European Union Constitution-Making, Political Identity and Central European Reflections

Abstract: This article focuses on the European Union's constitution‐making efforts and their specific reflections in the Central European accession states. It analyses both the temporal and spatial dimensions of constitution‐making and addresses the problems of political identity related to ethnic divisions and civic demos. It starts by summarising the major arguments supporting the Union's constitution‐making project and emphasises the Union's symbolic power as a polity built on the principles of civil society and parliamentary democracy. The EU's official rejection of ethnically based political identity played an important symbolic role in post‐Communist constitutional and legal transformations in Central Europe in the 1990s. In the following part, the text analyses the temporal dimension of the EU's identity‐building and constitution‐making and emphasises its profoundly future‐oriented structure. The concept of identity as the ‘future in process’ is the only option of how to deal with the absence of the European demos. Furthermore, it initiates the politically much‐needed constitution‐making process. The following spatial analysis of this process emphasises positive aspects of the horizontal model of constitution‐making, its elements in the Convention's deliberation and their positive effect on the Central European accession states. The article concludes by understanding the emerging European identity as a multi‐level identity of civil political virtues surrounded by old loyalties and traditions, which supports the conversational model of liberal democratic politics, reflects the continent's heterogeneity and leads to the beneficial combination of universal principles and political realism.     

Europe: Political,Not Cosmopolitan

The article challenges the established view according to which the authority of the EU is inexplicable in terms of collective civic self‐determination. Contrary to this widely held belief, it explains the condition under which it is plausible to impute the current shape of the Union to the collective self‐determination of European citizens. This condition is met if citizens approach the Union with a cosmopolitan attitude. The article then goes on to explain that while the Union may not appear optimal under this condition, it looks quite disastrous when approached from the perspective of political self‐determination. The argument makes an appeal to European citizens. They have to come to grips with their own self‐understanding. Should European citizens come to realise that they are, after all, political beings because they care about sustaining a form of life at specific place of the world, they will have to re‐appropriate Europe for themselves.     

The Constitution's Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union1

Abstract: Our aim in this article is to consider whether the Union's deliberation over and decision‐making on constitutional norms, can contribute to render it more democratic. From a normative perspective, the way a constitution is forged has deep implications for its democratic legitimacy. In light of recent events, we consider how procedural changes in constitution‐making might contribute to rectify the Union's democratic deficit. To do so we first develop a thin model of constitution‐making based on the central tenets of deliberative democracy. Through this we seek to outline how a legitimate constitution‐making process will look from a deliberative democratic perspective. Second, we distil out some of the core characteristics of the Intergovernmental Conference (hereafter, IGC) model and assess this against the normative model, to establish the democratic quality of the IGC model. Third, we assess the current Laeken process by means of spelling out the central tenets of this mode of constitution‐making, and we assess it in relation to the normative standards of the deliberative model. In the fourth and final step, we consider what contribution constitution‐making might make to the handling of the EU's legitimacy deficit(s). We find that the Laeken process, in contrast to previous IGCs, was explicitly framed as a matter of constitution‐making. It carried further the democratization of constitution‐making, through its heightened degree of inclusivity and transparency. However, when considered in relation to the deliberative‐democratic model, it is clear that the Laeken Constitutional Treaty cannot be accorded the full dignity of a democratic constitution. The Constitutional Treaty can however lay the foundations for We the European people to speak.     

The Subjects of Collectively Binding Decisions: Democratic Inclusion and Extraterritorial Law

Citizenship and residency are basic conditions for political inclusion in a democracy. However, if democracy is premised on the inclusion of everyone subject to collectively binding decisions, the relevance of either citizenship or residency for recognition as a member of the polity is uncertain. The aim of this paper is to specify the conditions for being subject to collective decisions in the sense relevant to democratic theory. Three conceptions of what it means to be subject to collectively binding decisions are identified and examined, referring to those subject to legal duties and legal powers or to those subject to legal duties and state institutions. The contrast between them is most clearly illustrated in relation to non‐residents, those not present in the territory of the state. The extraterritorial dimension of the law thus highlights a fundamental ambiguity in the theory of democracy concerning the extension of political rights.     

