WE WILL ALWAYS HAVE PARIS: CROATIA’S STRUGGLES WITH SYMBOLIC AND OPERATIVE CONSTITUTIONAL MEANING

Once transported to Croatian constitutional law, the iconic line from Casablanca evokes more than the remembrance of a love lost. The French capital has recently been the figurative site of struggle over Croatian foreign policy, powers of the executive, and the role of the military in relation to both. Once the sitting president of France, Emmanuel Macron, announced that the 2026 Bastille Day Parade would also be a gathering of the Coalition of the Willing, a bloc supporting Ukraine in its war with Russia, a controversy concerning Croatia’s participation in the event ensued. In foreign policy terms, the participation of the Croatian Armed Forces in the parade was a point of contention between the president of the Republic, Zoran Milanović, and the prime minister. Andrej Plenković. The head of state strenuously argued that the Croatian military should not participate in the gathering, pointing to the implications it may have for the country’s involvement in the Ukraine war. The prime minister, on the other hand, had the minister of defence order that a unit of the military participate in Bastille Day Parade. In response, the president of the Republic invoked his constitutional authority as the supreme commander of the armed forces. The Chief of the General Staff obeyed the president’s order. Ultimately, the prime minister ordered the participation of a special, anti-terrorist unit of the police instead. Seeing as the police is not a part of the military, the president was unable to prohibit its engagement in the Parade.

While the conflict between the president of the Republic and the prime minister had abated, its constitutional significance should not be understated. In what follows, I will argue that the key problem the controversy has revealed is the seeping of the symbolic constitutional meaning into its operative significance and vice-versa. As the recent research on presidential lawfare demonstrates, the ostensibly symbolic powers of the head of state may be a key site of struggle over constitutional government.¹ The Croatian case adds to the significance of the symbolic by illustrating how it can be used as a device of constitutional meaning-making that is not necessarily restricted to symbolic powers of the head of state.

Beyond black letter law: the operative and the symbolic in the Paris controversy

In the days following the Bastille Day controversy, pundits, some of whom are constitutional scholars, presupposed that the problem at hand was the interpretation of black letter law.² The presupposition is not without merit. Under the Constitution, the president of the Republic is the supreme commander of the Armed Forces.³ Under the Defence Act, they are entrusted with the power to represent the military “at home and abroad”.⁴ The Defence Act, however, also empowers the minister of defence to order the deployment of the military for “ceremonial” and “protocol” occasions.⁵ The task at hand does seem to require a reconstruction of meaning through legal interpretation. The aim is ostensibly a parsing of powers of the head of state as a constitutional institution as opposed to the minister of defence as only one member of the government. 

Finding meaning in this case, however, required more than thinking about black letter law. It required attending to the different facets of constitutional institutions, in particular that of the president of the Republic. In addition to being the supreme commander of the Armed Forces, the head of state is entrusted with the task of representing the Republic both within and beyond the country’s boundaries and is the caretaker of the regular functioning and the stability of the institutions of state. Finally, the president of the Republic is responsible for defending “the independence and the territorial integrity” of the country.⁶ Just as the Croatian Parliament is simultaneously the representative body of the citizenry and the legislator, the president of the Republic wears several hats. The constitutional differentiation of the roles carried out by different institutions is an underappreciated technique of both generating and limiting power. In order to stay grounded in the Constitution, institutions are not only required to exercise powers as granted by the fundamental act. In doing so, they must play the roles constitutionally set down for them. 

By differentiating the roles of the president of the Republic, the Constitution does more than draw a semantic line between representing the Republic and caring for the stability of government. It outlines the ways the head of state is to be conceived. The Constitution situates the office of the president between its operative powers, such as that of dissolving the Parliament, and the more abstract roles meant to guide the exercise of powers. The president’s duty to care for the stability of government is an example of a role closely tied to the dissolution of Parliament. Unlike the powers conferred by the Constitution, the roles attached to the office of the head of state are open-ended, meant to anticipate the finalities of the president’s powers. They are symbolic in that they are not exhaustive; they are meant to contain more than the law. In setting down what the head of state is meant to be, they provide guidance to political prudence. Once interpreted in isolation, however, their open-endedness may detach the operative constitutional powers from constitutional limits. If the duty to protect the country’s sovereignty is severed from the operative powers of the president over the Armed Forces, it is possible to read extensive implied powers into the Constitution. 

