March 30, 2021, was the date of the inaugural seminar of the research project titled “Interdisciplinary dimension of constitutional identity” – conducted in the scope of a minigrant awarded in a call financed by PRA Heritage. The first meeting, accentuating the constitutional legal dimension of the research problem, was focusing the participants’ attention on the question whether the idea of “państwo prawa” (Rechtstaat) is a part of the Polish constitutional identity.
The inaugural lecture was delivered by Prof. Piotr Tuleja. His presentation was devoted mostly to two issues. First, the sole notion of constitutional identity. Referring to the already existing findings of legal scholarship and the case-law of the Constitutional Tribunal, Professor Tuleja outlined the process of construction and evolution of Polish constitutional identity. The second question concerned a concept akin to the rule of law principle, named zasada państwa prawnego (the principle of legal state). Its origins and significance in the Polish legal system was presented in part of the lecture. The presentation was finalised with a conclusion that the idea of Rechtstaat (państwo prawa), however adapted to the Polish legal system, remains a part of Polish constitutional identity.
The discussion brought up – among others – the issues of tensions and conflicts that appear or might appear between particular dimensions of constitutional identity, the popular understanding of this identity, as well as the role of courts in perpetuation or solidification of its elements, especially the principles of legal state. The participants formulated also questions on the role of supranational courts in building of the constitutional identity, on the impact of said identity on the margin of permissible change of the current Constitution, and finally on the need to introduce into the Polish legal system a code of constitutional procedure. The participants of the discussion were students – members of the research team and members of the Centre.
Prepared by: Paulina Jabłońska – member of the research team and associate of the Centre.
On April 21, 2021, a seminar with Prof. Irena Borowik from the Institute of Sociology JU was conducted in the scope of the minigrant awarded in a call financed by PRA Heritage. Professor Borowik presented to the participants a sociological perspective of the issue of identity in the social sciences, on the basis of two of her research projects.
The subject of the first presented research project was the relationship between identity and religion or religiosity. The main aim of the research was to find out whether religion influences the shaping of personal and social identity, and if yes, how. It was based on narrative interviews with representatives of three national-religious groups: Poles representing Catholicism, Crimean Tatars representing Islam and Russians representing Eastern Orthodoxy. During the lecture, an analysis of these interviews was presented, with a special focus on the second group, the Crimean Tatars. The speaker portrayed the process of shaping of their identity in two aspects: positive identity (answering the questions who are we and what do we have in common), and negative identity (concentrated on who are the “others” and what makes us distinct – in the case of the Tatars, those “others” were first and foremost Russians).
The second project presented by Professor Borowik concerned the links between religion and the debates on biopolitics in Poland. In this context, an analysis of discourse was presented on the example of two Polish Catholic weekly opinion magazines: “Tygodnik Powszechny” and “Gość Niedzielny”, showing how these two magazines construct identity in the framework of the debate on abortion. On the basis of his example, Professor Borowik described how the differentiation between a more open or more closed identity is visible on the grounds of Polish Catholicism.
A short series of questions in the end of the meeting resulted in elaboration on the methodological issues regarding extrapolation of the empirical research and their current validity in the light of the political changes in Crimea.
Prepared by: Filip Oszczyk and Karolina Mardausz, 2nd year undergraduate students of Sociology (Faculty of Philosophy, JU), associates of the Centre.
On April 27, 2021, the third seminar of the research project titled “Interdisciplinary dimension of constitutional identity” was conducted in the scope of a minigrant awarded in a call financed by PRA Heritage. The seminar, underlining the thematic of the whole project, was focused on a book edited by the speaker, Dr. Michał Ziółkowski, and Prof. Andrzej Wróbel („Tożsamość konstytucyjna w wybranych państwach członkowskich Unii Europejskiej” [Constitutional identity in selected EU member states], Wolters Kluwer 2021). The book presents the research outputs of a project with the same name, financed by the Polish National Science Centre.
