Redefning Europe

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Series Editors
Dr Robert Fisher
Dr Margaret Snser Breen
Advisory Board
Volume 25
A volume in the Critical Issues project
Redefning Europe`
ProIessor Margaret Chatterjee
ProIessor Michael Goodman
Dr Jones Irwin
ProIessor Asa Kasher
Dr Owen Kelly
Revd Stephen Morris
ProIessor John Parry
Dr David Seth Preston
ProIessor Peter Twohig
ProIessor S Ram Vemuri
ProIessor Bernie Warren
Revd Dr Kenneth Wilson, O.B.E
Redefning Europe
Edited by
Joseph Drew
Amsterdam - New York, NY 2005
The paper on which this book is printed meets the requirements oI 'ISO
9706:1994, InIormation and documentation - Paper Ior documents -
Requirements Ior permanence.
ISBN: 90-420-1765-1
Editions Rodopi B.V., Amsterdam - New York, NY 2005
Printed in the Netherlands
Contents
Introduction 1
Federalism in Europe: History and Future Options
Maiken Umbach 19
From Dialectics to Political Theology: Rethinking
Complexity in Federalism
Isabel David 35
The Democratic Principle as an Organisational Basis
of the European Union
Xenophon Contiades 59
The European Unions Institutional System as the
Basis for a New Form of Democracy
Fausto Capelli 77
Incorporating the Principle of Co-Equal Branches
into the European Constitution: Lessons to be Learned
from the United States
Mark K. Gyandoh 89
Institutional Redress of the Democratic Deficit:
Redefinition with a Democracy-Efficiency Continuum
Joelle Anne Schmitz 109
Constituent Power and Polity Legitimacy in the
European Context: A Theoretical Sketch
Zoran Oklopi 133
Circumventing the State? The Demands of Stateless
Nations, National Minorities, and the European
Constitution
David Adam Landau and Lisa Vanhala 149
The Catholic Church and Polands Accession to the
European Union
Mirella Eberts 165
Inclusive Education as a Human Right and
Slovakias Accession to the European Union
Julia M. White 181
The US Must Merge with the EU
Tom Hudgens 203
Conclusion: Europe on the Road to Redefinition
Joseph Drew 207
Notes on Contributors 209

Welcome to a Probing the Boundaries Project
Redefining Europe is an inter-disciplinary and multi-disciplinary research
project which aims to explore the role of ecology and environmental ideas
in the context of contemporary society, international politics and global
economics, and to begin to assess the implications for our understandings
of fairness, justice and global citizenship.
The project will develop a focus on four interlocking areas:
Area 1: will examine the changing relationship between nature, culture,
and society and will look at the impact of environmental thinking and
ethics on issues such as animal/species welfare and rights, conservation
and preservation, sustainable resources, food and feeding, space and air
space, present and future needs, human rights', and our obligations to
future generations.
Area 2 will examine the ethical and political impact of environmental
thinking, looking at its emergence and role in political contexts, the factors
which influence the formation of environmental policy, what (if any) is the
place of economic methods and considerations, differing perspectives on
the interpretation of scientific data, and the ability of national and
international communities to successfully implement environmental
policies.
Area 3 will examine the international nature of environmental issues and
look at the problem solving processes which are or might be employed
particularly in light of globalisation. Themes will include how
environmental negotiation works in the context of international relations,
the responsibilities of multinational companies, the feasibility of
establishing environmental laws, and the future of ecological business.
Area 4 will examine the themes of justice, community and citizenship,
looking at the tensions present in ecological debates, the influence of
cultural values, the meaning of ethical business practice, the assessment of
what counts as environmental equality, inequality, and justice, and our
responsibilities toward the world in which we live.
Dr Robert Fisher
Inter-Disciplinary.Net
http://www.inter-disciplinary.net
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INTRODUCTION
Redefining Europe
Joseph Drew
The purpose of this book is to ask how, in light of the advent,
growth, development and dramatic May 1, 2004, expansion of the
European Union, and as a result of the increasing attention being paid to
federalism in the EU context, we may appropriately Redefine Europe. The
chapters which follow, written by outstanding European and American
scholars, comprise part of a project to re-envision Europe as it moves,
however awkwardly, into a new political context.