Still in Deficit: Rights,Regulation, and Democracy in the EU1

Abstract: Critics of the EU's democratic deficit standardly attribute the problem to either sociocultural reasons, principally the lack of a demos and public sphere, or institutional factors, notably the lack of electoral accountability because of the limited ability of the European Parliament to legislate and control the executive powers of the Commission and the Council of Ministers. Recently two groups of theorists have argued neither deficit need prove problematic. The first group adopts a rights‐based view of democracy and claims that a European consensus on rights, as represented by the Charter of Fundamental European Rights, can offer the basis of citizen allegiance to EU wide democracy, thereby overcoming the demos deficit. The second group adopts a public‐interest view of democracy and argues that so long as delegated authorities enact policies that are ‘for’ the people, then the absence of institutional forms that facilitate democracy ‘by’ the people are likewise unnecessary—indeed, in certain areas they may be positively harmful. This article argues that both views are normatively and empirically flawed. This is because there is no consensus on rights or the public interest apart from the majority view of a demos secured through parliamentary institutions. To the extent that these remain absent at the EU level, a democratic deficit continues to exist.     

The Management of New Forms of Governance by Former Accession Countries of the European Union: Institutional Twinning in Estonia and Hungary

Abstract: At the Copenhagen summit of 1993, the European Union introduced three criteria for accession to the European Union—political, economic, and adoption of the acquis—combined in 1995 with the necessity, for the candidate states, to have the institutional capacity to implement the acquis.?Until the reform of the PHARE programme in 1997, the European Union did not have any cooperation programme for institution‐building. Conceived as an innovative instrument in European external cooperation, institutional twinnings are inspired, in their design and their implementation, by new methods of governance emerging from the internal policies of the European Union (new public management, open method of coordination). How did the candidate countries interpret and implement institutional twinnings? Can one simply speak of institutional transfers or are the results of cooperation between Western and Eastern élites and experts of a more complex nature? This article attempts to draw some lessons from the experience of twinning on the basis of sectoral case studies in two countries, Estonia and Hungary, which took part to the EU enlargement of May 2004.     

Au nom de qui? The European Court of Justice between Member States,Civil Society and Union Citizens

Abstract: How does the quest for legitimacy of the European Union relate to the view the European Court of Justice(ECJ) accords to Union citizens, civil society and to private actors? It is submitted that the ECJ is currently developing a jurisprudence under which citizens, as well as their organisations and corporate private actors, are gradually, and in almost complete disregard of the public/private distinction, being included in the matrix of rights and—a crucial point—obligations of the treaties. The ECJ incorporates civil society actors and citizens, beyond notions of representative (citizenship) and participatory (civil society) democracy, into the body of law and thereby reworks its own and the Union's identity. Two core aspects are explored: the first is the reconfiguration of Union citizenship as a norm which triggers the application of the substantive norms of the EC Treaty. The second aspect of this evolution is the creation of ‘private governance’ schemes, i.e. processes in which, as a rule, private action is regarded as action that has to meet the standards of the Treaty. The analysis shows that the court is disentangling itself from the State‐oriented Treaty situation and drawing legitimacy directly from citizens themselves so that judgments should be pronounced ‘In the Name of the Citizens of the European Union’.

1 European Court of Justice 20 September 2001, Case C‐184/99, Grzelczyk [2001] ECR I‐6193, para. 31.

     

The asymmetries of pouvoir constituant mixte

This invited Symposium contribution discusses Jürgen Habermas's celebrated and influential theory of pouvoir constituant mixte. In that account, the EU is constituted by a double authority: that of citizens of nation‐states and that of (the same) citizens as subjects of the future EU. I argue that Habermas's theory is convincing only if the two constitution‐building subjects—citizens of the already constituted nation‐states and citizens of the to‐be‐constituted European Union—are positioned symmetrically in relation to each other. I argue that Habermas's construction is, in fact, asymmetrical. I identify three asymmetries: of expectations, of function and of origins. I argue that these asymmetries place the role of citizens as members of nation‐states in such an advantageous position that it would be irrational for citizens in their other capacity, as citizens of the to‐be‐constituted European Union, to participate in the constituent authority in the terms proposed and defended by Habermas.     

