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THE CONCEPT OF CONSTITUTIONAL IDENTITY AS A LEGAL ARGUMENT IN CONSTITUTIONAL JUDICIAL PRACTICE
PETR KUCHERENKO, Peoples' Friendship University of Russia (Moscow, Russia)
ELENA KLOCHKO, Peoples' Friendship University of Russia (Moscow, Russia)
https://doi.org/10.17589/2309-8678-2019-7-4-99-124
Constitutional identity has recently emerged as a relevant concept in the theory of constitutional law. It first appeared in constitutional decision reasoning in the second half of the 20th century, particularly in cases concerning the process of European integration. Constitutional courts all over Europe have started to use this notion as a legal counterargument against the growing influence of the European Court of Justice on the national legal systems of member states. At the theoretical level, the use of this new concept caused a lot of criticism by law scholars, due, in their opinion, to its non-legal unscientific character. At the same time, there are also many supporters of this concept, mainly the representatives of the civilizational and sociocultural approaches to law. One way or another, it is fair to say that this concept has captured the attention of constitutional lawyers who, nevertheless, have not come yet to a common understanding of this notion. Some of them suggest defining constitutional identity as a method of legal argumentation, but there are still no comprehensive studies of this concept using achievements of the theory of legal argumentation. This article represents an attempt to research the notion of "constitutional identity" through the prism of the latter.
Keywords: constitutional identity; constitutional decision reasoning; theory of legal argumentation; interaction of national and interstate jurisdictions.
Recommended citation: Petr Kucherenko & Elena Klochko, The Concept of Constitutional Identity as a Legal Argument in Constitutional Judicial Practice, 7(4) Russian Law Journal 99-124 (2019).
Table of Contents
Introduction
1. The Concept of Constitutional Identity in Constitutional
Decision Reasoning
2. The Notion of Constitutional Identity as a Subject of Scholarly Debate
3. Basic Provisions of the Theory of Legal Argumentation Regarding
the Classification of Legal Arguments. The Concept of Constitutional
Identity as a Set of "Interpretative Arguments"
Conclusion
Introduction
For the last couple of decades the theory of legal argumentation has acquired the status of one of the most demanded directions of modern interdisciplinary research in the field of humanitarian knowledge. As noted in the literature, in recent years researchers from various fields of science, such as philosophy, logic, rhetoric, psychology, sociology, and others, have made numerous attempts"to explain structural features of legal decision-making and justification from different points of view."'
At the same time, legal argumentation has become the subject of studies of legal theory itself only relatively recently. The questions existing within the framework of this topic have been actively developed by such well-known scholars in the field of philosophy and theory of law as A. Aarnio,2 G. Tarello,3 A. Peczenik,4 D.N. MacCormick and R. Summers5 and R. Alexy6 only in the late '970s.
in Russian scientific thought, the fundamental theoretical issues of legal argumentation are some of the least developed and at the present stage of its elaboration continue to be the subject of study mainly of the sciences of logic and philology.
There are separate comprehensive studies of legal orientation, at the same time, a small number of Russian publications are devoted to the problems of the theory of legal argumentation and, in the authors' opinion, are multidirectional and unsystematic. it also seems fair to argue that Russian researchers do not take into
1 Eveline Feteris & Harm Kloosterhuis, The Analysis and Evaluation of Legal Argumentation: Approaches from Legal Theory and Argumentation Theory, 16(29) Studies in Logic, Grammar and Rhetoric 307, 307 (2009).
2 Aulis Aarnio, On Legal Reasoning (Turku: University of Turku Press, 1977).
3 Giovanni Tarello, L'interpretazione della legge [The Interpretation of Laws] (Milan: Giuffre, 1980).
4 Aleksander Peczenik, The Basis of Legal Justification (Lund: Lund University Press, 1983).
5 Interpreting Statutes: A Comparative Study (D.N. MacCormick & R.S. Summers (eds.), Aldershot: Dartmouth, 1991).
6 Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (N. MacCormick & R. Adler (trans.), Oxford: Clarendon Press, 1978).
account the achievements of foreign general legal theory. The last thesis is also fair with the reference to the studies made within different branches of law, which also take place in Russian legal literature.
At the same time, modern understanding of legal constructions, especially those that appeared in legal theory and practice quite recently, requires, in the authors' opinion, new methodological approaches to their study, both private-scientific (legal itself) and general scientific (interdisciplinary).
The purpose of this article is to attempt to research the notion of "constitutional identity" that has appeared relatively recently in science and constitutional judicial law enforcement practice through the prism of the achievements of the theory of legal argumentation.
1. The Concept of Constitutional Identity in Constitutional Decision Reasoning
Before proceeding to the study of this concept from the standpoint of the theory of legal argumentation, it is necessary to refer to the history of the emergence and development of constitutional identity, as well as to identify approaches to its explanation currently existing in constitutional law.
"Constitutional identity" is a relatively new concept in legal doctrine7 and constitutional judicial practice. As noted in legal literature, from the doctrinal point of view, the concept of "identity" has been predominantly studied as a subject of social studies,8 and only recently began to attract the attention of legal scholars, mostly European and international law scholars and constitutionalists.
The reason for increased attention to this topic in jurisprudence was that the notion of "identity" appeared and began to be actively used by the European constitutional courts to justify decisions related to European integration process and the expanding influence of supranational institutions of international organizations, in particular the European Union, on the domestic legal systems of member states.9
7 See Michel Rosenfeld, Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Durham: Duke University Press, 1994); Gary J. Jacobsohn, Constitutional Identity, 68(3) Review of Politics 361 (2006); National Constitutional Identity and European Integration (A. Saiz Arnaiz & C. Alcoberro Llivina (eds.), Antwerp: intersentia, 2013).
8 For the list of works see Anna Sledzinska-Simon, Constitutional Identity in 3D: A Model of Individual, Relational, and Collective Self and its Application in Poland, 13(1) i nternational Journal of Constitutional Law 124 (2015). For example, in sociology, it is talked about individual and collective identity and even about identity of different societies and people. SeeБланкенагельА. Призрак бродит по решениям европейских конституционных судов: что делать с конституционной идентичностью? // Сравнительное конституционное обозрение. 2018. № 5(126). С. 42-64 [Alexander Blankenagel, The Ghost Haunting Decisions of European Constitutional Courts: What to Do with Constitutional Identity?, 5(126) Comparative Constitutional Review 42 (2018)].
9 As noted in the literature, over the past few decades, the interests of European constitutionalism scholars have largely changed, and the most topical notion to study at the moment is the notion of identity. For example, P. Faraguna ironically admits, that "if the interests of European Union law scholars could
The concept of "identity" parallelly appeared in constitutional judicial practice outside of Europe. However, it was the consistent ratification of international treaties relating to the establishment and empowerment of the institutions of the European Union, in particular the Maastricht and Lisbon Treaties that prompted the emergence of modern scientific research on problematic.10
At the same time, other authors differently date the first mention of the concept of constitutional identity in decisions of European constitutional review bodies.
We consider it possible to support the point of view of those11 who see the formation of the basic foundations of this theory in the first decision of the Federal Constitutional Court of Germany issued after its establishment,12 in which the court formulated a number of principal conceptual provisions regarding its powers, approaches to the interpretation of the Basic Law of Germany, as well as concerning the model of building federal relations that were of great importance for the unification of Germany in the postwar years.13
This is the Southwest State case (1951),14 in which the Court reviewed the constitutionality of German laws15 and served as the basis on which the south-western lands of Germany later merged. And although in this case the concept of constitutional
be gauged through Twitter, a trending topic would likely be: #identity." See Pietro Faraguna, Taking Constitutional Identities Away from the Courts, 41(2) Brooklyn Journal of International Law 491, 492 (2016). Other researchers also admit, that "[t]o protect national sovereignty is passé; to protect national identity by insisting on constitutional specificity is à la mode." See Joseph H.H. Weiler, On the Power of the Word: Europe's Constitutional Iconography, 3(2-3) International Journal of Constitutional Law 173, 184 (2005).
