The syllabus can be downloaded below. Every week, one student will be asked to prepare questions for discussion which will be published in advanced in this interactive syllabus. The questions should be sent to patecek@law.muni.cz or directly to me (via MS Teams) by the end of the preceding week (i.e. Sunday before class.) Week 1 is ready for you, the following weeks are looking for their volunteers! 

Of course, all the assigned readings are available for download by the students enrolled in this course.

And here come the conditions for obtaining credits at the end of the semester:

Our first meeting is unambitious. We will meet, get to know each other, and discuss some of the concepts which will keep us busy throughout the semester. Before you read any of the assigned texts, please find a moment to sit down and think about the following question: 

Take some notes. Put down your ideas. Jot down a couple of sentences or a mind map - whatever makes your brain happy.

After you have done this (for real! do it! do not continue until you have written something down!), have a look at this week's readings. The first text comes from The Constitution of Freedom: An Introduction to Legal Constitutionalism by András Sajó and Renáta Uitz (OUP 2017, read pp. 13-19), the second text is a short excerpt from the SEP entry on John Rawls (read only part 3, i.e. pp. 9-21). This week's reading is 20 pages in total.

Having read the two texts, consider the following questions:

Questions for discussion:

Sájo & Uitz list several concerns addressed via constitutions and constitution-making. Have they left out anything relevant? Does the constitution-making process and/or the concerns of the drafters behind constitutional provisions have any permanent influence on how we treat the constitution?

Can a liberal constitution contain programmatic provisions, or does their insertion make the constitution “flawed” from the perspective of constitutionalism (p. 37)?

Are constitutions tools for nation-building?

Is naturalisation a process that is completed with acceptance of constitutional principles or assimilation into state culture (in descriptive/normative sense)?

If majority culture becomes state culture as Orgad suggests, is there any justification for majority rights? If it isn’t, what does state culture consist of?

Are cultural defence policies ever defensible from liberal positions?

Does multiculturalism stress or accommodate differences among people? As a result, does it weaken or support individual’s identification with the state and society?

Is it conceivable for a liberal state to have differentiated citizenship status justified by cultural pluralism?

Assigned reading:

Further reading:

In our third meeting we will finally embrace the notions of national identity and constitutional identity. 

In her article, Elke Cloots "defies the conflation of national and constitutional identity" and argues that these two notions refer to two different concepts. She offers a short history of the so-called identity clause and she offers six underlying values that justify the concept. In the last part of her article, she compares the notions of national identity, constitutional identity, and sovereignty, and concludes that the drafters of Art 4/2 have made a wise decision.

• In your opinion, is there any difference between national identity and constitutional identity?
• Which values underlie the identity clause in Art 4/2 TEU? Is any one of them more important than the others?
• Was it wise to include national identity in Art 4/2 TEU, rather than sovereignty or constitutional identity?

We will also discuss a short excerpt from the textbook by Sajó & Uitz which is already familiar to you. These authors define national identity as "a means by which a people re-collects itself and its fundamental commitments".

• "The constitution and related fundamental laws often create, or consolidate, national identity." (p. 63)
  • Do you agree?
• "Constitutional identity determines what is and what is not negotiable in times of change." (p. 65) 
  • Is constitutional identity the same as constitution’s material core / unamendable provisions?
• Can constitutional identity change over time? How do we know what it is at any given time?

In case you also read the short excerpt by Carl Schmitt, try to focus mostly on page 239 and think: how does Schmitt understand the notions of identity and representation?

Looking forward to our discussion! 

Lenka & Zuzi

***

Assigned reading:

Further reading:

Assigned reading:

Alternative reading:

Assigned reading:

This week we will continue our debates about constitutional identity. Hopefully, the assigned reading by Jacobsohn (pp. 84–117) will be a welcome departure from the Hegelian dialectic of our last meeting.

Subjective or objective identity?

• Jacobsohn builds upon philosophical debates whether personal identity is something predetermined by nature and circumstances or rather a result of volitional acts (“I am what I myself choose to be” – see in particular Appiah’s authenticity and existential approach on pp. 91–92). When it comes to constitutional identity, does he pick any side?  
• Does every constitution have an identity of its own that can be known “[b]y its beginning (‘origins’), its middle (‘concepts’), and its end (‘aspirations’), understood within the unity of a narrative (‘viewed in context . . . historically’)” (p. 91)?
• Should there be „a presumption in favour of any settled scheme of Government against any untried project“, as Burke argues? (p. 99).