Redfearn v UK: Political Association and Dismissal

In Redfearn v UK the European Court of Human Rights examined the question whether dismissal for membership of a political party is compatible with freedom of association under Article 11 of the European Convention on Human Rights. The Court endorsed a strong commitment to multi‐party democracy and protection of employees against the domination of the employers. This note discusses the judgment and its implications for UK law, looking at three key issues: first, whether the law of unfair dismissal provides effective protection against action that poses a threat to the enjoyment of Convention rights; second, the grounds under which an employer may justify the lawfulness of a dismissal that interferes with a Convention right; third, the available remedies against the employer when there is a breach of a Convention right.     

再议宪政

18世纪晚期以来,民主一直是人类政治生活的主题,民主化进程成了社会进步的主要评判标准,然而,实现了民主并不能保证没有了政治迫害,现实的民主远没有实现人类赋予它的使命。民主不能使任何个人的利益都得到切实的实现和保障。为了切实的保障个体的权利和利益,人类在反对一切特权民主的同时不得不对民主本身(民主本身也是一种特权,多数人的特权)加以限制,这就是宪政。那么宪政的真正涵义是什么?宪政的基本精神是什么?它与宪法到底是什么样的关系?宪政与民主到底是什么样的关系?本文将就这几个问题作出初步的回答。     

Crime and the EU's Constitutional Future in an Area of Freedom, Security, and Justice

Abstract: The European Union is finalising negotiations in respect of a constitution that will define its identity and future. The draft constitution begins with a quote from Thucydides ‘Our constitution . . . is called a democracy because power is in the hands not of a minority but of the greatest number’. 1 In this article I look at the proposed constitutional framework of the European Union from the perspective of the gradual realisation of measures in criminal law capable of affecting the lives of individuals. The central question is to what extent the Union is providing itself with the tools to achieve democratic exercise of the power to maintain order and to punish individuals within a single area of freedom, security, and justice. Within the draft constitution an ambiguity arises as regards the principles which underlie this part of the project: mutual recognition and approximation. Mutual recognition of national decisions maintains power within the borders of the state, approximation leads towards a consolidation of power. The extent to which the constitution pulls in two rather different directions and the consequences for the individual are examined here.     

民主价值的司法维护机理

民主治理的理念、权利保障的意识和权力制约的价值取向是现代宪法的基本精神,维护和实现宪法的民主价值是人民主权的内在要求,也是司法的应有功能。司法的组织结构、程序机制和管辖范围决定了法院可以通过政治渠道的疏通实现形式民主与实质民主的有机统一,通过价值整合实现民主秩序结构与文化秩序结构的有机融合,通过宪法阐释实现法律意志与公众政治意愿的有机结合,从而有效解决形式民主与实质民主、集体自主与个人选择、过去的法律意志与现时的民众意愿之间的冲突。     

Should Europe disturb historians? On the importance of methodology and interdisciplinarity

Does the emergence of the European Union (EU) disrupt the frames of reference of the contemporary history of Europe to such an extent that historians distrust it? It would seem that methodological Euroscepticism exists. European integration arouses scepticism among some in the community of historians of contemporary Europe, since the conceptual underpinnings of that history cannot in themselves account for European integration. This billet expresses, more than a word of caution, a call for enhanced dialogue on the EU as an object of study among the different strands of historical studies and different disciplines. On the one hand, some of the analyses provided by historical studies on contemporary Europe constitute a fertile source for the study and understanding of European integration, notably in the field of history. Using them can stimulate the development in the European studies field of new concepts, new representations and new hypotheses for grasping the EU as a reality and a comparatively new object of academic interest. On the other hand, the critical study of the EU conducted in the specific field of the history of the EU questions and sheds a new light on the analytical categories of contemporary European history. In this regard, the fruitful interaction between history, political geography, law and political science can enrich contemporary European history. Interdisciplinary studies on European integration notably enable us to decentre notions of sovereignty, territory and democracy, which have classically taken the nation state as their reference in broad explanatory narratives of contemporary European history. Research mutualisation would offer all the potential interpretative and analytical benefits of the conceptual and methodological rethink of our various disciplines and of European integration as an object of study.     

