This open access book asks whether there is space for particularism in a constitutional democracy which would limit the implementation of EU law. National identity claims are a key factor in shaping our times and the ongoing evolution of the European Union. To assess their impact this collection focuses on the jurisprudence of Czechia, Hungary, Poland and Slovakia, as they play an essential role in giving life to particularism. By taking particularism as the prism through which they explore the question, the contributors offer a new analytical scheme to evaluate the judicial invocation of identity. This requires an interdisciplinary approach: the study draws on comparative constitutional law, theory, comparative-empirical material and normative-philosophical perspectives. This is a fresh and thought-provoking new study on an increasingly important question in EU law.
Author(s): Kriszta Kovács (editor)
Publisher: Hart Publishing
Year: 2023
Language: English
Pages: 250
City: Oxford
Acknowledgements
Contents
List of Contributors
Introduction: Identities, the Jurisprudence of Particularism and Possible Constitutional Challenges
I. Personal Versus Communal Identity
II. National Versus Constitutional Identity
III. Regional Dynamics: The Emerging Ethnocultural Understanding of National Identity
IV. The Jurisprudence of Particularism in the V4 Countries
V. Possible Constitutional Challenges
VI. Structure of the Book
PART I: A DEFENCE OF CONSTITUTIONAL IDENTITY
AS A LEGAL CONCEPT
1. The Exploitation of Constitutional Identity
I. Lisbon's Fallout
II. The Constitutional Text
III. History
IV. The Failure of Disharmonic Recognition
V. Conclusion
2. Identity and Eternity: The German Concept of Constitutional Identity
I. A Brief Look at the Historical Background: Identity before Eternity
II. The Appearance of Eternity: The Drafting of the Basic Law
III. The German Constitutional Court and the Re-Invention of Constitutional Identity
iV. The Unclear Sideline: Constitutional Identity and Public International Law
V. Constitutional Identity and Ultra Vires Control
VI. Identity and Eternity: The Core Problems
VII. Constitutional Identity: Different Uses and Possible Misuses
PART II: NATIONAL IDENTITY CLAIMS IN THE VISEGRÁD 4 COUNTRIES
3. From Minimalism to the Substantive Core and Back: The Slovak Constitutional Court and (the Lack of) Constitutional Identity
I. Setting the Stage: Formal and Institutional Locus of the SCC
II. New Country with No Constitutional Identity? Judicial Minimalism in the Pre-Accession Era
III. Substantive Core: Passive Articulation in a Euro-Optimistic Atmosphere
IV. Sobering Up: Towards Constitutional Identity
V. Constitutional Identity Found – and Lost Again?
VI. Conclusion
4. Instruments and Elements of Particularism in the Context of Constitutional Identity: The Czech Constitutional Court
I. Preliminary Introduction to the Czech Constitution: The Principle of Legal Continuity
II. The Identity of the Constitution: Procedural Sameness and the Entrenched Principles
III. The Identity of the Constitution: Designation of the State and the Constituent Subject ('Whose Constitution?')
IV. A Few Notes on the Concept of Czech National Identity
V. Summary and Conclusion
5. Constitutional Identity in Poland: Transplanted and Abused
I. The Lisbon Case
II. Why the Transplant?
III. The Transplant
IV. The Abuse
V. Conclusion
6. Reconceptualising Constitutional Identity: The Case of Hungary
I. Three Pillars of the Ethnocultural National Identity
II. The Recent Jurisprudence of Particularism
III. Three Pillars of the Reconstructed Constitutional Identity
IV. Conclusion
PART III: THE EUROPEAN CONSTITUTIONAL CHALLENGE
7. Un-European Identity Claims: On the Relationship between Constituent Power, Constitutional Identity and its Implications for Interpreting Article 4(2) TEU
I. Carl Schmitt: A Formal Conception of Constitutional Identity
II. A New Start: Constitutionalism, Constituent Power and Constitutional Identity
III. Conclusion
8. Constitutionalism Today: The Prospects of the European Constitutional Community
I. Why Do Courts Matter?
II. The Erosion of Constitutionalism
III. The Prospects for the European Constitutional Community
IV. Conclusion
Bibliography
Index
