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Constitutional Identity

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Abstract

Constitutional theorists have had relatively little to say about the identity of what they study. This article addresses this inattention with a philosophical and comparative exploration of the concept of constitutional identity. Without such attention, a major preoccupation of theorists—constitutional change—will continue to be inadequately considered. The argument is advanced that there are attributes of a constitution that allow us to identify it as such, and that there is a dialogical process of identity formation that enables us to determine the specific identity of any given constitution. Representing a mix of aspirations and commitments expressive of a nation's past, constitutional identity also evolves in ongoing political and interpretive activities occurring in courts, legislatures, and other public and private domains. Conceptual possibilities of constitutional identity are, herein, pursued in two constitutional settings—India and Ireland—that highlight its distinctive features.

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... Jacobsohn explains that the main objective of a 'constitutional identity' is to deal with 'constitutional disharmony'. 107 According to Jacobsohn, such 'disharmony may arise from within the constitution's text, or due to political contestation or the difference of context in interpreting historical change. 108 This is where Jacobsohn advocates dialogues to cope with the conflict and dissonance that may arise from the differences in interpreting the context of constitutional identity. ...
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Part II of the Federal Constitution represents Malaysia's political and civil rights constitutional safeguards. These safeguards, however, has been amended through time since its inception in 1957. The amendments that have been done to Article 5 to13 and other related provisions such as Article 149, 150 and 159 have brought a mixture of reactions among the masses, where some viewed that such amendments have to be done as the country is growing. In contrast, others regarded it as a threat against preserving the national and constitutional identity. In addition to that, these constitutional amendments often resulted in these safeguards to their detriment. Concerning this, preservation of security, public order, and national identity has frequently been used to justify its alteration. Hence, the doctrine of basic structure has been raised to protect constitutional integrity; even its reception is generally divided and equally contested. The main objective of this paper is to examine the concept of basic structure and its relationship to the protection of fundamental liberties in Malaysia. Furthermore, this paper also explores the dilemma surrounding the country in finding its constitutional identity, which often centres on the conflict between Islam, local demographics, common law heritage, and cultural values. This paper adopts qualitative methodology, where a doctrinal approach is adopted.
... ). Sumber-sumber Hukum Tata Negara di Indonesia, Yogyakarta: Liberty, hlm. 22. 10 Gary JeffreyJacobson, (2006). "Constitutional Identity", The Review ofPolitics 68, hlm. ...
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ABSTRAKSetiap negara memiliki ciri konstitusi yang berbeda-beda, begitu pula dengan identitas konstitusi yang dilatar belakangi oleh sejarah dan politik. Di Indonesia, Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 merupakan hukum dasar tertulis yang berisikan prinsip-prinsip dasar bagi peraturan lainnya. Dalam kaitannya dengan ciri dari suatu negara, maka identitas dari UUD 1945 sebagai konstitusi negara harus dilindungi. Hal ini erat kaitannya pada saat melakukan perubahan atau amandemen, sehingga identitas konstitusi harus tetap terjaga dan tidak mengubah diluar kesepakatan sehingga tidak menjadikannya sebagai sebuah konstitusi yang baru. Tulisan ini akan membahas sejauh mana perlindungan identitas konstitusi dapat menciptakan ketahanan konstitusi dan faktor-faktor yang mempengaruhi perlindungan konstitusi. Penelitian hukum normatif digunakan dalam penelitian ini dengan menggunakan pendekatan konseptual, dengan demikian didapatkan hasil bahwa perlindungan identitas konstitusi berpengaruh terhadap ketahanan konstitusi, khususnya apabila terjadi perubahan atau amandemen sehingga ruh konstitusi tetap tercermin sebagai ciri dari bangsa. Diperlukan lembaga khusus untuk memeriksa dan mengawasi perubahan konstitusi Indonesia yaitu dengan memberikan kewenangan tambahan kepada Mahkamah Konstitusi untuk menguji konstitusionalitas terhadap perubahan UUD 1945. Kata Kunci: identitas konstitusi; konstitusi; perlindungan ABSTRACTEvery country has different constitutional characteristics, as well as a constitutional identity which is based on history and politics. In Indonesia, the 1945 Constitution of the Republic of Indonesia is a written basic law which contains the basic principles for other regulations. In relation to the characteristics of a country, the identity of the 1945 Constitution as the state constitution must be protected. This is closely related when making changes or amendments, so that the identity of the constitution must be maintained and not change outside the agreement so as not to make it a new constitution. This paper will discuss the extent to which constitutional identity protection can create constitutional resilience and the factors that affect constitutional protection. Normative legal research is used in this study using a conceptual approach, thus the results show that the protection of constitutional identity has an effect on the resilience of the constitution, especially when changes or amendments occur so that the spirit of the constituency is still reflected as a characteristic of the nation. A special institution is needed to examine and supervise changes to the Indonesian constitution, namely by giving additional powers to the Constitutional Court to examine the constitutionality of the amendments to the 1945 Constitution. Keywords: constitutional identity; constitution; protection
... These texts anchor the sort of community their authors/subjects are, or would like to become (Murphy 1993, p. 10). While constitutional theorists sometimes refer to the identity of constitutions (Jacobsohn 2006;Alsarghali 2020), we would like to address here the identity of the state as expressed in the constitution, hereby referring to its autobiographical parts or to elements of a nation's self-assertion. More specifically, we seek to examine the way in which three different Arab countries-Tunisia (2014), Yemen (2015) and Egypt (2014/2019)-arrived at a similar self-definition of a "civil state" (dawla madaniyya) through the drafting of a formal constitution, a self-expressive definition that did not exist in the former constitutions of these countries and does not exist in any other constitution worldwide. ...
