Dr. Kálmán Pócza senior lecturer Pázmány Péter Catholic University Budapest

APPOINTING A PRIME MINISTER WITHOUT PARLIAMENTARY MAJORITY: A COMPARATIVE HISTORICAL ANALYSIS

At the beginning of the 20th century both countries, Hungary and the United Kingdom experienced serious constitutional crises. According to Vernon Bogdanor the constitutional crises in the UK in 1909-1911 (power of veto of the House of Lords), in 1914 (Irish Home Rule Act) and in 1931 (appointment of Ramsay MacDonald to prime minister) shed light on the fact that the British monarch would still have been able to exercise his royal prerogatives in spite of the gradually emergence of basic constitutional conventions of parliamentary government. The events in 1931 demonstrated that the monarch was still able to appoint a prime minister who didn't enjoy the confidence of the House of Commons. The effective exercise of the royal prerogative to appoint a prime minister provoked an even more serious crisis in Hungary in 1905-06. The appointment of his guardsman (Géza Fejérváry) to prime minister, despite of an explicit rejection of the parliamentary majority, revealed that the Austrian Emperor took his royal prerogatives very serious in an exceptional situation. Since the competence of the monarch to appoint a prime minister - even in absence of the confidence of the parliamentary majority behind him - was one of the most discussed topics in both countries, I will try to compare the prevalence and exercise of this royal prerogative in both countries. After describing and evaluating the events of the constitutional crises at the beginning of the 20th century in both countries I also hope to have a more sophisticated picture on the mechanism of instrumentalization of the image of the British parliamentarism in Hungary.

It is a quite well known fact that the Austro-Hungarian compromise from 1867 had a considerable impact on the political theory and practice of the British parliamentarism in particular regarding the Irish question, one of the most important issues at the end of the 19th century in the United Kingdom. (GRIFFITH 1904; FRANK 2008) In turn the British parliamentarism had always played an important role as a reference point in Hungarian political thought. Although the interplay between the British and Hungarian political thought was more asymmetrical than supposed by Hungarian politicians and political scientist, the frequent references to the British parliamentarism produced an image of alleged similarities between the two political systems which rooted in a long-standing tradition of parliamentarism, ancient/unwritten constitution and the idea of selfgovernment. However deceptive this idea of analogous political traditions might have been, the prevalence of the notion of a unique parliamentary tradition, comparable only with that in the Unitd Kingdom, influenced heavily the Hungarian political thought and practice. In my short paper I will try to enlighten the special nature of these references by analysing a debate between Gyula Andrássy the Younger, one of the most prominent leaders of the opposition at the beginning of the 20 th century on the one hand, and Count István Tisza, Speaker of the Hungarian parliament. Although in a very different way both of them referred quite frequently to the British parliamentarism during the constitutional and parliamentary crises in Hungary from 1906 to 1910/1912. Certainly here I will focus only on one point of these references: since the competence of the monarch to appoint a prime minister - even in absence of a clear parliamentary majority behind him - was one of the most discussed topics in both countries, I will try to compare the prevalence and realization of this royal prerogative in both countries. After describing and evaluating the events of the constitutional crises at the beginning of the 20th century I hope to have a more sophisticated picture on the mechanism of instrumentalization of the image of the British parliamentarism in Hungary.