1. Review of the Chapters
Europe is a community, argues Maiken Umbach, composed of
many identities peacefully coexisting and fruitfully co-operating. A
study of European history reveals strong parallels between the situation in
the modern European Union and that which has prevailed on the continent
for many years and, in fact, still survives cultural and political identity
not untypically based primarily on regions rather than on nation states.
Thus, there is nothing unnatural about the notion of a European demos,
writes the author. Rather, the importance of the regions in the past means
that the theory and practice of federalism actually provides the real basis
for a successful nation state, and pragmatic regionalism can underlie a
successful European Union today. This requires the EU to dispense with
its current patronizing attitude toward regions and regionalism.
While the roots of federalism reach far back to the Bible, writes
Isabel David, federalism itself is deeply tied to both modernity and
complexity. Federalism obtained divine sanction in ancient days, emerged
as a secularised theological concept in Europe with the Enlightenment,
and was first formulated completely as a modern term in the United States.
Today federalism has become an ideology, a value itself, a worldview
typically fully identified with progress, justice, peace, pluralism, liberty,
rule of law and democracy. Perhaps, we may speculate, it is nonetheless a
simple technique for political integration, occasionally useful, transitory
in nature, and ultimately to evolve into a more simple form of
decentralization within a strong unitary government.
In the next chapter Xenophon Contiades considers the evolution
of the principle of democracy, and the much-discussed democratic deficit,
in the EU. The founding treaties of the European Union made no reference
to democracy as an aim or even as a principle of the organization. The
much later Single European Act did refer to the need for members to
jointly promote democracy and the Treaty of Maastricht declared the will
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of the EU to reinforce democracy. Nonetheless, a single electorate
corresponding to a European people is missing. Therefore, we ask: Should
the EU seek to democratise as if it were a country? Four answers are
given, but rather than assuming a state-generated concept of democracy,
the author thinks we should look to methods of enhancing democracy
within the European Union (which is both a union of states and a union of
peoples) and its organs. In the meantime, a weakening of the sovereignty
of the member states could pose a risk to the current status of democracy
and liberty for those societies which are within the EU.
Fausto Capelli formulates his answer to the once justifiable
concerns with the European Unions democratic deficit. Indeed, in the
early years there was no body that was a genuinely elective organ
representing all EU citizenry. But Plato teaches us that government should
be in the hands of those who do not enjoy governing, for if it is, office
holders (and seekers) will engage in constant conflict. Within the EU one
finds two democratic structures: the traditional one, as practiced by the
various member states, and the EU structural form, in which institutional
players from the elected European Parliament, the Council of Ministers
(representing the governments of the member states) and the European
Commission (essentially a technical body) all exercise legislative powers
but have no direct political power. The interests of all the citizens are thus
safeguarded in a new form of democracy via the European Unions unique
institutional system.
A review of the American Constitution leads to the conclusion
that the European Union should entrust one branch of government with the
authority to decide matters of constitutionality. However, this was not
done in the U.S. case. So argues Mark Gyandoh. The chapter reviews the
early history of constitution writing, government conflicts and judicial
decisions in the United States and the question of whether one branch of
government i.e., the judiciary ought to have and does have the right to
declare acts of the other branches unconstitutional. The conclusion drawn
by the author is that the EU should use the experience of the United States
as a beacon to warn of dangers ahead; it should decide in the proposed
new constitution which one branch has the power to declare legislation
constitutional.
This is the time when federalist ideals could play their most
pivotal role ever in the European Union, particularly with regard to the
democratic deficit, writes Joelle Anne Schmitz. Sir Leon Brittan proposed
creating a Committee of Parliaments and this suggestion is analysed
carefully. Creating a Committee of Parliaments might simply erect a rival
body to the European Parliament, she writes, the only truly representative
democratic institution of the EU, diminish the powers the European
Parliament wants to exert and thus enhance the democratic deficit. Would
Joseph Drew
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it not also mean even more complexity and, as a result, further distance
from a sceptical and confused European public? Federalism points the
way, the author suggests: perhaps the proposed responsibilities of such a
Committee of Parliaments might best be awarded to the existing European
Parliament, and the relationship between the EP and the national
parliaments strengthened as a result.
