1.2.1.1 The Estonian Inspiration: Rendering Sovereignty for the Purposes of Security?

The initial theme of this part was discussed at the Estonian workshop, which took place in Tartu in December 2021. The participants of the workshop delivered a multitude of papers on the broader theme of ‘Searching for Estonian European constitutional imaginaries – sovereignty in context’.Footnote ³⁴ The chapters written by Estonian authors therefore focus mostly on the concept of sovereignty, its different understandings and the particular application practices of it in the Estonian context.

Sovereignty is not an unequivocal or easy concept and it brings with it a certain amount of theoretical and conceptual baggage. Writing in the context of European integration, the Scottish philosopher Neil MacCormick has emphasised that the key idea of sovereignty is power without restriction.Footnote ³⁵ This annotation brings along some conceptions of power, authority and territoriality. These can be observed in a particular setting – in the current case, Estonia.

In order to start unpacking the concept of sovereignty in the Estonian imaginaries, some contextual clarifications are due. Firstly, sovereignty has a particularly strong conceptual and celebratory meaning in the context of the Estonian Constitution. The Constitution of the Republic of Estonia incorporates a particularly strong sovereignty clause in its §1(2): ‘The independence and sovereignty of Estonia are timeless and inalienable’.Footnote ³⁶ This has been called ‘one of the strongest accentuations of sovereignty in Europe and perhaps even in the world’.Footnote ³⁷ It has been said that ‘the fear of a rollback to a Soviet Union-type organisation was the main consideration behind the wording of this provision’.Footnote ³⁸

According to the Estonian Supreme Court (SC), ‘the core essence of sovereignty is the right of discretion in all matters, irrespective of external influences’.Footnote ³⁹ Despite this, the SC’s approach in particular cases has been much more liberal and accommodating. There the SC treated sovereignty as a principle that is open to restrictions and weighing against other principles.Footnote ⁴⁰

Secondly, Estonia has a notable ‘unconditionally EU-friendly approach’Footnote ⁴¹ to EU primacy claims, being an example of exceptionless EU law primacy or even adhering to a doctrine of absolute primacy.Footnote ⁴² It has been described as an unconditional acceptance of the standpoint of the Court of Justice of the European Union (CJEU) on primacy,Footnote ⁴³ an unprecedented submissiveness to the EU that has no counterparts in other EU Member States.Footnote ⁴⁴

What might explain such an open approach to EU and international law and a disregard of national sovereignty claims? A small state dimension and a post-imperial sense of ontological insecurity of the very existing as a sovereign state arguably cause this unprecedented Euro-fondness. In other words, in order to be a state, you must give away some of the very ‘stateness’ to exist in the first place. Underlying the Estonian acceptance of the supremacy of EU law is an existential fear against its Eastern neighbour. One might consider it a result of a fairly straightforward and perfectly reasonable cost-benefit analysis: the security-related benefits of international cooperation outweigh the loss of sovereignty.

When talking of history, one particularity sets the Estonian chapters apart from others included in this volume. Namely, Estonia was not merely a satellite state of the Soviet Union, but part of the Union itself as it stood in the designated period of history. This perhaps sets out specific visions and imaginaries of Europe generally and of the European Union particularly, but also of the Eastern neighbour – Russia. Is it somehow different to be stepping almost straight from one Union to another, from being the West of the East to being the East of the West, without broader contemplation and societal discussion of the idiosyncrasies and potential differences and similarities these Union-memberships and transformations entail. The Estonian reflections of it were rather poor or even non-existent, but that in itself also reveals something, some deeply rooted ideological and existential understandings of the meaning of Europe and Estonia’s place in it. Namely, Estonia has always regarded itself as part of Europe, as the inherent borderlining component of it, something of an outpost between East and WestFootnote ⁴⁵ with a strong feeling of belonging to Europe.

All in all, Central and Eastern European distinctiveness from its Western counterpart is overt. History should not be underestimated in this equation and it plays a part in establishing the polities and societies which we today call Central Eastern Europe. History and size of the nation thus is featured in how sovereignty is perceived and performed in the region. History and size matter. Also for sovereignty.

1.2.1.2 Contributions

All contributions show the prominence of the concept of sovereignty from the existence and regaining of the state from the Soviet occupation in the first place to the securitised practice of it in contemporary law and politics. Sovereignty also has a transformative aspect in the current and historical perspective. The current sovereignty undertones allow a state like Estonia to still engage in deep forms of international and regional cooperation – such as the European Union – whereas the past connotations and usages of sovereignty operationalise it for the anti-imperial struggle. Here manifests the great transformability of the concept and its many practical usages.

These questions are well captured in Maria Mälksoo’s Chapter 2, entitled ʽVicarious Sovereignty: Becoming European the Estonian Wayʼ. Mälksoo proposes a new concept – ‘vicarious sovereignty’ – to understand and explain the way in which Estonia positions itself vis-à-vis Europe and its national constitution.

Mälksoo defines vicarious sovereignty as ‘living through another’. One lives through another by treating their ‘achievements and experiences’, as Mälksoo puts it, as their own. Like in the case of many other states in the region, ‘becoming European’, or rather joining the EU and other European and international organisations, was Estonia’s purpose, constitutive for its identity. However, the case of Estonia shows an interesting paradox, which is also evident in the Polish case, as described by Kustra-Rogatka in Chapter 7. On the one hand, Estonia’s ‘vicarious identification with Europe’ has made it easier for this state to transfer parts of its sovereignty to the EU. On the other hand, the Constitution of Estonia proclaims a very strong commitment to absolute sovereignty which, again, is also characteristic for Poland. How can one reconcile two such conflicting commitments? Perhaps the states in the region, having barely regained their hard-fought independence, had no choice but to undertake this arduous task and hammer out their identity in-between sovereignty and integration somehow. In particular, Estonia had to accept this trade-off for the sake of its ‘ontological security’, in the words of Mälksoo. She illustrates how Estonia has sought to be ‘independent’, ‘sovereign’ and ‘European’ all at once and in the context of the described permissiveness of the Estonian model of EU membership.

Mälksoo explores ‘Estonia’s sovereignty-sharing with the EU through the lens of the vicarious identification concept’ and the visions of Europe presented by the Estonian constitutional ‘map-makers’, as she calls them, at the time of the Convention on the Future of Europe: Lennart Meri and Toomas Hendrik Ilves. She specifically investigates the question of restrictions of sovereignty and the boundaries of the European constitution in the imagination of the Estonian influential thinkers and decision-makers during the Convention on the Future of Europe. She examines how these thinkers and decision-makers understood ‘becoming European’ not just in reference to the EU accession but also in terms of recognising the ‘Europeanness’ of Central and Eastern Europe by the West of the continent.

