In his brilliant paper The Logic of Proportionality: Reasoning with Non-Numerical Magnitudes, Professor Sartor provides a multi-layered analysis of proportionality based on a model of teleological reasoning governed by value-norms, arguing that this kind of reasoning is quantitative but non-numerical, i.e., operates on magnitudes to which no symbolic numerals are assigned. The analysis pursued by Professor Sartor can be divided into three parts. In the first part, drawing on the theory of bounded rationality, Professor Sartor develops a model of teleological reasoning (of which proportionality reasoning is a special case) distinguishing its four stages: Value-adoption, goal-adoption, plan-adoption, and action-adoption. In the second part, he introduces and develops in great and illuminating detail a distinction between value-norms and action-norms. In the third—main—part, Professor Sartor makes the basic claim of his paper that proportionality reasoning (i.e., reasoning aimed at establishing whether a given legislative norm interfering with some constitutionally protected right is “proportional”), involving the assessment of the impact of choices upon relevant values, is quantitative but not based on numerical magnitudes, and develops a conceptual framework for reconstructing this reasoning and explicating its constituent elements (suitability, necessity, and balancing in the strict sense). Each of these parts abounds with valuable analyses and precious insights and would deserve a separate commentary, yet I shall confine myself mainly to the analysis of the third part, in which he develops his basic claim. I shall focus in the first place on two interpretive problems my reading of Professor Sartor's paper has given rise to, though some of my remarks will concern also more technical matters.

For ten years, the legitimacy of constitutional comparison in courts has been intensely debated. The case law of the U.S. Supreme Court led to an intense discussion on constitutional comparison and reached its peak with the Great Debate between Justice Scalia and Justice Breyer. Justice Breyer argued in favor of constitutional comparison while Justice Scalia refused the comparative approach. Justice Scalia stated:

The comparative constitutional analysis of federalism is particularly complex. On the one hand, “[e]ach federal bargain is in important respects unique to the parties' situation,” in contrast to constitutional provisions asserted to guarantee fundamental rights. On the other hand, “provisions concerning federalism may have different historical meanings in a particular polity, tied in different ways to the political compromises.” In addition, the federal system relies on an “interrelated package of arrangements.” Therefore, no element should be considered isolated from other elements of the federal compromise. As a consequence, in order to compare federalism issues it may be necessary to evaluate “the entire interrelated structure.”

Judges involved in constitutional adjudication often engage in comparative analyses of foreign cases. The judges of South Africa's Constitutional Court [hereinafter Constitutional Court] do so, too. The phenomenon has been given many names such as “transjudicialism,” “transjudicial communication,” “constitutionalist dialogue,” “judicial globalization,” “constitutional cross-fertilization,” “transnational contextualization,” “globalization of judgment,” “globalization of national courts,” “constitutional borrowing,” “constitutional comparativism,” and “judicial comparativism.” All these terms have merit, especially within their appropriate context, but for the purposes of this contribution we will use the term “comparative constitutional jurisprudence” to name the phenomenon we wish to describe and discuss. First, in the South African context, the terms “dialogue,” “cross-fertilization,” and “globalization” do not reflect the true nature of the exercises in drawing comparisons in the South African Constitutional Court. These terms imply a reciprocal dialogue between two or more courts from different jurisdictions. It is evident, however, that the South African Constitutional Court has been considering far more foreign jurisprudence than any non-South African constitutional court has been considering South African jurisprudence—in other words, this has largely been a case of one-way traffic. S v. Makwanyane, in many ways the inaugural decision of the Constitutional Court, contains 220 foreign case citations from 11 countries and three supranational courts. To our knowledge no other foreign court can boast a comparable statistic.

In this study, I examine the interpretive practice of the Hungarian Constitutional Court. The two-decade history of the Court gives sufficient experience to survey the methods of constitutional review employed by the Court. My analysis will concentrate on the period of 1990–2010, because the general elections of 2010 brought about essential changes not only in Hungarian constitutionalism, but in the Court's life too. The Constitutional Court, losing its independence and a substantial part of its earlier powers, will presumably not be the same anymore.