Zoran Oklopcic asks a theoretical question: is the EU political
community a sociologically legitimate one? He begins his theoretical
exploration with the famous essay by Abbe Sieyes, What is the Third
Estate? Sieyes thought that the nation is pre-political; that is, it exists
prior to the state. But there is today no such Europe-wide nation. Three
philosophical approaches are presented: the state as a vehicle carrying the
nation, an enterprise association; or, the development of a demos
created by a constitution in a federal-type polity; or, a freedom-based,
voluntary social contract amongst inhabitants. To write a constitution it is
not necessary for a community to already be in place. In a federal state
previously independent units can create a new historical narrative,
asserting that what is being built is merely a compact which can be
rescinded. While today the EU rests upon an assertion that the member
states have called it into being, the author is wary that the proposed
institutional arrangements may be inadequate in situations where demands
for the radical reconstruction of the EU polity might arise.
David Adam Landau and Lisa Vanhala define two types of
national minorities. They can be minority groups living outside of a
state with which they identify historically, culturally, or linguistically (i.e.,
Turks in Cyprus) or stateless nations, which are geographically
concentrated populations sharing common identities but which are situated
within some larger composite state or states (i.e., Kurds in Turkey and
Iraq). Given that the range of options for minorities (including
recognition, access, participation, or, on the other hand, separation,
autonomy, and independence) generally are shaped by constitutions, there
has been much lobbying for protective minority clauses in the proposed
new EU constitution. Is it possible that goals unachievable in the past,
when only states were involved as negotiators, may now be attained by
minority groups at the supranational level? After discussing the Basques
and Catalans in Spain as well as ethnic Hungarians in Romania and
Slovakia, the authors report that the latest draft EU constitution neither
directly nor sufficiently addresses minority rights protections or
guarantees. However, some proposals circulating call for allowing
stateless nations to secede from their states while remaining within the
EU; others call for respecting Europes cultural heritage, including
minority languages. Whatever the final outcome, the EU has become a
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new arena for national minority groups to seek redress for their perceived
grievances.
Next, the Roman Catholic Churchs participation in Polish
accession debates prior to May 1, 2004, is described by Mirella Eberts. Its
position as the most prominent institution in the country after the fall of
communism, coupled with the Polish origins of the current pope and the
existence of a major ongoing church presence at EU headquarters in
Brussels, virtually guaranteed a key role for the Catholic Church in those
debates. The Church traditionally supported the idea of the European
Union, and while initially there was great joy at the idea of a return to
Europe following the end of communism, some in the Church soon
adopted a more sceptical attitude: would the EU mean the privatisation of
religion, liberalization, secularisation, and the loosening of family values
or national traditions? Anxious for accession, the Polish government
sought over the years before 2004 to allay official Catholic concerns.
While some of the most infamous nationalistic and xenophobic Euro-
sceptics in Poland waved Catholic Church banners, in the end the country
voted for accession by 77.45%. However, says the author, the conditional
nature of the Churchs support for Polands EU membership is likely to be
an important factor in any ongoing Polish discourse on European
integration.
Julia White examines international and domestic protections
afforded to individuals labelled disabled who belong to minority European
populations. Her particular subject of study has been with Roma students
in Slovakia; she places inclusive education as a human right within the
recent European Union accession debate there. Often, Roma children who
dont read and write the local language are labelled mentally retarded and
placed in special schools. They are then permanently denied access to the
educational, political, economic, and social milieus of their non-Roma
peers. Although the right to education is enshrined in every United
Nations human rights instrument, the author observes, and in such
instruments of the European Union as the European Convention for the
Protection of Human Rights and Fundamental Freedoms, the European
Social Charter, the Framework Convention for the Protection of National
Minorities, and the Draft Treaty establishing a European Union
Constitution, Slovakian education continues to suffer from the old
communist view of defectology. The EU has adopted a set of principles
that call for desegregation and an end to the shunting aside of Roma
children, but these principles have not been adopted widely in practice.
