Fedinec, P. Erdo+si, E. Kovacs and A. Z. Papp (eds.), Regio: A Review of
Minorities, Politics and Society. Budapest: Teleki Laszlo Institute.
Huntington, S. 1991. The Third Wave: Democratization in the Late Twentieth Century. Norman,
OK and London: University of Oklahoma Press.
Johns, M. 2003. Do as I say, not as I do: the European Union, Eastern Europe and minority
rights, East European Politics and Societies 17, 4: 68299.
Kantor, Z. 2005. Re-institutionalising the nation: status law and dual citizenship, in Z. Kantor,
C. Fedinec, P. Erdo+si, E. Kovacs and A. Z. Papp (eds.), Regio: A Review of Minorities, Politics
and Society. Budapest: Teleki Laszlo Institute.
Kis, J. 2004. Nemzetegyes tes vagy kisebbsegvedelem, Elet es Irodalom December.
Korosenyi, A. 1999. Government and Politics in Hungary. Budapest: Central European University
Press.
Kovacs, M. M. 2005. The politics of non-resident dual citizenship in Hungary, in Z. Kantor, C.
Fedinec, P. Erdo+si, E. Kovacs and A. Z. Papp (eds.), Regio: A Review of Minorities, Politics and
Society. Budapest: Teleki Laszlo Institute.
Kymlicka, W. 2000. Nation-building and minority rights: comparing West and East, Journal of
Ethnic and Migration Studies 26, 2: 183212.
48
Agnes Batory
MacCormack, N. 1996. Liberalism, nationalism and the post-sovereign state, in R. Bellamy and
D. Castiglione (eds.), Constitutionalism in Transformation: European and Theoretical Perspectives. Oxford: Blackwell.
Majtenyi, B. 2005. Special minority rights and interpretations of the nation in the Hungarian
Constitution, in Z. Kantor, C. Fedinec, P. Erdo+si, E. Kovacs and A. Z. Papp (eds.), Regio: A
Review of Minorities, Politics and Society. Budapest: Teleki Laszlo Institute.
Pogany, I. 1996. Constitution making or constitutional transformation in post-communist
societies?, in R. Bellamy and D. Castiglione (eds.), Constitutionalism in Transformation:
European and Theoretical Perspectives. Oxford: Blackwell.
Preuss, U. 1996. The political meaning of constitutionalism, in R. Bellamy (ed.), Constitutionalism, Democracy and Sovereignty: American and European Perspectives. Aldershot: Avebury.
Rozsa, P. 2004. A parlamenti ratikacio csaloka uzenete: Az unios alkotmany megero+stesero+l,
Beszelo+ December.
Sabanadze, N. 2006. Minorities and kin-states, Helsinki Monitor 17, 3: 24456.
Sajo, A. 1995. Reading the invisible constitution: judicial review in Hungary, Oxford Journal of
Legal Studies 15, 2: 25367.
Sajo, A. 1996. The roundtable talks in Hungary, in J. Elster (ed.), The Roundtable Talks and the
Breakdown of Communism: Constitutionalism in Eastern Europe. Chicago, IL: University of
Chicago Press.
Scheppele, K. L. 1999. The new Hungarian Constitutional Court, East European Constitutional
Review 8, 4: 817.
Schimmelfennig, F., Engert, S. and Knobel, H. 2005. The impact of EU political conditionality,
in F. Schimmelfennig and U. Sedelmeier (eds.), The Europeanization of Central and Eastern
Europe. Ithaca, NY and London: Cornell University Press.
Schimmelfennig, F. and Sedelmeier, U. 2005. Conclusions: the impact of the EU on the accession
countries, in F. Schimmelfennig and U. Sedelmeier (eds.), The Europeanization of Central and
Eastern Europe. Ithaca, NY and London: Cornell University Press.
Schopin, G. 1992. From communism to democracy in Hungary, in A. Bozoki, A. Korosenyi
and G. Schopin (eds.), Post-Communist Transition: Emerging Pluralism in Hungary. London:
Pinter Publishers.
Schopin, G. 2000. Nations, Identity, Power: The New Politics of Europe. London: Hurst and
Company.
Stewart, M. 2004. The Hungarian status law: a new European form of transnational politics?, in
Z. Kantor, B. Majtenyi, O. Ieda, B. Vizi and I. Halasz (eds.), The Hungarian Status Law: Nation
Building and/or Minority Protection. Sapporo: Hokkaido University Slavic Research Center.
Szczerbiak, A. and Taggart, P. 2004. The politics of European referendum outcomes and turnout:
two models, West European Politics 27, 4: 55783.
Toth, J. 2005. Principles and practice of nationality law in Hungary, in Z. Kantor, C. Fedinec, P.
Erdo+si, E. Kovacs and A. Z. Papp (eds.), Regio: A Review of Minorities, Politics and Society.
Budapest: Teleki Laszlo Institute.
Vink, M. 2001. The limited Europeanization of domestic citizenship policy: Evidence from the
Netherlands, Journal of Common Market Studies 39, 5: 87596.
Vizi, B. 2005. The unintended legal backlash of enlargement? The inclusion of the rights of
minorities in the EU constitution, in Z. Kantor, C. Fedinec, P. Erdo+si, E. Kovacs and A. Z.
Papp (eds.), Regio: A Review of Minorities, Politics and Society. Budapest: Teleki Laszlo
Institute.
Weiler, J. H. H., Haltern, U. R. and Mayer, C. F. 1995. European democracy and its critique, in
J. Hayward (ed.), The Crisis of Representation in Europe. London: Frank Cass.

Kin-State Identity in The European Context Nationalism in Batory Agnes

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Kin-State Identity in The European Context Nationalism in Batory Agnes

Uploaded by

Copyright:

Available Formats

NATIONS AND

Nations and Nationalism 16 (1), 2010, 3148.

Kin-state identity in the European

Constitutionalism has recently been characterised as the only contemporary

Despite the urry of interest in constitutionalism, there has been relatively

Kin-state identity in Hungary

them was to be delimitated, the two parallel processes remained largely

1. Constitutionalism, nationalism and Europeanisation

Turning to the historical evolution of the concepts, the relationship of

Kin-state identity in Hungary

for the creation of ethnically homogeneous states. Constitution-making in

accession process. Many of these involved questions of inclusion in/exclusion

2. Hungarys political and constitutional system

Kin-state identity in Hungary

3. Citizenship and kin-state identity

Kin-state identity in Hungary

Kin-state identity in Hungary

which was whether ethnic Hungarians should be given Hungarian citizenship

Kin-state identity in Hungary

4. Europeanisation and constitutionalism

would relinquish or transfer sovereignty to the EU, which Fidesz strongly

Kin-state identity in Hungary

There was nonetheless one constitutional issue on which Hungarian

towards Hungarians outside Hungarys borders, which appears as one of the

Kin-state identity in Hungary

5 English version of the Constitution as quoted in Majtenyi (2005).

r The authors 2010. Journal compilation r ASEN/Blackwell Publishing Ltd 2010

You might also like