Constitutions, Collective Identity and Constitutional Identity: Where Should We Be Heading?

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Author: Alexander Blankenagel

Abstract

Identity, as it seems, is being searched for all over the place. The changes of the Russian constitution of 2020 excel with an abundance of regulations of elements of the collective identity of the Russian society, elements that as it seems are striving for a renaissance of the traditional Russian/Soviet society. Even earlier the concept of constitutional identity had become, in the last 10 years, very popular in the judicial practice of the European constitutional courts. The national constitutional courts use the topos of constitutional identity to fight off, as they see it, improper intrusion of international law into their national legal systems, of the EU law as well as of the European Convention of Human Rights as interpreted by the European Court of Human Rights. Functionally this is an equivalent of the amendments of the Russian constitution mentioned above. A more thorough analysis shows, that the reference to constitutional identity by the constitutional courts and the search for its possible content sometimes really touches upon very basic questions, but very often just creates a nontransparent veil, with which to hide the true reasons of the decision. The analysis also shows that constitutional identity is a superfluous concept: Constitutions are enabled to fight off improper intrusion of international law into the national legal system without referring to some nebulous constitutional identity. The European Court of Justice and the European Court of Human Rights are confronted with the opposite problem: How much homogeneity and how much integration may they impose upon the respective member-states? But this has very little in common with the constitutional identity that the national constitutional courts are so happy to refer to. The reasoning with constitutional identity is doubtful for other reasons as well. The reference to some “identity” – and in the follow-up to some constitutional identity – induces the addressee to think that this is a scientific and, in consequence, a not disputed concept, which implies the impossibility of the given social actor or institution to change. Sociological and psychological theories of individual and collective identity, on the contrary, consider identity as the pliable and changeable result of an interaction, in which the self-perception of the given social actor – be it an individual or a collective – and the expectations of other social actors towards him or her are melted into his/her negotiated and situational identity. This identity will be created anew in every new social interaction. In consequence there are a lot of good and weighty reasons, for constitutional courts and constitutional scholars, to refrain from the use of “constitutional identity” as a legal/constitutional concept. As far as the regulation of (traditional) elements of collective identity in constitutions is concerned, this is an intrusion of the state or the ruling elites into the interactive self-definition of society and, as the author thinks, the try to slow down the process of modernization of the Russian society.

About the author: Blankenagel Alexander – Professor in Public Law, Humboldt University, Berlin, Germany.

Citation: Blankenagel A. (2022) Constitutions, Collective Identity and Constitutional Identity: Where Should We Be Heading? Sravnitel'noe konstitutsionnoe obozrenie, vol. 31, no. 1, pp. 43–75.