The author examines American regulations which have helped improve
the education of disabled children in the US, especially the Individuals
with Disabilities Education Act, but the system of education in Slovakia
continues to resist such changes. Although the Slovak Republic took
Joseph Drew
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5
forward strides recently by amending its education law in conformity with
EU practice, Roma children typically have not yet experienced the
benefits of change.
The volume concludes with two short chapters. First come
remarks by Captain Tom Hudgens, a long-time American leader of the
movement to unite Western democracies. He reviews his life of struggle
for international cooperation and goodwill and he calls for consideration
of his idea that the United States consider applying for membership in the
European Union.
Finally, a welcome is extended to readers who wish to attend a
forthcoming Prague conference; it will offer a retrospective on the year
after May 1, 2004; how has the accession to the EU of the ten new
member states fared? Scholars who wish to contribute to this discussion
are urged to attend.
2. Tools
When undertaking such a broad topic as the redefinition of
Europe, the tenets of science suggest that we begin by examining our
methodology. This focuses our thoughts and refines our research. Three
sociological tools may be of help.
First is the ideal type. This tool was developed most fully by
the German thinker Max Weber in his excellent work, The Methodology of
the Social Sciences. An ideal type (i.e. Europe) is a synthetic construct
which represents an idea of history. As Weber says, it is not a description
of reality but it aims to give unambiguous means of expression to such a
description.
An ideal type is formed by the one-sided accentuation of
one or more points of view and by the synthesis of a
great many diffuse, discrete, more or less present and
occasionally absent concrete individual phenomena,
which are arranged according to those one-sidedly
emphasized viewpoints into a unified analytical
construct. In its conceptual purity, this mental construct
cannot be found empirically anywhere in reality. It is a
utopia.
1
A second such useful tool is the sociological map. I think that
this was best articulated by the American social scientist Paul Lazarsfeld.
2
A scientific research map (i.e., where Europe is heading) organizes
systematically the elements composing a particular field of interest. By
combining the elements into patterns, we are able to derive problems for
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further study, even extend the whole area by using the basic ideas behind
the mapping.
Four purposes, at least, can be isolated for social research maps:
- Maps define a topic, the meaning of which is often still emerging;
- They indicate what is included and excluded from our definition of
the situation.
- They facilitate bibliographic work, and
- They develop further themes.
3
Social research maps, then, give us an opportunity for a better
understanding of the elements involved in our attempt to define and grasp
the concept of Europe.
4
Yet a third tool when tackling the idea of Europe is the social
fact. This concept was introduced by Emile Durkheim of France. What
is a social fact? Durkheim addresses this in the first chapter of The Rules
of the Sociological Method; that chapter is entitled, actually, What is a
social fact?
But in reality there is in every society a certain
group of phenomena which may be differentiated from
those studied by the other natural sciences.
They constitute, thus, a new variety of
phenomena; and it is to them exclusively that the term
social ought to be applied. And this term fits them
quite well, for it is clear that, since their source is not in
the individual, their substratum can be no other than
society, either the political society as a whole or some
one of the partial groups it includes
They thus acquire a body, a tangible form, and
constitute a reality in their own right, quite distinct from
the individual facts which produce it. Collective habits
are inherent not only in the successive acts which they
determine but, by a privilege of which we find no
example in the biological realm, they are given
permanent expression in a formula which is repeated
from mouth to mouth, transmitted by education, and
fixed even in writing.
A social fact is a thing distinct from its
individual manifestations.
5
In other words, we can use the tool of the social fact to
examine the existence of the entity called Europe itself. In so doing, we do
not have to restrict the study solely to the individual parts of Europe to
Joseph Drew
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peoples, nations, eras, or states constituting elements of the entirety but
not the construct itself.
Fourth, we should consider, when tackling such a large question
as the existence of an entity called Europe the problem of research tools
themselves. We want to be objective and to remove our preconceptions, to
the maximum extent possible, from our study.
6
There are many more such tools at our disposal.
7
The main point,
as I see it, is to realize that we are dealing with a theoretical construct, the
idea of Europe. In this sense, Europe exists sui generis and is a device to
enable us to capture reality, to see the world at least in part.
8
The
premises are (1) that a concept such as Europe can be defined and
analyzed and (2) that the current impact and the potential impact of the
European Union upon (the concept of) Europe can be measured and
evaluated.