Mälksoo’s contribution also addresses a phenomenon well-known from most member states: Europe, or the EU, becomes a space of political action that is instrumentalised by various forces at the national level. Marco Goldoni’s Chapter 3, ‘From Federation to External Constraint: Europe in the Italian Constitutional Imagination’, is path-breaking in several respects. First, it shows how the imaginary of Europe has been changing in a single member state, from the period when European integration was only imagined in a quite literal sense by the members of resistance, to the establishment of the European Communities in the 1950s, followed (possibly paradoxically) by a period of ignorance until today, when the EU is seen as a source of external constraint. This story has been told several times already; however, Goldoni does not stop short at that. The second remarkable contribution he makes concerns the kind of actors he looks at in his analysis of Italian constitutional imagination. Inspired by the renewed interest in the study of political parties in political science and theory, Goldoni brings about an original study of Italian political parties relationship to Europe, highlighting the dependency of their imaginaries on what Europe ‘offers’ for them. In that, Chapter 3 nicely connects to the other chapters in this part, not only that of Mälksoo (Chapter 2), but particularly Kustra-Rogatka’s Chapter 7 (dealing with Poland) and Saharov’s Chapter 6, offering a conceptual history of the idea of ‘self-management’, which quickly transformed, after its introduction into official discourse, into a debate on sovereignty.

But does sovereignty in Central Eastern Europe have a different meaning than sovereignty in the Western part of the continent? Some have argued it does.Footnote ⁴⁶ Do other concepts such as democracy, liberalism or rule of law perhaps then too have a different connotation? This brings to the question: is Central Eastern Europe’s current predicament different because its history is different?

This is the main question to be answered in Hent Kalmo’s Chapter 4, ʽSovereignty and the Misery of Small Eastern European Nationsʼ, which broadly speaking tackles the concept of sovereignty and puts it into the context of small Central Eastern European states. It also touches upon the issues of the East Europeans’ ‘Europeanness’ among other things. Kalmo’s thesis is that Eastern and Central Europe is not uniformly souverainiste in the sense that the constitutional rules of all the countries in this region are not always strongly protective of sovereignty.

Kalmo argues that it has been a certain representation or rather a set of conflicting representations related to the idea of being a small nation which has engendered the ambivalent attitude to national sovereignty observable in Eastern and Central Europe. This ambivalence is illustrated particularly well by Estonia, where the already mentioned strong symbolic commitment to national sovereignty has coincided with the ambition of international integration, as manifested with the openness of Estonia’s legal system to international law. Kalmo’s central concept – the smallness of the nation – is not so much a single idea, or a theory, but a recurring cultural theme, an unresolved problem and an axis of debate. It still generates legal contradictions and conflicting constitutional doctrines. When the national security may be endangered, sovereignty may either offer protection or, quite to the contrary, hinder seeking assistance from a larger political community. This ‘small nationess’ has thus hung over the region and can be seen as a common constitutional imaginary.

Kalmo also presents his ‘misery thesis’, which is kind of an idea of an ‘Eastern Sonderweg’. According to this thesis, the history of Western and Eastern Europe have been different, so their essential characteristics must be different too, including political culture or even nationalism. The roots of these difference can be traced to the Middle Ages or beyond.

Kalmo draws the misery thesis from István Bibó’s famous essay ‘The Miseries of East European Small States’Footnote ⁴⁷ for whom the key puzzle of the causes of the Second World War lied in Eastern Europe since it was there that most critical territorial disputes had flared up in the late 1930s. Also, according to Tony Judt, while ‘northern and western European peoples formed states by expansion from a core’,Footnote ⁴⁸ the countries of modern Eastern Europe were born from the collapse of empires – Russian, Turkish, Austrian and German. The Eastern identity, for Kalmo, who refers to Judt, necessarily thus consists of ‘an all-or-nothing claim to territory and power at the expense of a neighbour making an identical claim. This resulted in the great misfortune of the eastern half of Europe. the division into states came late and all at once’.Footnote ⁴⁹ The misery thesis also explains the post-war difficulties of Central Eastern Europe by the simple fact that the region had remained on the wrong side of the Iron Curtain: its problems resulted from Soviet domination, not from something indigenous.

Martin Loughlin’s Chapter 5, on ‘Ruling Britannia’, discusses the key features of Britain’s constitutional identity, as they developed throughout history, and argues that they ‘ensured that Britain could never become an active participant in the European federal project’.Footnote ⁵⁰ In this respect, the chapter provides an interesting counterpoint to the other contributions in this part, not only those concerning Estonia, but also Goldoni’s chapter on Italy. Europe is always perceived as the Other, which threatens rather than protects or extends sovereignty of a member state.

The British constitutional identity consists of several narratives, which all together provide for a constitutional imaginary of a nation, but also define the framework of its government. First, the doctrine of the ancient constitution, according to which it was already the early Saxons (the Goths) who had created an ancient, pre-feudal and liberty-preserving constitution. No great constitutional documents of English (and British) constitutional history (including the Magna Carta) instituted freedom for the English, as it existed long before them in the form of this ‘ancient constitution’. Loughlin mentions how the modern constitutional scholarship avoided closer examination of the founding principles and instead relied on the Whig interpretation of history, which ‘present[ed] a story about the triumph of liberty over absolute sovereign power, evidenced by the increasing importance of representative institutions in the British system’.Footnote ⁵¹

The other narratives of the British constitutional identity relate to this mythology, especially those concerning the pivotal importance of local self-government in the English system and the rule of law. The persistence of the Crown and its paradoxical (perhaps) relationship to Parliamentary sovereignty have remained unresolved, also when the British state was formed and ‘Britons’ came into existence.

In the penultimate part of his chapter, Loughlin discusses the difficult relationship between the British Constitution and the European integration project, which led to the contemporary crisis of constitutional identity of Britain. For an external observer it may seem that Loughlin’s ‘best hope’ – ‘the advancement of radical reforms to the system of government, which might incrementally provide an institutional foundation for a renewal of faith’Footnote ⁵² was lost at the moment when the United Kingdom decided to leave the European Union.

The next Estonian contribution to the volume combines the concept of sovereignty and the Soviet era. It shows that imaginaries can also acquire a formal content and meaning, as was the case in the mid-perestroika Estonia when a contest for ‘future scenarios’ for economic development in Estonia was held. Juhan Saharov’s Chapter 6, ʽThe Power of Concepts: From “Self-management” to “Sovereignty” in Soviet Estonia (1987–1988)ʼ, takes its grounding in these historical events, which he calls the finest hour for imagining alternative futures for the republic. He shows how the imagination of futures takes place in the late totalitarian system which has opened its society to radical reforms. He considers the period of 1987–1988 to be the period of different imaginaries – could Estonia become an economically independent republic within the Soviet Union, a sovereign socialist republic or an independent republic or be restored as a continuation of the pre-war Republic? As the ultimate outcome was the latter, he puts particular importance on the power of specific concepts and languages within the 1989 revolutions, including their impact on the Soviet collapse.

The central concepts in Saharov’s ‘conceptual revolution’ are ‘sovereignty’ and ‘self-management’. The contest for ‘future scenarios’ created the concept of ‘self-management’ in the economic sphere in Estonia in 1987, which continued its independent development to the final language of political sovereignty in 1988. This resulted in the fact that the politically and legally more useful term ‘sovereignty’ replaced the term ‘self-management’ as the central concept in reformists’ tactics and an eventual declaration of sovereignty on 16 November 1988 by the Supreme Soviet of the Estonian Soviet Socialist Republic (ESSR) which initiated the ‘Parade of Sovereignties’ across the Soviet Union with its ultimate dissolution. Just like that, ‘sovereignty’ killed the Soviet UnionFootnote ⁵³, and it happened first in Estonia due to the conceptual revolution of ‘self-management’ to develop into the concept of ‘sovereignty’ in 1987–1988. As such, Saharov shows the identification of ‘specific conceptual processes in pre-revolutionary periods through which specific and technical concepts, derived from an expert-language framework, acquire broader resonance and meaning in society, thus contributing to the rise of a revolutionary situation’.Footnote ⁵⁴ At the same time, they were also imaginaries of the future form of the republic, which transformed quickly from the economic visions into political ones in 1988. Thus, the role of the ‘future scenarios’ methodology should not be underestimated, and the method was a way to reform socialism, to imagine new models for a union republic and ultimately a sovereign independent republic.

