European Citizenship: Towards a European Identity?

Questions of political identity and citizenship, raised by thecreation of the `new Europe', pose new questions that politicaltheorists need to consider. Reflection upon the circumstances ofthe new Europe could help them in their task of delineatingconceptual structures and investigating the character ofpolitical argument.

Does it make sense to use concepts as `citizenship' and`identity' beyond the borders of the nation-state? What does itmean when we speak about `European Citizenship' and `EuropeanIdentity'?

It is argued that the pluralism that has led theorists tooffer a conception of citizenship based upon principles of right,rather that the common good, applies even more strongly at thelevel of the European political order. Developing a contractariantheory of federation, an account of the basis of a Europeancitizenship will be offered in which federalism emerges out of anoverlapping consensus of European citizens on the terms of theirpolitical association.

`European Citizenship' and `European Identity' are discussedin the context of the so-called `European Union', and not in thewider context of Europe `as a whole', or for that matter on aneven broader `cosmopolitan' scale. However, the gist of the articleis that arguments for concepts of `citizenship' and `identity'that go beyond borders of nation-states and that are applied tothe `European Union', could have implications for an even widerapplication.

Finally, and in conclusion, the (empirical) context will beelaborated in which the normative concept of shared liberalcitizenship identity should be realized on a pan-national,European level.

     

Minimum Criminal Penalties in the European Union: In Search of a Credible Justification

The EU has recently mooted the possibility of harmonising minimum penalties. ‘Minimum criminal penalties’ refers to the lowest sanction available for a judge in a concrete case. Calculating the actual penalty involves legal mechanisms that might mitigate that penalty. Comparative analysis reveals that a distinction needs to be made between minimum penalties included in national criminal codes (in abstracto penalty) and the lowest penalty that might be imposed (in concreto penalty). Although in abstracto minimum penalties are found in the criminal codes of most Member States, they are fiercely opposed in others. In concreto minimum penalties that constitute an absolute limit to the discretion of a judge are even more controversial. Against that background, this contribution reviews whether or not the EU should force the Member States to impose absolute, in concreto minimum criminal penalties. It examines the justifications presented in recent proposals in light of legal and criminological research.     

Quasi-National European Identity and European Democracy

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.     

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.     

Beyond Constitutionalism: The Search for a European Political Imagination

Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ‘new’ Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ‘universal’ jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ‘new’ Europe; just as, indeed, it was for the ‘old’ Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ‘beyond’ sovereignty, or even beyond democracy, but beyond constitutionalism.     

In Search of an Alternative

Two vectors in development policy can clearly be seen in today's world. The first is globalization, the current dominant trend. The second, sustainable development, is a principle that, although formally recognized by the world community, is still far from being implemented in real life. In this context, it is vital to determine the link between globalization and the principle of sustainable development and the further link between sustainable development and the new protest movements that have emerged in reaction to the negative social consequences of globalization.     

Choice of Evils: In Search of a Viable Rationale

The defense of necessity, also known as the ??choice of evils,?? reflects popular moral intuitions and common sense: sometimes, breaking the rules is the right??indeed, the only??thing to do in order to avoid a greater evil. Citing a classic example, mountain climbers may break into a cabin to wait out a deadly snow storm and appropriate the owner??s provisions because their property violations are a lesser evil compared to the loss of life. At the same time, this defense contradicts the fundamental principles of criminal responsibility in that it authorizes violation of rights of innocent bystanders. By allowing the mountain climbers to override the property rights of the cabin owner, the defense effectively forbids the cabin owner to use force in response??a different rule would perpetuate violence. This outcome is at odds with the basic criminal law doctrines. There is no general duty to rescue in Anglo-American law. Yet, by forbidding the cabin owner to use force, the defense of necessity essentially imposes on him the duty to forego his interests in favor of those of the mountain climbers. The paper explores the origins and boundaries of the defense of necessity. It argues that the existing public and private theories of necessity are unsatisfactory and concludes that a viable theory of necessity should be able to explain why it is sometimes permissible to override individual rights of citizens without their consent or fault.     