Building constitutional identity

• What purpose do aspirational content, dialogical articulation and generic/local balancing serve in Jacobsohn’s argument?
• Do you agree with the statement that „[c]onstitutions provide structures to mediate among conflicting political aspirations, but that they must or can be neutral with respect to them does not necessarily follow.“ (p. 106)?
• Jacobsohn claims that „[i]n practice the dialogical enterprise comprises interpretive and political activity occurring in courts, legislatures, and other public and private domains“ (p. 108), but he is critical of „judicial unilateralism“ in this area (p. 110). Why?
• Are constitutions always build upon reconciliation of the requirements of “generic constitutionalism” and “local traditions and practices” (p. 113)?

EU Constitution

• According to Jacobsohn, Grimm argues that the EU is not ready for a constitution because its citizens lack a collective identity. The issue „is not the lack of cohesion of Union citizens as a people, but their weakly developed collective identity and low capacity for transnational discourse“ (p. 114). On the other hand, Habermas believes that „an abstract, legally mediated solidarity among strangers” together with transnational public sphere and democratic discourse will suffice. Whose view do you find more convincing?

Missing pieces (?)

• Jacobsohn makes several mentions of national identity, especially in the introduction (pp. 85–86). Does he explain its relationship to the notion of constitutional identity?
• What is the role, if any, of the so-called eternity clauses, e.g. the Art. 9(2) of the Czech Constitution, in the shaping of a constitutional identity? 

Looking forward to our discussion! 

Vojta

Assigned reading:

Since we did not meet on 28 October, we will return to the texts on the Czech constitutional identity in this session. Please read (or refresh your notes) the article by Kosař & Vyhnánek, and have a look also at the text by Přibáň - all these texts can be downloaded below.

Apart from that, there are no new assigned readings. Please go through your readings for previous classes, catch up with those you have not managed to read, and prepare discussion points for our class. For those who want to go further: find another author who has written about constitutional identity and try to understand their point of view - you can then introduce their ideas to us during class. 

Questions to Kosař Vyhnánek and Přibáň, November 18^th, 2020 (by Karel Thygessen)

Last time we were talking, inter alia, about the possible existence of “Constitutional Identity”; to me this identity exists, but shall be understood as a technical processual break assisted by legal experts providing thus for just “Legal Identity”, the authors come with other explanation though…

In the “Czech article” the authors define “Constitutional Identity” in Czech Republic upon three aspects:

• rigid interpretation based on “Eternity Clause” and CCC case law;
• broader version based on “Material Core” of the Constitution;
• and popular identity based on nations´ history and other narratives… 

Similar categories are dealt with in the “English article”. There the aspects defining Constitutional Identity are:

• legal identity,
• political identity, and
• popular identity (pp. 110, 111).

As to the English Article:

1)      Do you agree to the fact that whilst “Legal Identity/Constitutionalism ” is more important in the Czech Rep. compared to “Political Identity/Constitutionalism” also the “Popular Identity/Constitutionalism” is weak and this weakness is a distinctive feature of Czech system which can indeed result in clashes between elites and the people??? (p. 111);

2)      What sort of “Constitutional Patriotism” (p. 95) can we have in the Czech Republic if 30 percent of population are of Slavic origin, another 30 per cents are Celto-Germanic and the rest are various minorities???;

3)      Is it good to support anything like “popular” part of “Constitutional Identity” in situation we can see abuses in Poland and Hungary??? (p. 112);

As to the Czech Article:

1)    What do you think about the “Clash of Sovereignties” and about the concept within EU Law of “Constitutional Identity Protection” as defined in Article 4/2 TEU in respect to “National Identities” and, narrowly, to “Constitutional Identities” of Member States??? Don’t you think that this identity, as well as national law counterparts, shall pertain to something like safeguard and definition and use of the tool shall indeed be done exclusively by legal experts, the “Legal Identity” being the only reasonable part of “Constitutional Identity” and “National Identity” concepts??? (p. 854);

2)    Do you agree with the main argument of the Czech Article, that it is not probable that there will be a clash between CCC and ECJ as to the “Constitutional Identity” concept, and that more probable is internal conflict between “Popular Constitutional Identity/People” on one hand and “Legal Constitutional Identity/Legal Experts” on the other hand??? (p. 855);

