Democracy is, for those of us living in democracies, something non-negotiable, and rightfully so. However, as a side effect of this ‘eternality of democracy’, we tend to consider the particular form and nature of democracy in a particular country as something given that cannot be changed as the particular shape of democracy is considered not as deliberated within the political life of the society but as given by the pre-constitutional sovereign. We are trying to create an impression of fixed democratic identities of our states, hoping it would protect us against any democratic backsliding.

However, the nature of the democratic state and its political people has never been fixed or given by the sovereign. It is a continuous process of collective imagination within both the state and the political people, creating together an establishment—a structural coupling between the organisational systems of the state and the political people.

The Establishment Research Project (‘the ERP’) aims to research precisely this sub-democratic level of society—the establishment—to understand how the collective identities of the constitutional state and political people are imagined, what actors and factors are the key elements of such process, and what is the role of the law in those collective imaginaries.

The ERP is aimed to be a continuous long-term project that has begun in 2019 as (and is currently undertaken as) a PhD project focused solely on the examination of the ability of the political parties to shape the establishment through their legislative activity and, therefore, profile themselves as establishment or anti-establishment parties.
The political parties have been chosen as the first analysed actor because the political parties, as prominent elements of both the politics and broader public space, could be capable of influencing not only the ‘low politics’ of the day-to-day management of society, i.e. various policies concerning taxes, immigration, policing, health care etc. but also the ‘high politics’, that is, how the democratic state and its political people would look like. Moreover, we push any political party promoting a change of the particular setting of democracy out of the ‘democratic’ camp into to fold of anti-democratic parties, no matter whether labelled as populist, undemocratic, radical, or extremist and, therefore, an examination of those parties seems to be vital also for an understanding of the plurality of possible establishment within a democracy.

The political parties of Italy and the Czech Republic have been chosen as examined cases because those two countries show several similarities enabling a comprehensive comparison; e.g. similar basic constitutional framework; both states have to deal with their totalitarian histories; political parties are considered populist took over the governmental responsibility in both countries and so far have not headed towards authoritarianism; both countries face, or have faced, similar social phenomena—a leading politician controlling mass media, a rise of the apolitical politics and the far-right, strong anti-communism campaigns etc.

The main arguments of the ERP

  1. Democratic establishment reflects the two fundamental elements of any democracy—republican (liberal) principle of restraining the power by the rule of law and democratic principle of popular rule—but it is not democracy itself. Democracy has to be understood as a (relatively) stable and long-term arrangement of the organisation of the society, its basic institutional and procedural framework, and the fundamental common values on which society is built. Establishment, on the other hand, is a particular setting of democracy; it is what distinguishes one democracy from another and creates the polity within it.
  2. As the establishment is, in fact, a contextualisation of democracy within a particular time and space, it is defined by those two fundamental principles of democracy (liberal and popular); the former being encapsulated by the constitutional identity of the state as it is the constitutional nature of the state that restrain the power in a democracy, latter by the popular identity of the political people as it is the political people—polity—that exercises the popular rule in a democracy.
  3. Following Luhmann’s social systems theory, both the state and the political people are considered autopoietic organisational systems to capture their nature as phenomena manifesting themselves only in moments of their decisions and operating within multiple function systems.
  4. An autopoietic organisational system exists as long as it distinguishes itself from its environment. This distinction might be called identity if such is understood as a never-ending process of collective imaginary and not as a preëxisting quality. Therefore, I examine the constitutional identity of the state organisational system and the popular identity of the political people organisational system as those two identities encapsulate the nature of those two organisational systems.
  5. The only way to examine the identity of an organisational system is through its decisions (communication of the organisational system) as they are the articulation of the collective imaginary; that is, it is not possible to examine the collective imaginary directly as it is only an inner process of the membership of the organisational system.
  6. When examining the decisions of an organisational system, I am interested in 1) who makes them, 2) how is the decision-making process regulated, and 3) what connects individual decisions together. Here, Smend’s integrative theory offers a useful conceptual framework of, what I call, an integrative triad of personal elements, procedural elements, and value elements, which all together create the organisational structure of the organisational system enabling not only decision-making but also its future continuation.
  7. The personal elements are those who articulate the collective imaginary of the membership of an organisational system as such, is not able to articulate it on its own in its totality. In other words, the personal elements are representatives of the organisation’s membership that concretise the collective imaginary of the membership by its articulation.
  8. The procedural elements are the (not necessarily legal) regulation of the decision-making process that ensures the decisions are going to be made in the future. It is the formation of the organisational structure into patterns enabling a schematic repetitiveness of the decision-making.
  9. The value elements, on the one hand, create the representative link between the organisation’s membership and the personal elements, and on the other, constitutes the connectivity of particular decisions by selecting which decisions are going to be part of the series of decisions and which not, and by interpreting those decisions included, so they fit into the series. In other words, value elements create connectivity by means of social memory and social forgetting.
  10. The decisions of the state organisational system are:
  • a. law—no matter whether primary or secondary legislation, no matter whether issued by parliament, central or regional government, whether written or unwritten (e.g. constitution, law decree, ministerial regulation);
  • b. judicial decision (e.g. constitutional court judgement);
  • c. other decisions of various constitutional bodies, officials, and authorities no matter their form or (legal) nature (e.g. president’s decision to name a prime minister, the decision of a central bank to regulate mortgages, the government’s decision to organise a nationwide celebration of an important anniversary);
  • d. administrative decisions (e.g. expropriation decision, building permit).