CONSTITUTIONAL CRISES IN THE UK AND IN HUNGARY At the beginning of the 20th century both countries experienced serious political and constitutional crises. In the United Kingdom it was apparently the conflict between the two Houses which dominated the British politics. The struggle resulted in a final victory of the House of Commons since the House of Lords had been deprived of power of veto after the adoption of the Parliamentary Act in 1911. It is well known that this Act led to the emergence of the so called “elective dictatorship” of the majority of the House of Commons. According to Vernon Bogdanor, however, this conflict between the two Houses, the controversy about the Irish Home Rule Act in 1914 and the appointment of Ramsay MacDonald to prime minister in 1931 shed light on the fact that the British monarch would still have been able to exercise his royal prerogative directly or indirectly. In 1910 Edward VII considered very seriously to reject the request of his prime minister Lord Asquith to swamp (or to threat to swamp) the House of Lords by appointing 500 new peers in order to facilitate the approval of Lord Asquith's bill on depriving the House of Lords of his power of veto. Edward VII was kept from doing this only by his dead. In 1914 George V considered also earnestly to veto the recently adopted Irish Home Rule Act. This time it was the First World War which prevented the explicit exercise of the royal veto. AS for the appointment of MacDonald, it should be remarked that the appointment was originally not only rejected by the parliamentary majority but by MacDonald's own party as well. It was George V who pushed through the appointment in spite of the general rejection of almost all parties in the parliament. (BOGDANOR 1997:113pp) All this happened despite of the gradually emergence of two constitutional conventions: firstly it was widely accepted that the monarch doesn't exercise his royal prerogatives against the will of his prime minister. Secondly it was also widely accepted that the monarch should appoint only candidates to prime minister who can provide the confidence of the majority in the House of Commons. Nonetheless the constitutional crises mentioned above demonstrated that the power of the monarch was still not necessarily evaporated and formalized at the beginning of the 20 th century. The contingent reactivation of the latent power of the British monarch depended on his personal attitude towards his royal prerogatives and on an eventual occurrence of an exceptional situation. The effective exercise of the royal prerogative provoked an even more serious crises in Hungary in 1905-06. After almost 40 years of having been in opposition the landslide victory of the alliance of opposition parties in 1905 embarrassed heavily Franz Joseph, the Emperor of the Austro-Hungarian monarchy. The alliance of the opposition comprised on the one hand parties which accepted the sovereignty of the Emperor and the construction of the dual monarchy by the Austro-Hungarian compromise in 1867. (PÖLÖSKEI 2001:165) Other parties of the alliance, however, denied the legitimacy of the this settlement from 1867 and purposed the absolute independence of Hungary. Nevertheless the appointment of his guardsman (Géza Fejérváry) to prime minister in 1905 despite of an explicit rejection of the parliamentary majority revealed that the Austrian Emperor took his royal prerogative very serious in an exceptional situation where the new parliamentary majority would have eventually exploded the dual monarchy. In 1905 it was not only a simple change of government it was the whole political system at stake thus Franz Joseph had to be sure that his government won't separate or disannex Hungary from the Austrian Empire. Finally after almost one year in power without parliamentary majority, the Fejérváry cabinet was released and a leading personality of the coalition of the opposition (Sándor Wekerle) was appointed to prime minister. Yet, the new cabinet had to guarantee that Hungary remain a part of the Austro-Hungarian Empire that means that some of the opposition parties had to abandon one of their most important demand (that is the independent Hungary). Providing this the new coalition was able to govern the country but the next four years were absolutely

dominated by the internal conflicts of the coalition thus it was not a surprise that they lost the next general election in 1910. (SZABÓ-BOROS 2008:130) The dominant party of the Hungarian parliament of the late 19th century, which governed for 35 years the country, returned after this election in 1910 and was decided to break down the filibustering of the opposition which got back to the politics of blockage after the lost election. Amid heavy rebellion of the opposition it was the Speaker of the House, Count István Tisza, who pushed through the new standing order of the House by removing the rebelling MPs violently. According to the new regulation of guillotine the discussion of a bill could be terminated before having heard all MPs. THE DEBATE BETWEEN GYULA ANDRÁSSY THE YOUNGER AND COUNT ISTVÁN TISZA Now our story begins right here: Gyula Andrássy the Younger, son of the first prime minister after the Autro-Hungarian compromise in 1867 and a devoted adherent of the dual monarchy, was at that time the most reputable person of the opposition. He published an article in a newspaper in 1912 with the title “Parliamentary violence and its British model”. Andrássy took reference in this article to some leaders of the governing party who claimed that the violent breakdown of the filibustering can't be contrary to the spirit and practice of parliamentarism because similar incidences occurred in the United Kingdom as well. Nevertheless, the violent breakdown of filibustering and its compatibility with the parliamentary government was only a starting point for Andrássy the Younger: he delineated a detailed comparison of the Hungarian and the British parliamentarism with a conclusion that the Hungarian parliamentarism was an absolutely degenerated form of parliamentary