April 7 , 2022 at 18:00
Topic: Constitutional Identity from the Perspective of the Minority Question
About the lecturer
Petar Antić is a human and minority rights expert with more than 20 years of work experience in civil society, international organisations and state institutions. During his career, he engaged with various topics, including the rights of internally displaced persons, refugees, minorities, Roma, and reported on human rights’ infringements. From January 2009 to January 2011 he worked as Assistant Minister for Human and Minority Rights. He graduated from the Faculty of Law in Belgrade, and subsequently finished the MA programme in International Human Rights Law at the University of Essex, UK, as a Chevening scholar. At the Columbia University, NY, he participated in a programme for human rights advocates. He is currently a PhD student at the Faculty of Law of the Union University in Belgrade. He authored a number of publications and research papers in the field of human rights and the inclusion of vulnerable groups in Serbia.
Abstract
Constitutional identity is a relatively recent concept in the legal and political theory. Jacobsohn locates the historical roots of the question of constitutional order’s identity in a quote from the book three of Aristotle’s Politics, asking: “On what principle ought we to say that a State has retained its identity, or, conversely, that it has lost its identity and become a different State?” to which Aristotle answered that “The identity of a polis is not constituted by its walls”. This implies that a polis is defined by its values, principles and the norms that its political community relies on, rather than on the territory, or ethnicity.
Contemporary constitutional identity differs from the national identity as a community of people whose members are connected through ethnic affiliation. Both these identities are constructed and projected in a way that Anderson defined as “imaginary communities of interconnected strangers” that, in late 18th Century, under the influence of the Enlightenment and French Revolution, replaced the identity of the divinely determined, dynastic empire. These two imaginary communities, national and constitutional, are mutually different, though they may overlap and contain the identical, or closely related membership. For Rosenfeld, the function of constitutional identity is to deal with constitutional disharmonies, i.e. the dialectic mediation of the existing, evolving and projected conflicts and tensions between identity and diversity – or, more accurately, identity and difference. Constitutional identity needs to be shaped in such a way to overpower the causes for this disharmony. In his opinion, constitutional identity needs to be shaped to provide answers to three crucial questions: for whom the constitution is intended, what the constitution needs to secure, and what kind of constitution might be justified.
One of the essential preconditions in establishing a society with the principle of equality for all its members is respect for all individual and collective identities. Accordingly, the questions asked by Rosenfeld need to be answered from the perspective of ethnicity and different constitutional orders, while their attitude toward ethnic affiliation needs to be studied, in order to single out the factors which secure the equal positions of ethnic identities within constitutional ones. In other words, “we” that is defined by the constitution needs to agree to a certain degree of restraint in its tendency to become tied to ethnic identity, while on the other hand, not becoming removed from the identities of the ethnic communities living in the state that the constitution refers to, so as to secure the necessary acceptance of the constitutional order by those in whose name it has been adopted. It is necessary to strike and maintain a balance between the policies of ethnic communities’ integration and anti-assimilation measures.
