Summary

The question of identity has always been a source of bad blood in Estonia. Similarly, discussions relating to the need and ways of protecting our constitutional identity (fundamental principles of the Constitution) tend to polarise on along a sovereignist-federalist axis. Taking sides on this issue is by no means unique to Estonia: the entire debate concerning the supremacy of the European Union in Europe is characterised by a power struggle between people proceeding from different ideologies. This article proceeds from the premise that a third option is also possible. Italian legal scholar Paolo Carrozza has noted that today, all Europeans live under a multi-tiered government that is spread between three or more centres of power. This fact forces us to abandon a hierarchical (state-centred) approach to the analysis of law and to renounce our efforts to strive for unity in law. The latter, however, means a form of horror iuris that requires jurists to perform complex mental gymnastics.

This article does not aim to authoritatively dispel this legal nightmare. Indeed, the author agrees with the position that today’s world and the structure of the legal relationships underlying its organisation have pushed those who yearn for a single, right answer farther adrift from their (legal) ideal, and have transformed jurisprudence from a discipline involving the identification of the right legal norm and its correct application into the art of orientation in new labyrinths of power and law and of providing convincing reasons for positions taken along the way. The author proceeds from this position into an evaluation of the state of contemporary constitutionalism and questions whether and how the awkward figure of constitutional identity can fit into the new constitutional constellation.