The Idea of Constitutional Identity in the Modern Constitutional Thought

Abstract

The constitutional identity is the originality, individuality and uniqueness of the given constitutional system, which includes not just the originally existing features, providing the given system with a quality of uniqueness, but also the features of larger systems, which are borrowed by the constitutional system and with which the latter starts to identify itself. Because of it, the constitutional identity should be perceived not as a feature, initially belonging to a given social system, but a feature, which is formed and transformed as the result of social interactions. At the same time, all the newly formed peculiarities, including the ones are borrowed from other systems, also become features, defining originality and individuality of the given system. Hence, while borrowing constitutional-legal peculiarities of international and supranational institutions or of any other state, it should be taken into account that mechanical import or not accepting and artificially preserving the mechanically imported features will not in any way contribute to finding a balance between peculiarities of a concrete constitutional system and features borrowed from the mentioned systems. This, in its turn, will lead to the complete distortion of the idea of constitutional identity. At the contemporary stage of development of constitutional law doctrine it is preferable to discuss the notions of “state identity” and “constitutional identity” not as a correlation of correspondingly the whole and the part, but from the viewpoint of different levels, though in some cases they can have points of coincidence. The reason is that within the framework of the mentioned doctrine notions “Constitution”, “Constitutional stability” should per se be perceived not just from the aspect of the written text of the Constitution, but from the viewpoint of constitutional values and their implementation in real social development.