Legal-theoretical nature of the concept of constitutional identity

Abstract

This article consists of three sections. The author firstly considers the problem of ambiguity of the term “identity”, as well as its relationship with related concepts. Following from this, the main approaches to the genesis and nature of constitutional identity, including alternative interpretations are considered. The question of the nature of constitutional identity, according to the author, is of fundamental importance for the theory. The author tries to consider both traditional (positivist) and alternative points of view on this issue. In the third paragraph, the author tries to demonstrate the influence of several factors determined by national culture (constructing constitutional identity) on the formation of constitutional identity. Based on the generalization of the theoretical and legal works of R.Hirschl, G.J.Jacobsohn, M.Rosenfeld, and M.Tushnet, the author attempts to identify such independent factors as religion, politics, history, and constitutional disharmony. According to the author, the unique combination of these factors, inherent in each culture of “local” circumstances, determines the uniqueness of any national constitutional identity. The author believes that the Russian science of constitutional and international law is excessively focused on positivist interpretations of constitutional identity. Alternative approaches to the conceptualization of constitutional identity remain absent in much of the work of other researchers.