Abusing constitutional identity

Pisa, Italy: Scuola Superiore Sant’Anna – Populism, Constitutional Democracy, and the Rule of Law workshop

In the second session of the workshop for today, Julian Scholtes* opened up a particular debate on the notion of constitutional identity, around the idea that this could be deployed as a practical excuse for authoritarians and populists to sidestep transnational legal obligations, or to vindicate their constitutional projects on the whole from concerns about the rule of law and other shared European values.

Scholtes observes that this has led some scholars to highlight the “dangers of constitutional identity”, brandishing it as an “inherently dangerous concept”, and suggesting that the concept ought to be abandoned.

However, he went on to argue that the anti-pluralist critiques of constitutional identity, while rightly criticising the authoritarian appropriations of constitutional identity, ultimately, go too far and draw the wrong conclusions. Further, as long as the root problem of illiberal authoritarianism in Europe persists, his observation is that illiberals and authoritarians will abuse law – not just constitutional identity – to their own ends, and opens a pending question: does this means that the authoritarian and populist appropriations of constitutional identity must be identified and understood as abuses of the concept?

*PhD Researcher, Department of Law, European University Institute, Florence, Italy