3. Defining Europe
The next step is to ask what Europe is precisely. How exactly can
one begin to define it at all, conceive of it, examine it? What are its
attributes? Does Europe actually exist and have a history? If so, where is it
going? Is the European Union creating a new Europe, or are we passing in
the early twenty-first century through a temporary phenomenon?
Many in Western Europe now refer to Europe as denoting the
entity to which ten new countries have joined in the European Union.
Some have seen Europe all along as a single cultural entity.
Thus, Christopher Dawson, the prominent Catholic world historian and
author of Understanding Europe, viewed Europe as a cultural whole,
united by a common faith and moral standards:
the European problem cannot be solved merely by a
drastic process of economic and political reorganization
which would create a federal unity the United States of
Europe.... Europe owes its unique character to the fact
that it is and always has been a society of nations, each
intensely conscious of its own social personality and its
own political institutions and laws, but all united by a
common spiritual tradition, a common intellectual
culture and common moral values
He believed that it is only by the recovery of its common (i.e.,
Christian) traditions and values and in the strengthening of them that
Europe can be saved.
9
A. Is Europe a physical entity, clearly demarcated?
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The Encyclopedia Britannica calls it a western peninsular
appendage of the Eurasian landmass, larger only than Australia among the
continents and gives its eastern borders as the eastern slopes of the Ural
Mountains down to the Caspian Sea. That means that Chechnya,
Azerbaijan, Georgia, Armenia and so forth are all in Europe.
On the other hand, the World Almanac provides a very different
definition. Interestingly, that book puts the eastern border of Europe so far
west that EU members Latvia, Lithuania, and Estonia, plus Cyprus, not to
mention Ukraine, Russia and all the rest, are out of Europe.
Samuel Huntington, in his Clash of Civilizations, places the
eastern border of the European civilization more or less where the new
European Union border is now although he deposits Croatia in the West,
keeping Serbia out. To the east is the Byzantine or Russian Civilization.
Today, the Internet provides a great tool for research. I did a
Google search on European borders and found 1, 200,000 entries. So I
delimited it to the borders of Europe and got 3,490 results.
Clearly, there is not a ready answer nor is there widespread
agreement as to the physical boundaries of Europe.
Further, is Europe even one entity at all? Are there actually two
Europes? Is there an Old Europe, as the U.S. Secretary of Defence
Donald Rumsfeld would have it, consisting of France, Germany, Italy, the
Low Countries, Scandinavia, Britain and Ireland? Is there a corresponding
New Europe consisting of the ex-Communist lands?
On May 20, 2004, the International Herald Tribune carried an
essay entitled Debating the Borders of Europe. It was written by Thierry
de Montbrial of the Paris-based French Institute of International Relations.
He finds that the discussion in Europe about the possibility of Turkey
entering the EU reflects anxiety about the definition of Europe.
De Montbrial writes that:
From a geological viewpoint, Europe is not a
continent. The way we have arranged the division of
Europe and Asia does not follow physical geography,
but geopolitics. If the Ural Mountains are seen as a
natural division, it is because the bulk of the Russian
population is Christian, and lies west of these
mountains. Assigning Istanbul to Europe and western
Anatolia to Asia is a way of reminding us that
Byzantium, renamed Constantinople, used to be a capital
city of Christianity.
In that sense, the fall of Constantinople in 1453
can still be felt some 450 years after the event. Many of
the intellectuals arguing against the Turkish candidacy
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still draw a map of Europe which essentially coincides
with the Middle Age concept of the Christian world. The
essence of geopolitics is that ideology, which includes
the way one looks at history, also shapes the map. The
real question for the European Union, therefore, is what
is its underlying ideology? The answer is not simple,
since the ideology has changed tremendously since the
collapse of the Soviet Union and, even before, with the
first enlargements of the European Community to
include such countries as Britain and Greece.
Nevertheless, it seems to me that the following
key words encapsulate the current ideology of the EU:
reconciliation, democracy, rule of law, human rights and
the protection of minorities, secularism, market
economy, security and solidarity.
10
If this writer is correct, what has happened, at least within
European intellectual circles, is that the concept of Europe is not really a
geographic one. Most people in Paris, Pisa or Prague do not see
Azerbaijan as falling within their definition of Europe.