3)    Though there is a limited chance of dispute between CCC and ECJ, the authors argue that CCC is comparatively very activist (p. 861) and in some cases CCC is capable of “drastic interpretation of Constitution” (p. 862); Can you see a danger here of drastic stance even in case of clash between the ECJ and CCC??? (p. 862);

4)    As concerns the case Dreithaler (p. 860), do you think that CCC has acted in accordance with certain aspect of “Constitutional Identity” defined by Jacobsohn, who stated that such identity is not constituted solely by the past history of the nation but it also is constructed upon the will to overcome this history (p. 856)???;

5)    According to Preuss, “Material Core” is an equivalent of the “Constitutional Identity” but is not sufficiently defined and what is more, there are reasonable criteria lacking for a definition, do you agree??? (p. 859);

6)    Why is that that in some regimes there is no Eternity Clause included to the Constitution at all???; Why do we have, in the Czech “Eternity Clause”, only a limited number of values and the scope is only broadened via CCC case law and via doctrinal sources??? (p. 858, 859); Even if the two concepts are not the same, shall there be more unity between “Material Core” and “Eternity Clause” in the Czech Republic?? If we understand a “Material Core” as a group of ideals protected by Constitution and “Eternity Clause” as ban on change of basic principles of constitutional order (Molek quoted by Kosař and Vyhnánek, p. 859), shall the possible ban be not broader???

7)   “Popular Identity” crises aggravated by Financial Crisis, Refugee Crisis, and now by COVID crisis???;

Questions Přibáň

1)      Do you agree with the fact that there is global shift, as the author observes, in rejection of absolutist notion of sovereignty??? Sovereignty is not “a matter of either or”, it rather is a practical matter??? (p. 189, Lisbon I. case) And/or a key manifestation of state sovereignty is “ability to cede certain powers temporarily or permanently”??? (pp.189, 193, Lisbon II. Case, Memorandum attached to CR Application);

2)      Similarly, as to the regional level, after the Treaty of Lisbon, do we have European Post-Sovereign Constitutionalism coupled with Self-Limited Constitutional Sovereignty of Member States (p. 184) or are there still disputes between monist and dualist conceptions dividing Member States, the further dynamics being provided via the doctrine of “States as Masters of the Treaty??? (p. 190); Do you agree with FCC declaration that “what happens to Europe is for Europe to decide (and shall be under EUCJ jurisdiction)” or would you rather stick to the CCC interpretation invoking “commonly shared values and principles of democratic constitutional state and Rule of Law to be pluralistically applicable in the EU??? (p. 195). What do you think about the Kompetenz der Kompetenz??? (pp. 185, 195);

3)      Can the lacking political science classification of the EU as organization be legitimized by the fact of parallel regionalization processes in other parts of the World, the ultimate goal being overall Globalization??? Can we defend the stance of FCC, on the other hand, that ignores supranational and multi-level governance even if these two are deemed core principles of current EU functioning??? (p. 195);

4)      Do you agree with the fact that any system based on concentrated model of constitutional judiciary is more prone to critiques based on lack of democratic legitimacy – isn´t there a lack of EU democratic legitimacy confronted with equally missing legitimacy of the domestic court of last instance??? Based on the previous, can be such lack solved via “legitimacy via efficiency - FCC” or via “set of shared values - CC”??? (p. 195);

5)      Are the different stances towards EU Law supremacy and EU political bodies and their competences in Czech Republic and in Germany vested in different historical narratives, as indirectly suggested by Přibáň (democratic Western Germany x communist Czechoslovakia and Czech Rep. entering the exclusive club of EU Member States)??? (p. 185);

6)      Why do you think there is a clash between CCC and SAC (Supreme Administrative Court) in Czech Republic, whereby SAC is possibly trying to disjoint overall positive stance of CCC towards ECJ???

LIST of CASES

1. FCC Solange
2. FCC Maastricht
3. FCC Lisbon case
4. CCC Holubec
5. CCC Lisbon I and Lisbon II
6. CCC Melčák
7. ECJ Landtova - C-399/09

 See you on Wednesday! :)

This week, we are going to talk about the fundamental architecture of the European Union.  In particular, we will mostly discuss remarkable pieces of the two pioneers of EU constitutionalism: Joseph Weiler and Neil MacCormick.

As for the assigned readings, please, consider the following questions:

1.     Is the existence of a community’s constitution conditioned by the existence of a single ‘constitutional demos’ / pouvoir constituent?

