Koncepcja tożsamości konstytucyjnej: wymiar indywidualny, relatywny oraz zbiorowy

Abstract

THE CONCEPT OF CONSTITUTIONAL IDENTITY: INDIVIDUAL, RELATIVE AND COLLECTIVE DIMENSION

This article begins with the supposition that constitutional identity is an attractive legal notion that has been used to legitimize the power of courts in cases that usually arose as a result of the conflict of norms stemming from various legal orders. Whenever judges use constitutional identity rhetoric to justify their decisions, they assume to know the contents of constitutional identity. Ultimately, they do not play the role of the “guardians of the Constitution”, but the “guardians of identity”, and aim to gain, maintain or extend their powers, in particular their authority of the “last word” in the judicial dialogue. The article argues that each constitutional order requires identification of the constitutional subject for its legitimization. It claims, however, that identity of a constitutional subject may develop simultaneously in three dimensions as an individual, relational and collective selves, which remain in constant interaction. While the individual self denotes a particularistic self-perception, the relational and collective selves indicate that identity can mean not only difference, but also sameness or close proximity.