Although constitutional identity is nowadays invoked by European states primarily
against the extension of the powers of the EU institutions, it can also be understood
as a substantive concept of national constitutional law. This article deals with constitutional
identity as a normative constitutional concept. In this respect, the problem is the
same as that which arises in the relationship between EU law and domestic law: namely,
its fundamental indeterminacy and the possible arbitrariness of its application. The
author argues that, therefore, constitutional identity can only be plausibly invoked
if satisfactory answers can be given to the questions of exactly whose identity it
is, what its source is, who and how its content may define, and what the constitutional
function of this category is. The second part of the study examines the Hungarian
constitutional identity according to this analytical framework, and concludes that,
although its subject is the Fundamental Law, its definition, content and constitutional
function are unclear and contradictory. Consequently, the current concept of constitutional
identity in Hungary raises a number of problems for which no plausible answers have
yet been found, and it is highly doubtful whether the doctrinal and practical difficulties
related to it can be resolved at all.
