Constitutional identity and where it resides

Abstract

The category of constitutional identity is now confidently used in the science of constitutional law and in resolving some disputes, but it remains not completely clear. The article is aimed at identifying the content of this category and the possibility of its application in practice. The article presents the meanings of the term “identity” and checks whether this term can be used in constitutional law, and if so, in what sense. Possible ways of finding the features of constitutional identity in the texts of constitutions (in preambles, among the foundations of the constitutional system, or provisions protected from change) are shown. The final conclusions concern the limits of the application of constitutional identity in constitutional disputes. It seems that constitutional identity can be used to resolve constitutional conflicts only if two conditions are met: fixing the features of constitutional identity, defined precisely as such (1), and carried out previously, not at the time of the decision, but in advance (2). It is these two conditions that will provide the necessary predictability and validity of decisions, in the adoption of which the category of constitutional identity was used for argumentation. Otherwise (if these conditions are not observed for whatever reason), the constitutional review body should, as far as possible, avoid using the category “constitutional identity” as an argument in resolving disputes.

References

1. Berger, P. and Lukman, T. (1995). Social construction of reality. Moscow (in Russ.).
2. Blankenagel, A. (2022). Constitutions, Collective Identity and Constitutional Identity: Where Should We Be Heading? Comparative constitutional review, 1, pp. 43–75.
3. Velilaeva, L.R. and Abdullaeva, N.R. (2020). The concept of “national identity”: theoretical and literary aspect of the study. Universum: Philology and Art History, 6, pp. 26–28 (in Russ.).
4. Ivanova, N.L. (2006). The problem of psychological analysis of social identity. Psychology. Journal of the Higher School of Economics, 4, pp. 14–38. (in Russ.).
5. Stepin, V.S. and oth. (Eds.). (2010). New Philosophical Encyclopedia: in 4 vols. Moscow. (in Russ.).
6. Ilyin, V.A. (2021). The case of “reciprocity” and other “inconveniences with identity”. Social psychology and society, 1, pp. 222–235. (in Russ.).
7. Bogdanova, N.A. and Troitskaya, A.A. (Eds.). (2022). Constitutional law. Moscow. (in Russ.).
8. Mazur, E.Yu. (2010). To the analysis of psychological approaches in the study of identity. Human Sciences: Humanitarian Studies, 5, pp. 146–151 (in Russ.).
9. Solovieva, S.L. (2018). Identity as a resource for survival. Medical psychology in Russia, 1, pp. 1–13 (in Russ.).
10. Timoshina, E. V. (2016). The Judge as a New Sovereign: Voluntary Theory of Interpretation by Michel Troper. Vestnik RUDN University. Series: Legal Sciences, 2, pp. 50–61. (in Russ.).
11. Troper, M. (2005). The problem of interpretation and the theory of the supremacy of the constitution. Comparative constitutional review, 4, pp. 171–181. (in Russ.).
12. Troper, M. (2006). Realistic theory of interpretation. Comparative constitutional review, 1, pp. 136–143. (in Russ.).
13. Uroshleva, A. (2020). Evolutionary approach in the argumentative practice of constitutional justice. Comparative constitutional review, 6, pp. 87–112. (in Russ.).
14. Erickson, E. (1996). Identity: youth and crisis. Moscow. (in Russ.).
15. Alexy, R. (2002). A Theory of Constitutional Rights. Oxford University Press.
16. Drinóczi, T. (2020). Constitutional Identity in Europe: The Identity of the Constitution. A Regional Approach. German Law Journal, 2, рр. 105–130.
17. Jacobsohn, G. (2006). Constitutional Identity. The Review of Politics, 3, pp. 361–397.
18. Fleming, J.E. (2014). Fidelity, Change, and the Good Constitution. American Journal of Comparative Law, 3, pp. 401–432.