Stefania Ninatti, Oreste Pollicino

Constitutional Identity and Courts’ (Special) Responsibility

  • Abstract

Informations and abstract

Keywords: Constitutional Identity; Trans-judicial Dialogue; Constitutional Courts

Weiler and Lustig’s essay shows, through the metaphor of waves, that it is possible to challenge the dominant narrative on constitutionalization processes as progressive and evolutionary. Starting from the analysis of the third of the waves examined by their essay, our comment aims to question the use of constitutional identity’s vocabulary in constitutional court’s case law and to «inject» the same dialectic character in the horizontal trans-judicial dialogue among constitutional courts in Europe. More precisely, we argue that the most influential Courts – holding a kind of «dominant position in the market of constitutional ideas» – bear a «special responsibility»: differently from the appeal to «common constitutional traditions», the identity-based language used by such courts is often used by other constitutional courts as a supporting precedent, it can be manipulated and thereby get lost in translation.

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