Pravoprimenenie (Oct 2021)
Transformation of constitutional identity due to contemporary challenges
Abstract
The subject. This article represents an attempt to research the notion of “constitutional identity”, which has recently emerged as a relevant concept in constitutional law, through the prism of its transformation reacting the world’s challenges.The purpose of the research is to confirm or disprove hypothesis that both typical and extraordinary factors may influence differently on the transformation of constitutional identity.The methodology. The article is based on the dialectical method, as well as on the logical, historical, systemic methods. A comparative method was applied to study the features of the constitutional identity of States. Authors pay attention to the interaction of international and national policies.The main results, scope of application. Within the doctrine of constitutional identity it is presented a discussion with respect to terms and definitions of constitutional, state or national identity, constitutional identity of citizens. Moreover, such two notions as “individuality” and “identity” form a curious couple since “identity” may contravene “individuality”. Different factors which can influence on transformation of the constitutional identity, are listed (globalization (antiglobalism), universalization of constitutional values, COVID-19 pandemic, migration, etc.). In particular, different countries choose different models of reflecting the processes of globalization in their domestic constitutional legislation: from striving for unification to systematic confrontation. In this regard, it seems necessary to assess these factors, taking into account the experience of different states. Besides, the activities of international bodies can give rise to the universalization of constitutional values. For example, supranational bodies (in particular, the European Court of Justice) develop generalcial common culture. Another example is the current epidemiological crisis. The coronavirus infection has made its own adjustments to the constitutional identity of states. Examples of such transformation are full border closures or partial closures with individual states; amendments to the national legislation, according to which the issues of measures permissible for implementation by the state are being revised in order to ensure the life and health of the population.Conclusions. Definition the constitutional identity is an important strategic framework for national policy. However, there is no certain fixed constitutional identity of the state. On contrary, the identity of the state tends to be changeable. Transformation can be regarded as voluntary, forced or consciously responsive, expected or not. Voluntary transformation usually becomes a response to the evolutionary development of society, scientific and technological advances and discoveries. Forced transformation is likely to be a reaction to economic, epidemiological, political crises. Therefore, in order to determine the constitutional identity of certain state it is necessary to understand the cultural, historical, social and political contexts of its formation and current development in the conditions of the contemporary world.
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