Intertwining the operative and the symbolic in constitutional interpretation

In the Paris controversy, commentators arguing for the president’s power to prohibit the military from participating in the Bastille Day parade have turned to a seemingly simple instrument. If the Constitution vests the president with the role of the “supreme commander”, the holder of the office must be a commander that is supreme. Hence, their power to prohibit the military from participating in a ceremony must be read into the “supremeness” of the president’s command. Moreover, as the president of the Republic is an institution grounded in the Constitution itself, its position must be superior to that of an individual minister. Here the Constitution is drawn upon to represent a particular hierarchy.⁷ The interpretative moves do not only carve out the supremacy of the command from the rest of the constitutional context, but make the fulcrum out of a single role of the president, that of safeguarding the country’s sovereignty and territorial integrity. Instead of being only one constitutional facet of the office of the president, its expansive reading becomes a decisive factor. 

While appearing reasonable, the interpretation surreptitiously produces two effects. In the first place – and particularly in interventions of academics – it provides further legitimacy to an interpretative method that conjoins one controversy and the meaning of the constitution. The constitution exists only through representations of powers that be and their responses to individual cases determine constitutional meaning in the full. Second, by failing to distinguish operative constitutional powers from the by and large symbolic layers of constitutional roles, the interpretation produces a flattening effect. The symbolic may be operative and the operative symbolic. In circumstances that demand it, the two may freely change places. Recast through an intricate dance of form and content, the Constitution is a source of freewheeling political practices, becoming opaque to those who are not in the position to be its authorized soothsayers. 

Justifying the reconfiguration of the operative and the symbolic

That the “supreme commander” is not a symbolic category to be vested with expansive meaning is evident already from the constitutional provisions regulating the function. Not only must the president of the Republic appoint and remove military commanders in accordance with the law passed by the parliament, but remains curtailed by the parliament or the government even in cases of emergency.⁸ The supremacy of their command is thus only relevant to the extent it is required for the military to remain subordinate to the civil powers of the state and to meet its constitutional objective. The Constitution vests the army with the task of protecting the country’s sovereignty, independence and territorial integrity. The Armed Forces are a means to an end, to be deployed only when necessary and, given that the Constitution enshrines peace-making as one of its highest values, never in an act of aggression.⁹ The army was clearly not intended to be a pawn in the political struggle of the day. Indeed, power over it is shared between the government, the president of the Republic, and the Parliament, the latter wielding the power to legislate and to enforce civic oversight over the military.¹⁰ In its role, the Parliament adopted several laws immediately relevant to the army, most importantly the Act on the Service in the Armed Forces of the Republic of Croatia and the Defence Act. 

The extensive interpretation of presidential powers was justified by the curtailment of the one-sided exercise of power over foreign affairs by the prime minister and the government at large. However, the interpretation fails to provide limits to the powers of the head of state, the central barrier being the “supreme” nature of their command. Similar was the interpretation of some administrative law scholars who argued that, in an earlier controversy, the government had the amorphous power to intervene in a public gathering at the Croatian capital’s central square. The move was justified by the city of Zagreb’s failure to uphold the constitutionally operative rule of law, while Zagreb called into question the state’s failure to curtail hate speech.¹¹ In the Paris controversy, the failure was situated on the divide between foreign policy and military command. In both cases, the line between the operative and the symbolic is blurred to generate constitutional meaning geared towards a specific controversy. 

The interpretation that draws on the symbolic has found some purchase in the Defence Act. According to the academic supporters of the thesis, the Act provides that the president of the Republic, as “the supreme commander”, represents the military “at home and abroad”.¹² Seeing as this is the case, it is argued that the president has the legal power to decide who and how may represent the military and that the minister of defence may only suggest a particular decision or enforce the president’s will. Under this interpretation, the defence minister cannot order the military to participate in a ceremony on their own initiative, and the Defence Act’s provisions that suggest the contrary should be read in this light. 

The reconstruction of the law that vests the president of the Republic with representative authority is the culmination of a constitutional interpretation that merges operative constitutional meaning with its symbolic structures. It is not a proper justification of the interpretation as much as it is an invocation of legal form that is possible only if it is propped up by constitutional symbolism. The Defence Act regulates the president of the Republic as the “supreme commander”, i.e. the bearer of an operative function whose purview is always limited. Those who argue that his legislatively provided role should be read extensively, however, argue that the president’s power to represent the military is broad and final. They do so despite the Defence Act placing limits on at least some of the president’s decision-making on representing the military.¹³ A more limited reading is counteracted by merging the operative form, the “supreme commander”, with symbolic content, the role of a symbolic representative. 

While the president bears the constitutional role of representing the Republic,¹⁴ there is no indication that this single constitutional role can be extended to absorb all others. In assimilating the role of the supreme commander into the president’s necessarily more abstract role of a symbolic representative, the office of the head of state is changed without amending the Constitution. The role of a symbolic representative, vulgarised in public commentary as a power to stand in for the military or to delegate the same role to another actor, is mobilised to provide meaning to an operative constitutional problem. The latter is not really about the military as much as it is about foreign policy and the failure of the prime minister and the head of state to agree on it. 