Dr. Ziółkowski began his presentation with an introduction to constitutional identity, aiming to address three issues: 1) what are the different perceptions of identity; 2) how dangerous can this identity be, and 3 is constitutional identity a disreputable notion?
The first problem addressed by the speaker concerned the static or dynamic character of identity. According to the author, there are two strands of reasoning – Weimar and American – constituting two entirely separate levels, different in virtually all aspects. Dr. Ziółkowski emphasised that the discussion on constitutional identity is not new, it appeared 100 years ago in Vienna and was also present in the times of the Weimar Republic, especially in the works of Carl Schmitt and Carl Bilfinder, who equated identity with eternally binding constitutional norms. According to Dr. Ziółkowski, this way of thinking can be best illustrated by a metaphor of a tree – identity as roots supporting the trunk and the treetop – and of a mirror, with identity as a reflection of the individual standing before it. Next, he presented the Indian doctrine building on the Weimar concept, and the American concept, which understands identity differently (including works of Prof. Anna Śledzińska-Simon). While the Weimar concept assumes that identity is static, persistent in time, the American one perceives identity as dynamic and involves research on the entirety of constitutionalism (not only in regard to a particular constitution) understood as a certain idea behind enactment of a certain constitution.
The author proceeded to show the practical problems of identity, beginning with the issue of ownership of the constitutional identity of a particular community. According to G.J. Jacobsohn, identity belongs to the entire nation. M. Rosenfeld, on the other hand, pointed at an abstract, contrived constitutional entity, which has the power of enactment. The ECJ approaches this issue differently, assuming that the identity belongs to each EU member state. Dr. Ziółkowski then presented the issue of what the constitutional identity looks like, quoting different views of the doctrine and specific problems arising on their grounds: the constitutional discourse, the content of identity, the self-narration of the constitutional entity, the self-identification of the authority.
The next part of the presentation was dealing with a question: why we would even use the references to the notion of identity, what is the point in references to the notion of identity? Every member of the doctrine answered this question in a different way. Jacobsohn claimed that it is a normative concept which answers the questions about justification of choices of the constitutional lawmaker and about description of evolution of constitutional law, as well as reinforces the arguments derived from intention of the constitutional lawmaker. According to Rosenfeld, what is more important is the answer concerning the addressee of identity, the scope of constitutional regulation and the method of legitimization of constitutional law. Constitutional courts of modern states approach this issue in yet another way: describing constitution as a normative concept delivering the criteria of assessment of a constitutional amendment or an international agreement.
Dr. Ziółkowski then addressed some more detailed issues, precisely the issue of reconstruction of constitutional identity. The Weimar concept,used the syllogistic approach – classic deduction from legal rules. Apart from this approach, the doctrine referred also to the dialogical and dialectical approaches. The sources of reconstruction of the identity lie within e.g. examples of preambles, perpetual clauses, regulations of the highest hierarchical status, the “never again” clauses.
Consideration pertaining to the co-creators of the constitutional identity was an important part of the seminar – it was underlined that these are not only courts and doctrine, but also all organs which apply the constitution.
The outlined problem of constitutional identity, especially the variety of ways in which it is understood (what was emphasized by our guest), generates a lot of doubts – including these related to the augmented risk of outdated constitutional ideals, excessive activism of constitutional courts, as well as illiberal interpretation of constitution, illustrated by the Polish and Hungarian examples of misuse of the term “constitutional identity”. Some authors, as Dr. Ziółkowski pointed out, claim that constitutional identity is a disgraced notion and should not be used anymore, since it is an invitation for authoritarians to use said notion improperly. According to an opposing view, it is not the fault of the notion itself, since it is precise enough for a careful user, and every other notion of constitutional law might likewise fall out of favor.