2.     Where is the legitimacy of the EU’s constitution rooted?

3.     Does the loss of sovereignty on the side of one entity lead necessarily to the gain of sovereignty on the side of other entity? Are Member States sovereign? Is the EU a sovereign entity?

4.      Is European integration compatible with the principle of democracy?

5.     Does traditional state-sovereignty impede democracy (“monolithic democracy” and the issue of centralized majorities)? Could the abandonment of state-sovereignty enhance democracy (principle of subsidiarity)?

6.     How does diversity affect one’s identity? Is it possible to build the identity of an entity on the principle of diversity?

7.     Can one talk about the hierarchy of norms and institutions in relation to the EU?

8.     How can be the competences of the EU identified without the formal constitution? Who should do so?

9.     Does the ‘loss of sovereignty’ or ‘subordination’ of the Member States lead to their independence or enhancement of their sovereignty in relation to other states?

10.  How does the constitution of the EU affect the approach of Member States towards the rest of the world?

Assigned reading:

Further reading:

In this Wednesday’s meeting, we are going to address the topic of the national identity and its relevance for the (future of) European Union. In particular, we are going to discuss the pieces of Von Bogdandy and Schill and Monica Claes.

Based on the assigned readings, I would like to kindly ask you consider the following questions, which I have divided in the subsections by their topic rather than the author of the text – a) the national identity itself and b) the role of national identity in the European (composite) constitutionalism.

Ad national identity)

Should the concept of national identity be limited to the constitutional sphere and the infrastructure and set-up of each Member State, providing the Member States “a promise” that the Union will not interfere with the national institutional architecture? Or should also other aspects, such as cultural identity, specificity, national habits and traditions be taken into consideration when attempting to define the national identity?

What is the relation between the concept of the national identity protected by the EU law and the constitutional identity, as developed or being referred to by the national constitutional courts? Is the difference solely linguistic?

Can the obligation to respect the national identity be understood as a counterpoint to the European integration?

Could the notion of national identity as per Article 4(2) TEU be operationalized as a basis for a Member State to derogate from its obligation to implement secondary EU law and if so, does this relativize the principle of the absolute primacy of EU law?

Is the content and extent of negotiation a subject to negotiation, i.e. is it something that can potentially be discussed and eventually agreed on between the Union (CJEU) and the national authorities (governments or the courts)?

Ad the role national identity in European (composite) constitutionalism)

Following the question above, which subject and on which level, i.e. national or the EU, ultimately determines the national identity?

If the CJEU’s competence to interpret the EU law clashes with the decision of a national constitutional court relying on the protection of national identity to justify non-compliance with the EU law, who decides whether Article 4(2)TEU has been infringed?

Can Article 4(2) TEU be understood as an expression of European composite constitutionalism? Does it constitute the necessary link for the interaction between the EU law (the CJEU) and national law (national constitutional courts) to determine the national identity?

Does Article 4(2) TEU indicate a path to overcome the hierarchical model for understanding the relationship between the EU law and domestic constitutional law?

See you on Wednesday, looking forward to the discussion! 😊 Anna

Assigned reading:

On Wednesday we will continue with the topic of national/constitutional identity in the EU. With Faraguna and Piqani we are returning to more abstract level.

1)      Faraguna explains the ambiguity of the concept of constitutional identities within the constitutional orders of Member States and define identity as difference (specificities and peculiarities of a given constitutional order, cannot overlap) and identity despite difference (protected by eternity clauses, may largely overlap). (p. 1622) Does this distinction have any significance to the interpretation of Article 4(2) TEU?

2)      According to Faraguna the concept of constitutional identity as a shield is used by national constitutional courts to protect national constitutional identities against legal reform of the EU. On the contrary, by using the concept as a sword national constitutional courts do not use constitutional identities as limits to further integration, but as operative clauses needed to solve an existing conflict between EU law and national constitutional law. (p. 1627) How can be this understanding of national constitutional identity related to the Article 4(2) TEU?

3)      Konstadinides (Constitutional Identity as a Shield and as a Sword: The European Legal Order within the Framework of National Constitutional Settlement) interprets constitutional identity as a shield when the concept is invoked by the ECJ as a legitimate EU law derogation and as a sword when the concept is invoked by national constitutional courts as a break to a transfer of competences to the EU and a tool of judicial review of national implementation measures of secondary legislation. Would you prefer this shield/sword concept?