4. Europe As A Civilization?
On the other hand, is there a European civilization, one which
excludes the Byzantine or Russian sphere of influence? If so, perhaps
Europe is a region composed of peoples, nations and countries engaged in
a polylogue, a vocabulary, or a frame of reference. I think that Europe
is either a civilization or, depending on definition, approaches being a
civilization.
There is in the new countries of the EU a dynamic process going
on, what I might call Europeanisation.
11
It will result in adhesion to a
European civilization and attendant cultural and social norms along the
lines we see in France and Germany today.
How long will this process take? In practical terms, from my
discussion with Czech intellectuals I believe that it will take some
considerable time for the side effects of that history to be removed. Many
in the Czech Republic say that it will take two generations; perhaps that is
so. As the Czechs become more European, they should become less
insular, less ex-Communist, more universal in their personality types.
Such a change can be seen emerging, to some extent, in the younger
generation, the students now being educated in Eastern and Central
European colleges and universities.
The pace at which the social and cultural integration of the lands
now within the EU borders will proceed, this Europeanisation process,
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depends upon a variety of factors. The writing of the proposed new EU
constitution is a major development, and if one is adopted, no matter what
it says it will probably hasten the reintegration of ex-Communist Europe
with the West. The adoption of the Euro across the entire EU within the
next decade will do the same. Third, the emphasis on mobility of
personnel which will take another seven years to go into effect for the
new members of the EU will lead in this direction. Finally, the impact of
cooperation amongst the member states, federalism, will be felt in the
strengthening of the social fact of Europe.
How can we measure this process at least theoretically? One
device to gauge the stages of Europeanisation could be the Assimilation
Variables. These were developed by Milton Gordon in his book
Assimilation in American Life.
12
There are seven of what Gordon calls
sub-processes or conditions. Perhaps we can use them by analogy here.
They are meant to apply to ethnic groups, to those with differences of
race, religion or national origins assimilating into the society of the United
States. But perhaps the Czechs, the Hungarians, the Poles and the others
can be depicted as national societies seeking to become European in the
sense of Western European, or Europe of the fifteen old members.
The first of the variables is the change of cultural patterns to
those of the host society. This cultural or behavioural assimilation is called
acculturation. The second stage occurs with large-scale entrance into
cliques, clubs and institutions of the host society, on a primary group
level. The third is large-scale intermarriage; this is called amalgamation.
The fourth is the development of a sense of peoplehood based exclusively
on the host society identificational assimilation. Next comes the absence
of prejudice, called attitude receptional assimilation; then there is
absence of discrimination, called behaviour receptional assimilation.
Finally there is the absence of value and power conflict, called civic
assimilation.
Recently, a company was prohibited from stamping on its goods,
Made in the European Union. Some laughed at the idea. But I think that
the development of a sense of peoplehood is indeed coming, the sense that
Europe is a single nation, what I would call an imagined community.
13
When it arrives, perhaps all countries within the EU will share a definition
of what a masters degree means; perhaps the seat occupied by France and
the seat occupied by Britain in the Security Council might be re-
designated Europe or EU; perhaps one or two languages will rise to
prominence for all Europeans, as seems to be the case today.
No matter how long it takes, acculturation and assimilation as
processes are on the move. As seen in the juxtapositions involved in the
question of Turkish admission to the European Union, Europe is being
created anew. Germany and France no longer see the other solely as the
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enemy; in a real sense as well as a philosophical one, Europe is becoming
a concept which rises above, incorporates or supersedes the previous
conditions of us v. them. Hegelians use the German word aufgehoben
to describe this process.
Just as the history of the Christian world is a progressive
movement transcending antiquity, so it is also the true
fulfilment of the yearning of the ancient world. The
Greco-Roman world is aufgehoben (both elevated and
abolished) in the Christian-Germanic world.
14
Europe as a civilization incorporates elements from national pasts
but is on the way to superseding them.
In the meantime, definitive external borders will probably
develop as internal ones strengthen. I think Huntington is more or less
correct here. If so, countries such as the Ukraine, which desperately want
to be considered European, will probably become ever more frustrated, but
Romania, Bulgaria, perhaps Croatia will be less so.