Furthermore, a telling example of the transformations and tensions in the sovereignty concept has emerged from Poland around the interpretive difficulties encountered by the Constitutional Tribunal in highly controversial and political cases, in which it was expected to provide ‘objective’ and ‘apolitical answers’. These tensions are analysed in detail by Aleksandra Kustra-Rogatka in Chapter 7, ‘European Integration: Ineffable Aspiration or the Object of Concern? About the Ambiguity of Europe in the Polish Constitutional Imaginary’. Her doctrinal analysis demonstrates the struggles of legal constitutionalism in Poland operating in a difficult political context. The author depicts European integration as remaining in constant tension in Polish constitutional imaginary with the aspiration of retaining complete sovereignty. European integration and complete sovereignty acted as ideologies and utopias that Polish constitutionalism tried to mix like water with fire. The author analyses this shaky constitutional imaginary on three levels mentioned by Loughlin in Chapter 5: the level of thought (the constitution-making process), that of the text (the Constitution of 1997) and that of the constitutional practice (how the EU Treaties were ratified and what conditions and limits upon the European integration were imposed by the Constitutional Tribunal). The Constitutional Tribunal’s at least partly conflicting doctrines of absolute constitutional supremacy coupled with simultaneous openness to European integration – aimed at satisfying the left, the centre and the right – must have ultimately failed. Kustra-Rogatka argues that the balance was recently clearly tilted towards ‘sovereignty’.Footnote ⁵⁵

In addition, links can be discovered between the Central-European national constitutional imaginaries as well, particularly in the area of enemy-making, discussed in Chapter 8, ‘The Constitutionalised Image of the Enemy in the Hungarian Fundamental Law’ by Attila Antal.

Creating and joining ‘United Europe’ meant, for a long time, supressing the image of enemy and not using its affective power when mobilising people around the constitution. This, of course, does not mean that enemies disappeared from the constitutional imaginary of Europe – they were rather only partially shifted to its subconscious, un-reflected layer. In many states, however, these buried images have been gradually emerging again – either as political narratives with constitution-changing ambitions, as arguments in the case-law of constitutional courts or even as full-fledged constitutional reform projects.

In relation to this, a Hungarian constitutional and historical intersection is revealed through the reliance on history in order to guard and maintain independence and sovereignty. This is also rooted in the idea of Hungary’s historical constitution and has played a significant role in the building of identity in a legal manner through the case law of the Constitutional Court, ultimately rejecting mainstream European narratives.Footnote ⁵⁶ This connection draws from medieval sources, as well as the narrative of Hungary being the defender of Christian Europe from invasion, which has been identified in the early nineteenth century, and reflects back to the Ottoman times between 1526 and 1686.Footnote ⁵⁷ In addition, the current approach of the current Hungarian political regime to the historical constitution as the reason why Hungary is entitled to autonomy and independence have drawn from various historical struggles such as the 1848 revolution, the 1867 compromise with Austria, the resistance to the communist regime and, very propagandistically, since the 2010s against the EU.Footnote ⁵⁸

This type of identity formation through the incorporation of history in constitutionalism reflects further on the legacy of the democratic transition, particularly around the presence and relationship of the historical constitution and the invisible constitution. This doctrine was created by the Constitutional Court of the early 1990s as an exact opposite of using historical narratives, instead relying on supposedly universal democratic values.Footnote ⁵⁹ Therefore, the idea of the invisible constitution made use of the same idea and motto as the transition itself – catching up and copying Western European democracies. The current constitutional system rejects this idea completely, throwing away the idea of the invisible constitution, favouring the integration of the historical constitution into the legal system instead. This shows how the legacy of the transition in constitutionalism is mixed. It can be criticised for leaning too much into European integration and lacking consideration of other aspects and developments of Hungary’s past, such as the evolution of the country’s role in Imperial Austria–Hungary.Footnote ⁶⁰ While, at the time of its inception in 1867, Hungary was the economically and politically weaker member of the union, thanks to the economic development of the immediately following decades, the state has managed to strengthen its position as Austria’s equal in the arrangement.

Chapter 8 reveals this misuse and abuse of identity creation, particularly reflecting on the idea of enemy-making. He connects the ideas of history, constitution and imagination in the Fundamental Law itself. He explains how the misuse of history and identity in the Hungarian legal system becomes dangerous in creating a constitutionalised image of an enemy. This construction can then be relied on in political debates and even be used for propaganda purposes. Relying on a primary lens of politics, he delves deep into the polarities of the NER system and the process of enemy-making in the Fundamental Law. He shows how otherisation works in this system, how the Hungarian government has otherised different communities, somewhat ironically similar to how the country itself is otherised on the European scene. He reflects on the images of political enemies evolving as aspects of the Hungarian government’s identity and how, through these identities, the antagonising of the EU mainstream becomes possible.

1.2.2.1 The Hungarian Inspiration: History and Constitutionalism

In November 2021, the Institute of Legal Studies of the Hungarian Academy of Sciences hosted the IMAGINE workshop, ‘History, Constitution and Identity in Hungary’, inviting experts from the fields of law, history and political science to reflect on the intersection of these fields, specifically on the emergence and re-occurrence of historical narratives in constitutional debates.Footnote ⁶¹ The workshop was built on the hypothesis of tracking the extensive differences between the approaches towards constitutional imaginaries as they relate to the historical past between the EU and Hungary. It aimed to exemplify and address these differences through the examination and analysis of Hungary’s constitutional debates through a historical–political lens.

The study of Hungarian constitutional imaginaries presents an opportunity to evaluate the complicated story of the use and misuse of history in Central and Eastern European constitutional debates. Not only is this a prominent feature of Hungarian constitutionalism but it directly relates to the strand in European legal scholarship that engages history of European integration – including its ‘darker legacies’.Footnote ⁶²

To critically study the role of history in European constitutional imaginaries is important because the EU’s efforts of fostering European unity and integration and ideas of democracy originate from a ‘historical escapism’ – to ensure the brutal crimes committed and constant (political and sometimes violently military) warring between neighbouring countries in the first half of the twentieth century should cease and never happen again.Footnote ⁶³

However, the EU, by virtue of being a supranational institution, gives rise to a conflict and a potential hierarchy between its member states over whose historical–constitutional visions and imaginaries prevail, and how to settle the disagreements that result from their differences – meaning which Member State will be able to better integrate their constitutional ideas into the EU’s institutional structure.Footnote ⁶⁴ The recent crises within the EU have revealed that the roots, basis and nature of constitutional imaginaries differ fundamentally between the Western and Central-Eastern part of the EU. As the building of the primary European constitutional imaginaries happened through mostly unspoken agreement of the old, Western Member States, Hungary’s rule of law backsliding has exposed this divide and its much more far-reaching roots in the constitutional debate. This happened because the Hungarian developments involved a noticeable transformation of the approach to national and international history, ultimately posing the country against EU initiatives and values on the basis of Hungary’s past.