government and had almost nothing common with the original form existing in the United Kingdom. His main opponent, István Tisza, the Speaker of the House replied by claiming that the similarities between the two systems overcame definitely the differences, thus the Hungarian parliamentarism doesn't fall behind the British model. Moreover he saw the tradition of Hungarian parliamentarism to be tantamount to the British parliamentarism, which was by the way a prevailing view of the German and French legal scholars and the source of pride for a lot of Hungarian interested in politics nowadays. But how did both politicians come to different conclusions in spite of being surprisingly well informed not only about the political system of the UK but also the most recent political developments in the Westminster? Here I don't want to analyse all aspects of the debate between Andrássy and Tisza which comprised the comparison of the parliamentary elections, the royal prerogatives, the party systems, the attitudes of the opposition, the alternation of governments and so on. Here I will focus only on the royal prerogative to appoint the prime minister. Andrássy claimed in his article that the British monarch had no more influence either on the general elections or on the Members of the Parliament. He or she can not shape up a desired parliamentary majority based on his own will. Furthermore the executive is absolutely determined by the parliamentary majority, the royal prerogative to chose and appoint a prime minster became an absolute formality. Andrássy was convinced that no prime minister of the United Kingdom was able to remain in office only at pleasure of the monarch without a parliamentary majority behind him. The monarch had to appoint the leader of the party which won the election and he can't chose anybody else even from the winning party. Andrássy referred to the fact that the breakdown of the filibustering in the British parliament occurred not before the annulment of the royal prerogatives and formal influences. Thus, according to Andrássy, the British political system was characterized by the absolute repression/atrophy of the royal prerogatives. (ANDRÁSSY 1912:1) On the other hand he referred to the successful intrigue of the Austrian Emperor Franz Joseph who forced the alliance of the opposition parties in 1906 to abandon the idea of an independent Hungary and reconcile with the

existence of the Austro-Hungarian Empire. Consequently Andrássy denied the parliamentary character of the Hungarian political system, in particular because of the permanent dominance of the royal prerogatives. (ANDRÁSSY 1912:4) Since Andrássy was the leader of the opposition and thus he and his party's interest consisted in securing the possibility of alternation of government, it is not surprising that he referred to and interpreted the phenomena of the British parliamentarism which could back his position in internal affairs. To sum up: Andrássy idealized and instrumentalized the practice of the British parliament in order to strengthen his standpoint in an internal debate. Similarly, it is not astonishing that his political opponent, István Tisza referred only to the facts and practices of the British parliamentarism which underpinned his argumentation. Tisza referred to the appointments of Lord Salisbury in 1885 and Lord Rosebery in 1894. In spite of the fact that neither Salisbury nor Rosebery was supported by the parliamentary majority both became prime minister only at pleasure and by the effective intervention of Queen Victoria. Furthermore Tisza signalized that even Franz Joseph had to yield to the will of the parliament two times, as the parliamentary majority didn't accept his candidates. Neither Khuen-Hédervári in 1894 nor Tisza in 1903 enjoyed the confidence of the parliamentary majority, thus the Emperor should withdraw his proposals. (TISZA 1912:255) According to Tisza the real nature of parliamentarism consisted in a permanent harmony between the will of the parliament and the monarch. This harmony excludes, however, the overwhelming dominance of either of them. Instead, it presupposes continuous negotiations and mutual compromises. The harmony between the will of the monarch and the parliament will evolve due to mutual recognition of the intentions of the others. Nevertheless the necessity of negotiations between the monarch and the parliament could not predetermine which party has to make more concessions. It was always a question of the actual situation and constellation of power. The real parliamentarism excludes the unequivocal dominance of the parliamentary majority over the monarch but the monarch must always bear in mind the will of the parliamentary majority as well. (TISZA 1911a:106) According to Tisza the British history provided us a lot of evidence that the royal prerogative to appoint a prime minister remained a living power even in the United Kingdom. In the debate Tisza was also clearly motivated by his party's interest and by the idea that Hungary will be able to remain a powerful actor on the European scene only as a part of the Austro-Hungarian Empire. An independent Hungary might lose his great-power status, accordingly every steps which reinforce the alliance with Austria and strengthens the position of the monarch will contribute to the preservation of the Hungarian influence in Europe. In order to underpin this strategy he referred only to the facts of the British parliamentarism which backed his view that the British monarch retained his power despite of the changes in the British politics. He emphasized that the British parliamentarism was characterized by a balance of the power between the monarch and the parliament. Thus, not only Andrássy but also Tisza idealized the image of the British parliament in order to instrumentalize it in domestic affairs. By accepting the theoretical approach of the rational choice theory it shouldn't be surprising that political actors are pursuing their self-interest and instrumentalizing even the image of the British parliament. Nevertheless this idealization and instrumentalization was only possible due to the phenomena of atrophy of royal prerogatives and due to the misinterpretation of the real character of the British parliament by the Hungarian political class and scholars. Regarding the misinterpretation the question heavily debated among Hungarian legal scholars and political scientist/politicians was whether the parliamentary government in his genuin (i.e. British) form was a legal institution or merely a constitutional convention. Nevertheless the phenomenon of the atrophy of the power of the British monarch and the over- or even underestimation, i.e. misinterpretation of his/her real power are closely related: the atrophy of the royal power, sometimes invisible even for