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This paper offers a contextualized analysis of the way in which three Islamic constitutions—in Egypt (2014/2019), Tunisia (2014), and Yemen (2015)—came to a similar self-declaration of a “civil state” (dawla madaniyya), following the Arab uprisings. This self-expressive proclamation, which did not exist in their former constitutions, nor in any other constitution worldwide, is the product of the ongoing internal struggles of Muslim societies over the definition of their collectivity between conservatism and modernity, religiosity and secularism. In Egypt, the self-definition of a civil state enshrines the one-sided narrative of the June 2013 coup regime and the Armed Forces’ intrusive move into the field of state–religion relations; in Tunisia, the constitutionalization of the civil state reflects a settlement between Islamists and non-Islamists regarding the role of Islam in politics and legislation; in Yemen, it expresses an aspiration of detribalization and modernization within an Islamic model of statehood. The paper further seeks to trace the path of migration of this idea from one country to another, and the interconnectedness between the three cases, while pointing out possible implications on future constitution making in other Muslim countries.
... Наряду с концептом «конституционная идентичность» используются понятия «идентичность конституционной демократии» , «идентичность российского конституционализма» (Джагарян 2018) или «идентификация национального конституционализма» (Кравец 2019c, 209) и др. Работы конституционалистов и иных исследователей показывают: поисковый и неоднозначный характер концепции (Jacobsohn 2006; множественность и неопределенность основных идентифицирующих признаков конституционной идентичности ; формирование моделей конституционной идентичности в различных странах под влиянием процессов глобализации ; соперничество и взаимное влияние глобализма и локализма на идентичность; появление эффекта «локализации глобализации» (local globe) (O'Riordan 2001, XIX), или «глокализации». Некоторые исследователи говорят о «систематических закономерностях глобальной конституционной идентичности», не исключающих, а, наоборот, соединяющих разнонаправленные процессы: конвергенцию, дивергенцию или поляризацию конституционно наблюдаемых моделей, которые «могут становиться все более схожими или разнородными» Versteeg 2011, 1171). ...
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The article examines scientific approaches to understanding constitutional identity as a modern legal phenomenon and looks at the relationship between identity and constitutional law and constitutionalism. The concepts of “identity of the Constitution” and “constitutional identity” are distinguished and constitutional models of human dignity as elements of constitutional identity are analyzed, which demonstrate a variety of approaches to constitutional regulation and constitutional policy in the field of human rights. The article expounds on the rule of law as a universal value as well as a constitutional and legal concept. The origin of the doctrine of “rule of law” is examined in addition to the theoretical foundations and historical roots of the doctrine as well as the relationship between constitutionalism and the rule of law in modern jurisprudence. The author also considers the following: domestic and international aspects of the rule of law doctrine; its influence on the forms and practice of modern constitutionalism and constitutional identity; the prospects for constitutionalization of the elements of the rule of law and constitutional identity in the context of the formation of constitutionalism of human dignity; the relationship and interdependence of the rule of law and constitutional identity, on the one hand, human dignity and the rule of law, on the other hand; influential factors on the rule of law; constitutional identity and constitutional justice; the extent to which the rule of law can be a universal value in the practice of constitutional justice; the ontological and epistemological elements of cognitive constitutionalism and the rule of law. The difficulties of implementing the ideas and concepts of the rule of law through the practice of constitutional justice are also analyzed. The author concludes that there is a problem of the multiplicity of forms and subjects of constitutional identity. Identity, as well as the rule of law, cannot be built only in categories of exclusivity: both general and specific features are formed in the space of the dialogue of law, history, and culture.