The workshop was organised at a pivotal time as both national and international commentators have noted the prevalence of historical narratives and attempted to explain its expansive inclusion in the Hungarian Fundamental Law.Footnote ⁶⁵ Such inclusion was part and parcel of Hungary’s new political system, the System of National Cooperation (NER), as conceptualised by the Fidesz government after their 2010 landslide election victory. Noticeably, this system is markedly different, especially from the Hungary of the transitional decades (1990–2010), as it seems to have incorporated and developed a strange imitation and mix of previous Hungarian historical eras and echoes, sometimes with politically-driven intentions, sometimes less openly, several pre-1990 historical regimes. In its international political behaviour, nostalgia and reliance on civic transformation, the NER system relies on the legacy of imperial Austria–Hungary. In its treatment of memory politics and the shaping of Hungary’s image and the meaning of Hungarian-ness, it takes from the policies of the interwar Horthy-regime. In its economic policy, the NER is inspired by the communist regime, particularly its post-1956 period – the decades of ‘goulash communism’.

Reflecting on these ideas, the workshop differed from similar events because it relied on an interdisciplinary perspective, discussing the historical periods to which the NER refers: the imperial civic age, the interwar conservative–nationalist age and the post–WWII communist period.

The participants have traced and discussed the roots of Hungarian constitutionalism in the nineteenth century by dissecting the concept and development of the historical constitution of the country, by revealing how the period of Austria–Hungary is reflected in the NER system through the rhetoric of civic transformation.Footnote ⁶⁶ The NER’s entire state organisational system is aimed at boosting Hungary’s further civic developments. In terms of policy, the dismantled system of the Austro-Hungarian age has been rebuilt by Fidesz. This includes a complete reform of the judicial system and the municipal system, bringing back parallels to the previous nineteenth century arrangements.Footnote ⁶⁷

Presentations at the workshop further situated the intersection of history and constitutionalism during twentieth century Hungary, including the interwar conservative–nationalist and post–WWII communist periods. The role of the interwar Horthy-regime in the NER system is a lot less transparent and more influential than the impact of the imperial civic age. Unlike the Austria–Hungary allusions, which are less present in the Fundamental Law but can be detected in the legal system, the Fundamental Law and the NER’s historical memory-related policies fully lean into the much-criticised legacy of the Horthy-regime. The idea of strengthening nationalism, protecting of Hungarian identity internally and abroad, with the simultaneous prosecution of other minorities alludes to the Horthy-regime quite openly. This can be traced in the glorification of the Hungarian past in the Fundamental Law, the whitewashing of the more controversial aspects of the Horthy-regime and the continuous references to the Treaty of Trianon and its postWWIIWWI arrangement.Footnote ⁶⁸ On the one hand, internally, this has brought about a nationalistic reframing of the education system and the rejection of minorities found not to have roots in the Hungarian past, or found not to adhere to the idealised version and meaning of belonging to the Hungarian nation. On the other hand, internationally, the system quite forcefully steps up to gift rights and privileges to the Hungarian community living beyond the border, specifically aimed at those living in the territories that had belonged to Hungary before the Treaty of Trianon.

The Kádár era of the communist regime reflects in the NER’s economic policy, albeit much less openly, as the rejection of the communist past is a central part in the NER system. Nevertheless, the recent decades’ economic measures reflect the nature of the communist regime very carefully in several aspects. In its systemic aspect, the NER brings back nationalisation and bulk buying of companies and estates, thus fostering corruption and the appearance of oligarchs. In its more personal aspects, several policy decisions particularly favour the upper middle class of society. This includes a very favourable tax system and measures aimed at fostering marriages and children, which not only adheres to a nationalist policy but also affords significant financial support to young couples and families.Footnote ⁶⁹ In this way, the NER alludes to the times of goulash communism, involving policy decisions that economically benefit the population (or at least some groups of it) and guarantee them a comfortable life. In exchange, they are inclined to overlook other, deficient parts of the system as they are not implicated in it.

Therefore, the Hungarian workshop’s reflections on the differences in historical outlook between mainstream Europe are complemented with the contributions of this volume. They reveal different blind spots on the both sides of the former Iron Curtain – and the legacy of the Habsburg Empire – for its successor states, but for the Union as well, have not been examined thus far. World War II, or, what the historian Tony Judt saw as the ‘European civil war that had begun in 1914’Footnote ⁷⁰ and finished only with the fall of communism, lies at the heart of the European constitutional imaginary. Schuman Declaration proclaimed in 1950 that ‘World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it’ and warns, at the same time, that ‘A united Europe was not achieved and we had war’. However, the contributions to this volume tell a different story.

1.2.2.2 Contributions

Chapters 9 and 10, which deal with Hungary, attempt to understand how the incorporation of historical narratives in constitutionalism can be situated within the current system of democratic backsliding in this country. Kálmán Pócza’s Chapter 9, ‘Political Integration through Constitutional Memory? Historical Constitution and Community Building in Hungary’, poses the question of what role Hungary’s historical constitutionalism plays in the development and expansion of the constitutional imagination of Hungary. Despite the problematic nature of the Fundamental Law, where such recent historical–constitutional musing has been codified, and the chequered past of the historical constitution itself, its continuous prevalence presents an apt opportunity for Pócza to engage in the past, present and future of Hungarian historical constitutionalism. His analysis is timely because, while ample disagreement exists among Hungarian and international scholars on the place and use of the historical constitution in a modern legal system, its relevance cannot be denied and therefore should not be set aside as merely a political tool of an authoritarian regime.

However, while the historical constitution should not be set aside as only a political tool, Pócza’s approach to the Fundamental Law remains mostly theoretical and figurative and, thus, does not really consider the political implications of the historical constitution concept in the NER and how it can be used and misused by the Hungarian government and by the Constitutional Court.Footnote ⁷¹ His analysis presupposes the use of the historical constitution in post-2010 Hungary as politically contextless, as a simple re-emergence of an essentially historical concept.

In contrast, this lack of consideration is addressed in Chapter 10, ‘The Constitutional Concept of the Historical Constitution and Illiberalism: The Case of Hungary’, by Tímea Drinóczi. Drinóczi examines the historical constitution and its place, use and misuse in the current Hungarian political system. She takes a legal approach and she reflects on the practical consequences of the inclusion of the historical constitution in the NER’s legal system. She connects the misuse of the historical constitution to Hungary’s budding illiberal authoritarianism and points out the dangers of too extensive reliance on historical narratives, particularly the potential mistakes and misinterpretation their legalisation can result in. While she does take the historical development of the concept into account, she focuses her analysis on the post-2010 evolution of the idea, aptly pointing out how the NER abuses the concept of the historical constitution for political means. She does not posit any use or present relevance of the historical constitution in modern times, which, due to the undoubted prominence of this concept throughout Hungarian history of the last two centuries, may be a slight oversight but remains a question well-addressed by Pócza.

In consequence, these two contributions function as opposites and complements. Through two different methods, they approach the controversial but absolutely necessary analysis of the place and importance of the historical constitution in the Hungarian legal system and its relationship to modern democracy, coming to completely different conclusions. Hence, they reveal the core of engaging with the interplay of historical and constitutional narratives in Hungary and the underlying imaginaries that shape them.