the British political actors, facilitated the contradictious and ambiguous misinterpretations of the real power of the British monarch among Hungarian scholars and politicians. The discrepancy between the written rules and the constitutional conventions concerning the royal power of the British monarch had fatal consequences regarding the image of the British parliamentarism which dominated the Hungarian political thought. Let me explain these two factors in the following sections. ATROPHY OF ROYAL PREROGATIVES According to the theory of atrophy of constitutional power a legal competence or a political power that is not exercised tend, over time, to become unexercisable. The use of this unexercised power comes to seem illegitimate because of the emerging convention that the monarch abstains from using this power. (VERMEULE 2012:1) Although there will be an obvious discrepancy between laws and constitutional conventions this gap between the written and unwritten norms won't be realized either deliberately or unintended. Nevertheless the point is that an unwritten constitutional convention may overrule even a written norm in this case. Since constitutional conventions are underpinned by precedents (or by the absence of any precedents), these may overrule even written laws as well. And this is what happened to the royal prerogatives of the British monarch. By not using the prerogative of veto, swamping the House of Lords or selecting the prime minister over a long period, the British monarch has abandoned the potential to use these prerogatives. According to British constitutional scholars of the late 19th century it is quite superfluous to refer to the written laws in regard to the royal prerogatives because the widely accepted unwritten conventions overrule even the written law. Hungarian and Austrian scholars of the late 19th century, in turn, point out the fact that the Austrian Emperor, Franz Joseph has never ceased to use his prerogatives. Consequently it was clear for all political actors that the power of the Austrian Emperor remained almost intact. No tacit constitutional convention has emerged which could have prevented the monarch from active intervention in daily politics. Franz Joseph vindicated actively and apparently the principle of royal intervention. Thus, two preconditions are needed to the atrophy of a formal existing constitutional power: first of all the power holder shouldn't have exercised his power over a long period because he/she couldn't or didn't want to use it. (VERMEULE 2012:6) The power holder had frequently an other legal competence or political potential which facilitated him/her to achieve his/her goal more effectively and politically less expensive. Nevertheless by neglecting deliberately a legal power and choosing a less difficult way a constitutional power jeopardizes his own political potential. The other precondition is that the political opponents should disregard, deliberately or due to imprudent considerations, the fact that a written rule empowers his opponent to exercise his power and that this opponent had still been exercised his power sometimes up until very recently. Vermeule remarks in this respect that constitutional powers may decay differently. In the United Kingdom the reason behind the atrophy of the royal prerogatives was that the British monarch was able to achieve his aim more successfully by influencing the political process informally than by exercising his royal prerogatives declared. By influencing informal (and sometimes illegal) the elections and the MPs the British monarch could always get harmonized his own political will with that of the formally sovereign parliament, which was a less costly but more effective way of political control. Corruption and bribery, political patronage and facilitating a political career were the most important political instruments of exercising of his royal power. The will of the British monarch prevailed not by explicit exercise of his power but behind the scenes which shaped the allegedly non-confrontative and non-intervening character of the British monarch. In turn, the renewed attempt to exercise the royal

prerogatives declared at the end of the 19 th century lead to heavy resistance and was regarded as absolute illegitimate. (VERMEULE 2012:12) Furthermore the British monarch has lost control over the MPs and elections after the Second Reform Act in 1867, since the increasing number of voters and the increasing party discipline of the parliamentary parties, itself a consequence of the inevitably increase of organizational strength of the parties needed to influence more effectively the mass of voters, left no chance to influence the will of the House of Commons. Now, the constitutional crises from 19091911, 1914 and 1929-31 proved the hypothesis that regaining a constitutional power, not exercised for a long period, is though quite difficult (due to the principle of atrophy of power) but not inconceivable. PARLIAMENTARY GOVERNMENT AS LEGAL INSTITUTION: A DEBATE BETWEEN GYŐZŐ CONCHA AND ALBERT DEÁK Getting back to the debate between Andrássy and Tisza we should remark that the proper reason behind the disagreement between the two politicians was the deceptive image of the royal prerogatives of the British monarch among Hungarian sholars and politicians caused by two factors: