MTA Law Working Papers


Patrik Szabó: Under the skin. Additives to the theoretical and dogmatic problems of constitutional identity

In this paper, I aim to answer a part of the ideational questions emerging in the scope of constitutional identity with special regard on the Seventh Amendment of the Fundamental Law of Hungary and the Hungarian scientific literature. In the first part of the study, I review the scientific concept of identity, after which I introduce the theoretic definition of national identity and argue that the constitutional courts of the member states of the EU properly identify it with the concept they call constitutional identity. Thereafter I capture the essence of constitutional identity, by making distinction between this one and national identity, then based on the theory of Carl Schmitt I draw the lines between eternity clauses and the latter concept. I also differentiate between the two sides of constitutional identity which I call general and special sides. I argue that constitutional identity can only limit the power of other sovereigns and international entities but not the constitution amending power. Last but not least, I draft my own definition of constitutional identity that might be able to open new perspectives for the relevant scientific literature.