Constitutional identity as a normative constitutional concept

Abstract

Although constitutional identity is nowadays invoked by European states primarily against the extension ofthe powers of the EU institutions, it can also be understood as a substantive concept of national consti-tutional law. This article deals with constitutional identity as a normative constitutional concept. In thisrespect, the problem is the same as that which arises in the relationship between EU law and domestic law:namely, its fundamental indeterminacy and the possible arbitrariness of its application. The author arguesthat, therefore, constitutional identity can only be plausibly invoked if satisfactory answers can be given tothe questions of exactly whose identity it is, what its source is, who and how its content may define, andwhat the constitutional function of this category is. The second part of the study examines the Hungarianconstitutional identity according to this analytical framework, and concludes that, although its subject is theFundamental Law, its definition, content and constitutional function are unclear and contradictory. Consequently, the current concept of constitutional identity in Hungary raises a number of problems forwhich no plausible answers have yet been found, and it is highly doubtful whether the doctrinal andpractical difficulties related to it can be resolved at all.