The jurisprudence of particularism: national identity claims in Central Europe

In the 1990s, Central European (CE) constitutional courts applied various techniques to protect core democratic constitutional structures. The ‘invisible constitution’ became a benchmark of the Hungarian court; the Czech and the Slovak court opted for the substantive core doctrine. But since the Lisbon Treaty, CE courts have also drawn on identity discourse. The Hungarian and the Polish courts have even provided an ethnocultural justification for the legal concept of identity. The use of identity language highlights particularism and historicity; hence, I call this phenomenon the ’jurisprudence of particularism’. Yet particularism is not homogeneous. A heroic history of struggling for universal principles is waiting to be discovered in any country’s past. And any country’s history contains reactionary periods. It is, therefore, crucial to identify which part of a country’s history serves as reference points for the particularistic manifestations of universal constitutional principles.