4)      Because the national identity clause is silent on how this identity is to be protected, according to Piqani we may be witnessing an “appropriation” of national constitutional identities by judicial bodies and an interpretation and application of this instrument outside the political process. (p. 34) What is your opinion on interpreting national constitutional identity by judicial bodies? Is it appropriate to leave on courts creating authoritative definitions of national constitutional identity?

5)      Piqani points out that illiberal democracies could use national identity protection as a shield (p. 41). Do you think this unilateral claim of illiberal democracies could affect EU law?

Looking forward to the discussion,

Jana

Assigned reading:

This Wednesday we will be reading about a more “regional” focus on the notion of constitutional/national identity – the approach of three (European) national constitutional courts. In the piece by Drinóczi, you will discover many terms and variations on the word “identity”. Hopefully, we will be able to unravel them and understand them together.

1) In this week’s reading, Drinóczi uses many terms such as “constitutional identity”, “national identity” or “collective identity of the constitutional subject”. Let’s first have a look on the figure on p. 122. Do you understand all the divisions? Do you agree with them?

2) What about the notion of eternity clauses and the Drinóczi’s ‘scheme’. How does it fit into it?

3) Last week, we were discussing the example of “shields” and “swords” as metaphors for use of constitutional identity as arguments. How do you understand the difference in Drinóczi’s text? (p. 109) Do you find it similar/different to last weeks?

4) Can constitutional identity be used as an argument for restriction on human rights protection (as provided by international treaties?) (Hungary case)

5) Is it possible to change constitutional identity over time in a way which would lower standard of protection of fundamental rights and the basic principles of constitutionalism?

6) We have been already tackling the issue that constitutional/national identity is a concept mostly associated with the judicial power. Do you see a shift in this approach in Drinóczi’s text?

7) Who is the determining authority on interpretation of constitutional identity according to Drinóczi and according to you? (p. 119)

8) Based on the reading about Hungary and an article you chose to read on Poland, do you think that their political actors already managed to change their constitutional identities? What are some of the difference between the two scenarios?

9) Drinóczi mentions (p. 121) that Polish constitution, unlike the Hungarian one, contains an eternity clause. Does it, in the end, make a difference for the political (governmental) power in regards to changing constitutional identity?

Looking forward to see & hear you on Wednesday!

Natálie

Assigned reading:

Further reading: (see MS Teams for links to several articles re: Poland)

Class outcomes, pre-Christmas edition:

4qlylo

Naty

Lada

By the end of 2020, we will have read and discussed all the texts devoted specifically to the notions of "national identity" and "constitutional identity". In 2021, we will move to our last topic, namely "EU identity" and we will try to determine whether the EU has its own constitution and whether it has a constitutional identity and/or a constitutional core. For our first session of 2021, please read the text by Daniel Sarmiento (who will also join us for the session, yey!) and by András Jakab (both texts are attached below). 

The session will be moderated by Štěpán Paulík (clearly a faithful padawan of Dimitri Kochenov) who has prepared a lot of interesting questions for our discussion:

Sarmiento

In general, I agree with Sarmiento that ‘an efficient critique should not focus on rejecting the existence of EU’s constitutional court, but on questioning the EU’s ability or wisdom to embrace it.‘ Majority of the following bullet points aim either in this direction or on the relationship between the core, EU’s identity and the national identity.

·       Does the EU/national identity (i.e. an existential trait, what are the features as a genetic code that grant the organization its raison d’etre) point at the EU/national constitutional core (i.e. the unchallengeable principles that form the very foundations of EU’s legal order)? What in your view is the relationship between these four concepts?

·       Sarmiento argues that the EU’s constitutional core is channeled through EU citizenship, which holds three normative ideas on which the EU is based: democracy, rights, and solidarity. Do you agree with that? Kochenov offers a different view: “The EU’s very self-definition is not about human rights, the Rule of Law or democracy. EU law functions differently: there is a whole other set of principles which actually matter and are held dear: supremacy, direct effect and autonomy are the key trio coming to mind.” Do you agree with Kochenov on this? If he is right, what are the consequences for the constitutional core of the EU?

·       Sarmiento comes up with three normative ideas that explain the features of EU’s identity: Democracy, Rights, and Solidarity. also holds that ‘the EU internal organization of powers is based on the principles (…) of the rule of law”.” Is this conclusion in line with the case-law of the CJEU on EU acceding to the ECHR, in which the CJEU denied any possibility of external review of EU law? Wouldn’t Kochenov’s description in this case be more accurate? Isn’t Kochenov’s description even more pressing when accept the notion of identity as an existential trait since the ‘procedural’ principles are far more ingrained in the genetic code of the EU than EU citizenship?