10 Faraguna 2016, at 493. The assertion that the consistent ratification of the Lisbon Treaty by the member states of the European Union, initiated a modern discussion on the problems of constitutional identity, is generally recognized in literature. José L. Marti, Two Different Ideas of Constitutional Identity: Identity of the Constitution v. Identity of the People in National Constitutional Identity and European Integration, supra note 7. Thus, we consider it necessary to emphasize that, until recently, the concept of constitutional identity was studied primarily from the point of view of the development of European Union law and the question of the interaction of national constitutional courts with the European Court of Justice. At the same time, at the present stage this problem has long gone beyond the consideration of exclusively problems of legal integration within the EU, which in turn is due to increased activity from other intergovernmental organizations and supranational institutions whose purpose is to protect human rights at the international level, in particular, the European Court of Human Rights, operating under the Council of Europe, and the Inter-American Court of Human Rights.
11 Marti 2013, at 18.
12 The Federal Constitutional Court of Germany was established on the basis of Article 92 of the Basic Law of Germany, adopted on 23 May 1949.
13 Gerhard Leibholz, The Federal Constitutional Court in Germany and the "Southwest Case," 46(3) American Political Science Review 723 (1952).
14 Federal Constitutional Court of Germany, Southwest State, 1 BverfGE 14 (1951).
15 We are talking about the so-called First and Second Reorganization Laws (Neugliederungsgesetz), according to which the south-western region of Germany was to be reorganized, and the question of uniting the lands of Württemberg-Baden, Baden and Württemberg-Hohenzollern was to be solved. See Leibholz 1952, at 723-724.
identity was not formulated directly, the fundamental nature of the legal positions expressed by the Court in this decision, in fact, allows us to agree that it was in this decision that the basic foundations of this concept were laid.16
The central of them seems to be the position of the Federal Constitutional Court of Germany, according to which
each constitutional clause is in a definite relationship with all other clauses, and that together they form an entity. it considers certain constitutional principles and basic concepts to have emerged from the whole of the Basic Law to which other constitutional regulations are subordinate.17
However, not all authors propose to consider this case as the first example of a decision in which a national constitutional court turned to the concept of constitutional identity.
Examples of constitutional decisions, within which this concept was formulated and used for its justification, can be referred to in the 1970s-1980s. They are linked (along with processes of opposition to European national constitutional courts) to the promotion of the doctrine of primacy18 of EU law over national legislation by the Court of the European Union.19
Thus the concept, according to some authors, which laid down approaches to the understanding of constitutional identity, was formulated by the Constitutional Court of italy as the doctrine of "counter-limits,"20 or constitutional limits within which the international and European law rules are allowed to apply in the national italian legal system.21
in response to the proclamation of the doctrine of absolute legal supremacy of the European law over national law of participating countries, the Constitutional Court
16 Marti 2013.
17 Leibholz 1952, at 725. According to the authors, this legal position corresponds to an understanding of constitutional identity as the core provisions of the Constitution. This concept will be discussed below.
18 Also: "absolute precedency'.'
19 See Diana-Urania Galetta, European Union Law in the Jurisprudence of Italian High Courts: Is the Counter-Limits Doctrine a Dog That Barks but Does Not Bite?, 21(4) European Public Law 747 (2015).
20 Исполинов А.С. Приоритет права Европейского Союза и национальная (конституционная) идентичность в решениях Суда ЕС и конституционных судов государств - членов ЕС // Сравнительное конституционное обозрение. 2017. № 4(119). С. 55 [Alexey S. Ispolinov, The Priority of EU Law and National (Constitutional) Identity in the Decisions of the European Court of Justice and the Constitutional Courts of the EU Member-States, 4(119) Comparative Constitutional Review 47, 55 (2017)].
21 See Исполинов А.С. Вопросы взаимодействия международного и внутреннего права в решениях Конституционного Суда Российской Федерации // Российский юридический журнал. 2017. № 1. С. 73-93 [Alexey S. Ispolinov, Issues of Relationship of International and Domestic Law in the Judgments of the Constitutional Court of the Russian Federation, 1 Russian Legal Journal 73 (2017)].
of italy in its decision of '8 December '973 in the case of Frontini22 and a little later in the decision of 8 June '984 in the case of GranitaP3 indicated that such restrictions on sovereignty are not allowed if they contradict the constitutional order or violate fundamental rights protected by the constitution.
Unfolding its position, the Constitutional Court of italy referred to Article ' ' of the Constitution of italy, according to which italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations.24 interpreting this norm, the Court,
asserted that the State's powers are now limited in the areas of legislative, judicial and executive functions by the attribution of part of these powers to the Community. in the field of Community competence, these functions are exercised by Community institutions, with Community forms and procedures, and according to Community guarantees: the Community is not be expected to operate through italian forms or with italian guarantees, such as referendum or judicial review by the Constitutional Court.25
The Court also stated that
Community institutions are not empowered to break fundamental constitutional principles or fundamental rights. Should the Community have the power to affect these principles and rights, italian sovereignty would be effectively nullified. Such a power to nullify italian sovereignty is not included within Article ' ' of the Constitution. The State may agree to restrict its sovereignty under Article 11 of the Constitution; however, the annulment of sovereignty exceeds its authority granted by the constitutional provision.26
Thus the prototype of the concept of constitutional identity in italian constitutional judicial practice was the doctrine of counter-limits or constitutional limits, which the italian Constitutional Court defined as the fundamental constitutional principles and fundamental rights guaranteed by the Constitution.
22 Constitutional Court of italy, Frontini v. Ministero delle Finanze, Case No. '83, 27 December '973, ['974] 2 C.M.L.R. 372.
23 Constitutional Court of italy, S.p.a. Granital v. Amministrazione delle Finanze dello Stato, Case No. '70, 8 June '984, ['984] C.M.L.R. 756.
24 Constitution of the italian Republic (Nov. ', 20'9), available at https://www.senato.it/documenti/ repository/istituzione/costituzione_inglese.pdf.
25 Maria Cartabia, The Italian Constitutional Court and the Relationship Between the Italian Legal System and the European Community, '2(') Michigan Journal of international Law '73, '80 ('990).
26 Id. at '8'.
Admitting the importance of the italian constitutional judicial practice in the formation of the doctrine of constitutional identity, the majority of contemporary authors proceed from the fact that it was formulated by the Constitutional Court of Germany for the first time in the case of Solange I,27 largely because the terminology "identity" was used there directly for the first time.28 As noted in the literature,
[t]he main thrust of the judgement was to reserve a right for the Constitutional Court to review secondary law adopted by the then European Economic Community (EEC) against the fundamental rights of the German Constitution until a European charter of rights had been adopted that equalled the protection provided in the Constitution.29
The Constitutional Court defended its right to review with reference to the fact that fundamental rights formed part of the essential structure of the Constitution or its identity, and added that the transfer of the sovereign powers of the EEC could not lead to a change in the identity of the Constitution without formally amending it. it is important to note that the German Constitutional Court reduced "constitutional identity to the foundational principles from which the fundamental rights in the Constitution were deduced, instead of equating identity with the rights as such."30 The concept of constitutional identity in the practices of the Federal Constitutional Court of Germany was developed in the decision concerning Germany's ratification of the Maastricht Treaty (Maastricht Treaty judgment).31 in a show of judicial activism, the Constitutional Court allowed a group of private petitioners to challenge the constitutionality of the act of parliament consenting to the Treaty even though they had not yet been directly affected by the act.32
Reviewing the constitutionality of this act, the Federal Constitutional Court of Germany, however, indicated that Germany is entitled to participate in the European Union only if this does not violate the provisions of paragraph 3 of Article 79 of the German Constitution. These provisions of the Basic Law of Germany are the so-called "eternity clause" - a number of constitutional provisions or core principles of German Constitution that may not be amended.