... This is most eloquently stated by Jacobsohn when he argued that fixed [constitutional] norms need to be reconciled with the particularistic commitments of local traditions and practices; the substance of a nation's constitutional identity will to a large extent reflect how the essentials of constitutionalism combine and interact with the attributes of a constitution that are expressive of unique histories and circumstances. 3 Constitutional identity is not therefore about those universal principles, but is a creative blending of these principles with the particularistic articulation of values and mores, stemming from local traditions and practices. For a clearer understanding of what it means, an analytical dissection of the term, identity, shall be of help here: in simple terms, identity is about a particularistic self-understanding of an individual or a collectivity which is usually couched in an explanation highlighting the shared socio-economic and politically distinctive characteristics or attributes. ...
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Various identity-based arguments are used in EU law. This contribution argues that terms such as ‘national identities’ in Article 4(2) TEU and the ‘identity of the European Union as a common legal order’ in CJEU case law are best considered through the lens of constitutional identity. It is further argued that while the EU is called upon to respect the ‘national identities’ of the Member States, such respect is to be conditioned by the ‘identity of the European Union as a common legal order’. For their part, Member States have to respect the common identity when exercising their respective identities. The background of this interaction is one of a multi-level legal order in which sovereignty is shared between the EU and the Member States in the growing number of fields subject to European integration.KeywordsConstitutional identityEuropean UnionMulti-level constitutionalismPrimacy of EU lawRule of law
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Using the concept of “constitutional identity” as a theoretical basis, this article analyses the potential transformative influence of the EU-Armenia Comprehensive and Enhanced Partnership Agreement (CEPA) on the Armenian legal system. In particular, the author focuses on the Agreement’s capacity to stimulate the implementation of the EU’s “common values” and transpose the norms, general principles, and methodological approaches of EU law into the domestic legal order. It is argued that this potential depends on two elements of the “constitutional identity” of the Armenian legal order: its axiological core and its openness to external influences. KHVOROSTIANKINA, Anna. Europeanization Through EU External Agreements and the Issue of “Constitutional Identity”: The Case of the EU-Armenia CEPA. Kyiv-Mohyla Law and Politics Journal, № 4, p. 15–52, 2018. ISSN 2414-9942. Available at: . doi:http://dx.doi.org/10.18523/kmlpj153250.2018-4.15-52.
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The aim of the article is to analyse the application of fundamental rights in the complex political and legal system of the European Union, which can be described as a multilevel constitutionalism. Because the standards of individual protection are created both at the level of national constitutions as well as at the supranational, EU level, it is possible that individual fundamental rights will be understood differently in the Member States. The article tries to answer the question how to solve such an interpretation conflict. A way out is suggested in the form of the need to conduct a constitutional dialogue on the understanding of fundamental rights. The conditions necessary to conduct such a dialogue are also identified. It will lead to achieving the European constitutional consensus. The article puts forward a thesis that the development of a European consensus as to the understanding of fundamental rights leads irrevocably to the formation of a European constitutional identity.
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This article explores the tension between constitutionalism and democratic majoritarianism in the context of emerging democracies characterized by deep ethnic or religious fractures. For many years, the political science orthodoxy prescribed a strategy of "consociationalism" that settled power-sharing arrangements as a bargain between political elites and rendered politics to a perpetual recognition of the primacy of ethnic or religious divides. The history of consociationalist experiments, in countries such as Lebanon and Cyprus, has been one of numerous unfortunate descents into communal warfare. Since the fall of the Soviet Union, there has been a dramatic new round of nation-building in formerly repressive and fractured societies. Rather than turn to consociationalism to constrain the risk of unbridled majoritarianism and the threat of communal war, these countries have by and large employed a form of strong constitutional authority, typically enforced by an independent constitutional court, to prevent democratic politics from consuming itself.This article contrasts the experience of two such countries: South Africa and Bosnia. South Africa presents an example of a judicially-enforced constitutional order that allowed a remarkably stable multiracial society to emerge from the fall of apartheid. Bosnia, by contrast, came into the era of independence through a structured political power-sharing among the various ethnic groups, enforced through the Dayton peace accords. In both cases, the national constitutional courts played a critical role in attempting to secure the transition to stable democratic governance. In the case of South Africa, that was a role directly contemplated by the transitional accords. In the case of Bosnia, however, the Bosnian Constitutional Court was compelled to unwind some of the consociationalist strands of Dayton in order to prevent a renewal of ethnic factional war.