The inverted postnational constellation: Identitarian populism in context

As exemplified by the pan‐European ‘Identitarian movement’ (IM), contemporary far‐right populism defies the habitual matrix within which right‐wing radicalism has been criticised as a negation of liberal cosmopolitanism. The IM's political stance amalgamates features of cultural liberalism and racialist xenophobia into a defence of ‘European way of life.’ We offer an alternative decoding of the phenomenon by drawing on Jürgen Habermas's ‘postnational constellation.’ It casts the IM's protectionist qua chauvinistic populism as ‘inverted’ postnationalism, engendered through territorial and ethnic appropriation of universal political values. As such, inclusionary ideals of cosmopolitan liberalism and democracy purporting humanistic postnationalism have been transformed by Identitarians into elements of a privileged civilisational life‐style to be protected from ‘intruders.’ Remaining within the remit of the grammar of the postnational constellation, trans‐European chauvinism, we contend, is susceptible to inclusive articulation. Foregrounding radical emancipatory social transformation would however require not more democracy, but a principled critique of capitalism.     

Agency,Authority, and the Logic of Mutual Recognition

The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self‐supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.     

Rising crime rates amidst transformations in Eastern Europe: Socio‐political transition and societal response

Unprecedented and dramatic increases in crime rates in countries of Eastern Europe (data are available to document the increases for Poland, Bulgaria, Romania, the Czech Republic, Slovakia, and many of the former Soviet Republics) raise the issue of whether the political and social transformations that have been taking place in Eastern Europe must inevitably lead to social disruption and resulting crime increases. Since the nature of the phenomenon is historically unique (there has never been a similar revolutionary transition from socialism to capitalism), a new, unconventional, and innovative theoretical approach is needed to account for the phenomena being discussed here. Assuming that the transformations can be legitimately subsumed under the concept of ‘‘socio‐political process,’’ the purpose of the paper is to identify some basic and inherent characteristic features of the causal mechanism at work, specifically —?''How do the dynamics of the Eastern European socio‐political process explain the rising crime rates?'’ (''What causal factors inherent in the dynamics are responsible for the crime rises?'') Another issue to be examined is that because of the unprecedented nature of the process being talked about here, a different dimension of the socio‐political process theory must be realized and examined. The paper will be based on three hypotheses: 1. The Eastern European transformations imply a need for a new component of the socio‐political process theory (transition from socialism to capitalism, not vice versa as has historically been the case).

2. To the extent that crime is a product of socio‐political change, crime rates are bound to increase much more during a socialism‐to‐capitalism transition rather than during a capitalism‐to‐socialism transition.

3. Some inherent traits of socialism‐to‐capitalism transitions explain why crime rates increase much more during those transitions than during capitalism‐to‐socialism ones.

     

Beyond the European void? Reflections on Peter Mair's legacy

Peter Mair was one of the world's leading scholars of party politics. Though he wrote at some length about the European Union, there has been no systematic exploration of the implications of his comparative work on political parties for European integration. His writings on the EU have generally been studied in isolation from his wider oeuvre, with the result that we have missed the important analytical and logical connections between Mair's work on parties and his writings on the EU. This article argues that Mair's path‐breaking middle‐range theoretical and empirical work on the decline of party democracy can form the basis of a radical reappraisal of the project of ‘ever closer union’. The article studies Mair's arguments against the backdrop of more recent empirical evidence and evaluates the normative implications of his work for the future of the European project.     