The works of Pócza and Drinóczi are further complemented by Epp Annus’ analysis on the imaginaries of history and the feeling of ʽEuropeannessʼ in Estonia. In Chapter 11, ‘Estonians’ European Imaginaries: The Soviet and Pre-Soviet Legacyʼ, she delves deep into the questions of the Estonian European (self-)images and the Soviet impact on them. She juxtaposes the ‘Soviet question’ in relation to the ‘European question’ and tackles the ultimate question of how the Soviet rule impacted the national imaginary of Europe and Europeanness. She takes a ‘pluriscalar’ approach: she analyses the sense of belonging at different scales, that is, the scale of the ESSR within the USSR as well as within Europe and even the larger ‘West’. The author discusses how Estonia was ‘relocated’ from ‘Europe’ to the ‘colonial matrix of control’ exerted by Moscow and Leningrad within the Soviet Union and then again to ‘Europe’, and what it meant in practical terms for the society and the social imaginaries. Somewhat paradoxically, the Soviet Union’s centre might have served for a time as an access point but also a gatekeeper to Europe. And yet, the author claims that earlier cultural traditions and values connected to Europe were preserved and, after the fall of the Soviet Union, contributed to the new hybrid imaginaries, as she demonstrated relying on rich literary sources. What might have helped in the process of retaining the distinct Estonian imaginary was that Estonia has always felt a somewhat culturally superior ‘West’ of the Soviet Union. Nonetheless, the ‘return to Europe’, as the popular rhetoric framed it, also raised challenging identitarian questions, such as ‘exactly how European are we?’ The related challenging questions are the relation to the former Soviet sphere and the Russian minority. Overall, Chapter 11 shows how the category of ‘Europeanness’ depends on its relations with other overlapping identitarian categories.

All in all, the Soviet experience can inform Estonia’s understanding of Europe and the EU. The different scalar categories and imperatives at play have had the force to subjugate the rhetorically strong claims of sovereignty under the open and liberal claims to be open to the EU and the West in general, thereby supporting unconditional belonging to Europe assertions. Both the conceptual apparatus at play in the critical years of pre- and re-independence and the predominant European imaginaries during and after Soviet occupation exemplify the leap from colonised subjugated state to the re-strengthened pronouncements of national agency and sovereignty with a hint of post-colonial mentality.

In addition, Mary Heimann’s Chapter 12, ‘Czechoslovakia: Remembering and Forgetting the Failures of a State’, provides an interesting reflection by the author of a monograph that provoked severe criticism in the country it studied, despite rather positive reception among academic historians. Heimann argues that today’s Czech Republic succeeded to a series of failed constitutional imaginaries, polities which proved unable, for a variety of reasons, to endure in the forms in which they had first been conceived and created.

Although factually accurate, this is not the way in which the 75-year history of Czechoslovakia is usually told, commemorated or remembered. Chapter 12 looks at the highly emotive, polarised reception of Czechoslovakia: The State That Failed from its first publication in English (Yale University Press, 2009) until its eventual publication in Czech, with the support of former Czechoslovak dissident leaders. This case-study of how one revisionist history came to be written, received, blocked, championed and republished, sheds light on narratives of victimisation and exceptionalism which dominated official Czech memory after the overthrow of Communism in 1989 but which are increasingly being challenged by modern historians.

Finally, Ulrich Wagrandl’s Chapter 13 explores the ‘background stories’ of Austrian constitutional law, especially one of which celebrates its greatest historical achievements of the rule of law and giving to the world constitutional review. This author takes inspiration from the famous Robert Musil’s novel for the title of his chapter, which deals with Austria: ‘A Constitution without Qualities? Three Narratives about Austrian Constitutional Law’. Wagrandl presents three narratives of the Austrian constitution, each of them faithful for the Central European sense for irony: first, that the Austrian constitution is in ruins, referring to its lacking aesthetic, especially if compared to its German counterpart. However, as Wagrandl shows, more recently the constitution became the subject of appraisal, when the first-ever crisis of government ensued after chancellor Sebastian Kurz was faced with the first successful parliamentary vote of no confidence in Austria in reaction to the corruption scandal in his party. Suddenly, Wagrandl notes, ‘the Austrian president praised the “elegance” and “beauty” of the constitution’.Footnote ⁷²

The second narrative submits that the Austrian constitution is value-neutral and formalist. Again, Wagrandl carefully digs under the surface to find that it holds no more– even if it ‘took a German law professor teaching in Austria to tell the truth’.Footnote ⁷³

Finally, the third narrative provides that the Austrian constitution is a role model for European integration and that, from the historical perspective, it gave the world judicial review. From the perspective of this volume this is the most interesting one: especially as the Habsburg Empire, remembered – with no nostalgia – in some of its once subjected countries as the ‘prison of nations’, is suddenly taken as a model for the constitutional architecture of European integration. For Wagrandl, two features of the Austrian constitution stand out: the openness towards international law (EU law and the ECHR in particular) and the institution of a specialised constitutional court, brought to life by Hans Kelsen (although one must remember that the first-ever specialised constitutional court was established by the Czechoslovak constitution in 1920).

1.2.3.1 The Polish Inspiration: Liberal Constitutionalism as a Sign of Belonging to Europe

The Polish workshop was held in Warsaw in December 2021. The starting point for the reflection on Polish constitutionalism was an ongoing debate about the status of liberal legal constitutionalism as a ‘scientific’ and supposedly apolitical endeavour. Liberal legal constitutionalism marked Poland’s return and belonging to Europe and it was perceived as providing a blueprint for the rational organisation of the State. The Polish participants to the workshop reflected on the origins of this imagination, its operation in constitutional and political practice until its recent breakdown and alternative imaginations that it might have overshadowed (or not).

The debate is related to what has been termed in the literature as the ‘constitutional crisis’ or ‘rule-of-law backsliding’ in Poland. Scholars saw the symptoms of the crisis in the political capture of the Constitutional Tribunal and subsequent systemic undermining of judicial independence safeguards.Footnote ⁷⁴ Some researchers have explained this crisis as resulting from the relatively superficial transplant of the Western legal institutions and principles during the political transformation in the late 1980s and 1990s, uncoupled from a deeper internationalisation of the rule-of-law values by the society and neglect of democratic civic engagement.Footnote ⁷⁵ Factors related to the reality of economic transformation, culture and history might have played a role in resisting the rule-of-law values. The law was conceived of as an instrument of economic transformation subordinated to the goal of socio-economic change and generally enjoyed low authority within society from the communist times.Footnote ⁷⁶ Also, Poles generally prefer non-institutional and extra-legal conflict resolution.Footnote ⁷⁷