The second part of the meeting was devoted to a discussion, during which many questions were posed by the members and associates of the Centre. The first question concerned the subject of Dr. Ziółkowski’s book and its inclusion of different manifestation of constitutional identity: state, public authority, authority. The author relied that the book is focused on treatment of constitutional identity in the case law of selected EU member states. The next question referred to the holistic approach to constitutional identity. It was followed by a question whether the two strands of reasoning presented by the lecturer were entirely separate – he replied that they pertain to completely different issues. Another associate asked about how society understands constitutional identity – whether it is a socially recognized notion or purely a matter of the academic discourse. The next question took up the issue of two notions and the possibility of their differentiation – the notion of identity and the notion of the spirit of the constitution, present in articles of the Norwegian constitution of 1814. Other questions referred to the margin of appreciation in the ECHR case law, and the fundamental issue of whether there is only one constitutional identity.
To summarize, the participants of the seminar gained plenty of knowledge, the speaker touched on many crucial aspects and willingly answered the numerous questions, prompting the members of the research team to further their reflection on this topic.
Prepared by: Karol Królikowski – member of the research team and associate of the Centre.
On February 17, 2022, a seminar took place in the form of an open meeting of the Chair of Constitutional Law at the Jagiellonian University. The members of the grant project and the workshops had an opportunity to present the results of their research (in the Polish language).
The open seminar of the Chair of Constitutional Law, Jagiellonian University
17.02.2022 (Thursday), 10.00-13.00 (online)
10:00 – 10:10 Prof. dr hab. Piotr Tuleja, Opening session
Prof. dr hab. Monika Florczak-Wątor, Presentation of the research and didactic project „Interdisciplinary dimension of constitutional identity”
Panel I. The philosophical, psychological and sociological dimension of consitutional identity
Moderator: Dr Marcin Krzemiński
10:10 – 10:20 Krystyna Mokrzycka, Tożsamość konstytucyjna - monolit czy krajobraz inności? [Constitutional identity – a monolith of a landscape of distinctness?]
10:20 – 10:30 Adam Demczuk, Tożsamość człowieka jako punkt wyjścia dla definiowania tożsamości konstytucyjnej [Human identity as a starting point for defining constitutional identity]
10:30 – 10:40 Kamil Zyzik, Transnarodowa tożsamość konstytucyjna w globalnym świecie. W kierunku realistycznej i krytycznej perspektywy analizy [Transnational constitutional identity in a global world. Towards a realistic and critical perspective of analysis]
10:40 – 10:50 Filip Oszczyk, Karolina Mardausz, Tożsamość konstytucyjna w perspektywie socjologicznej [Constitutional identity in a sociological perspective]
10:50 – 11:15 Discussion
11:15 – 11:30 Break
Panel II. The systemic and dogmatic dimension of constitutional identity
Moderator: Dr Agata Niżnik-Mucha
11:30 – 11:40 Bartosz Kielan, Czy Konstytucja Rzeczypospolitej Polskiej zawiera normy niezmienialne? Rozważania w kontekście problemu tożsamości konstytucyjnej [Does the Constitution of the Republic of Poland include unchangeable norms? Reflections in the context of the problem of constitutional identity]
11:40 – 11:50 Kacper Nowina-Konopka, Wpływ populistycznego konstytucjonalizmu na tożsamość konstytucyjną [The impact of populist comstitutionalism on constitutional identity]
11:50 – 12:00 Lena Helińska, Przydatność pojęcia tożsamości konstytucyjnej dla prawa międzynarodowego publicznego [The usefulness of the notion of constitutional identity for public international law]
12:00 – 12:10 Paulina Jabłońska, Margines oceny w orzecznictwie Europejskiego Trybunału Praw Człowieka. Perspektywa ochrony tożsamości konstytucyjnej [The margin of appreciation in the jurisprudence of the European Court of Human Rights. The perspective of protection of constitutional identity]
12:10 – 12:45 Discussion
Prof. dr hab. Piotr Tuleja, Summary of the discussion and closing remarks