Do we only have Paris? Broader questions of the operative and the symbolic

As noted in the introduction to this post, symbolic powers of the head of state should not be overlooked because they do not appear to be decisive in a legal sense.¹⁵ Additionally, we should take into account that the “symbolic” is more than an attribute of specific powers. What is symbolic is not necessarily such because it is limited in its operative significance. The symbolic is also about using the constitutional form to express something that is beyond it. In the case of the Croatian head of state, the reading that insists on attributing “the supreme commander” with implied competences relies on a symbolic vision of supremacy. Importantly, the vision is used to justify the president of the Republic’s decision to deviate from a law that empowers the minister of defence to decide on the use of the military in ceremonial and protocol events. The underlying idea is that there is a constitutional ordering that cannot be limited by the parliament, although such an ordering finds no support in the operative framework the Constitution provides. Much as is the case with the disputes concerning the symbolic powers of the head of state, a symbolic reading of the “supreme commander” is used to effect changes to the positive law that bypass the regular channels of legal contestation. Instead of changing the law in the parliament, challenging it before the Constitutional Court or amending the Constitution, the symbolic dimension of a constitutional role is plastered across the controversy.

The symbolic deployment of a constitutional form in the Croatian case requires us to consider at least three interconnected issues. First, it calls to mind the role of the imaginary dimension of constitutional law. As argued by Castoriadis, the constitutional form, including the broad labels of “the legislative” and the “executive” rely on “imaginary significations”.¹⁶ Similarly, the interplay of the operative and the symbolic in constitutional form must be underpinned by imaginary significations that require more work. Is the idea that “the state is them”, an alienation of “the people” from the government that characterizes modern statehood,¹⁷ at the root of the problem? Second, the differentiation between powers of individual institutions and the roles that may be attributed to them should be explored further. In the Croatian case, institutional roles appear to be a way to anticipate the scope of constitutionally legitimate action taken by an institution. Although no constitution may predict all the possible configurations the powers of state may find themselves in, it can attempt enshrining the ways we are to conceive of their ultimate ends. Institutional roles may be one such device. Third, the use of the symbolic in this case calls to mind the ways of constitutional meaning-making that either obviate or stretch a juristic approach that insists on a particular form of reasoning. What are the different ways the symbolic may be used and in what projects? Here a comparative constitutional project may benefit from different disciplines that have engaged with the aesthetic dimension of the law.

1. Michał Stambulski, “Sovereign Presidential Lawfare in the Populist Context,” Legal Ethics, 2026, 1–13, https://doi.org/https://doi.org/10.1080/1460728x.2026.2694288.
2. See, for example, https://www.nacional.hr/dorde-gardasevic-izjava-plenkovica-da-sastav-ustavnog-suda-mora-reflektirati-sastav-sabora-je-protuustavna-i-sumrak-pravne-drzave/; and https://www.nacional.hr/gost-kolumnist-kad-ustav-nema-arbitra-pariz-je-povod-ustavna-nemoc-tema/
3. …The Constitution of the Republic of Croatia, Official Gazette No. 56/90, 135/97, 08/98, 113/00, 124/00, 28/01, 41/01, 55/01, 76/10, 85/10, 05/14 (hereinafter, the Constitution), Art. 100(1).
4. The Defence Act, Official Gazette No. 73/13, 75/15, 27/16, 110/17, 30/18, 70/19, 155/23, 136/25 (hereinafter: the Defence Act), Art. 7(1)(7).
5. The Defence Act, 69(5).
6. The Constitution, Art. 94.
7. Miloš, Matija, Framing Political Processes through Constitution-Based Symbolic Representation, in Belov, Martin, ed. Representative Democracy in Flux. Deconstructive Narratives from a Legal and Constitutional perspective, Routledge, New York, pp. 79-85.
8. The Constitution, Arts. 100 and 101.
9. The Constitution, Art. 3.
10. The Constitution, Arts. 7 and 81.
11. On arguments from failure, see Hailbronner,  Michaela, The Failures of Others. Justifying Institutional Expansion in Comparative Public and International Law, Cambridge University Press, Cambridge, 2025.
12. The Defence Act, Official Gazette No. 73/13, 75/15, 27/16, 110/17, 30/18, 70/19, 155/23, 136/25 (hereinafter: the Defence Act), Art. 7.
13. The Defence Act, Art. 7.
14. The Constitution, Art. 94(1).
15. Stambulski, n1.
16. Castoriadis, Cornelius, The Greek and the Modern Political Imaginary, in: David Ames Curtis (ed.) World in Fragments. Writings on Politics, Society, Psychoanalysis, and the Imagination, Stanford University Press, Stanford, 1997, p. 94.
17. Ibid., p. 95.