11.The decisions of the political people organisational system are:

  • a. electoral decisions and referenda;
  • b. mass demonstrations, general strikes, and revolutions;
  • c. public holidays celebrations (e.g. Bastille Day in France, Day of the Republic in Italy);
  • d. cultural-product appropriations (e.g. U.S. Constitution understood by the People as a cultural product articulating its identity).
My name is Lukáš Lev Červinka and I am a postdoctoral researcher in Constitutional Law and Theory, focusing predominantly on the sociology of (constitutional) law both from the theoretical and empirical perspectives.

My scholarly interests lie mainly in understanding how the law can stimulate social imaginary and how the social context can stimulate the constitutional imaginary—in both cases, following the works of Luhmann, Taylor, Anderson, Laclau, and Přibáň.

Alongside the realm of constitutional theory, I am also interested in the topic of law and science fiction, that is, what can the pop-culture sci-fi tell us about not only legal utopias and dystopia, i.e. possible legal future and alternatives, but also about our current understanding of law and role of law within society.

Charles University,
Faculty of Law

The ERP began in 2019 as a Cotutelle PhD project at the Department of Constitutional Law at the Charles University, Faculty of Law, and has also received generous support from the Charles University Grant Agency (grant No. 462120 ‘Anti-Establishment Parties: Threat to Democracy or Chance for its New Equilibrium?’ in the amount of 648,000 CZK (EUR 26,300)). Special thanks go to professor Jan Wintr, who supervised the PhD project at Charles University, for his advice and never-ending patience, and professor Marek Antoš, head of the Department of Constitutional Law, for his continuous support.
Ca’ Foscari University of Venice,
Department of Economics

Alongside Charles University, the PhD project has also been carried out at the Department of Economics at the Ca’ Foscari University of Venice. First, under the supervision of professor Andrea Pin (University of Padova) and, later, under the supervision of professor Andrea Biondi (King’s College London), both of whom I am highly indebted for leading me through the rough waters of a PhD research and for giving me supportive feedback and words of encouragement.
Cardiff University,
Centre of Law and Society

The ERP has also been realised thanks to the great opportunity to participate in the Visiting Scholar programme at the Cardiff University, Centre of Law and Society, from January to June 2022. Special thanks go to professor Jiří Přibáň, my academic sponsor at the Centre of Law and Society, for the opportunity to discuss my ideas with him and for the friendly mentoring not only in the field of sociology of law but also in the scholarly work and life.
King’s College London,
The Dickson Poon School of Law

I have also greatly benefited from the opportunity to participate in the Visiting Research Student Programme at the Dickson Poon School of Law of King’s College London in November 2022 under the academic sponsorship of professor Andrea Biondi.
The Establishment Research Project has been realised
thanks to the support of the following organisations:
Sylff Association

The ERP has been supported from 2021 to 2023 by the individual Sylff Fellowship of USD 25,000 (EUR 23,800).
International Institute for the Sociology of Law

The IISL was generous in providing me a Residence grant and, therefore, an opportunity to spend a few weeks in Oñati and take an advantage of their magnificent library.
Červinka, Lukáš Lev. “Constitutions as Mediums of Collective Identities.” German Law Journal, 2024, 1–17. https://doi.org/10.1017/glj.2024.8.

Červinka, Lukáš Lev. "Ústavní teorie a teorie komplexity' in Žák Krzyžanková, Katarzyna. et al. Právo a společnost v digitálním věku. Teorie, praxe, empirie. Prague: Auditorium, 2023, 114-26.
(transl.: Constitutional Theory and Theory of Complexity in Law and Society in Digital Age. Theory, practice, empiricism.)

Červinka, Lukáš Lev. "The Czech Constitutional Court, the Unconstitutionality of the Electoral Legislation, and the Possible Constitutional Deadlock". DPCE Online, 2021, 47 (2): 2733-50. http://dx.doi.org/10.57660/dpceonline.2021.1382.
SLSA Ulster 2023 Conference (April 2023, Derry-Londonderry, UK)
Socio-Legal Studies Association
paper presentation: The Czech Constitutional Identity: An Imaginarian Approach

World Congress of Constitutional Law 2022 (December 2022, Johannesburg, South Africa)
International Association of Constitutional Law
paper presentation: Imagining the Popular Identity: Constitution and Its People

2022 Global Meeting on Law & Society (July 2022, Lisbon, Portugal)
Law & Society Association, Lisbon
paper presentation: Constitutions as Mediums of Collective Identities

SLSA York 2022 Conference (April 2022, York, UK)
Socio-Legal Studies Association
poster: Establishment as a Structural Coupling Between Constitutional and Popular Identity

Political Imagination and Utopian Energies in Central and Eastern Europe
(September 2021, Prague, Czechia)
13th CEE Forum Conference
paper presentation: Czech Republic’s Constitutional Identity as a Narrative Constitutional Imaginary
Lukáš Lev Červinka, PhD et PhD

postdoc in sociology of constitutions
lukas.cervinka@gmail.com | ORCiD
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