• How does Sarmiento understand the “substance of the rights” attached to the EU citizenship (pg. 187 and discussed further on pg. 190)? What are the implications of his understanding?
• Isn’t the link between substance of the rights attached to the EU citizenship to the three normative ideals (especially rights) a bit of a stretch? And if we were to only take into consideration the actual substance of the rights attached to the EU citizenship, wouldn’t the three normative ideals be too thin (as in citizenship does not cover organizational aspects of democracy such as the institutional design or its procedural principles, it does not cover more systemic aspects of the rights normative idea (rule of law)?

·       Is the following definition of EU constitutionalism flowing from the discussion surrounding the rule-of-law conditionality mechanism akin to the normative ideal of solidarity: “The main problem with this dominant legal discourse is its dependence on a category mistake. It confuses what we can call the ‘constraint function’ of constitutionalism with the actual ‘constitution’ of power in the most robust sense. All law constrains, and the mere fact that EU law has constrained the prerogatives of its member states does not mean that EU law is itself constitutional, even as it aims to ensure fundamental rights and the separation of powers.” “The ‘constitution’ of power, in the most robust sense, entails mechanisms to extract and redirect (‘mobilize’) human and fiscal resources in a legitimate and compulsory fashion. (…) If this gambit succeeds, the EU will have successfully tied the mobilization of fiscal resources at a genuinely ‘constitutional’ scale to the enforcement of core values on behalf of the polity as a whole. In doing so, it will take significant steps to transcend the fragility of the ‘as if’ constitutionalism that has characterized the integration project to date.” (https://verfassungsblog.de/rule-of-law-conditionality-and-resource-mobilization-the-foundations-of-a-genuinely-constitutional-eu/)

Jakab

According to Jakab, constitutions are generally expected to do two things:

• to be a means of legal self-restraint on the political power (as expressed by the protection of fundamental rights and the idea of the separation of powers); and
  • Jakab discusses the means to enforce a constitution as a way to enforce legal restraint on political power.
  • In terms of constitutional review, he distinguishes two roles constitutional judges can play: If judges perceive their roles only as agents of the constitution-maker, then their task is just to enforce the choices of the constitution-makers over legislative majorities. If judges, however, see themselves as trustees of the political system, then their task is to ensure that the legislative process produces the ‘best’ policy outcomes. The latter model is somewhat nearer to reality, but it is uncomfortable because it does not allow judges to hide behind the rhetoric of the agent model and it requires them to give a more complete justification (including social consequences). Does this distinction actually hold? What role do the Czech constitutional judges play?
  • Quite intriguingly, he proposes that referenda in Switzerland serve as a limit to federal legislation, which corresponds to the logic of constitutional democracy, according to which if a state organ is not controlled by one of the possible supervisory organs (in this case that would be the Bundesgericht of Switzerland), there should be some other kind of control. Do they actually play this role?
  • The author distinguishes between material and formal conception of constitution. He recognizes four conceptualizations of material constitution. Would you be able to link each conceptualization to a concept already know to you from the Czech legal constitutional law? Do you agree with his conclusion that “we should restrict the use of the concept of the constitution to the formal constitution”?
  • Does the following statement in your view hold empirically: ‘A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government’? What are the consequences if not?
  • Jakab introduces Buchanan’s rules of rationality: ‘Legal self-restraint is important not only in order to avoid a dictatorship, but also to force decision-makers to consider certain aspects (interdependencies and externalities) which they otherwise would not.’ N. Barber suggests that the purpose of some concepts of constitutionalism (i.e. separation of power) is to increase efficiency rather than to restrain a government. Do you agree with this conclusion? Wouldn’t it clarify some of the conceptual issues legal doctrine faces when grasping the concepts of constitution(alism)?
• to be symbols that bind the community together.
  • Read the preamble of the Czech constitution. Do you think that it allows for ‘an emotional identification on the part of as many Czech citizens as possible’? Does it reflect our identity in order to reflect ‘symbolic unity and give an integrating narrative to the political unity’?
  • A definition of a constitution follows from these two functions: one or several legal documents which are more difficult to amend than ‘ordinary’ laws, and on which one can measure the validity of the ‘ordinary’ laws (pg. 24).
• How would you rate the Czech constitution in terms of the three criteria required for a constitution to be stable and, consequently, to be able to limit politics (flexibility, integrating character, sufficient detail)? Jakab describes several methods for a constitution to remain stable. In what ways does the Czech constitutional system achieve constitutional stability and what are their pros and cons?
• He then argues that the founding Treaties can be qualified as the Constitution of the European Union but although the Treaties serve the first function well enough, the second function is served deficiently. According to him, legal scholars can play a role in developing the symbolic function of the Treaties. Do you agree with him given the reach of legal scholarship? Does the legal scholarship actually “help in strengthening the EU in public discourse” and “help to stop constitutional changes in Member States, if these changes contradict the principles of the Constitution of the EU”?
• Isn’t the following definition of EU constitutionalism flowing from the discussion surrounding the rule-of-law conditionality mechanism more fitting to the EU level: “The main problem with this dominant legal discourse is its dependence on a category mistake. It confuses what we can call the ‘constraint function’ of constitutionalism with the actual ‘constitution’ of power in the most robust sense. All law constrains, and the mere fact that EU law has constrained the prerogatives of its member states does not mean that EU law is itself constitutional, even as it aims to ensure fundamental rights and the separation of powers.” “The ‘constitution’ of power, in the most robust sense, entails mechanisms to extract and redirect (‘mobilize’) human and fiscal resources in a legitimate and compulsory fashion. (…) If this gambit succeeds, the EU will have successfully tied the mobilization of fiscal resources at a genuinely ‘constitutional’ scale to the enforcement of core values on behalf of the polity as a whole. In doing so, it will take significant steps to transcend the fragility of the ‘as if’ constitutionalism that has characterized the integration project to date.” (https://verfassungsblog.de/rule-of-law-conditionality-and-resource-mobilization-the-foundations-of-a-genuinely-constitutional-eu/)
• Can we find Jakab’s typical content of constitutions in the Treaties? Or is the EU build on other principles as Kochenov suggests: “The EU’s very self-definition is not about human rights, the Rule of Law or democracy. EU law functions differently: there is a whole other set of principles which actually matter and are held dear: supremacy, direct effect and autonomy are the key trio coming to mind.” Do you agree with Kochenov on this? If he is right, what are the consequences for the constitutionality of the EU?