27 Federal Constitutional Court of Germany, Solange I, 37 BVerfGE 271 (1974).
28 Mehrdad Payandeh, Constitutional Review of EU Law After Honeywell: Contextualizing the Relationship Between the German Constitutional Court and the EU Court of Justice, 48(1) Common Market Law Review 9 (2011).
29 Gerhard van der Schyff, EU Member State Constitutional Identity: A Comparison of Germany and the Netherlands as Polar Opposites, 76 ZaöRV 167, 170 (2016).
30 Federal Constitutional Court of Germany, Maastricht Treaty, 89 BVerfGE 155 (1993), paras. 58 & 63.
31 van der Schyff 2016, at 170.
32 Maastricht Treaty case, supra note 30, paras. 58 & 63.
According to this Article, amendments to the Basic Law of Germany affecting the division of the Federation into Länder, their participation in principle in the legislative process as well as the provisions concerning the inviolability and inalienability of human rights, the principle of democratic and social state, people's sovereignty, and the people's right to resist are inadmissible.33
With the process of enlargement of the European Union in 2004-2007, the doctrine of constitutional identity is becoming increasingly influential. As noted in the literature, the adoption of the Lisbon Treaty provoked a heated discussion about the risks of the final loss of national identity by member states of the European Union and caused the "domino effect" in the form of a whole series of decisions of constitutional and higher courts of most EU member states (France, Austria, Latvia, Lithuania, Germany, Hungary, Poland, Czech Republic, Denmark, ireland, etc.).34
The fact that the concept of constitutional identity was most promoted after the adoption of the Treaty of Lisbon, in our opinion, is caused by two fundamental innovations of this document. Firstly, the expansion of the jurisdictional powers of the Court of Justice of the European Union and consolidation of its exclusive right to interpret and apply the Charter of the European Union on human rights.35 Secondly, the substantial expansion of the notion of "national identity," the clause on the recognition and respect of which was contained in Article 6(3) of the Maastricht Treaty prior to making the appropriate amendments.
Thus, according to the first version of this norm, "the Union shall respect the national identities of its Member States,"36 As noted in the literature, prior to the innovations, this article was a "sleeping norm," practically not used by the Court of the European Union and of a more political nature, that meaningfully covered the national linguistic, ethnic, religious and cultural characteristics of states, not encompassing constitutional political aspects.37 With the adoption of the Lisbon Treaty, the concept of identity became interpreted in a constitutional and legal, not only in a cultural and linguistic, aspect.38 Thus, under the new provisions of Article 4(2),
33 Basic Law for the Federal Republic of Germany (Nov. 1, 2019), available at https://www.btg-bestell service.de/pdf/80201000.pdf.
34 Mattias Wendel, Lisbon Before the Courts: Comparative Perspectives, 7( 1) European Constitutional Law Review 96 (2011).
35 This fact further complicated the already complex relationship between the EU Court and the national constitutional courts, because they were authorized to interpret similar human rights norms, only the Eu Court on the basis of the Charter, and the constitutional courts on the basis of national constitutions. The latter situation inevitably had the consequences of interpretative competition.
36 See Leonard F.M. Besselink, National and Constitutional Identity Before and After Lisbon, 6(3) Utrecht Law Review 36, 40 (2010).
37 Besselink 2010.
38 See Васильева ТА. Концепция суверенитета в условиях глобализации и европейской интеграции // Конституционное и муниципальное право. 2016. № 2. С. 7-9 Tatiana A. Vasilieva, The Sovereignty Concept in Conditions of Globalization and European Integration, 2 Constitutional and Municipal Law 7 (2016)].
[t]he Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. it shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. in particular, national security remains the sole responsibility of each Member State.39
Such a broad formulation of the concept of "national identity" in the Lisbon Treaty version allowed a number of authors to make the conclusion that focusing of the new norm on the functional features of the state shifted the emphasis on identity from national to constitutional, which ultimately led to European constitutional courts developing their own concepts of constitutional state identity.40
German Constitutional Court practice remains the most well-known in this period, within which the Court verified the compliance of the Lisbon Treaty with the provisions of the Basic Law of Germany and which attracted attention from a wide range of European scholars to the very problems of constitutional identity.41 in particular, the Federal Constitutional Court of Germany stated that it was competent to consider EU acts for their compliance with the "constitutional identity" of the Basic Law of the Federal Republic of Germany and not only allow but also oblige the government not to execute EU acts and take measures to protect constitutional identity.42
Developing this concept, the Constitutional Court of Germany, in particular, pointed out that the state is a natural and primary space for the expression of democracy in a pan-European constitutional space. With this in mind, constitutional identity includes the sovereign statehood of Germany, which cannot be alienated through further European integration.43
Defining the sphere of identity, the Court listed the number of essential functions of the state, over which the loss of control entails the loss of sovereignty. in particular, the Court found that integration should leave sufficient space for the political
39 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 (Nov. 1, 2019), available at https://eur-lex.europa. eu/legal-content/HR/TXT/?uri=CELEX:12007L/TXT.
40 Besselink 2010.
41 Marti 2013.
42 Красинский В.В. Защита государственного суверенитета [Vladislav V. Krasinsky, Protection of State Sovereignty] (Moscow: NORMA, 2017).
43 Federal Constitutional Court of Germany, Lisbon Treaty, 123 BVerfGE 267 (2009), para. 216. See Daniel Thym, Attack or Retreat? Evolving Themes and Strategies of the Judicial Dialogue Between the German Constitutional Court and the European Court of Justice in Constitutional Conversations in Europe: Actors, Topics and Procedures 235, 242 (M. Claes et al. (eds.), Antwerp: Intersentia, 2012); Dieter Grimm, Defending Sovereign Statehood Against Transforming the Union into a State, 5(3) European Constitutional Law 353 (2009).
formation of economic, cultural and social spheres of society in member states. The court ruled that this also includes democratic decisions concerning criminal law, the state's monopoly on the use of armed forces, issues of state revenues and expenditures, the German concept of a welfare state, as well as decisions relating to culturally important areas of society, such as family law, education and religion.44
As noted in the literature, the concept of constitutional identity, formulated by the German Constitutional Court in the decision on the Lisbon case, played a major role not only in determining the application of European law in national law, but also the fate of further German integration into the EU.45 As G. Gadzhiev rightly observes, in this case the judicial doctrine of constitutional identity was an important guarantee for the protection of national sovereignty.46
The practice of the Constitutional Court of the Czech Republic, which twice examined the issue of the compliance with the provisions of the Lisbon Treaty with the constitution of the country47 and in both cases addressed the concept of sovereignty to determine the constitutional identity of the state, is also indicative. Thus, in the Resolution of 26 November 2008, the Court admitted, that there are certain limits on the transfer of state's sovereign powers to the supranational level, that "should be left primarily to the legislature to specify, because this is a priori a political question, which provides the legislature wide discretion."48 in its Judgment of 11 March 2009, the Court expressed its position that
in a modern democratic state governed by the rule of law, the sovereignty of the state is not an aim in and of itself, that is, in isolation, but is a means for fulfilling the fundamental values on which the construction of a democratic state governed by the rule of law stands.49
He stated that the main manifestation of sovereignty is the ability to continue to dispose of sovereign rights or to transfer certain powers, temporarily or permanently.