The Event and the Subject: The (IM)Possible Rehabilitation of Carl Schmitt

The subject is the bearer of the sovereign decision, according to C. Schmitt. This decision grounds on certain situational pragmatics, yet mainly is born out of a ‘null’; as the decision forms the political normalcy that follows after, it displays its nature as an ‘event’. This subject is simultaneously a legal and a political one; it is the founder of the Nomos. This founding subject has been eclipsed in alignment with its post-modernly acclaimed ‘death’. The subject is deemed to have been inherently divided, as long as its identity steadily postpones itself, is incessantly ‘differing’, according to the deconstructionist approach; or it is considered as fundamentally ‘passive’, meaning not so much ‘weak’, but rather dethroning the Western preoccupation with the active autonomous individual; or, it is maintained but intrinsically reversed, now held either as part of a fundamental ontological order and indirectly of the nature (Agamben), or, opposite to Kantian assumptions, as primarily captured in a radical heteronomy, which constitutes it as a proper ethical subject (Levinas). Crucial is how to develop a concept taking into account the eventfulness of the constitution of the subject, without effacing the political character of such constitution by reducing it to non-political discourses, i.e., to metaphysics, morals or economics; how to conceive of Derrida’s ‘democracy to-come’ as political event, namely both as secular act and in the same time as referring to extramundane fundaments (to a ‘political theology’?); how to go beyond the linearity of the liberalist ideology by equating the political event with a messianic miracle ‘without messianism’; how to ‘salute’ democracy?     

The ambiguous Heritage of Mitteleuropa: the Resurfacing of Mitteleuropa as a Counter-image to the EU in Austrian Populism

The analysis in this article addresses the resurfacing of Mitteleuropain the populist discourse or, more precisely, the use of Mitteleuropa-ideas in the political strategies of the Austrian FPÖ (Austria's right-wing `Freedom Party'). The plans of the future European assessment spread by the European right-wing populism have an ambiguous character, which partly reproduces the ambiguity of the traditional definitions ofMitteleuropa in the debate at the beginning of the twentieth century. The article shows that the FPÖ's use of the concept ofMitteleuropa must be analysed with regard to the problem of the Austrian identity, because the ambiguous status of an ‘Austrian identity between Mitteleuropa and German re-union’ is the most important condition underpinning the emergence of the FPÖ. Secondly, the choice of a particular idea ofMitteleuropa - the Mitteleuropadefined by principles of exclusion, by a strong German culture and identity (Kulturnation), and strict reference to a Volksgemeinschaft with a territory and a culture that are juxtaposed to a cosmopolitan and liberal idea of Mitteleuropa- reveals the FPÖ's historical legacy and its opposition towards democracy and the representative institutions. Finally, the question is raised as to whether Haider should be considered not only an Austrian phenomenon, but an Austrian reaction to political and economic transformations, which evoke other protest movements in Europe. On the one hand, Haider is an Austrian phenomenon. On the other hand, he represents an Austrian reaction to political and economic transformations. In this sense, Haider's populism can be compared to France's Le Pen or Belgium's Vlaams Blokif we look at the form of popular legitimacy that they invoke, the request for a re-territorialisation of politics and for the defence of a national / European identity, and the opposition to constitutional patriotism and to all forms of ``thin'' European identities.     

Parenting without Protection: How Legal Status Ambiguity Affects Lesbian and Gay Parenthood

Through the lens of lesbian and gay parenthood we ask how individuals who experience “legal status ambiguity”—that which emerges when legal fluctuations combine with divided attitudes, ignorance of the law, and autonomous institutional gatekeepers—exercise their legal rights and responsibilities. The results from thirty‐one interviews with lesbian and gay parents in Oregon and their six adult children suggest that the state's fluctuating legal and social climates for lesbian and gay parenting between 1985 and 2013 presented significant challenges for two generations of same‐sex parents. Although both cohorts created and utilized a range of legal and social mechanisms to assert their legal rights, they found these rights to be controlled as much by gatekeeper perspectives as by legal force. After the 2015 Obergefell ruling on marriage equality, lesbian and gay parenting status remains a site of ongoing legal and social contestation, providing insight into the risks and challenges of legal status ambiguity.