first of all by the atrophy of royal prerogative mentioned, furthermore by the misinterpretation of the genuine character of the British form of parliamentary government. As for the second factor both politicians disregarded the the discrepancy between written law of the UK and the application of it. The political practice (which became a constitutional convention after a while) overruled the written rules in respect of the royal prerogatives. Nevertheless many problems were ensuing from this discrepancy: in contrast to written rules constitutional conventions might never give clear answers to the central question of the debate between the two politicians, i.e. whether the real exercise of the royal prerogatives (veto or selecting the prime minister) could be harmonized with the principle of parliamentary government. Unwritten conventions are resisting the ultimate rational and clear conclusions since by underpinning pro and contra arguments one may employ contradictory precedents in order to legitimate or delegitimate a constitutional convention. This is why contemporary scholars considered enthusiastically the question whether the parliamentary government is a legal institution (which limits the power of the monarch in selecting his prime minister and his power of veto by written legal) or merely a constitutional convention (which doesn't facilitate the implementation of the clear principles of the parliamentary government). Parliamentary government may be regarded as a legal institution only if the majority principle is anchored in a legal document binding every political actors. To put it in another way: the system of parliamentary government may be regarded as a legal institution only if there is an explicit and written regulation on vote of confidence: loosing the confidence of the majority in the parliament should involve legal sanctions (i.e. the resignation of the cabinet). (SZENTE 2010:353pp; PESTI 2002:23pp) Concerning the royal prerogative to appoint a prime minister the question is whether the monarch is empowered, legally or by any constitutional conventions, to appoint (or to hold in office) a prime minister without a clear parliamentary majority behind him, i.e. whether the monarch may violate the principle of parliamentary government or not. To put it briefly: the question is whether the principle of royal prerogative may be reconciled with the principle of parliamentary government. Now, the question of exercise of royal prerogatives in practice turns here into a question of the real character of the parliamentary government at the late 19th century. Depending on his legal or conventional character, the parliamentary government may or may not be reconciled with the explicit exercise of royal prerogative. I'm going to explain this in the following sections by arguing that the British system of parliamentary government was based merely on constitutional conventions, therefore both, Andrássy and Tisza misinterpreted the British system by

referring to this implicitly as a legal institution. That's why one can't give a right answer to the questions put by the two politicians: since the British system of parliamentary government was not a legal institution but it based on constitutional conventions, furthermore since conventions are by far not unambiguous as written texts, the question whether the principle of parliamentary government may be reconciled with the deliberate exercise of the royal prerogative to appoint a prime minister must be remained unanswered. As mentioned before both, Andrássy and Tisza anticipated the British parliamentary government as a legal institution, i.e. as a set of legal norms and criteria. Both supposed that the accomplishment or violation of these criteria may clarify and determine the real status of the Hungarian parliamentarism. This anticipation of the legal character of the British parliamentarism is the more remarkable because a public debate on the legal or conventional character of the parliamentary government took place not long before the debate between Andrássy and Tisza. During the constitutional crises in 1905 many Hungarian scholars expressed their opinion on this question. By avoiding a deep analysis of these debate we refer to the fact that the debate focused on the royal prerogative to appoint a prime minister. This was obviously no surprising since the Austrian Emperor Franz Joseph appointed his guardsman (Géza Fejérváry) to prime minister in spite of an almost unanimous refusal of his person among the MPs. Géza Fejérváry didn't enjoy the confidence even the minority of the MPs. (WIENER 2007:72pp) The importance and significance of Andrássy the Younger became quite obvious already during this debate since the controversy was exploded by his article. In the newspaper “Budapesti Hírlap” he made a diagnose on the present state of Hungarian parliamentarian by claiming that “the 3 rd statute from 1848 codified a well known legal and political concept, furthermore introduced the system of parliamentary government unfolded initially in the United Kingdom”. (ANDRÁSSY 1905:1) This view of Andrássy was, however, challenged by the most prominent political scientist of the period, Győző Concha. He denied that the 3rd statute from 1848 would have introduced in Hungary a legal institution which was called parliamentary government. Furthermore he added that even the British model of parliamentary government missed the legal character because any legal regulation should contain necessarily the possibility of sanctioning the violation of these rules. (CONCHA 1905:403) Concha concentrated here principally not on the criminal sanctions, i.e. impeachment of cabinet ministers or prime ministers but on the political responsibility which is formalized by an act with legal consequence. According to Concha not only the Hungarian regulations missed the legal character in this respect but even the British political system. He stresses two points: on one hand he refers to the lack of any legal regulations on compulsory resignation of the cabinet which lost his majority