44 Lisbon Treaty case, supra note 43.
45 van der Schyff 2016, at 176.
46 See Гаджиев Г.А. Конституционная идентичность и права человека в России [Gadis A. Gadzhiev, Constitutional Identity and Human Rights in Russian Federation] (Nov. 1, 2019), available at http:// www.ksrf.ru/ru/News/Documents/report_%D0%93%D0%B0%D0%B4%D0%B6%D0%B8%D0%B5 %D0%B2%20_2016.pdf.
47 Vasilieva 2016, at 8.
48 Constitutional Court of the Czech Republic, Judgment of 26 November 2008, Pl. ÜS 19/08: Treaty of Lisbon I, para. 109 (Nov. 1, 2019), available at https://www.usoud.cz/en/decisions/20081126-pl-us-1908-treaty-of-lisbon-i-1/.
49 Constitutional Court of the Czech Republic, Judgment of 3 November 2009, Pl. ÜS 29/09: Treaty of Lisbon II, para. 147 (Nov. 1, 2019), available at https://www.cvce.eu/content/publication/2013/10/22/ c746a974-58eb-4907-b022-c9f486b6c3d2/publishable_en.pdf.
it is also interesting that the Constitutional Court of the Czech Republic indicated that the Court can review whether any act by Union bodies exceeded the powers that the Czech Republic transferred to the European Union, in particular, "abandoning the identity of values."50
in Latvia, the Constitutional Court also indicated that
there shall exist states and their fundamental constitutional structures, as well as their values, principles, and basic rights that cannot be lost by establishing a supranational organization.51
Thus, the emergence and further formation of the doctrine of constitutional identity in the European constitutional law enforcement practice is not the least connected with EU integration processes and, in our opinion, the need to create a counterweight to the expansion of the jurisdiction of supranational bodies in order to protect the sovereignty of member states.
The use of the doctrine of constitutional identity as a legal means of combating the unreasonable expansion of the jurisdictional powers of supranational bodies and their influence on national legal systems is characteristic not only of European states in their relations with the European Union, but also for the countries of the South American continent in relations with the inter-American Court of Human Rights. Noteworthy in this case is the example of the Supreme Court of Argentina, which in its Decision of 14 February 2014, for the first time in its history, recognized as impracticable the decision of this supranational body referring to its contradiction of the constitutional identity of Argentina in its understanding by the Supreme Court.52
The problem of interaction between national and interstate jurisdictions also has significant meaning for Russia. in particular, the concept of constitutional identity was first formulated in the Russian legal doctrine by the Constitutional Court of the Russian Federation in its Ruling of 14 July 2015 No. 21-P.53
50 Treaty of Lisbon II, supra note 49, para. 150.
51 Constitutional Court of the Republic of Latvia, Judgment on Behalf of the Republic of Latvia, Riga, 7 April 2009, Case No. 2008-35-01 (Nov. 1, 2019), available at http://www.satv.tiesa.gov.lv/wp-content/ uploads/2008/09/2008-35-01_Spriedums_ENG.pdf.
52 Зорькин В.Д. Право против хаоса [Valery D. Zorkin, Law Against Chaos] 210 (Moscow: NORMA; INFRA-M, 2018).
53 Постановление Конституционного Суда Российской Федерации от 14 июля 2015 г. № 21-П «По делу о проверке конституционности положений статьи 1 Федерального закона «О ратификации Конвенции о защите прав человека и основных свобод и Протоколов к ней», пунктов 1 и 2 статьи 32 Федерального закона «О международных договорах Российской Федерации», частей первой и четвертой статьи 11, пункта 4 части четвертой статьи 392 Гражданского процессуального кодекса Российской Федерации, частей 1 и 4 статьи 13, пункта 4 части 3 статьи 311 Арбитражного процессуального кодекса Российской Федерации, частей 1 и 4 статьи 15, пункта 4 части 1 статьи 350
The central subject of consideration of the Court was a question concerning the relationship between the provisions of international treaties and the Constitution of the Russian Federation. As it is known, it was in this decision that the Constitutional Court indicated the possibility implementing international treaties within domestic law and order only by recognition of the supremacy and the highest legal force of the Constitution of the Russian Federation.54
Regarding the concept of "constitutional identity," the Court noted the following:
The interaction of the European and constitutional order is impossible in conditions of subordination, since only a dialogue between different legal systems is the basis of their proper balance. it is precisely this approach that the European Court of Human Rights is called upon to adhere to in its activities as an interstate subsidiary judicial body, and it is from their respect for the national constitutional identity of the States parties to the Convention for the Protection of Human Rights and Fundamental Freedoms depends largely on the effectiveness of its norms in the domestic legal order. The special attention of supranational bodies to the basic elements of this constitutional identity, which form the domestic norms on fundamental rights, as well as the norms guaranteeing these rights on the foundations of the constitutional system, will reduce the likelihood of conflict between national and supranational law, which, in turn, will largely determine - while maintaining the constitutional sovereignty of states - the effectiveness of the entire European system of protecting the rights and freedoms of man and citizen and further harmonization of European legal space in this area.55
Кодекса административного судопроизводства Российской Федерации и пункта 2 части четвертой статьи 413 Уголовно-процессуального кодекса Российской Федерации в связи с запросом группы депутатов Государственной Думы» // Российская газета. 2015. № 163 [Ruling of the Constitutional Court of the Russian Federation No. 21-P of 14 July 2015. On the Case of Verifying the Constitutionality of the Provisions of Article 1 of the Federal Law "On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols Thereto," Paragraphs 1 and 2 of Article 32 of the Federal Law "On International Treaties of the Russian Federation," Parts 1 and 4 of Article 11, Clause 4 of Part 4 of Article 392 of the Civil Procedure Code of the Russian Federation, Parts 1 and 4 of Article 13, Clause 4 of Part 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation, Parts 1 and 4 of Article 15, Paragraph 4 of Part 1 of Article 350 of the Code of Administrative Procedure of the Russian Federation, and Clause 2 of Paragraph 4 of Article 413 of the Criminal Procedure Code of the Russian Federation Due in Connection with Request of a Group of Deputies of the State Duma," Rossiyskaya Gazeta, 2015, No. 163].
54 In pursuance of the provisions of this resolution, the legislator also adopted the Federal Constitutional Law of 14 December 2015 No. 7"On Amendments to the Federal Constitutional Law'On the Constitutional Court of the Russian Federation,'" which established the authority of the Constitutional Court of the Russian Federation to resolve the issue of the possibility of execution of decisions of the interstate body for the protection of human rights and freedoms on the territory of the Russian Federation.
55 See Ruling of the Constitutional Court of the Russian Federation No. 21-P, supra note 53.
An analysis of the above position of the Constitutional Court of the Russian Federation allows us to conclude that it is typical for the Russian constitutional judicial practice to consider constitutional identity as a phenomenon essentially consisting of a set of elements, the basic ones of which are the provisions of the Constitution of the Russian Federation on fundamental rights and foundations of the constitutional system. At the same time, starting from the position of the Constitutional Court of the Russian Federation, it also seems possible to assert that the Court did not indicate that the specified set of elements is exhaustive. Therefore, it is possible to assume the presence of the others. Anyway, this legal position was expressed by the Court in the context of the broader issues of interaction between the Russian national and interstate jurisdiction of the European Court of Human Rights.