However, other researchers have interpreted the crisis as a breakdown of the epistemic hegemony of liberal and legal constitutionalism, especially the belief in its apolitical, objectively rational and scientific nature.Footnote ⁷⁸ This constitutional imaginary might have been in constant tension with the nature and origin of the constitutional text. The integrating objective of legal constitutionalism in Poland, thus understood, has been challenging to attain since the Constitution of 1997 was a complex political compromise, excluding the right-wing forces internally divided at that time and subsequently contesting the constitutional settlement.Footnote ⁷⁹ The Constitution of 1997 ended up being a melting pot of ideas drawn from liberal ideology, patriotic narratives, the social teaching of the Catholic Church, the post-socialist belief in the welfare State and the ordo-liberal constraints upon the public finances, among other things. The Constitutional Tribunal and constitutional scholarship faced the arduous task of solving constitutional disputes and concretising constitutional standards based on the hybrid and ambiguous text. According to some researchers, the cracking belief in the possibility of deriving objectively rational standards from such a text pushes the Polish political system towards political constitutionalism.Footnote ⁸⁰ Increasingly often do we encounter ideas of the return to the parliamentary majority as representing the nation’s will and the need to curb the ‘excesses of judicial power’ and unfolding ‘juristocracy’.Footnote ⁸¹

Interestingly, researchers specialising in legal philosophy and sociology, rather than the doctrine of constitutional law, had undertaken critical analyses of the epistemic status and legitimation strategy of liberal legal constitutionalism already a few years before the constitutional crisis began in Poland. Some scholars argued that constitutional law is deeply rooted in the Enlightenment, with its belief in individualism and the power of human reason.Footnote ⁸² Sulikowski argued for a ‘post-modernisation’ of the Polish constitutional scholarship, including critical analyses of the political and ideological foundations of legal doctrines, especially those developed by the Constitutional Tribunal, such as the right to life ‘from conception’. In his view, the existing constitutional scholarship was animated by the belief in ‘constitutional truth’ generated by adjudication and scholarship, exceedingly focused on the doctrinal recycling and systematisation of the arguments and ideas emerging in the case law of the Constitutional Tribunal rather than their critical analysis.Footnote ⁸³ Moreover, Dębska and Warczok critically deconstructed how the Constitutional Tribunal legitimised its power by presenting itself as a neutral and scientific institution – primarily, by dint of the recruitment of the constitutional judges mostly from professors of law – which speaks for the apolitical ‘sacred law’ rather than ‘profane politics’. It neutralised its politically controversial appraisals, presenting them as objective legal truth.Footnote ⁸⁴ After the constitutional crisis began, defenders of the positivist constitutional law scholarship saw ‘post-modernism’ and the resulting breakdown of trust in an objective constitutional truth as contributing to the rule-of-law decay.Footnote ⁸⁵

The origins of this dominant constitutional imaginary in Poland can be traced back to the communist period.Footnote ⁸⁶ As argued by Zomerski in Chapter 15, the façade communist constitutionalism began to crack in the 1970s and 1980s. Legal academics started analysing how the previously developed theoretical ideas relating to positivist constitutionalism could be put to practice to unmask and remedy the pathologies of the communist regime. This intellectual process informed the setting up of the Supreme Administrative Court, the Ombudsman and the Constitutional Tribunal a few years before the communist regime collapsed in 1989. Also, this process corresponded to the general strategy of the democratic opposition, which demanded taking communist law seriously to obtain legal protection for dissidents, thereby fundamentally transforming the law’s façade nature.

However, liberal and positivist legal constitutional doctrines that helped to dismantle the communist regime and introduce essential legal and political accountability of the holders of public power faced new challenges in the long run. The legitimation strategy based on the supposedly apolitical, objectively rational and scientific nature of liberal and legal constitutionalism – modelled upon the one practised in the West – was increasingly challenging to sustain in the context of the unfolding democratic conflict. During almost thirty years of its operation as an independent institution, the Constitutional Tribunal engaged with several highly controversial political issues, including the settlement with the communist past (lustration),Footnote ⁸⁷ abortion and the freedom of conscience and religion,Footnote ⁸⁸ the equality of men and women,Footnote ⁸⁹ socio-economic reforms during the economic transformationFootnote ⁹⁰ and austerity measures during the global financial crisis undermining the protection of social rights.Footnote ⁹¹

In the context of highly controversial political problems put on the Constitutional Tribunal’s docket, the Constitutional Tribunal might have been portrayed as siding with the previous liberal government, for instance, regarding their socio-economic reforms.Footnote ⁹² Undoubtedly, liberal constitutionalism created appropriate conditions for neoliberal reforms in the region in the 1990s but its relationship to the problems of social justice might have been ambiguous.Footnote ⁹³ Also, as pointed out by Krotoszyński in Chapter 20, a part of the right wing has criticised the Constitutional Tribunal’s decisions relating to the compliance of lustration with the rule-of-law standards as supposedly geared towards protecting the post-communist elites against democratic accountability. The persisting necessity to deal with the communist past, including to revisit the status of former communist elites that transformed in contemporary capitalist elites, remains essential to the political manifesto of this part of the right wing. This is related to the belief in transitional justice being neglected or the absence of systemic regulation for the restitution of property nationalised in Poland after WWII and ensuing judicial failings.Footnote ⁹⁴

The breakdown of the epistemic status of liberal and legal constitutionalism as laying down objectively rational and apolitical standards for enacting laws, including those related to transitional justice, could explain the conduct of right-wing populist politicians engaged in dismantling the Constitutional Tribunal and judicial independence. However, another reasoning is necessary to explain the relative ambivalence of society towards constitutional backsliding. Although some protests and social movements against dismantling constitutional checks and balances emerged, they did not manage to stop the anti-constitutional changes.

Assuming the rationality of social actors, largely uninterested in stopping the constitutional backsliding, some researchers inquire into the functioning of Polish legal institutions before the crisis. They argue that a factor fostering the rule of law crisis in Poland has been severe failings in access to justice and the inefficient functioning of the judiciary coupled with a preference for extra-legal and informal dispute settlement. They found the general population’s relative indifference towards dismantling the rule of law as rational in the short run. ‘If the law is inaccessible and irrelevant, why die for it?’Footnote ⁹⁵ Other researchers also highlight the failings of legal culture and lawyers’ communication with ordinary citizens. Socialised in the tradition of legal formalism and unequipped with argumentative skills, judges and lawyers try as much as possible to apply narrowly construed statutory text. This way, they diminish their responsibility for ‘justice’ in individual cases.Footnote ⁹⁶ Overall, it seems that legal constitutionalism might have generated promises and social expectations of a well-functioning legal system, which were not fulfilled in practice.

In this context, an important question is how the emphasis on legal institutions and principles overshadows the importance of civic engagement and deliberative interactions with the society and its organic organisations. As Muszyński and Skuczyński argue in Chapter 18, in Poland, before 1997, social dialogue operated relatively well, with trade unions collaborating with parliamentary committees to hammer out social policies. However, due to neo-liberal trends of increasing the efficiency and rationalising law-making, social policymaking became top-down, concentrated in the hands of the executive, to efficiently implement the EU acquis prior to the accession. The dominance of the executive branch over parliamentary law-making and social dialogue may create conditions for the emergence of illiberal trends. Legal institutions and principles proved unable, by themselves, to stop these trends.Footnote ⁹⁷

1.2.3.2 Contributions

The contributions in Part III analyse the currently dominant legal, political and economic ideologies of our time – liberal constitutionalism and neoliberalism – and seek to uncover counter-narratives in the member states. It again puts together the experience of the old and Other Europe to uncover their mutual relationship – how one presupposes the other. Related to the triumph of liberalism as a political doctrine (analyses in the following part), the imaginary of individual freedom that gets best realised in the market where free people enter into transactions prevailed over the idea of freedom as something inevitably social – and having dimension of social justice, which demands more than the liberal idea of ‘justice as fairness’. Social question had to be answered through individual responsibility, not collective arrangements. However, constitutions – and, more importantly, constitutional actors – of some member states have resisted such move, which we seek to explore.

