Law, Culture and Identity in Central and Eastern Europe A Comparative Engagement Edited By Cosmin Cercel, Alexandra Mercescu, Mirosław Michał Sadowski, 2023
This chapter argues against the legal unified and essentialized concept of national constitutiona... more This chapter argues against the legal unified and essentialized concept of national constitutional identity which is frequently constructed by the scholars of European Law and Constitutional Law. Instead, a pluralist, deconstructivist and de-essentialized concept of national constitutional identity is advocated. Relying on interdisciplinarity, especially on critical historical studies, constructivist sociology and psychosociology, I understand national constitutional identity as a plurality of perpetually diverging and historically driven narratives constructed by particular social actors. Undertaking a special survey of Central and Eastern Europe, I shall highlight that the contemporary Hungarian national constitutional identity should not be equated with the illiberal identitarian narrative enshrined in the constitutional text and preached by the politicians in power, while the Romanian national constitutional identity should not be equated with the liberal-civic identitarian narrative which seems to be dominant nowadays. In Hungary, the national constitutional identity is also constituted by a liberal-civic narrative which directly challenges the illiberal one and tries to undermine its dominant-official character. In Romania, the dominant-official liberal-civic narrative is constantly and more subtle challenged by an illiberal ethnocentric narrative. The Hungarian open and harsh competition between the identitarian narratives is paradoxically much more benefiting than the Romanian apparent nonconflictual and unified identitarian narrative about the national constitutional identity.
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perceives and constructs the world in its own way: it conceptualizes
and structures an aspect or a fragment of (perceived) reality
and develops a research program and method(s) that are apt
to develop this construction process, having in mind a specific
vision or mission. One can call such disciplinary perception and
construction a special world picture of a discipline.
In various ways the appropriate concept had been considered
by Sir Isaac Newton, Immanuel Kant, the Humboldt brothers,
Dilthey, Martin Heidegger, and others. Depending on different
modes of scientific rationality, the world picture can be seen as
the object, subject, or aim of a scientific discipline. In any case,
even if not explicitly stated, this construction is a core issue of any
discipline.
In law, various (sub)disciplines such as legal philosophy, legal
theory, and comparative law have developed sundry (albeit often
mutually influenced) interpretations of the world. One could argue that there has been competition between the (sub)disciplines
for the right or the possibility to define a world picture generally
valid for discourse about law.
The book is intended to create an awareness
of the fundamental experience and potential that comparative
law possesses when conceptualizing the “legal”. Relying on its
rich experience, comparative law is well positioned to take into
account current developments in the field when (re-)defining its
world picture, in order to conceptualize perceptions of law in a
truly global perspective.
The chapters herein, for the first time presenting the complex
philosophical and historical vision of the world picture of law
developed in comparative law (comparative jurisprudence),
is considered by American, Cypriot, Italian, Moldovan, and
Ukrainian scholars – Oleksiy Kresin, Mehman A. Damirli, Matteo
Nicolini, Oleg Halabudenko, James Gordley, Michele Graziadei, Marco Giraudo, Oleksandr and Denys Tykhomyrov, Oleksandr
Tkachenko.
The second group of articles presents a vision of the spaces of
legal ordering and legal interactions as addressed by American,
Belarus, Italian, Mexican, Romanian, Ukrainian, and Uzbek
researchers – Akmal Saidov, Aleksei Egorov, Hashmatulla Behruz,
Serhiy Rabinovych, William E. Butler, Evhen Kharytonov, Olena
Kharytonova, Manuel Gutan, Carmelo Massimo De Iuliis, and
Jorge A. Sánchez Cordero.
Finally, the third block is dedicated to the issue of
implementation of the elaborated comparative legal world picture
in academia and legal practice: articles by scholars from Canada,
Hungary, Romania, United Kingdom, and the West Indies –
Geoffrey Samuel, Alexandra Mercescu, Csaba Varga, Catherine
Valcke, and Asya Ostroukh.