CONSTITUTIONAL IDENTITY: THE QUESTION OF THE SENSE OF THE APPLICATION OF THIS CONCEPT
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Abstract
This article deals with the problems of the sens of the application of the concept of constitutional identity in constitutional jurisprudence. The author of this article analyzes the notion of constitutional identity, elaborated in constitutional jurisprudence, which is linked with the distinction in the constitutional system the hard core of values and principles, which are traditional for such state and which are no changeable or have special protection against amendments. The elements of constitutional identity play tha role of “supporting structures” of the constitutional system and their change will be a change of this all constitutional system.
The emergence of the new notion always provokes discussions. Representatives of legal doctrine discuss about using of this concept, its importance and its mission. They analyse from different points the decisions of Constitutional Courts of Germany, France, Belgium, Poland or the Czech Republic and other states, in which this concept is used. Lithuanian Constitutional Court with two decisions of 26 January 2014 and 11 July 2014 joined this groupe of constitutional courts.
The formation of this notion is related to the concept of the axiological system of the constitution and its axiological interpretation.
It should be noted that the added value of this new concept is linked to the strengthening of constitutional review of constitutional amendments and protection of the model of relations between constitutional system and European Union law.
Constitutional identity accomplishes internal and external functions. The purpose of internal functions (function) is protection of the constitution against the anticonstitutional amendments that can destroy the all constitutional system. It is the function of conciliation between stability of the constitutional system (the constitutional systeme must remain itself) and dynamics (the necessary changes). The external functions (function) protect the constitutional system against external invasions to the constitutional system, and specifically for the field of european integration this function means protection of the balance in the functioning of the model of interaction between the national constitutional system and European Union law.
The emergence of the new notion always provokes discussions. Representatives of legal doctrine discuss about using of this concept, its importance and its mission. They analyse from different points the decisions of Constitutional Courts of Germany, France, Belgium, Poland or the Czech Republic and other states, in which this concept is used. Lithuanian Constitutional Court with two decisions of 26 January 2014 and 11 July 2014 joined this groupe of constitutional courts.
The formation of this notion is related to the concept of the axiological system of the constitution and its axiological interpretation.
It should be noted that the added value of this new concept is linked to the strengthening of constitutional review of constitutional amendments and protection of the model of relations between constitutional system and European Union law.
Constitutional identity accomplishes internal and external functions. The purpose of internal functions (function) is protection of the constitution against the anticonstitutional amendments that can destroy the all constitutional system. It is the function of conciliation between stability of the constitutional system (the constitutional systeme must remain itself) and dynamics (the necessary changes). The external functions (function) protect the constitutional system against external invasions to the constitutional system, and specifically for the field of european integration this function means protection of the balance in the functioning of the model of interaction between the national constitutional system and European Union law.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