However, as practice shows, turning to constitutional identity as a justification for its decisions by constitutional judicial control bodies does not always indicate a conflict between national and international jurisdictional bodies and the need to uphold the sovereign powers of a state in relations with supranational associations, and may be due to the presence of a number of internal causes.
The example of india is notable in this context, in which the formation of the concept of constitutional identity is associated with the procedure for amending the Constitution of india. As a number of researchers note, the indian Supreme Court confronted the problem of constitutional identity much more explicitly and directly than have the courts in most countries, the objective reason of which was the attempt to amend the Constitution of india, which essentially contradicted the Constitution of india itself.56
Solving the above problem, the Supreme Court of india developed the doctrine of the basic structure of the constitution, according to which certain provisions of the indian Constitution are recognized as fundamental to ensure its integrity and warrant its immunity from significant change57. The power to make amendments are subject to implied limitations inherent in the basic structure of the Constitution of india.58
Justifying the existence of the so-called implicit substantive limits to constitutional revision, Supreme Court in its decision on the case of Kesavananda Bharati v. State of Kerala indicated that, the expression "amendment of this Constitution" does not enable Parliament to abrogate or take away, fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.59
56 Jacobsohn 2006, at 376.
57 Id.
58 Sledzinska-Simon 2015, at 124.
59 Supreme Court of india, Kesavananda Bharati v. State of Kerala (1973) 4 S.C.C. 225, para. 569 (Nov. 1, 2019), also available at https://indiankanoon.org/doc/257876/.
in another, later decision, the Court also stated that, if by constitutional amendment, Parliament were granted unlimited power of amendment, it would cease to be an authority under the Constitution, but would become supreme over it, because it would have power to alter the entire Constitution including its basic structure and even to put an end to it by totally changing its identity.60
Another interesting case is America, where the concept of the constitutional identity was not directly formulated by the U.S. Supreme Court. At the same time its identity has attracted great interest from the scientific community and has been deeply studied in American doctrine not only as constitutional identity as a concept but also as America's national identity.
As some authors point out, American national identity depends entirely on the U.S. Constitution.61 This means in particular that the U.S. Constitution is a means by which the American people represent themselves as Americans, an act of uniting them and expressing their outward identity as a nation.62
As stated in the literature, this is a unique phenomenon inherent only to America. in other countries, national identity is usually associated with circumstances that do not directly follow from the adoption of the Constitution63 and sometimes it is based on imaginary pre-political bonds between society and the state due to ethnic, religious reasons and shared by ethnic groups, stemming from non-legal, political sources.64 However, the starting point of national American identity is precisely the U.S. Constitution.
For the reason that the U.S. Supreme Court "has the last word" in interpreting the provisions of the Constitution, some authors confirm that the U.S. Supreme Court is the body by which national identity is expressed through a constitutional interpretation.65 Thus, the problem of constitutional interpretation, as the authors note, becomes central to the definition of American constitutional identity.66
in view of the importance given to the interpretive activity of the Supreme Court of America in forming American national identity, it is interesting to read the
60 Supreme Court of India, Minerva Mills v. Union of India, A.I.R. 1980 S.C. 1789, para. 92 (Nov. 1, 2019), also available at https://indiankanoon.org/doc/1215719/.
61 Akhil R. Amar, America's Unwritten Constitution: The Precedents and Principles We Live By (New York: Basic Books, 2012); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962); Jacobsohn 2006.
62 Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community 79 (London: Routledge, 2012).
63 Bruce Ackerman, We the People. Vol. 1: Foundations 36 (Cambridge, Mass.: Harvard University Press, 1991).
64 Rosenfeld 2012, at 152-156.
65 Or Bassok, Interpretative Theories as Roadmaps to Constitutional Identity: The Case of the United States, 4(3) Global Constitutionalism 289 (2015)
66 Id.
reflections of individual authors who have linked the development of this concept with the problem of the use of so-called constitutional borrowing67, existing in the interpretational practice of the Supreme Court of the United States.
As noted in the literature, because of American judicial comparativistics serious questions were raised regarding the legitimacy (legality) of using foreign sources in determining the meaning of the provisions of the national constitution.68
The impetuses for the actualization of this topic in scientific research were the three decisions of the U.S. Supreme Court, adopted in a relatively short time, in which the Court, when justifying its decisions concerning the constitutional rights of citizens, referred to approaches to solving similar problems in foreign legislation and the judicial enforcement practice of international justice bodies.69
There are three significant cases to mention. First, Atkins v. Virginia,70 in which the Court relied on the opinion of the international community in addressing the issue of the inadmissibility of the execution of the mentally retarded. Second, Lawrence v. Texas,7 in which the opinion of the court was based on the shared values of Western civilization and reasoned with reference to the position of the European Court of Human Rights (ECtHR). Finally, there is Roper v. Simmons,72 in which the subject of consideration of the court was the fact, that the United States remained at that time the only country in the world that gave official sanction to juvenile death penalty.
The imposition of such decisions was accompanied by not only expressing by the judges of the U.S. Supreme Court disagreed with this justification, their dissenting opinions, but also by a storm of criticism from the scientific community. This fact was also a reason for Congressional amendments to legislation that specifically required a ban for U.S. judges to refer to foreign sources of law in cases when it is not provided by the legislation and is not necessary for the resolution of the case.73
67 See Sledzinska-Simon 2015, at 131; Wiktor Osiatynski, Paradoxes of Constitutional Borrowing, 1(2) international Journal of Constitutional Law 244 (2003).
68 Id.
69 it is proposed to consider references to foreign law and law enforcement practice as cases of constitutional borrowing. See Stephen A. Simon. The Supreme Court's Use of Foreign Law in Constitutional Rights Cases: An Empirical Study, 1(2) Journal of Law and Courts 279 (2013).
70 Atkins v. Virginia, 536 U.S. 304 (2002).
71 Lawrence v. Texas, 539 U.S. 558 (2003).
72 Roper v. Simmons, 543 U.S. 551 (2004).
73 in particular, it was proposed to amend the United States Code, providing for an article fixing special restrictions on the use of foreign law by the federal courts. According to the provisions of this article, it was proposed to fix that the case cannot be resolved in the federal courts on the basis of foreign law, except in cases where such use is permitted by the Constitution or acts of Congress. H. R. 973: To amend title 28, United States Code, to prevent the misuse of foreign law in Federal courts, and for other purposes (Nov. 1, 2019), available at https://www.gpo.gov/fdsys/pkg/BiLLS-112hr973ih/pdf/ BiLLS-112hr973ih.pdf.
The most famous is the decision made in 2003, namely Lawrence v. Texas, in which the Court, contrary to its previous case law in Bowers v. Hardwick,74 found incompatible the rules of the criminal law of the state of Texas, that recognized the sexual relations of persons of the same gender a crime, with the provisions of the Fourteenth Amendment to the U.S. Constitution, which enshrines the principle of equality of citizens before the law. Reasoning this decision, the Court specifically referred to the relevant practice of the ECtHR in Dudgeon v. United Kingdom,75 in which the ECtHR declared the provisions of the criminal law prohibiting male homosexual contact non-complying with the ECtHR and pointed out that America shared similar values of modern Western civilization.76
That last argument triggered a wave of disagreement and, in particular, has been criticized by the judge A. Scalia in his dissenting opinion on the case in which the judge noted that the right to sodomy (right to homosexual sodomy) is contrary to the specified position of the court and is deeply contrary to America's national history and traditions as well as Christian morals and ethical standards.77
Later in the literature, critics of this decision recognized the admissibility of constitutional borrowing at the stage of writing the constitution, but not at the stage of interpreting the constitutional provisions for the reason that it "destroys the foundations of democratic self-government"78 and contradicts the very precedent practice of the U.S. Supreme Court, in which the court recognizes the "comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one."79 Within the framework of the latter case, the discussion focused on the substantive content of the principle of federalism, while interpreting which the Court applied to the original ideas of the founding fathers and emphasized the fact that the American understanding of federalism is not identical to the European understanding.80 The result of such criticism was that in later decisions on similar cases,81 the court refused to reference foreign experience on principle.
