Constitutional Identities in Central and Eastern Europe

by Alexandra Mercescu (Volume editor)
©2020 Edited Collection 240 Pages


This collection of papers explores the concept of constitutional identity in theory and with specific reference to Central and Eastern Europe at a time when many countries across but also beyond the region seem to appeal to an identarian rhetoric in order to justify their illiberal political attitudes. Drawing on law, political science, philosophy or sociology, the contributions address salient questions of constitutional and political theory like the understanding of (constitutional) identity in a post-Westphalian legal order, the extent and the stakes of judicial dialogue between national and supranational (European) judges and the so-called abusive legal transplants. As such, the book also touches upon more general topics such as the rule of law, populism, globalization, legal consciousness and legal culture.

Table Of Contents

  • Cover
  • Title Page
  • Copyright
  • About the author
  • About the book
  • Citability of the eBook
  • Contents
  • Acknowledgements
  • List of Abbreviations
  • Part I Central and Eastern Europe Reexamined: The ‘CEE Forum’
  • Alexandra Mercescu: Introduction: From Country to Country, From Time to Time, Questions and Answers of Self and Other
  • Balázs Fekete: The (First) Ten Years of the CEE-Forum: Timeline, Data and Assessment
  • Part II Constitutional Identities: Theoretical Frameworks
  • Jiří Přibáň interviewed by Karel Hvížďala: In Quest of Democratic Values and Identities in Central European Constitutionalism: on the Post-1989 Histories and Politics in the Czech Republic
  • Zoltán Szente: The Constitutional Identity Conundrum
  • Martin Belov: Constitutional Identity – Westphalian Reflection of the Constitutional Heritage of the Nation State or Post-Westphalian Alternative to Sovereignty in the Context of Supranational Constitutionalism?
  • Sorina Doroga: Understanding Constitutional Identity Through the Language of Courts
  • Mario Krešic: Legal Consciousness and the (De)constitutionalization of the Legal Order
  • Part III Constitutional Identities: Regional Self-Questionings
  • Flaminia Stârc-Meclejan: Environmental Legal Consciousness in Romania: Beyond Roșia Montană
  • Przemysław Tacik: Polish Constitutional Identity under the Illiberal Turn
  • Mirosław Michał Sadowski: Central Europe in the Search of (Lost) Identity. The Illiberal Swerve
  • Stefan Andonović and Uroš Bajović: The Role of Independent Control Bodies in Shaping Constitutional Identity
  • Lucian Bojin and Alexandra Mercescu: Protests in Romania: Civil Society, Populism and Civic Constitutionalism
  • List of Figures
  • Notes on Contributors
  • Index of Names
  • Index of Notions

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This edited volume is the result of the 10th Central and Eastern European Forum of Young Legal, Political and Social Theorists Conference, which was held at the Faculty of Law of the West University of Timișoara, on the 3rd and 4th of May 2018. I would like to express my gratitude, first and foremost, to the members of the CEE Forum board who have credited me with their trust in organizing this conference. I wish to thank in particular Michael Hein, Peter Cserne, Balázs Fekete, Fruzsina Gárdos-Orosz and Martin Belov for their advice and invaluable support along the way.

I am also most grateful to Professor Lucian Bercea, the dean of the Faculty of Law in Timișoara, who agreed to host this anniversary edition at the Faculty of Law, thus allowing the CEE Forum to be present for the first time in Romania. My colleague from the Faculty of Law, Dr Andreea Verteș-Olteanu was very kind to assist me in drafting the programme of the conference and I am happy to acknowledge her contribution for which I warmly thank her.

The Centre for Legal Education and Social Theory, at the University of Wrocław, a former organizer of the CEE Forum Conference, provided me with significant assistance in a number of organizational matters. My special thanks go to Karolina Kocemba.

At various stages, Dr Cosmin Cercel’s, Dr Lucian Bojin’s, Professor Adam Czarnota’s, Dr Rafał Manko’s and Dr Michał Stambulski’s guidance was crucial for my understanding of the CEE region. I remain much obliged to them.

Last, but certainly not least, I wish to express my profound gratitude to Professor Pierre Legrand for his constant and precious mentoring in my academic endeavours.

Alexandra Mercescu
September 2019

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Alexandra Mercescu

From Country to Country, From Time to Time, Questions and Answers of Self and Other

At the flower-shop:

– Where are you from? Are you maybe French?


– No, I come from Romania.

She said

– Oh, this means nothing.

(Herta Müller – The King Bows and Kills)1

I is another.

(Arthur Rimbaud – Œuvres complètes)2

Identity is a very complicated term and recent times have fully shown it. What has come to be known as identity politics, that is a political discourse putting forth public policies that start from the presumption that given identities need to be promoted and protected, was theorized, practiced, praised before being more recently fiercely denounced (Fukuyama 2018). If we add to identity the term ‘constitutional’, a less vague yet equally complicated notion, we end up with a theoretical entanglement that certainly deserves close scrutiny.

A certain amount of time always passes between the act of establishing a constitution and its uses in concrete contexts. The community faces new challenges and gains new experiences. Therefore, the subject of the constitution is always already changing. Should then the constitution be read traditionally as a narrative about what it is and where the constitutional order comes from or should it be read in a more prospective manner, which would aspire to explain what ←13 | 14→kind of society the community guided by that particular constitution wants to become? Is identity a matter of sameness (me being the same despite the passage of time) or of difference (me being unique, the sum of particular experiences, values and beliefs) (Rosenfeld 2012)? Analogically, is constitutional identity a matter of tradition (of what has been transmitted over the years, from one Constitutional Court to another, for instance) or of structure (of the particular assemblage of rights and distribution of powers therein inscribed)? Or is identity in the age of globalization a matter of dialogue between the self and the other? Indeed, in the European Union constitutional identity has been said to stem from the constant dialogue between the national constitutional courts of the European Union Member States, on the one hand, and the European Court of Justice and the European Court of Human Rights, on the other. What are the most recent developments in this regard? Nowadays, the notions of constitutional identity and collective memories appear to be frequently resorted to in order to justify illiberal attitudes, especially in some Central and Eastern European (CEE) countries. How has the European Union responded to this phenomenon?

From a comparative perspective, what is it that CEE countries share in terms of constitutional identity? By contrast, what separates them from each other? Is constitutional identity just an empty narrative or is it embedded into a given society, its political decisions and everyday life? If a constitution is culturally entrenched, does its interpretation in the course of (constitutional) adjudication allow for the use of foreign sources? From an empirical standpoint, to what extent are CEE countries employing foreign law in order to deal with questions of national constitutionalism?


ISBN (Hardcover)
Publication date
2020 (March)
judicial dialogue illiberalism legal consciousness civic constitutionalism collective memories
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2020. 240 pp., 6 fig. b/w.

Biographical notes

Alexandra Mercescu (Volume editor)

Alexandra Mercescu teaches comparative public law at the West University of Timisoara. She is also an affiliated researcher at the Centre for Legal Education and Social Theory (Wroclaw University). Her PhD, obtained from Sorbonne University, was published as Pour une comparaison des droits indisciplinée with the Swiss publisher Helbing Lichtenhahn.


Title: Constitutional Identities in Central and Eastern Europe