Ghost in the shell

The notion of constitutional identity rests on a seemingly inevitable tension: it is seen both as a source of inclusive social cohesion and as a potentially exclusionary concept invoked to justify populist claims and divergent interpretations of the rule of law and human rights. This has led legal scholars to redirect the understanding of constitutional identity towards an exclusively legal and functional definition in line with the formulation of Article 4 (2) TEU, which protects the ‘national identities’ of the European Member States: identity is assured so far as it is inherent to the ‘fundamental structures, political and constitutional’ of the Member States. This contribution criticises this approach, because it ignores the dynamic nature of a community and its attachment to its ethnocultural affinities, possibly undermining the viability of an inclusive polity. This is a concern, especially for multinational communities like the European Union. It then proposes an alternative conception of constitutional identity as narrative identity, in which preconstitutional identity emerges as the ghost in the shell of constitutional identity. A narrative conception of constitutional identity bridges the civic/ethnic divide by giving ethnocultural elements a place through narrative integration of preconstitutional identities but avoids an illiberal logic by putting them forward according to a retrospective logic as projections rather than as a robust core. Starting from that narrative conception, the relationship between preconstitutional and constitutional identity is further clarified by investigating their interplay across six binaries that often recur in the debate: continuity/change, sameness/difference, unity/plurality, sameness/difference, fact/fiction, affect/ratio.

Constitutional law · Identity formation · Identity politics · Narrative · Politics · Energy Law and Policy · Judicial and Constitutional Studies · Legal Language and Interpretation