When we think about constitutions, we tend to see them predominantly through the normative lens of legality, forgetting about the social implications of constitutions and the lives thereof. And even when we do study them from a more socio–legal perspective, we usually associate them solely with the state. This understanding of constitutions is the legacy of not only a state–centric approach in legal science but also of an institutional approach, particularly in political science. It shapes our understanding of constitutions as legal regulations of an institutional framework of the state and the conduct of politics. Moreover, the liberal tradition compels us to see constitutions as tools to restrain the power of the state and ensure the rights and liberties of individuals; that is, as tools of the liberal rule of law.

However, as I argue in this Article, constitutions are a very powerful, and potentially effective, way of shaping the collective identities of not only the state but also of the political people. Therefore, they should be understood not so much as factors of restriction but as mediums for the articulation of collective experiences, self–understanding, goals, dreams, and fears—in other words, articulations of collective imaginaries.

For this purpose, I shall discuss in the first part of this Article the importance of conceptualizing the state and the political people as autopoietic organizational systems and the consequences of such conceptualization. That is, both the state and the political people are, in fact, operationally closed organizations defined solely by the articulation of their collective imaginaries—by the decisions. In this way, constitutions are only one of the possible decisions and nevertheless one of the most influential.

In the second part, I shall discuss the nature of constitutions as law decisions of the organizational system of the state with the example of the Czech Republic and its 1992 Constitution. The Czech example will demonstrate how the constitution articulates the constitutional imaginary of the membership of the state, how it articulates the understanding of the state’s constitutional identity, and, at the same time, shapes it. Moreover, the Czech example will show us the clear division between the constitution and “its” people; in other words, that it is not the people who makes or adopts constitutions, nor is the constitution an articulation of the political people’s collective identity or its nature. This distinction between the state and the political people is, in fact, one of the crucial arguments for the social systems theory approach to both the state and the political people as it enables us to not only distinguish between those two phenomena but also, and perhaps more importantly, to conceptualize their interrelationship—structural coupling—as I shall explain shortly.

The third part of this Article focuses on how the constitution can shape the popular identity of the political people by being appropriated as a cultural product by the popular imaginary. I shall discuss how the political people can appropriate the constitution as a cultural product and, through such appropriation, express its self–understanding—that is, how the constitution can be translated into the operation of the organizational system of the political people and become its communication, that is, its decision. However, whereas every modern state expresses its constitutional identity also through its constitution, not every political people appropriates the constitution of the state with which it is coupled. There are political peoples, such as the Czech one, which do not appropriate the constitutions to express their popular identities. Thus, the cultural appropriation of the constitution will be demonstrated through the example of the Italian political people, which has a strong connection with the Italian Constitution of 1948.

The state and the political people are locked in a state of structural coupling, they irritate—influence—each other constantly. I argue that structural coupling between the state and the political people is the primary reason why we should be interested in the combined social systems theory–social imaginary approach as it provides us with the theoretical framework necessary to explore, and hopefully understand, how the state and the political people influence and shape each other, and, consequently, enables us to build the legitimacy of our modern democratic system of governance not on the illusion of unity of the state and the people but, quite the opposite, on their acknowledged division and interrelationship.

However, it is vital to add that the main purpose of this Article is not to analyze one state and political people, and their constitutional and popular identities in their complexity as this would be beyond the possibility of one article, but to lay down the theoretical framework for such analysis using examples of various states and peoples. Therefore, the two cases used in this Article have been chosen for their capacity to demonstrate the various ways in which the constitution shape either constitutional or popular identity in the most simple and succinct way possible.

This paper aims to clarify the concept of the symbolic constitution and to explain one of its most significant functions: the representation of political unity in complex societies. Section B briefly outlines the concept of the symbolic constitution which informs the arguments of the paper. The next two sections proceed “hermeneutically” through critical engagements with (i) Martin Loughlin’s recent analysis of the symbolic constitution within an ideology-critique of neo-liberal constitutionalism (ii) Niklas Luhmann’s account of the role of symbolic constitutionalism in concealing the function of the modern constitution as a structural coupling between the political and legal sub-systems. Section E then considers the relationship between the symbolic constitution and an alternative “traditional” concept for the representation of political unity: the common good. I argue that the symbolic constitution is both (i) a placeholder which speaks to the abiding relevance of the common good (ii) a symptom of the decline of its preconditions.

The COVID-19 pandemic has made it clear that even when using trusted legal tools, courts may run into challenging problems. Governments reacted to an unprecedented (at least in the context of post-WW2 era of fundamental rights) global crisis by adopting measures that drastically limited fundamental rights in order to protect the lives and health of many. Courts, of course, were entrusted with protecting fundamental rights against governmental overreach. The question was, how strict should the courts be when reviewing governmental acts. On the one hand, they could have relied on substantive proportionality assessment. This option, however was virtually ignored and most courts have opted for a deferential approach. This article analyzes both of these approaches, their strengths and weaknesses, but ultimately it argues that a third option - semiprocedural review - is the best way out of this judicial conundrum. Relying on comparative as well as theoretical arguments, it argues that semiprocedural review is the best way to deal with challenging empirical question - even under conditions of epistemological uncertainty.