How can one be European? Reflections on the Pillars of European Civic Identity

Abstract:  The citizenship of the EU is not only a set of rights, but also of civic behaviours and representations. In this article, I analyse these moral and sociological foundations of EU citizenship, stressing the limits of classic interpretations in terms of 'identification to' or 'support for' the EU. Instead, I suggest reading the evolution of EU citizenship as a process of political recognition. Such an analytical framework, inspired by recent works of Axel Honneth and Paul Ricoeur, leads one to understand this process as a threefold evolution: critical assessment of one's own national identity; transformation of the perception of other nationalities; and identification to the EU. Such a reading also compels us to pay attention to the limits of these processes: mutual recognition is an unending process which does not exclude the persistence of nationalistic reactions, hegemonic temptation and the revival of xenophobic attitudes vis-à-vis other Member States and third countries. I conclude that any project to render EU identity thicker needs to take care of the risk of jeopardising the fragile acquis.     

Reconciling transparency and privacy through the European Digital Identity

Where lies the balance between privacy and transparency? It is an everlasting question, that lied at the heart of the recent judgement of the Court of Justice of the European Union (CJEU). The case concerned the Ultimate Beneficial Ownership registry which contains the information of who has a financial interest in companies. The registry was open to the public. The wide accessibility aimed to increase transparency and thereby prevent money laundering and the financing of terrorism (MLFT). The registry was open to public access and the question to the CJEU was whether the accessibility was lawful. The judgement of the CJEU declared the wide accessibility to be unlawful. The judgement acknowledges the importance of the concept of transparency but nevertheless considers the public access to be unproportionate. Leaving the question of how to balance transparency with privacy. The answer can be found in redesigning the European electronic Identity. This case-note will first discuss the facts of the case in section 2. The note will then continue by summarizing the opinion of the Advocate General in section 3. In section 4 the note will summarize the judgement of the CJEU. The case note will end in section 5 with an analysis of the impact of the case in relation to developing a digital European Identity.     

A Christian or a Laïc Europe? Christian Values and European Identity

Abstract.  European constitutional traditions share a commitment to freedom of conscience and religion, but differ on their interpretation of whether such freedoms do or do not require a clear cut separation of state and church. Weiler has advocated that the writing of a Constitution for the European Union is a very apt moment to reconsider the conceptualization of freedom of conscience and religion. On constitutional and historical grounds, he has advocated that a reference to Christian values should be made in the preamble of the European fundamental law, and that this will be the alternative most respectful to the pluralistic national solutions, ranging from republican non-confessionality to the establishment of an official church. But contrary to what Weiler argues, the drafting of the constitution of the European Union is not bound by the present shape of European constitutional traditions; moreover, it is hard to conclude that the present common constitutional traditions require an explicit reference to Christianity to be included in the text. Furthermore, the claim that the individual and collective identities of Europeans are unavoidably shaped by Christian values is only tenable if we uphold a rather simplistic relation between history, memory, and identity. Finally, once one moves from law and history to practical reasoning, one finds that there are good substantive reasons why our collective identity should not contain reference to Christian values.     

In Search of Killer Amendments In the Modern U.S. House

Numerous studies have examined the incidence of killer amendments in Congress, but most of these studies have been either case specific, focusing on the legislative maneuverings around a single issue or bill, or temporally limited, focusing on strategic activity in only one or two Congresses. In this article, we present the beginning of a comprehensive research agenda for the systematic study of killer amendments. Using roll‐call data from the 83d through the 108th U.S. House (1953–2004), we identified those bills that (a) were successfully amended and (b) subsequently went down to defeat, a necessary condition for the existence of a killer amendment. We then examined these cases in greater detail, using both spatial analyses and case studies. Our analysis uncovered five cases, four of which are new, that appear to have the characteristics of true killer amendments, thus setting the stage for future analyses across time and legislative chambers and bodies.     

In Search of Legitimacy: Toward An Empirical Analysis

Legitimacy is a much used concept in the social sciences. However, the absence of precise operational meaning has prompted questions about its utility as an explanation of compliance with social norms. Most recently, Alan Hyde has argued that legitimacy cannot be disentangled from other explanations of compliance such as coercion and self-interest and should, therefore, be abandoned. However, institutional, attitudinal, and behavioral dimensions of legitimacy can be operationalized. As part of our research on small claims courts we examined variations in institutional processes and legitimacy, gathered data on levels of voluntary compliance, and questioned defendants about their reasons for paying claims against them. We conclude that institutional legitimacy is related to voluntary compliance, and that the "language of obligation" is an important part of normal discourse. Operational meanings for legitimacy are available and empirical research about legitimacy should be a prominent part of the social science research agenda.