The part is introduced by Michal Kopeček’s Chapter 14, on ‘Rule of What Law? Authoritarian Pasts, Liberal Politics and Constitutional Imagination in Early Post-Communist East Central Europe’. Kopeček reveals the great variety of imaginaries in Central and Eastern Europe behind the seemingly uniform concept of Rechtstaat and liberal constitutionalism, as well as related concepts, such as the rule of law, legality or rights. Looking from the historical perspective, he traces the evolution of these concepts in the region, exploring first the main tenets of the socialist legality and how it was challenged by human rights liberalism, with its attempts to empower emerging civil society, leading to the transformation of 1989. Kopeček explains also how human rights liberalism emphasised the cultural transformation of the society, whereas neoliberalism, which came later, aimed at a market transformation. While Rechtstaat seems to have been the overarching concept uniting these and other constitutional imaginaries, it was internally differentiated with various imaginaries playing important roles at different stages of the transformation process. Ultimately, the dominant legal constitutionalism emphasised the need to protect democracy from itself by means of legal institutions, thereby institutionalising mistrust in citizens whom it considered to be not yet ready to take charge, which seems at odds with earlier ambitions of human rights liberalism. Simultaneously, neoliberalism prioritised economic growth and foreign investment. For neoliberals, the rule of law was supposed to guarantee, first and foremost, economic freedom and progress. Kopeček also discusses how Western thinkers writing about the role of law and rights and representing different schools of thought emphasising ‘negative freedom’ or ‘substantive justice’ influenced thinkers in Central and Eastern Europe. Moreover, he discusses how post-communist legal positivists, with their formal understanding of the rule of law, could relatively easily transition to the new constitutional settlement.

This exceptionally rich intellectual history of the rule of law in the region sketched by Kopeček helps understand that the overwhelming consensus about the importance of the rule of law or Rechstaat – fundamentally contested concepts – might in fact have been concealing the great variety of constitutional imaginaries that all seemingly refer to these overarching concepts. Perhaps even more importantly, this history helps understand why the apparent compromise about the rule of law in the region has turned out to be fragile and superficial. With this broad-brush but rich sketch, Kopeček has laid the ground for other chapters in this part of the volume.

Chapter 15, by Wojciech Zomerski, entitled ‘From the Facade to Solid Foundation? The Evolution of the Polish Constitutional Law Discourse in 1944–1989’ helps uncover the deep origins of Polish liberal and legal constitutional imaginary emphasising the idea of apolitical legal science. Zomerski enquires into why legal constitutionalism was so smoothly transplanted in Poland. Blokker had previously discussed this transplant as resulting from the activities of European organisations, such as the European Union and the Council of Europe.Footnote ⁹⁸ However, Zomerski demonstrates that the grounds were prepared long before. Starting from the 1960s, legal academia in Poland enjoyed some intellectual freedom and began developing modern constitutional law ideas rooted in strict legal positivism to portray them as scientific and apolitical in the context of the communist regime. Initially, legal academics were interested in justifying the legal and justiciable nature of the communist Constitution of 1952 and its Kelsenian supremacy over the entire legal order. They argued against its portrayal as a purely ornamental document disconnected from social and political reality. By discussing this Constitution’s limited justiciability and non-judicial enforcement mechanisms, they sought to legitimise the communist regime since constitutional norms stood in stark contrast with reality. This legitimation strategy was linked to the general optics adopted in Polish jurisprudence to portray the interpretation of the law as scientific and apolitical to maintain the law’s relative autonomy from communist politics.Footnote ⁹⁹ As already mentioned, the façade communist constitutionalism began to crack in the 1970 and 1980s. Legal academics started analysing how the previously developed theoretical ideas relating to positivist constitutionalism could be put to practice to unmask and remedy the pathologies of the communist regime by means of legal institutions such as courts or the ombudsman.

The dominance of liberal and legal constitutionalism and a nascent debate about alternative imaginaries does not seem confined to CEE. In Chapter 16, ‘Nordic Democratic Exceptionality after the End of History: A Neoliberalized Constitutional Imaginary?’, Johan Strang discusses the transformation of the Nordic constitutional imaginary. While mainstream Western constitutionalism was about constraining democracy in the name of the rights of citizens, as he argues, Nordic constitutionalism favoured unconstrained democracy enabling progressive social policies. However, Strang argues that the very notion of democracy in the Nordics has changed. Having departed from its roots in popular sovereignty, public participation and redistributive social policies, it is now associated – perhaps just as elsewhere in Europe – with the rule of law, human rights, political and economic freedom. Strang is wondering what the causes of this profound transformation of the Nordic constitutional imaginary are and how this transformation could be researched empirically. Perhaps it is connected to Europeanisation and globalisation. Notably, he does not treat it as a negative phenomenon, seeing in it a chance for avoiding the ‘abusive paternalism’ of the political community and empowering vulnerable minorities.

A reflection on alternatives to liberal constitutionalism and legal institutions was also found in the Portuguese constitutional discourse. In Chapter 17, ‘Fifty Years of Democratic Constitutionalism in Portugal: Between Constitutional Aspirations and the European Path’, Mariana Canotilho discusses, first, the origin and essential characteristics of the Portuguese constitution of 1976 resulting from the democratic revolution of 1974. In her view, that this Constitution has turned out to be so stable comes from the fact that it resulted from a wide political compromise between conservative and socialist forces, even though the compromise itself resulted from a serious conflict. It is a ‘normative constitution’, as Canotilho puts it, with a robust system of constitutional review and an exceptionally rich catalogue of fundamental rights, in which even socio-economic rights are justiciable rather than being merely policy principles. Interestingly, Canotilho notes that such elaborate guarantees of fundamental rights might lead to clashes with EU law, where the latter requires uniform conditions for the effectiveness of EU rules without leaving to the national constitution the possibility to undermine this effectiveness with standards of fundamental rights higher than those recognised at the EU level. Nonetheless, the Portuguese constitution and constitutional case law is widely open to international and EU law. Another essential feature of the Portuguese constitution is elaborate ‘anti-oligarchic’ provisions on political pluralism and democracy that is to be pursued at the different levels of society, including especially participation of political and social actors in public decision-making concerning many spheres of social life (such as healthcare and schools) and even the right of workers to participate in the management of companies. Thus, Portuguese democracy should be decentralised, popular and effective, and not only representative. The Constitution also contains the ‘economic constitution’, which presupposes the political control of the economy and State intervention.

Having characterised the Portuguese Constitution, which indeed seems to differ in important respects from the mainstream liberal constitutions, Canotilho provides an account of the most salient constitutional debates in Portugal. The first one was the constitutional debate regarding the ‘directive constitution’, that is, the extent to which the Constitution limits the lawmakers in pursuing their policies, especially in the socio-economic sphere, including whether there is a constitutional non-retrogression principle regarding the already achieved degree of social protection. Although the Portuguese Constitutional Court might have seemed to abandon this principle, Canotilho believes that the debate comes back in somewhat different terms. The second, closely related debate concerned a clash of the Portuguese economic constitution with the EU austerity measures during the economic crisis. How would compliance with these measures despite constitutional guarantees affect the Constitution’s authority?, asks Canotilho. She argues that, by upholding the social constitutional imaginary, the Constitutional Court gained huge popular support. At the same time, she anticipates further clashes between the Portuguese and European constitutional imaginary. In this context, she argues for mutual openness of both EU and national imaginaries in view of preserving the valuable elements of the national imaginary, especially democracy that is to be pursued at different levels of society and social commitments. This way the EU constitutional imaginary could also be enriched.