At the same time, as noted in the literature, the use of constitutional borrowing in the law enforcement practice of the U.S. Supreme Court in resolving disputes relating to the constitutional rights of citizens, although it has a long history, is indicatively small compared to other jurisdictions.82
74 Bowers v. Hardwick, 478 U.S. 186 (1986).
75 Dudgeon v. United Kingdom, App. No. 7525/76, [1981] 4 E.H.R.R. 149, [1981] E.C.H.R. 5.
76 Lawrence v. Texas, supra note 71.
77 Id. (Scalia, J. diss.).
78 Vlad F. Perju, Constitutional Transplants, Borrowing, and Migrations in The Oxford Handbook of Comparative Constitutional Law 1304 (M. Rosenfeld & A. Sajo (eds.), Oxford: Oxford University Press, 2012).
79 Printz v. United States, 521 U.S. 989 (1995).
80 Id.
81 United States v. Windsor, 570 U.S. (2013).
82 Thus, in the framework of special empirical studies it was have found, that to May 2012 the U.S. Supreme Court only in 63 cases have referred to foreign legal sources, in particular, legislation and
Thus, the issues of constitutional identity in American doctrine and constitutional law enforcement practice are suggested to be viewed through the prism of the problems of interpretation and use of constitutional borrowing, which, according to the authors, underlines the fact that the concept of constitutional identity is not the least related to issues of constitutional interpretation.
The constitutional judicial practice that we cited demonstrates the difference of approaches in defining the concept of constitutional identity, linking it in some cases with fundamental constitutional principles and rights (italy), the sovereign powers of the state (Germany), the presence of provisions relating to the basic structure of the Constitution abolition or change (india), as well as the need to maintain national legal traditions (the USA).83
The analysis of constitutional judicial practice, in which the concept of constitutional identity develops, demonstrates a number of circumstances. in authors' opinion, using the doctrine of constitutional identity as a justification of constitutional decisions is not in the least determined by external objective circumstances. Moreover, these circumstances, as a rule, are negative in terms of the stable functioning of the state and consist, for example, in the form of a threat of complete loss of sovereignty, the need to ensure the territorial integrity and constitutional stability of the state.
This circumstance allows us to say that the doctrine of constitutional identity in each individual state at each separate stage of its development is filled with a separate specific national and historical content, based, first, on the specifics of the national legal system, cultural, legal and historical traditions, and secondly is determined by those objective legal challenges that need to be addressed by the state in a particular historical period of time.
if we consider the set of problems through the prism of basic conceptual terms that exist in the theory of constitutional law, then it should be noted that the concept of constitutional identity is most associated with such notions as constitutional principles and constitutional values, constitutional traditions, constitutional interpretation, state sovereignty and not also the issues of interaction between national interstate jurisdictions.
2. The Notion of Constitutional Identity as a Subject of Scholarly Debate
Such intensive use of the concept of "constitutional identity" by constitutional review bodies around the world has intensified the interest of law scholars, both
law enforcement practice as a justification for its decision in cases involving the constitutional rights of citizens. it seems that the given data can be considered as relevant in view of its apparent significance. See Simon 2013, at 279-301.
83 As noted in the literature, the concept of constitutional identity has three spheres of its application: 1) in decisions concerning the legitimacy of amendments; 2) decisions related to the dialogue of courts of different legal systems; 3) decisions concerning integration issues within supranational organizations. See Sledzinska-Simon 2015.
constitutional and international, in this concept. Based on the analysis of relevant constitutional judicial practice, a number of authors have proposed their own theoretical approaches to its definition.
Thus, one of the most cited and shared positions is that constitutional identity represents a set of fundamental constitutional provisions that constitute the substantial (inviolable, essential) core of the constitution.
As G. Gadzhiev points out, aspects of constitutional identity are,"especially protected parts of the constitutional text that make up the core of the national constitutional order."84
At the same time, as noted by researchers who share this position, not every provision of the constitution is an integral part of its core, but only those of them for which changes will indicate an alteration to the constitution as a whole.85 in other words, not all constitutional provisions are equally important86 for the establishment of constitutional identity. it is important to consider only those of them for which rejection of their implementation would mean the rejection of the essence of democracy.87
it seems that a similar approach to the consideration of constitutional identity of the state has been proposed by authors that rely more on the law enforcement practices of the Supreme Court of india, which developed the doctrine of the "basic structure" of the constitution, as well as the position of the Federal Constitutional Court of Germany, particularly in the Maastricht Treaty case which has been brought and described above.
in the context of the considered position (that constitutional identity is a set of constitutional provisions expressing the specifics of a particular constitution and the amending of which actually indicates the termination of its action in its original form), it is notable that, in our opinion, it is impossible to reduce the constitutional identity to a set of positive norms and it is also necessary to take into account constitutional traditions and constitutional values shared by society and the interpretation of the bodies of constitutional judicial control. As confirmation of this circumstance, it is necessary to refer to the above practice of the Constitutional Courts of the Czech Republic, Latvia and the U.S. Supreme Court.
in this regard, we consider it possible to note and support the point of view of those authors who propose reducing the constitutional identity not only to the text of the constitution itself, but also to the interpretation given to it by the constitutional courts,88
84 Gadzhiev, supra note 46.
85 Martí 2013, at 17.
86 Id.
87 Élise Besson, Les principes suprêmes inviolables dans la jurisprudence de la Cour constitutionnelle italienne : véritable limite ou simple précaution démocratique ?, 21 Annuaire international de justice constitutionnelle 11, 20 (2005). Cited by Filatova 2013.
88 Rosenfeld 2012, at 79.
as well as constitutional values revealed from the text of the constitution,89 as ideas that are recognized as meaningful for the development of society and the state in a given period of time. As noted in the literature, constitutional identity is a constitutional"core" - "a set of fundamental values and principles that cannot be the subject of compromise."90
Taking also into account the position of the Constitutional Court of the Russian Federation, it is possible to substantively determine constitutional identity as a set of elements allowing to determine the constitution and the state established on its basis with all the features of its internal constitutional order, taking into account temporal and geographical factors. in other words, it is a set of those elements that allow the possibility to determine the specificity of the constitutional structure of a state in the world community at a specific historical period of time. The corresponding point of view was expressed by A. Klishas and, in our opinion, deserves full support.91
Another approach is to define constitutional identity as an argumentative method used in constitutional judicial practice. As, for example, A. Rainer notes that
constitutional identity is a conceptual instrument of defense against her too far-reaching supranationalization of the States' legal orders, a defense of the substantive and functional existence of the State, which finds its particular expression in the basic political decisions and the core elements of its legal culture which is the value basis of the State's Constitution.92
G. Gadzhiev also points out that
the Russian version of constitutional identity as a judicial doctrine and a method for resolving constitutional disputes is created so that the system of constitutional courts in Europe ... becomes harmonious, balanced and self-developing.93
89 Gary J. Jacobsohn, Constitutional Values and Principles in The Oxford Handbook of Comparative Constitutional Law, supra note 78, at 777.
