The issue of “constitutional identity” is a topic the relevance of which emerges in contemporary constitutional democracies in the context of constitutional changes. It has already attracted multilayered approaches, but its legal conceptualization is still underexposed. Based on regional European jurisprudence and doctrinal works, “constitutional identity” in a legal context is suggested to be viewed as the “identity of the constitution.” The identity of the constitution is found among provisions of constitutional texts and related jurisprudence that specifically and exclusively feature a status that was constituted during the constitution-making process and shaped by either formal or informal constitutional amendments. The legally applicable “identity of the constitution” comprises those articles that can be employed vis-à-vis EU law and unconstitutional amendments, and which are arguably intended to be applied in the face of international human rights obligations. It is posited that Germany and Hungary exemplify the “confrontational with EU law model,” while the model that emerged in the jurisprudence of the Italian Constitutional Court should be called the “cooperative model with embedded identity.” Today, it seems that the very content of the identity of the constitution of a particular Member State may be shaped and preserved through an active and cooperative dialogue between the supranational and national courts, if there is an inclination to find uniqueness in a community based on common legal traditions and values—Germany and Italy. Another way of determining the content of “constitutional identity” is to fiercely try to demonstrate that uniqueness. This is what Hungary seems to be engaged in, and that is why it may be proposed to call the Hungarian model a model of confrontational individualistic detachment.

In this interview, Paul Kahn discusses central aspects of his approach to the academic study of law. On the one hand, he reflects on the identity of the cultural analysis of law. In this regard, he points out how his approach differs from other forms of legal scholarship, in general, and from other cultural perspectives of law, in particular. He also makes explicit the philosophical tradition within which the cultural analysis of law is immersed and identifies his main theoretical influences. On the other hand, Kahn discusses the methods of the cultural analysis of law—that is, genealogy and architecture. Finally, Kahn examines the aims pursued by cultural analysis, as well as its contributions to the description and analysis of law. He also responds to some of the main objections that critics have offered against this form of scholarship.

In legal orders around the world, commitments to democracy, liberalism and constitutionalism are increasingly eroding. Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this article are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant’s constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong.

National courts, largely in South Asia and Latin America, have deemed unconstitutional certain constitutional amendments that have been enacted into law in their respective jurisdictions. In the article, this author explores the normative arguments for and against the judicial enforcement of implicit substantive constraints on formal constitutional changes. In essence, the author argues that, in determining whether judges should render the substance of constitutional amendments unconstitutional, one must examine how the impugned constitutional amendment was passed. In jurisdictions where a constitutional amendment can be passed by a dominant party/coalition without bipartisan support or the general support of the people, the courts may intervene, but only where the constitutional amendment(s) in question is/are so manifestly unreasonable that such a revision is akin to a substantial destruction of the pre-existing constitution. But no constitutional amendment should ever be judicially invalidated for violating any implied ‘basic features’ of the constitution when the amendment process is particularly cumbersome and requires significant bipartisan support and the general public’s express or implicit endorsement for the amendment to pass.

This article examines whether there are any limitations on constitutional amendment powers that are external to the constitutional system and above it—‘supra-constitutional’ limits. It considers the theory and practice of the relationship between natural law, international law or other supranational law, and domestic constitutional law in a comparative prism. After considering the alleged supremacy of supranational law over constitutional amendments, the author explores the problem of the relationship between the different legal orders in the external/internal juridical spheres, and the important potential and actual role of national courts in ‘domesticating’ supranational law and enforcing its supremacy. It is claimed that despite the growing influence of supranational law, state practice demonstrates that constitutional law is still generally superior to international law, and even when the normative hierarchical superiority of supranational law is recognized within the domestic legal order, this supremacy derives not from supranational law as a separate legal order, but rather from the constitution itself. Therefore, it is claimed that existing practice regarding arguments of ‘supra-constitutional’ limitations are better described by explicit or implicit limitations within the constitution itself, through which supranational standards can be infused to serve as valid limitations on constitutional amendment powers.

Differences between parliamentary inviolability and parliamentary non-liability. Parliamentary inviolability in the Turkish constitution. Also for ministers. Scope and duration. Lifting of inviolability by the Grand National Assembly. Possibility of judicial review. Constitutional amendments to limit inviolability in the combat against corruption rejected.