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2 results

  • 2 - Constitutional Identity

  • from Part I - Foundations, Theory, and Concepts
  • Edited by Ran Hirschl, University of Toronto, Yaniv Roznai, Reichman University, Israel
  • Book:
    Deciphering the Genome of Constitutionalism
    Published online:
    14 March 2024
    Print publication:
    21 March 2024, pp 34-43

  • Summary

    The chapter describes first the importance of Jacobsohn’s work to constitutional theory in general as it relies on the ideas of dynamism, fluidity, disharmony and imperfection to describe a constitution’s functioning. It then focuses on the German constitutional conflict on binding electoral gender quotas in order to illustrate the pertinence of his theory that describes so aptly the functioning of a constitution. It concludes with the finding that, in terms of constitutional theory, Jacobsohn has indeed cracked the genetic code of a constitution.

  • Constitutional Identity as a Constructed Reality and a Restless Soul

  • Monika Polzin
  • Journal:
    German Law Journal / Volume 18 / Issue 7 / 01 December 2017
    Published online by Cambridge University Press:
    06 March 2019, pp. 1595-1616
    • Article
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  • The notion of constitutional identity is a recent and enigmatic notion in constitutional law and theory. This Article demonstrates that constitutional identity—understood as a certain constitution-related self-identity of a nation or people—can be constructed from the text of a constitution, its interpretation and its application. However, constitutional identity is nothing more and nothing less than a constructed reality that can be regarded as a constitutional state's restless soul. It exists only as a constructed, simplified, imagined reality that will most likely also be contested and subject to change. Constitutional identity and the reliance on it in particular by national courts should therefore not be regarded as something sacred and absolute that can be compared to an imagined stable heart. Instead, constitutional identity should be treated with caution.