Constitutional identity in 3D: A model of individual, relational, and collective self and its application in Poland

Abstract

This article starts from the supposition that constitutional identity is an attractive legal notion that has been used to legitimize the power of courts in cases that usually arose as the result of a conflict of norms stemming from various legal orders. Whenever judges use constitutional identity rhetoric to justify their decisions, they assume to know the contents of constitutional identity and, ultimately, they aim to gain, maintain, or extend their powers as the “guardians of identity.” The article argues that the identity of a constitutional subject may develop simultaneously in three dimensions as an individual, relational, and collective selves, which remain in constant interaction. While the individual self denotes a particularistic self-perception, the relational and collective selves indicate that identity can mean not only difference, but also sameness or close proximity. Taking the example of Poland, this article aims to examine the determinants of the activation of each identity in the process of defining and re-defining the meaning of nation, family, and religious community, and to explain under what circumstances the individual self takes precedence over the relational and collective selves.