Schengen integration has been home to different visions from the outset. In this vein, it owes much of its success to the fact that it has been both practical and symbolic in nature. However, this equilibrium of different visions has been upset following a series of crises. By prioritizing security considerations over alternative visions of Schengen, some Member States have reintroduced internal border controls on a quasi-permanent basis. Current reform proposals seek to address this situation but may be unable to revive the co-existence of the different visions underpinning the earlier phases of Schengen integration. Rather, as this investigation suggests, the reform that is currently being discussed would reaffirm the nature of Schengen integration as a pan-European security project. While this goes hand-in-hand with elements of supranational governance and coordination, it may impair the role of Schengen as an identity-creating project. This investigation analyzes the elements of the reforms discussed, presents them in the light of different visions of Schengen, and draws attention to possible constitutional limits of its reform.

Despite the shock provoked by the Snowden revelations, mass surveillance is still a reality in the EU. However, over the past few years, it has been possible to observe a gradual constitutionalization of these practices. This Article maps the ongoing process of progressively defining the constitutional limits and societal affordances of mass surveillance in the EU by focusing on the three main actors who contribute to it. First, this Article presents civil society as the propeller of this trend. Civil society not only advocated for a ban on general surveillance systems in the aftermath of the Snowden revelations, but also promoted a series of strategic litigations to challenge state surveillance practices at national and EU levels. Second, it analyses CJEU case law as the main constitutionalizing engine of this process. The Court pragmatically ascertained that an absolute prohibition of mass surveillance did not appear to be a realistic solution and put significant effort into actively defining the legal boundaries of these practices by striving to find an equilibrium between Member State interests and citizens’ fundamental rights. Third, it considers the approaches taken by national legislators to be a slowing factor. States are still reluctant to incorporate the constitutional standards progressively developed by courts despite the now significant body of judicially created parameters in the field.

Tactical litigation is a reality of the adversarial litigation framework that is currently in place. However, there is a difference between the tactical litigation of choosing a forum which may have more favorable law or be more convenient and choosing a forum with the intent to drive the opposing party to failure. The latter has been the issue with some of the tactical litigation that has occurred under the European Union’s framework of lis pendens. While the Recast Brussels I Regulation has alleviated some of those issues, it has not addressed all of them. While some scholars have argued that these issues of lis pendens may be answered by introducing the common law doctrine of forum non conveniens to these proceedings, that is not the case. This Article explores the pitfalls of lis pendens and forum non conveniens and ultimately finds that forum non conveniens is unable to solve the issues lis pendens creates in tactical litigation. Furthermore, the Article finds that forum non conveniens, inherently and acting as it should, has its own problems which echo lis pendens’ own issues in the European Union. Furthermore, forum non conveniens is simply incompatible with the policies the European Union implemented with lis pendens. Ultimately, forum non conveniens is unable to answer the problems lis pendens has created and solutions must be found from within the European Union’s own civil system.

This Article examines the criminal law defense of provocation in the U.S., which employs an objective reasonable person standard, as applied to recent Asian immigrants. It discusses approaches taken in other countries and describes the cultural defense. The Article concludes with different possibilities for a hypothetical Asian defendant who was provoked: Improving education about U.S. laws as a preventative measure, using expert cultural witnesses at trial, and taking the defendant’s characteristics into consideration during the sentencing stage.

The public trust doctrine holds promise as a tool for combatting international climate inaction. A global public trust in the Earth’s atmosphere may be a feasible avenue for generating international cooperation in this issue. The public trust doctrine is a viable and underutilized mechanism of understanding our collaborative obligations with respect to natural resources. This Article looks to the historical origins and current presentations of public trusts to extract features which indicate its effectiveness and appeal for modern climate change applications. Additionally, it presents two circumstances under which a global public trust in the atmosphere could eventually develop.

Germany’s content moderation law—NetzDG— is often the target of criticism in English-language scholarship as antithetical to Western notions of free speech and the First Amendment. The purpose of this Article is to encourage those engaged in the analysis of transatlantic content moderation schemes to consider how Germany’s self-ideation influences policy decisions. By considering what international relations scholars term ontological security, Germany’s aggressive forays into the content moderation space are better understood as an externalization of Germany’s ideation of itself, which rests upon an absolutist domestic moral and constitutional hierarchy based on the primacy of human dignity. Ultimately, this Article implores American scholars and lawmakers to consider the impact of this subconscious ideation when engaging with Germany and the European Union in an increasingly multi-polar cyberspace.

This Article uses various concepts of Husserlian phenomenology to explain the disparate opinion between the North American and Italian public in response to the prosecution and ultimate acquittal of Amanda Knox. This Article argues that the comparative difference in public opinion is due to an extensive shift in culture that is necessarily accompanied by a shift in spatial-temporal location. In this Article, the Husserlian concepts of intentionality, the Self, the Other-I, and empathy overlay the judicial opinions and media releases critical to shaping North American and Italian public perceptions of Amanda Knox. As applied, these Husserlian concepts function as interpretive lenses, providing the reader with a novel framework for analyzing the cause of interpretive difference across cultures.

The United States’ free speech regime, as codified in the First Amendment to the United States Constitution, comes with obvious contrasts to Thailand’s ill-famed lèse–majesté law—Section 112 of the Thai Criminal Code—which prohibits defamation or even truthful degradation of the Thai King and Royal Family. Recent scholarship has focused on such differences and has largely depicted the two regimes as diametric opposites. When viewing the First Amendment and Thailand’s lèse–majesté law in temporal isolation, the recent scholarly consensus has significant merit. However, by analyzing the two regimes over time, similarities arise suggesting that both regimes represent each respective country’s attempt to accommodate competing and changing values present within the respective countries.