in the parliament, on the other hand he highlights the fact that in the corpus iuris of both countries there are regulations (the royal prerogatives of the monarchs for example) which obviously contradict to the principle of the majority rule. And Concha has right in this respect: there were no clear regulation with sanctionary character on vote of confidence and no clear principles when should the cabinet resign either in Hungary or in the UK. Having no unambiguous written norms means that the principle of parliamentary government is rather a constitutional convention than a legal institution. Concha declares that “establishing a system of parliamentary government as a legal institution is necessary impossible in every country which has not only a parliament and a cabinet responsible to this parliament but also a monarch (or a president of the republic) empowered by the nation with the legal power to dismiss the parliament, appoint ministers, pre-confirm the draft bills and veto accepted statutes.” (CONCHA 1905:421) According to Concha it would be a legal absurdity to fix the majority principle in a statute and the right of the monarch to dismiss his cabinet or appoint new minister at his pleasure in same corpus iuris. Concha asserted that “this legal absurdity is the main reason why the British based their system of parliamentary

government not on legal terms, but on ethical imperatives and political conventions which regulate only by and large the political process.” (CONCHA 1905:425) Concha is convinced that the British model of parliamentary government (and the whole constitutional system) rests on these unwritten constitutional conventions clearly distinguished from all written laws. In this sense the ministers are responsible to the (majority of the) parliament only in ethical terms but not in legal terms: the loss of confidence couldn't be sanctioned legally only politically. (CONCHA 1905:427) In contrast to this argumentation Albert Deák, a famous legal expert at the turn of the century, contended that the question whether the system of parliamentary government should be regarded as a legal institution or only as a constitutional convention depended on the definition of the law. According to him constitutional conventions are included in the corpus iuris of a country thus the system of parliamentary government, which rests on unwritten conventions, is an explicitly legal institution. Deák defined the concept of law as the manifestation of the will of the political community. In this regard the form of this manifestation is quite indifferent: unwritten conventions, which are widely accepted by the members of the political community, are part of the legal system of a country similarly to written laws. He denies the claim of Concha according to which the special character of law consist in the possibility of its enforcement. Deák is convinced that every manifestation of the national will, included the unwritten conventions as well, are part of the legal system of a country. Nevertheless by denying the special character of written law Deák disregards the fact that constitutional conventions are operating with precedents which in turn allow more space for contradictory conclusions by referring not to a more or less definite passage of a legal text but to very diverse precedents. This ambiguous characteristic of conventions are very important in critical situation as various precedents may underpin very different political positions. PARLIAMENTARY GOVERNMENT AS CONSTITUTIONAL CONVENTION Accepting the thesis that the parliamentary government was not a legal institution but a constitutional convention even in the late 19 th century Britain, we should turn to the real characteristics of these constitutional conventions. Starting point is the claim that conventions may give merely highly dubious guidelines for the application of the norm existing by these conventions. Written documents may be doubtless interpreted in various ways as well, thus the interpretation of a constitutional document may lead to very different judgements. Nevertheless unwritten constitutional conventions open up an unimaginable wide range of possible (and thus radical different) interpretations since conventions are based on precedents and contradictory precedents, which exist almost always, may give more chance to controversy than the interpretation of a written text. This observation is reinforced not only by Albert Dicey (DICEY 1915:cxlii) but the best 20th century expert of the British constitutional conventions, Geoffrey Marshall as well. Marshall describes three important characteristics of constitutional conventions. The first important characteristic of all constitutional conventions are their vagueness. They “can in most cases be stated only in general terms, their applicability in some circumstances being clear, but in other circumstances uncertain and debatable. (…) Most of the major conventions of parliamentary government, such as those of collective and individual ministerial responsibility, suffer from vagueness as to their application, although they undoubtedly exist. (…) If an alleged convention embraces few clear cases, and many disputed situations need to be confronted, the difference between saying that a general conventional rule exists and saying that no conventional rule clearly exists may be a fine one.” (MARSHALL 1984:210pp) Marshall regards the constitutional convention that the monarch may dismiss his minister at his pleasure as a blatant example of this kind of vague conventions even at the late 80s of the 20 th

