Constitutions as Mediums of Collective Identities
Authors: Červinka Lukáš Lev 
Published: March 2024

When we think about constitutions, we tend to see them predominantly through the normative lens of legality, forgetting about the social implications of constitutions and the lives thereof. And even when we do study them from a more socio–legal perspective, we usually associate them solely with the state. This understanding of constitutions is the legacy of not only a state–centric approach in legal science but also of an institutional approach, particularly in political science. It shapes our understanding of constitutions as legal regulations of an institutional framework of the state and the conduct of politics. Moreover, the liberal tradition compels us to see constitutions as tools to restrain the power of the state and ensure the rights and liberties of individuals; that is, as tools of the liberal rule of law.

However, as I argue in this Article, constitutions are a very powerful, and potentially effective, way of shaping the collective identities of not only the state but also of the political people. Therefore, they should be understood not so much as factors of restriction but as mediums for the articulation of collective experiences, self–understanding, goals, dreams, and fears—in other words, articulations of collective imaginaries.

For this purpose, I shall discuss in the first part of this Article the importance of conceptualizing the state and the political people as autopoietic organizational systems and the consequences of such conceptualization. That is, both the state and the political people are, in fact, operationally closed organizations defined solely by the articulation of their collective imaginaries—by the decisions. In this way, constitutions are only one of the possible decisions and nevertheless one of the most influential.

In the second part, I shall discuss the nature of constitutions as law decisions of the organizational system of the state with the example of the Czech Republic and its 1992 Constitution. The Czech example will demonstrate how the constitution articulates the constitutional imaginary of the membership of the state, how it articulates the understanding of the state’s constitutional identity, and, at the same time, shapes it. Moreover, the Czech example will show us the clear division between the constitution and “its” people; in other words, that it is not the people who makes or adopts constitutions, nor is the constitution an articulation of the political people’s collective identity or its nature. This distinction between the state and the political people is, in fact, one of the crucial arguments for the social systems theory approach to both the state and the political people as it enables us to not only distinguish between those two phenomena but also, and perhaps more importantly, to conceptualize their interrelationship—structural coupling—as I shall explain shortly.

The third part of this Article focuses on how the constitution can shape the popular identity of the political people by being appropriated as a cultural product by the popular imaginary. I shall discuss how the political people can appropriate the constitution as a cultural product and, through such appropriation, express its self–understanding—that is, how the constitution can be translated into the operation of the organizational system of the political people and become its communication, that is, its decision. However, whereas every modern state expresses its constitutional identity also through its constitution, not every political people appropriates the constitution of the state with which it is coupled. There are political peoples, such as the Czech one, which do not appropriate the constitutions to express their popular identities. Thus, the cultural appropriation of the constitution will be demonstrated through the example of the Italian political people, which has a strong connection with the Italian Constitution of 1948.

The state and the political people are locked in a state of structural coupling, they irritate—influence—each other constantly. I argue that structural coupling between the state and the political people is the primary reason why we should be interested in the combined social systems theory–social imaginary approach as it provides us with the theoretical framework necessary to explore, and hopefully understand, how the state and the political people influence and shape each other, and, consequently, enables us to build the legitimacy of our modern democratic system of governance not on the illusion of unity of the state and the people but, quite the opposite, on their acknowledged division and interrelationship.

However, it is vital to add that the main purpose of this Article is not to analyze one state and political people, and their constitutional and popular identities in their complexity as this would be beyond the possibility of one article, but to lay down the theoretical framework for such analysis using examples of various states and peoples. Therefore, the two cases used in this Article have been chosen for their capacity to demonstrate the various ways in which the constitution shape either constitutional or popular identity in the most simple and succinct way possible.