90 Id.
91 See КлишасА.А. К вопросу о конституционной идентичности // Журнал конституционного правосудия. 2018. № 6. C. 27-37 [Andrey A. Klishas, To the Question on Constitutional Identity, 6 Journal of Constitutional Justice 27 (2018)].
92 Arnold Rainer, Constitutional Identity in European Constitutionalism (Nov. 1, 2019), available at http:// www.constcourt.md/public/files/file/conferinta_20ani/programul_conferintei/Rainer_Arnold.pdf. (emphasis added)
93 See ГаджиевГ.А. Юбилейные заметки о конституционном развитии и о роли методологии в конституционной юстиции // Журнал конституционного правосудия. 2017. № 1. С. 4 [Gadis A. Gadzhiev, Anniversary Notes on the Constitutional Development and the Role of Methodology in Constitutional Justice, 1 Journal of Constitutional Justice 1, 4 (2017)].
The definition of constitutional identity as a legal argument is given by A. Blankenagel.94 A similar approach is also shared by A. Troitskaya and T. Khramova.95 At the same time, the use of constitutional identity as a special argumentative method is regarded by the latter authors as a negative aspect of the practice of constitutional justice bodies.
So, for example, A. Blankenagel notes that
constitutional identity as a legal argument is redundant: constitutions can overcome undue interference of international law in the national legal order without resorting to some nebulous constitutional identity.96
The arguments of national constitutional courts with reference to constitutional identity also appear to the author controversial for the reasons that the appeal to her "makes the addressee believe that this is a scientific, and therefore an indisputable concept,"97 which implies the impossibility of its change for a separate social subject or, in other words, universality.
As noted by A. Troitskaya and T. Khramova,
in the practice of a number of constitutional control bodies, including the Constitutional Court of Russia, in recent years the trend to turn to constitutional identity and state-forming values, in particular in the process of arguing decisions justifying deviating from the requirements of supranational legal documents, has been activated. At the same time it is hardly possible to follow a well-considered, uniform methodology of the interpretation of constitutional aspirations and the formulation of elements of identity (in practice as a whole, not only in cases involving supranational obligations),98
therefore the risks of manipulating arguments seem quite real to the authors.
Without entering into a discussion on the fairness of the use of the concept of constitutional identity, it is possible to raise the question about the correctness of the characteristic of the phenomenon in question as an independent legal argument. in order to correctly answer this question it is necessary to turn to the main achievements of the theory of legal argumentation, in particular, the classification of legal arguments.
96
Blankenagel 2018, at 42.
See Троицкая А.А., Храмова Т.М. Основы основ: экспрессивный и функциональный потенциал
конституционных устремлений // Сравнительное конституционное обозрение. 2018. № 1(122).
С. 56 [Alexandra A. Troitskaya & Tatiana M. Khramova, Constitutional Cornerstones: Expressive and Functional Potential of Constitutional Aspirations, 1(122) Comparative Constitutional Review 54, 56 (2018)].
Blankenagel 2018, at 43. Troitskaya & Khramova 2018, at 56.
94
95
97
3. Basic Provisions of the Theory of Legal Argumentation Regarding the Classification of Legal Arguments. The Concept of Constitutional Identity as a Set of "Interpretative Arguments"
Taking into account the existence of different approaches to the study of legal argumentation, namely logical, rhetorical and dialectical,99 in the present study it is possible to build on the achievements of the last of them, given the fact that most modern authoritative researchers adhere to it.
The key term for the purpose of the study of methods of argumentation within this direction is that of hard cases ("hard cases"). For the first time the term "hard cases" appeared in the works of the famous philosopher and theorist of law R. Dworkin. The author understood those cases for which the existing provisions of the law do not provide an unambiguous solution, or, in other words, cases in which the rule of law applied by the judge cannot be interpreted unambiguously.100 This terminology was accepted and subsequently used by other researchers in order to build a theory of legal argumentation.
For example, in the literature it is indicated that those cases for which it is possible to substantiate various options for resolving them are hard cases.101 Other authors also note that hard cases concern legal issues that can be resolved and convincingly substantiated in different ways.102 According to A. Barak, "hard cases" are those cases in which the judge faces a number of possibilities, of which all are legitimate within the context of the system.103
When describing the concept of "hard cases," the authors usually also indicate the reasons for their appearance in judicial practice. Those are cases, for example, where judge is faced with the absence of an applicable rule of law, as well as with a situation in which the rule on the basis of which a legal dispute needs to be resolved is considered unclear or not quite adequate to apply to relevant relations, or is in contradiction with other applicable standards.104 in other words, the main reason for the emergence of hard cases is the existence of a legal norm with "open textuality" that is a norm that does not establish a clearly defined rule of conduct, formulated
99 Feteris & Kloosterhuis 2009.
100 Ronald Dworkin, Law as Interpretation, 9(1) Politics of Interpretation 179 (1982).
101 Donald H. Berman & Carole D. Hafner, Indeterminacy: A Challenge to Logic-Based Models of Legal Reasoning, 3(1) International Review of Law, Computers & Technology 1 (1987).
102 Anne von der Lieth Gardner, An Artificial Intelligence Approach to Legal Reasoning (Cambridge, Mass.: The MIT Press, 1987).
103 See Барак А. Судейское усмотрение [Aharon Barak, The Judicial Discretion] 56 (Moscow: NORMA, 1999).
104 Gustavo Zagrebelsky, Ronald Dworkin's Principle Based Constitutionalism: An Italian Point of View, 1 (4) International Journal of Constitutional Law 621, 625 (2003).
in the most general, abstract way, and for this reason it needs an additional interpretation, on the basis of which it is necessary to resolve a legal dispute.105
The cited studies concerning the category of "hard cases" are also of decisive importance to the study of issues of the theory of argumentation, such as the classification of arguments into types. it is indicated in the literature that,
in the analysis of legal argumentation, Aarnio, Alexy, MacCormick and Peczenik distinguish between the reconstruction of clear cases and hard cases. in clear cases, in which there is no difference of opinion about the facts, a single argument can be used to defend the decision. ... in hard cases, in which the facts or rule are disputed, a further justification by means of a chain of arguments is required.106
in other words, the need for a chain of arguments arises when it is necessary to uphold a position relative to the facts or the content of the norms or, in the latter case, a position about their interpretation. Given the fact that in the practice of constitutional judicial review bodies addressed the issue regarding the conformity of certain provisions of the constitution acts precisely study questions of interpretation becomes crucial.
in this context, the classification of arguments presented by the famous German scientist Robert Alexy into two separate groups is significant.107 Thus, in the opinion of this author, the system of arguments can be divided into two blocks: the main (semantic and genetic) and additional (historical, comparative, teleological, and other) arguments. The first ones reflect the correctness of the correlation between the facts and the legal norms governing them that are applicable in a particular case. The latter perform the functions of interpretation and justify the choice of the applicable law.108
105 See Jaap C. Hage et al., Hard Cases: A Procedural Approach, 2(2) Artificial Intelligence and Law 113 (1993). This terminology was first introduced into science by H.L.A. Hart, who, in particular, pointed out in his writings that any legal rule has an "open textuality," i.e., on the one hand, no one-to-one interpretation of the legal norm can be given and, on the other hand, that in any system of law, gaps and a certain lack of regulation are inevitable. See История политических и правовых учений: Учебник [History of Political and Legal Doctrines: Textbook] 646 (M.N. Marchenko (ed.), Moscow: NORMA, 2012).
