Czech Constitutional Identity

Abstract

Constitutional identity has become a hot topic of discussions of not only constitutionalists, but also EU lawyers, socio-legal scholars, and political scientists. This article offers an innovative theoretical framing of the phenomenon by bringing together Luhmann’s social systems theory, Taylor’s social imaginaries, and Smend’s theory of integration, and applying it to the Czech case. The key argument of the article is the ever-changing nature of constitutional identity, which is not frozen in moment of the enactment of the constitution but is created by the everyday constitutional imaginary of the state; that is, by its self-recognition and self-understanding articulated by its individual decisions that are interconnected by values providing the necessary context and meaning. The Czech constitutional identity, as the article argues, is defined by the strong narratives of legal constitutionalism and notion of the Czech state to return to the West. The former manifests itself in the Czech state’s chronic distrust of the Czech people and in a domination of the Rechtsstaat over the democratic principles; the latter legitimises the hegemony of the neo-liberal economic thinking and constitutes the reason of the adoration of NATO and, maybe surprisingly, ambivalent attitudes of the Czech state towards the EU.