Assigned reading:

Further reading: Armin Cuyvers' PhD thesis defended in Leiden, available here. 

In our last session, we will have a guest: Pola Cebulak, the author of our assigned reading. The session will be moderated by Jan Burda, who has kindly prepared questions for this session. Here comes his text:

The article for our last meeting in a way fulfils what one would expect from a material for a concluding session. It touches a lot of questions we have already discussed, it will allow us to make some fun of Czech national-identitarian approach towards discrimination in pensions and it highlights the delicate threads any fabric of constitutionalism is made of.

But most importantly – it will not tell us what constitutional identity is.

1) The questions presented are quite straightforward and – yes, again – you do not need to know what constitutional or national identities are.

2) What is the message the author tried to convey in the article?

3) Did the article feel relevant today (it was written in 2012)? What part still feel relevant and what part feels outdated?

4) Is constitutional identity, as the author implies, a tool useful for both the ECJ and the respective national constitutional courts in that by having two possible interpreters of the concept, it opens up a judicial dialogue? Or is there only one rightful bearer of the sword?

5) How do you feel about this excerpt: “Hence, there seems to be no place for a hierarchical relationship, but rather a coexistence of autonomous legal orders based on a functional division. Even though the terminology might be misleading, there is in fact only ‘functional primacy, based on mutual consideration, recognition, and cooperation between the courts’”? Would you admit that national and EU law are incompatible or – better – that they require us to purposefully overlook the incompatibilities in order for them to be at least somewhat … compatible?

6) What are the dangers and pitfalls of such an approach?

7) How about the democratic legitimacy then? Doesn’t it bother you that all this is being solved in courtrooms or on the meetings of judges? Is there any place for the elected or otherwise-democratically-legitimate bodies in all this?

8) Finally, isn’t this yet another wordplay in that the whole treatification of identity is “yet another example of putting into normative provisions principles that have already been recognised and applied by the Court?”

Looking forward to a new discussion over old topics!

Jan Burda

Assigned reading:

Further reading (which we agreed not to read for 13 January, but I will still keep the reference for those who want to explore the issues furhter): Armin Cuyvers' PhD thesis defended in Leiden, available here.