106 Feteris & Kloosterhuis 2009.
107 Alexy 1978.
108 ВоробьевА.Г. Модель аргументации решений судов Федеративной Республики Германия [Anton G. Vorobiev, Model of Argumentation of Decisions of the Courts of the Federal Republic of Germany] (Nov. 1, 2019), available at https://pravo.hse.ru/data/2012/10/21/1246188598/2003.%20%D0%94 %D0%BE%D0%BA%D0%BB%D0%B0%D0%B4.%20%D0%9C%D0%BE%D0%B4%D0%B5%D0%BB %D1%8C%20%D0%B0%D1%80%D0%B3%D1%83%D0%BC%D0%B5%D0%BD%D1%82%D0%B0% D1%86%D0%B8%D0%B8%20%D1%80%D0%B5%D1%88%D0%B5%D0%BD%D0%B8%D0%B9%20 %D1%81%D1%83%D0%B4%D0%BE%D0%B2%20%D0%A4%D0%A0%D0%93.doc.
Arguments related to the second group are otherwise referred to as"interpretative arguments."
One of the first to develop a list of their types was the italian scientist G. Tarello, who in his book "The interpretation of Laws" identified 14 types of such arguments.109 This list was developed based on the italian tradition of law, but this categorization had a great influence outside italy, including the adoption of the well-known supporter of the rhetorical approach to the theory of argumentation C. Perelman.110
The list of types of arguments highlighted by the author has already been cited and described in detail in the literature on the theory of argumentation.111
As it is significant from the point of view of the practice of the bodies of constitutional judicial control, it is necessary to mention the following arguments by name: The argument from the coherence of the legal regulation (excluding interpretation, putting two legal norms in a conflict situation),112 a psychological argument (justifying the interpretation of the norm by appealing to the initial will of the legislator, for example, based on the content of the travaux préparatoires), a teleological argument (justifying the application of the norm, based on the legal regulation established by it), an authoritative argument (justifying the need to apply the norm in the meaning that has already been given to it by the interpretation of the highest judicial authority or doctrine).113
Tarello 1980.
Giovanni Sartor et al., Argumentation Schemes for Statutory Interpretation: A Logical Analysis in Legal Knowledge and Information Systems - JURIX2014: The Twenty-Seventh Annual Conference 11 (R. Hoekstra (ed.), Amsterdam: IOS Press, 2014).
In Russian legal literature, such a technique is usually referred to as a technique of compositional interpretation. You can also talk about the rule of systemic interpretation or interpretation "in systemic unity" of the provisions of the Constitution, which exists in the practice of the Constitutional Court of the Russian Federation. In particular, the Constitutional Court has repeatedly expressed a legal position, according to which all provisions of the Constitution of the Russian Federation as a whole constitute a consistent systemic unity checking of any provision of the Constitution of the Russian Federation for its compliance with other constitutional provisions is excluded. See, e.g., Постановление Конституционного Суда Российской Федерации от 19 апреля 2016 г. № 12-П «По делу о разрешении вопроса о возможности исполнения в соответствии с Конституцией Российской Федерации постановления Европейского Суда по правам человека от 4 июля 2013 года по делу «Анчугов и Гладков против России» в связи с запросом Министерства юстиции Российской Федерации» // Российская газета. 2016. № 95 [Ruling of the Constitutional Court of the Russian Federation No. 12-P of 19 April 2016. On the Case of the Resolution of the Issue of the Possibility of Execution, in Accordance with the Constitution of the Russian Federation, the Decision of the European Court of Human Rights of 4 July 2013 in the Case of Anchugovand Gladkovv. Russia in Connection with a Request of the Ministry of Justice of the Russian Federation, Rossiyskaya Gazeta, 2016, No. 95], para. 4. Cited by Шустров Д.Г. Материальные пределы изменения Конституции Российской Федерации // Конституционное и муниципальное право. 2018. № 7. С. 17-22 [Dmitry G. Shustrov, Substantial Limits of the Amendment of the Constitution of the Russian Federation, 7 Constitutional and Municipal Law 17 (2018)].
As the most representative in terms of the use of this type of argument, it is possible to refer to the law-enforcement practice of the Supreme Court of Canada. Thus, in its decisions, the Court often not
Subsequently, the system of interpretative arguments was systematized by D.N. MacCormick and R. Summers, and there are 11 types of arguments (some of them coincide with those highlighted by G. Tarello; some differ, for example, the argument of technical value).114
Examples of the use of legal argumentation techniques, highlighted by G. Tarello in theory as early as 1980 and systematized by D.N. MacCormick and R. Summers can be found in the law enforcement practice of constitutional justice bodies around the world,115 which proves the possibility of using this theory when considering issues related to argumentation in constitutional judicial law enforcement practice.
it is possible to use the achievements of this theory in the study of constitutional identity as a legal argument. Thus, if we analyze the decisions of the constitutional justice bodies in which this concept was used, it is possible to draw attention to the fact that the courts in their practice appealed to various interpretative arguments depending on the specifics of a particular case, and in some cases resorted immediately to a set of interpretative arguments.116
Thus, for example, in formulating the doctrine of counter-limits, the italian Constitutional Court, while justifying its decision, relied simultaneously on an argument by analogy, parsimony argument, an argument about general principles.
The Constitutional Court of Germany in the decision on the Maastricht Treaty case resorted to naturalistic and systemic arguments.
Taking into account this circumstance, it seems possible to state the thesis that constitutional identity can be defined not just as a separate argumentation method, but as a complex argumentative scheme, including, as a rule, a set of different interpretative arguments.
Relying on the meaningful concept of constitutional identity from the point of view of the theory of argumentation, constitutional identity can thus be defined as a set of interpretative arguments used by constitutional control bodies in justifying decisions within the framework in which an act is verified from the point of view of its compliance with national specifics of constitutional norms.
only refers to the legal positions previously expressed by it, which is characteristic of the practice of constitutional justice bodies around the world, but when justifying decisions, it also actively appeals to the explanations contained in the doctrine.
114 Sartor et al. 2014.
115 From the point of view of the countries studied by the authors, the law enforcement practice of the Supreme Court of Canada seems to be the most representative in terms of the use of possible methods of argumentation.
116 For example, in the aforementioned decision of the Constitutional Court of Russia in the case of Anchugov and Gladkov, the Court, in justifying its position, consistently resorted to linguistic, historical and comparative legal arguments. Ruling in English available at http://www.ksrf.ru/en/Decision/ Judgments/Documents/2016_April_19_12-P.pdf.
Conclusion
To conclude, it is possible to note that constitutional identity is a multivocal notion. it can be defined as a set of constitutional provisions allows to determine a constitutional order of each individual state with all its internal legal characteristics. it also can be considered as a set of interpretative arguments, used in constitutional judicial practice.
Regardless of the approach to the consideration of constitutional identity, it should be noted that this concept is a notion, emerged in constitutional judicial practice and for that reason is largely the result of interpretation of constitutional provisions by the constitutional control bodies.
The latter allows us to conclude that the specifics of the internal constitutional order are largely determined not only by the subject of the adoption of the constitution and the legislator, but also by the national constitutional review body.
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Information about the authors
Petr Kucherenko (Moscow, Russia) - Professor, Department of Municipal Law, Law institute, Peoples' Friendship University of Russia (6 Miklukho-Maklaya St., Moscow, 117198, Russia; e-mail: kpete@mail.ru).
Elena Klochko (Moscow, Russia) - Graduate, Department of Constitutional Law and Constitutional Proceedings, Law institute, Peoples' Friendship University of Russia (6 Miklukho-Maklaya St., Moscow, 117198, Russia; e-mail: elena.i.klochko@ gmail.com).