century. (MARSHALL 1984:28) Secondly Marshall emphasizes that constitutional conventions may influence the conduct of the members of political community only if the existence of these conventions are acknowledged by them. By contrast to conventions the existence of a law is independent of the acknowledgement of the members of the political community. A law exists even if the individuals don't know anything about their existence. A convention exists only as long as they will be perceived and accepted by the members of the community. Once the members (or some members) of the community don't believe in the existence of a convention this conventions cease to be regulative for their conduct. They disregard the conventions, violate them because they don't regard them as real existing conventions. Nevertheless the violation of conventions, the neglect of conventions can not be sanctioned directly thus breaches of conventions has never direct legal consequences. (MARSHALL 1984:214) Thirdly Marshall stresses that our knowledge about the genesis or emergence of most constitutional conventions are as blurred and vague as the conventions itself. What is more important from our point of view is that Marshall considers the royal prerogative to select and appoint a prime minister as such a vague but still existing convention even at the late 20th century. He refers to the case when Elisabeth II rejected to reinstate the prime minister of Australia who was dismissed by the Australian governor. (MARSHALL 1984:28) Now, we have clarified two very important characteristics of constitutional conventions: first of all they are very vague and thus they have only limited capacity to give clear guidance on desired conduct of the member of the political community. Secondly it was stated that the existence of conventions should be acknowledged by the members of the community. In contrast to written laws constitutional conventions don't exist without this acknowledgement. Getting back to our topic: if both, parliamentary government and the royal prerogative to appoint his prime minister are “merely” constitutional conventions, their existence depends on the acknowledgement among the members of the political community. Furthermore, even if they are accepted conventions they can not give clear instructions what to do in disputed cases because of their vague character. And this is the point: during a constitutional crises, i.e. when constitutional conventions should be clear guide to solve the conflict, these conventions are not capable to give clear guidelines for their actual application in a country without a codified constitution. They fail to be decisive factors in critical situations. CONSTITUTIONAL CONVENTIONS QUERIED After having unravelled the genuine character of the parliamentary government at the late 19th century we should turn to the question what happens when basic constitutional conventions of parliamentary government get under strain. In the next passages I'm going to scrutinize how do constitutional conventions work during a constitutional crises, what kind of consequences may have the fact that conventions are not able to make clear situation in a critical controversy about political power. The focus will be on the use of royal prerogatives which, in turn, are profoundly correlated with the majority principle, i.e. with the constitutional convention of parliamentary government. The point is that this correlation will be manifest in clashes of the two constitutional convention during constitutional crises. Let's turn to the royal prerogatives! According to Vernon Bogdanor the most important royal prerogatives (veto, dismissing and appointing the prime minister etc.) became to be formal in fact but two additional phenomena determined the late 19th century British politics, although not as obvious even for the political actors as the phenomenon of atrophy of royal prerogative. The first tendency refers to the increasing informal power of the monarch in influencing politics, the second one to the importance of personality and attitude of monarchs in resolving constitutional crises. This second observation makes it clear that the

constitutional convention of majority principle may have been violated even in Britain of the early 20th century if a monarch wanted to intervene in important political situations. (BOGDANOR 1997:27) The first tendency is quite clear and well known for historians: while the formal power of the monarch became more and more insignificant in peace times, his informal influence became more powerful. Bogdanor emphasises that this phenomenon was discernible in peace times but a second tendency may have counterbalanced the decrease of formal power. In abnormal times, i.e. in crisis situations the significance of the royal prerogatives may have become once again crucial due to the vague character of constitutional conventions. In order to demonstrate this later phenomenon Bogdanor refers to three different crisis situations when the renewed attempt to use the royal prerogative (would have) turned to be a decisive element in resolving a constitutional crisis. (BOGDANOR 1997:113pp) In 1910 Edward VII rejected explicitly the request of the liberal prime minister, Lord Asquith to swamp the House of Lords, in 1914 it was the Irish Home Rule Act which was considered by Edward VII to be rejected (at the end it was adopted but its application was suspended because of the WWI) and in 1931 George V appointed Ramsay MacDonald to prime minister in spite of an explicit rejection of the parliamentary majority (and even of the parliamentary minority). These events provide us evidences regarding the main argument of Bogdanor, i.e. that because of the conventional (and not legal) character of the royal prerogatives and the majority principle of parliamentary government it was not clear even at the third decade of the 20th century that appointing a prime minister or vetoing a bill would be unconstitutional conduct on behalf of the monarch. (MCLEAN 2009:124) Regarding the Hungarian case it is also an important factor since the interpretation of the British model was decisive in domestic politics as well. Nevertheless, the two conventions mentioned above were not codified in any constitutional documents thus they could have been challenged at any time by a confident and stout monarch. And this is what happened in all three cases mentioned by Bogdanor: in spite of the accepted conventions of the parliamentary government the monarch would have potentially or had in fact intervened in daily politics in