About the project
The main role of a constitution is basically considered to be twofold: it sets up an institutional design that restricts the use of public power on the one hand and guarantees fundamental rights for individuals on the other.
Our project focuses on a third possible role: identity building.
Now, the identity of a political community is mostly based on language, ethnicity, religion or the combination of them. We suggest that the constitution could also become the primary source of identity for a society. For that, three requirements are necessary.
First, citizens must consider the constitution to be an authentic expression of their will.
Second, the constitution must ensure compatibility with morality and international law. These two aspects are crucial to the legitimacy of a constitution.
Third, there must be a constant, but not too harsh public debate among different institutions of the state about the interpretation of constitutional norms. In order to find out more about how these requirements function and about the barriers of identity building through constitutionalism, we will conduct comparative legal analysis and fieldwork in ten selected states from Europe (primarily, but not exclusively Central and Eastern Europe) and the Middle East and North Africa (MENA) region.
Our research is planned to proceed in two steps which are dedicated to the institutional and the citizen level respectively. We believe this separation is necessary for two reasons. First, institutional analysis and public opinion study require different methodological approaches. Second, we plan to rely on the results of our public opinion study to determine the scope and focus of the institutional analysis. Our exploration of public opinion of constitutional issues will give as the cues regarding the institutional mechanisms that are relevant.
A constitution’s community-building capacity depends on it becoming pivotal in peoples’ judgments about the legitimate use of power. This requires the constitution to generate adversarial discourse in the public sphere, which is possible under three conditions. First, the constitution must create an adversarial institutional setting which stimulates officials to prefer constitutional arguments over other types of communication in public discourse. Second, citizens must consider the constitution to be an authentic expression of their will. Third, the constitution must ensure compatibility between co-existing normative systems (the domestic legal order, morality and international law). This compatibility condition ensures an openness of the political community to international and regional cooperation. These three conditions (institutional adversariality, constitutional authenticity and normative compatibility) are analyzed in ten countries in the European Union and the Middle East and North Africa (MENA). The ten countries feature similarities regarding the context in which their constitutional orders developed (following the critical junctures in form of either the 1989 revolutions in Europe or the Arab Spring in MENA), but differ in the extent they fulfill the three conditions.
The Czech Republic is viewed by some as the success story of East Central Europe (ECE). Often argued to have a more developed civil society than many of its neighbors, it recently voted an increasingly illiberal government out of office, thus potentially avoiding the increasing erosion of constitutional authenticity through populist rhetoric. We expect the Czech Republic to meet the three conditions.
Poland has seen a similar illiberal takeover in recent years, but the ruling PiS party has not yet succeeded in formally re-writing the constitution. We expect PiS to employ anti-constitutional rhetoric similar to Fidesz in the 2000s. Yet, apart from the consequent potential for authenticity failures, we assume that religious compatibility will be a much more salient issue in Catholic Poland than in secular Hungary. The Poland-Hungary comparison thus aims to isolate the impact of condition three.
Hungary is the prime example of an ‘illiberal’ take-over in recent years, with the government not only attacking the old constitution but re-writing it according to daily political interests. We expect to find a heavily polarized discourse preventing constitution-based identity formation, particularly with authenticity being under threat as the current constitution might be viewed as the government’s toy. In Hungary, therefore, we expect significant fallout with regard to condition two and potentially three.
Germany is the origin and often the empirical example of the concept of constitutional patriotism. While being a natural starting to investigate constitution-based identity, there are competing expectations with regard to the adversariality condition. On the one hand, the consensual nature of Germany’s system and the predominant position of the Bundesverfassungsgericht might actually stifle public discourse and lead to lower degrees of institutional adversariality. On the other hand, the PSPP judgment, which denied the primacy of EU law and of a judgment of the European Court of Justice in a specific field, might increase adversarial discourse in topics related to the primacy of EU law and the conflict between EU law and national constitutional law. Finally, the specific historical situation in which Eastern Germany joined the Western constitution in 1990 poses specific authenticity problems.
Tunisia, the cradle of the Arab Spring, has been viewed as a model of democratic transition in the region. Tunisia’s legacy of secular constitutionalism has also influenced the 2014 constitution. Yet with the rise to power of the moderately Islamist party Ennahda, the country witnessed a heavy political debate between Islamists and liberals about the features of the new state. While much will depend on the quality of these compatibility debates, we are optimistic that Tunisia fulfills the three conditions and might serve as a role model of constitution-based identity formation in the MENA region. This assessment, of course, might change, if the current president Kais Saied continues to amend the previous agreement between Islamists and liberals.
Egypt had the highest polarization in the region after the revolution of 2011, which explains the political debates over drafting and changing the new constitution. Thus, the four years were marked by the issue of 10 constitutional declarations, and the adoption of 2 different new constitutions in 2012 and 2014. These super-active constitutional politics make Egypt a rich case to understand how authenticity of the constitutions was established during this period. With the increasingly authoritarian regime of President Sissi taking shape, however, our main concerns lie with condition one. Egypt’s current constitution might fail to produce allegiance as an increasingly repressive regime stifles democratically adversarial discourse.
Lebanon is a complex regime based on a denominational system and external multi-aspects interference affecting political discourse and democratic stability. Lebanon’s multi-ethnic population is held together by a long secular history supported by a progressive constitution and a national accord pact (The Taif Agreement), both forming potential rallying points for strong authenticity discourses. In this respect, Lebanon seems to be a suitable point of comparison to Tunisia. We are more skeptical regarding compatibility though. The popular uprising in 2019 has voiced disillusionment with an increasingly dysfunctional sectarian political system. The strongly sectarian constitution might reinforce ethnic or religious identities rather than forging a constitution-based variant, giving us valuable insights into the place of multiculturalism in constitutions.