State structure has always to deal with ethnic realities rooted in specific territories within a single State. Various public law studies have shown that, to face this problem, the preferable level of government is not a centralised but a decentralised one. Today federalism is considered one of the privileged solutions for the administration of power. However, especially in transitional democratic realities, federalism may cause conflict between national and local identities. In this regard, it is interesting to highlight the current experience of Nepal which, after becoming a Democratic Republic, has created a Constitution inspired by the Indian model, with the aim of rationalising governance and mitigating conflicts. The essay will analyse the state structure and power-sharing of a more stable and long-lasting democracy like India, and the influence it had on a new democracy (Nepal), to highlight the pragmatic possibility through which local and national identities can coexist.
The migration of constitutional ideas is characteristic for the legal integration within the European Union. EU law and domestic law are closely intertwined, enabling permeability between the participating legal orders. This allows for constitutional ideas to migrate between these orders. A prominent examples is the jurisprudence of the domestic constitutional courts establishing limits to the integration process in the form of “constitutional identity”. The identity language has been taken up by an increasing number of member states and transplanted into their respective constitutional and political setting. Whereas this process reinforces legal integration by “harmonizing” constitutional approaches to the interplay between EU law and domestic law, the “transplantational” dimension of this process also comes with challenges: e.g. the variety of understandings of what constitutional identity means in a specific legal order and the purposes this language is used (or misused) for.
Constitutional identity is the buzz word of the day in constitutional theory and European politics. Member States invoke it to question the primacy of EU law and sometimes even to justify illiberal constitutional politics. Nevertheless, its meaning remains vague. This paper will shed light on constitutional identity by contrasting it with important conceptions of collective identity, such as Montesquieu’s esprit général, Kymlicka’s societal culture and Rosenfeld’s identity of the constitutional subject. It compares the theoretical approaches along several dimensions: (1) The origins of identity; (2) its subject; (3) its content; (4) the empirical sources expressing identity; (5) its changeability; and (6) its value. The aim is a sharper conceptualization of the constitutional conception of collective identity that can contribute to the academic debate about collective identities and offer a new perspective on this notion with the potential to shape Europe’s future.
My proposal explores three concrete institucional flaws that are key to unravel the current situation of desoriented democratic identities in contemporary constitutional systems -emphasis placed on Latin American polities-. In this regard, a cross-cutting insight can be borrow from comparative constitutional analysis. It basically provides that substantive and normartive demands of liberalism -particularly within the agenda of the so-called neo-constitutionalism-, are steadily undermining citizens' engagement toward majoritarian and participatory politics. For example, the (positive) impact of Courts activity dealing with International Human Rights Law, at random, has also brought about further (adverse) side effects within the domestic political institutions that could best portray collective modes of self-government and democratic responsibility.
Prevailing constitutional theories assume that citizens are the primary subjects of constitutional rights and be guaranteed all the constitutional rights. They disagree only on of which rights the guarantee is extended to non-citizens. This Article reviews the text of the Taiwan Constitution and relevant constitutional theories to refute the assumption that the guarantee of constitutional rights must be tied to the citizen/non-citizen distinction and also argues that the Constitution leaves room for flexible construction of subject of constitutional rights. This Article further examines related congressional acts and discovers that the execution of this binary citizen/non-citizen distinction turned out to be an unexpected multi-level distinction over a broad spectrum, which also leads to differentiated standards of judicial review. This Article then analyzes relevant J.Y. Interpretations to describe the us-them distinction therein and propose a inclusive constitutional identity.