order to resolve a crisis situation by exercising his royal prerogatives allegedly atrophied due to the self-restraint of the monarch. This view is shared by Rodney Braizer, another constitutional expert of the UK, concerning the actual power of the monarch at the late 20th century: “The idea that the role of the Queen has been reduced in the selection of a new Prime Minister to that of cypher is in most instances correct. (…) It is, however, wrong to assume that the prerogative to choice of a new Prime Minister is as limited today as might have been supposed. Although some way have been suggested in this chapter in which procedures might be adapted to ensure an element of democratic choice so that so far as possible the prerogative of choice could be kept in the background, a number of instances have been outlined where its use would be difficult to avoid. (…) Thus (…) there remain sufficent possible circumstances in which the Queen would have to exercise her prerogative of choice unaided by parties.” (BRAIZER 1999:29) We abandon a detailed description of the three constitutional crises mentioned above and restrict ourself to stress the evaluation of the crises by Bogdanor: his main thesis is that in all three cases it was the attitude of the actual monarch which determined the outcome of the crises since constitutional conventions provided a wide range of possible outcomes of the crises. Edward VII and George V considered to make use of his prerogatives (to resist) to swap the House of Lords during the constitutional crisis in 1909-1911 and to veto the Irish home Rule Act after its adoption in 1914. In 1910 it was only the dead of Edward VII which prevented the monarch from using a prerogative not used long before, and in 1914 it was the start of the First World War which averted George V from vetoing the adopted Irish Home Rule Act. But in 1931,

during the great depression, nothing could keep back the strong-minded George V from appointing Ramsay MacDonald to prime minister who didn't enjoy the confidence even of his own parliamentary fraction. This cases illustrates the thesis of Bogdanor: in times of crises the long unexercised royal power could be employed once again depending on the character and attitude, the predispositions and mentality of the actual monarch. If he is a strong-minded and self-confident monarch, and he is decided to interfere in critical situations into daily politics than he can do it by referring to his royal prerogatives even if its prerogative was not exercised for a long time. If his understanding of the role of the monarch is more moderate and unassertive, he can keep off the constitutional crises and let the politicians to resolve the conflict. SUMMARY After having outlined the main events of the constitutional crises in Hungary and in the UK we described the main elements of a debate on the royal prerogative of the Austrian emperor. This debate highlighted at the same time the special character of the references to the British model of parliamentary government which were used by both politicians in the debate. We found out that both politicians, although in radical different way, idealized the British form of parliamentary government and at the same time instrumentalized these images of the British parliamentarism for their own purposes in domestic politics. Now, we discerned that this idealization and instrumentalization was only possible because both politicians considered the British form of parliamentary government as a legal institution and not as a constitutional convention. After analysing the genuine character of the British parliamentary government by referring to Vernon Bogdanor and Geoffrey Marshall, we accepted the concordant findings of both scholars which described the British form of parliamentarism as a constitutional convention (and not as a legal institution). At the end we concluded that the instrumentalization of the image of the British parliamentary government was only possible by disregarding the conventional character of the parliamentarism and the importance of personal factors in politics. The importance of both of these factors became obvious in constitutional crises. Since breaches of constitutional conventions couldn't be sanctioned directly it was up to the attitudes of the political actors how the crises will end. As for our field of interest: during a constitutional crises it was the attitude of the British and the Hungarian monarch towards his own royal prerogatives which determined whether these prerogatives would be reactivated or not. In this sense we see a general principle to be underpinned which claims that the behaviour of the political actors is more determinative in politics than the institutional constraints/factors. Taking this into account this essay reinforce the heuristic character of behavioralism and reduce/weaken the explanatory capacity of the institutionalist approach. According to the conclusion of this paper 1. the Hungarian political thought was dominated by a largely idealized image of the 19th century British parliament. 2. The origins of these idealized pictures track back to the neglect of the fact that the British parliamentarism was regarded more as a political praxis based on unwritten conventions and traditions than a legal institution. 3. Contrary to the violation of written laws violation of conventions can not be sanctioned immediately by means of the law. This is what happened in 1911, in 1914 and in 1931 in the UK. 4. During times of critical political constellations the outcome of a conflict will be determined rather by the actual constellation of political power and the perception of their role in the political process than by existing rules. Due to the analysis of the debates between Gyula Andrássy the Younger and István Tisza on the one hand, and between Győző Concha and Albert Deák we claim that the patterns of behavior of the political actors and the perception of their own role (and not the existing institutions) are the crucial elements in

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