Remaining interested in the shortcomings of liberal legal constitutionalism before the constitutional crisis in Poland, Karol Muszyński and Paweł Skuczyński, in Chapter 18, ‘Constitutional Drift: Exploring the Deeper Roots of Polish Constitutional Crisis’ explore how the dominance of liberal and communitarian constitutional imaginaries in the practice of governance in Poland overshadowed nascent practices of societal constitutionalism, thereby leading to the ‘constitutional crisis’ in the long run. They argue that an imaginary of societal constitutionalism has long been present in Polish society. According to it, different societal subsystems (labour, healthcare, politics) generate their own normativity and seek to influence the general law-making process. This imaginary corresponds to ‘the classic corporate social model characteristic for continental Europe’. Hence, the importance of social dialogue between the executive, the lawmakers and social actors and creating opportunities for them to express their normativity and participate in governance. Otherwise, social actors become alienated, the social authority of law to the hammering out of which these actors could not contribute drops drastically, whereas the social system becomes susceptible to strategic action and control by actors wishing to seize the ‘whole power’. They call this process a ‘constitutional drift’ which, in their view, explains the deep roots of the Polish constitutional crisis.

First, the authors argue that the Polish Constitution of 1997, resulting from a challenging political compromise, was drafted in sufficiently broad terms to accommodate interpretations in the spirit of liberal, communitarian and societal constitutional imaginary alike. The Constitution granted a special status to many types of social organisations and social dialogue. Nonetheless, in the long run, the societal imaginary was overshadowed by the liberal and communitarian imaginaries. In these imaginaries, the Constitution was seen as a vehicle of substantive values (negative freedom or common good) rather than a catalyst of a process in which societal organisations could effectively contribute to the genuinely democratic law-making process with their own normativities. The authors argue that the accession to the EU could play a role in this regard. Although the EU law itself gives an important role to social dialogue, in Poland social dialogue might have been seen as an obstacle to a technocratic Europeanisation of the legal order and an effective absorption of EU funds. In the mid-2000s, the role of social organisations was reduced by the executive to that of providers of technical input and expertise rather than fully-fledged social normativity. At that time, the rise of the executive had already become evident, coupled with the undermining of the parliament and treating it as a ‘voting machine’.

In the view of the authors, the subsequent ‘constitutional crisis’, during which the executive sought to assert dominance over the judiciary, was only a continuation of earlier trends. At the same time, the authors believe that societal constitutionalism must be revived in Poland to stop and reverse the ‘constitutional drift’, thereby safeguarding the political system against constitutional crises in the future.

François-Xavier Millet’s Chapter 19, ‘On the French Constitutional Imaginary: The Erosion of the Long-standing Republican Tradition’, discusses not so much the tension between liberalism and the social question, but a tension between liberalism and the Republican imaginary that put much more emphasis on the positive or political liberty, the formation of general interest or general will. Nonetheless, the social question and solidarity are still important components of the Republican imaginary.

Millet argues that the Republican imaginary is still evident in many other idiosyncrasies of the French constitutional law and it continues to clash with the Anglo-Saxon liberalism underlying the EU integration, including the law of the European Union and the European Convention of Human Rights. Having traced the deep roots of the Republican thinking in terms of ‘common good’ to, paradoxically, the monarchic Ancient Regime, Millet subsequently offers a tour de force through the French constitutional law. He highlights characteristic constitutional emanations of the Republican thought. He notes that even the French ‘unbridled passion for constitution’ is an expression of a typical Republican quest for best possible constitutional arrangements securing a perfect political regime and the formation of the general will rather than only a legal framework offering negative and individualistic safeguards against the State. He also notes such Republican elements in the French constitutional law as the indivisibility and centralisation of the State, the trust in the ability of the parliament to express the general will and general interest, coupled with the initial absence of mechanisms designed to enforce any supra-legislative individual rights against such general will, as well as laïcité (which, in the eyes of a liberal constitutionalist, may disproportionately restrict the freedom of religion), a special body of administrative law protecting public property, or the priority given to fundamental rights that are collective in nature (such as the freedom of the press and association). Certainly, many specific constitutional arrangements identified by Millet cannot be considered exclusively French (for instance, in Chapter 18, Muszyński and Skuczyński mention the elements of a Republican–communitarian constitutional imaginary in the Polish constitution-making process), but their accumulation in France clearly shows a distinct and dominant constitutional imaginary.

Subsequently, Millet moves to the French intellectual history, trying to discover any traces of genuine liberal thinkers in France. He admits himself that he fails in this quest, as even in the liberal thought he discusses he finds a distinct Republican flavour. He is also sceptical about any major intellectual turn towards liberalism in the 1970s in France. Coming back to constitutional law, he admits that the Republican constitutional imaginary has been seriously affected because of external factors such as the European Union and the European Convention of Human Rights. Certain Republican concepts, such as sovereignty, have been progressively replaced by their liberal substitutes, such as constitutional identity. Europeanisation is the reason, according to Millet, why the judicial review of legislation has been reinforced in France and encompassed not only the Republican concern for the separation of powers but also the liberal concern for individual fundamental rights.

Finally, Millet discusses how the Republican and liberal constitutional imaginary clash within the French debates as well as legal and political developments concerning Europe, such as the ratification of the Maastricht Treaty, the referendum of the European Constitution and the Yellow Vests movement. Thus, he shows that the clash of the imaginaries regularly resurfaces.

Another tension that legal and liberal constitutionalism may cause concerns the pursuit of transitional justice. In this context, Michał Krotoszyński’s ‘From Legal Impossibilism to the Rule of Law Crisis: Transitional Justice and Polish Counter-Constitutionalism’ (Chapter 20) is a fact-checking exercise. It verifies whether liberal legal constitutionalism formed obstacles towards an alternative constitutional imaginary of transitional justice, especially lustration mechanisms. The author demonstrates that the accusation in this regard against the Constitutional Tribunal remains unjustified on legal grounds. First, he argues that, when it comes to transitional justice standards, Polish constitutionalism was not ‘imitative’ but ‘adaptive’, which again provides nuance to Blokker’s argument of imitative constitutionalism in post-communist Europe. The Constitutional Tribunal creatively adjusted to the Polish context Western European recommendations (for instance, by the Council of Europe), thereby leaving the politicians with ample leeway to attain the political goals of lustration. Importantly, dissenting judges frequently expressed their expectations of either more transitional justice-oriented or more strictly rule-of-law approaches to the challenged lustration mechanism, proving the Constitutional Tribunal’s preference for the middle-ground. Overall, the Constitutional Tribunal was not hostile to transitional justice. Instead, the politicians created the narrative of clashing constitutional imaginaries. They failed to enact efficient mechanisms for dealing with the communist past addressing the constitutional standards, blaming the Constitutional Tribunal.