Publication details
Distinguishing the Constitutional and National Identity: Case of Official Languages
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| Year of publication | 2025 |
| Type | Appeared in Conference without Proceedings |
| MU Faculty or unit | |
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| Description | The concept of constitutional identity has received a lot of attention recently. Even though there is a growing body of literature in this area, its conception is not uniform. First, it is possible to interpret constitutional identity as a protective shield of the national law of a Member State of the European Union against the application of EU law (Fabbrini, Sajó, 2019). The constitutional identity here is defined by the jurisprudence of the Constitutional Courts. In this judicial approach the constitutional identity is derived as part of the national identity that Article 4(2) TFEU seeks to respect. On the other hand, we encounter a doctrinal approach of constitutional identity, where it can be seen as core elements of the constitution determining its type, basic structure and leading principles (Grimm, 2024) but also as basic values and features of polity in certain cultures (Tomoszek, 2020, p. 292). Although these two overlapping approaches need to be distinguished from each other, some authors in doctrinal approach, such as Jacobson (2010), argue that even here the constitutional identity is part of the national. However, such connection is very problematic, especially if we try to apply it to elements with high national and cultural notions as (official) languages. With the aim to point out the inadequate interpretation of the constitutional identity as part of national identity, I, therefore, asked the question, how the official languages would be perceived if we consider constitutional identity as a part of national identity? I answered this question mainly by a doctrinal approach. I interpreted and applied general knowledge of state, nation, national identity and constitutional identity since these create basic areas that manifest within the official language. At the border of these areas, I came across 3 interconnected problematic results (from the most general concepts of interpreted and applied terms to the specific problem of official language) from this connection that inherently deny the claim that constitutional identity is part of national identity: 1. National identity is linked to the nation, whereas constitutional identity is linked to the constitution of the state. This interlocking association of these identities in the end ignores their distinction. 2. What is more, not every nation has its own state, and, commonly, there are states which are multi-national and multilingual. It would mean that the constitutional identity interferes with the national identities of other nations in the state. 3. If, therefore, constitutional identity should be part of national identity, then elements of constitutional identity would be part of national identity. If the official language would be a part of constitutional identity it would be a part of the national identity of nations in the state. These results open up a space for other possible directions. It is possible to build on them claims by Rosenfeld (2010) who perceives these identities as influencing each other, or completely new claims arguing whether it is possible to a certain extent to perceive national identity(s) as part of the constitutional. |
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