Russian Law Journal

Advanced search

The Concept of Constitutional Identity as a Legal Argument in Constitutional Judicial Practice

Full Text:


Constitutional identity has recently emerged as a relevant concept in the theory of constitutional law. It first appeared in constitutional decision reasoning in the second half of the 20th century, particularly in cases concerning the process of European integration. Constitutional courts all over Europe have started to use this notion as a legal counterargument against the growing influence of the European Court of Justice on the national legal systems of member states. At the theoretical level, the use of this new concept caused a lot of criticism by law scholars, due, in their opinion, to its non-legal unscientific character. At the same time, there are also many supporters of this concept, mainly the representatives of the civilizational and sociocultural approaches to law. One way or another, it is fair to say that this concept has captured the attention of constitutional lawyers who, nevertheless, have not come yet to a common understanding of this notion. Some of them suggest defining constitutional identity as a method of legal argumentation, but there are still no comprehensive studies of this concept using achievements of the theory of legal argumentation. This article represents an attempt to research the notion of “constitutional identity” through the prism of the latter.

About the Authors

Petr Kucherenko
Peoples’ Friendship University of Russia
Russian Federation

Petr Kucherenko  – Professor, department of Municipal Law, Law institute, Peoples’ Friendship University of Russia

6 Miklukho-Maklaya st., Moscow, 117198

Elena Klochko
Peoples’ Friendship University of Russia
Russian Federation

Elena Klochko  – Graduate, department of Constitutional Law and Constitutional Proceedings, Law institute, Peoples’ Friendship University of Russia

6 Miklukho-Maklaya st., Moscow, 117198


1. Aarnio A. On Legal Reasoning (Turku: University of Turku Press, 1977).

2. Ackerman B. We the People. Vol. 1: Foundations (Cambridge, Mass.: Harvard Univer¬sity Press, 1991).

3. Amar A.R. America's Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books, 2012).

4. Besselink L.F.M. National and Constitutional Identity Before and After Lisbon, 6(3) Utrecht Law Review 36 (2010).

5. Bickel A.M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics (indianapolis: Bobbs-Merrill, 1962).

6. Faraguna P. Taking Constitutional Identities Away from the Courts, 41(2) Brooklyn Journal of international Law 491 (2016).

7. Galetta D.-U. European Union Law in the Jurisprudence of Italian High Courts: Is the Counter-Limits Doctrine a Dog That Barks but Does Not Bite?, 21(4) European Public Law 747 (2015).

8. Grimm D. Defending Sovereign Statehood Against Transforming the Union into a State, 5(3) European Constitutional Law 353 (2009).

9. Interpreting Statutes: A Comparative Study (D.N. MacCormick & R.S. Summers (eds.), Aldershot: Dartmouth, 1991).

10. Jacobsohn G.J. Constitutional Identity, 68(3) Review of Politics 361 (2006).

11. Leibholz G. The Federal Constitutional Court in Germany and the "Southwest Case,"46(3) American Political Science Review 723 (1952).

12. National Constitutional Identity and European Integration (A. Saiz Arnaiz & C. Alco- berro Llivina (eds.), Antwerp: intersentia, 2013).

13. Payandeh M. Constitutional Review of EU Law After Honeywell: Contextualizing the Relationship Between the German Constitutional Court and the EU Court of Justice, 48(1) Common Market Law Review 9 (2011).

14. Peczenik A. The Basis of Legal Justification (Lund: Lund University Press, 1983).

15. Rosenfeld M. Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspec¬tives (Durham: Duke University Press, 1994).

16. Rosenfeld M. The Identity ofthe Constitutional Subject: Selfhood, Citizenship, Culture, and Community (London: Routledge, 2012).

17. Sledzinska-Simon A. Constitutional Identity in 3D: A Model of Individual, Relational, and Collective Self and its Application in Poland, 13(1) international Journal of Constitu¬tional Law 124 (2015).

18. Tarello G. L'interpretazione della legge [The Interpretation of Laws] (Milan: Giuffre, 1980).

19. Thym D. Attack or Retreat? Evolving Themes and Strategies of the Judicial Dialogue Between the German Constitutional Court and the European Court of Justice in Constitutional Conversations in Europe: Actors, Topics and Procedures 235 (M. Claes et al. (eds.), Antwerp: Intersentia, 2012).

20. Van der Schyff G. EU Member State Constitutional Identity: A Comparison of Germany and the Netherlands as Polar Opposites, 76 ZaoRV 167 (2016).

21. Von der Lieth Gardner A. An Artificial Intelligence Approach to Legal Reasoning (Cambridge, Mass.: The MiT Press, 1987).

22. Wendel M. Lisbon Before the Courts: Comparative Perspectives, 7(1) European Constitutional Law Review 96 (2011).

For citation:

Kucherenko P., Klochko E. The Concept of Constitutional Identity as a Legal Argument in Constitutional Judicial Practice. Russian Law Journal. 2019;7(4):99-124.

Views: 183

ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)