Moreover, the contemporary challenge of extremism in the form
of Islamic fundamentalism confronts almost all European societies.
Challenge in this sense enhances a feeling of solidarity across the EU; it is
the positive aspect of cultural or social conflict.
15
Therefore, it is likely that there is going to be a distinct European
civilization. The particular national personality traits, the lack of a normal
distribution of social strata, and the impediments to progress which have
resulted from the Communist period will start to recede somewhat, with
residual differences (similar to those we see in large multicultural states
such as the United States) remaining while the social fabric solidifies on a
pan-Europe or more universalistic basis.
Further, one can envisage a series of possible alternative futures
for Europe. Each scenario rests upon a different combination of such
significant social change variables as events (internal as well as external to
Europe); demography; culture (beliefs, attitudes, values); social
organization (EU constitution); and personality (identity, self-image,
etc.).
16
The loss of national sovereignty which many fear will not
necessarily occur, but there will be a different meaning to being a Czech,
or a Frenchman, within the European context. In the place of previous
types of nationalism, some scholars believe that we are likely to see a new
nationalism, one that accepts differing sensibilities within a pan-European
context. Differing cultural identities will strive to survive amidst pressures
toward Brussels-induced conformity, but these identities will not lead to
conflict. Rather, as the late civilisationalist Prof. Vytautus Kavolis has
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argued, a polylogue amongst the nations and peoples is likely to result.
That polylogue, writes Kavolis, will help birth the consciousness of
Europe. It may simultaneously encourage Europeanisation and the
creation of a collective soul.
A new definition of the situation will emerge.
Increasingly, there will be one Europe or, to be more precise,
one Europe within the civilisational boundaries Huntington has sketched
out -- in the years to come. An imagined community, with results great
and small, is being built.
17
5. One Example of The Possible Impact of Europe:
The Czechs
When I went to the Czech Republic in 2001 to serve as the
president of a small college, now a university, I was filled with admiration
and respect for a nation that had suffered badly in the twentieth century.
The nearly 400-year rule of the Austrian Empire, the vicious
tyranny of the German Nazis, and the destruction wrought by the Soviets
and their supporters through the Communist years were all reprehensible.
Who in the last few centuries had helped the Czechs? The British and the
French sold them down the river at Munich, the Nazis killed thousands,
the American liberators stopped at Pilzen, and the Soviets reduced them to
virtual slaves for four decades.
As a social scientist I see Czech history reflected in the way
contemporary Czech society operates. And I see a sociological empty zone
that membership in the European Union may well fill.
The modern social history of the Czechs began with the reversal
of the Protestant Reformation, which in the Czech lands had been
constituted by the Hussite Revolution. The Austrians took over in 1620
after the Battle of White Mountain and the Czechs eventually became one
of many peoples flung into the greater Austro-Hungarian Empire. Thanks
to one of the most dynamic leaders in history, Tomas Masaryk, and to his
colleague, United States President Woodrow Wilson, an independent state
came into being in 1918. The only liberal democracy within miles, and
somewhat of an anomaly within an oftentimes intolerant Central Europe,
the free state of Czechoslovakia lasted but two decades.
Then, Munich happened and the country was physically and
socially dismembered. So it was that Prague, which had been for centuries
three cities in one, lost two of its three components the Jewish
population was murdered by the Nazis and, after the war, the German
population was driven away by the Benes Decrees.
There was some hope on the part of many intellectuals that the
Communists, who won power via a political putsch in 1948, would bring a
decent regime to the much suffering Czechs. What they brought was
Joseph Drew
____________________________________________________________
13
continued tyranny, a police state, and a reduction of the people to
totalitarian helots. It lasted about forty years, with only a brief respite
during the Prague Spring of 1968.
It may be observed that, sociologically, what happened in 1620,
1939, and 1948 was that the natural leadership class repeatedly either
absconded or was destroyed. A society cannot prosper absent its natural
leadership class as Poland under non-Polish-speaking aristocrats, and
even Mississippi or Virginia after the Civil War, and perhaps African
American society in Washington, D.C., after integration, prove. Cato
warned the Roman plutocrats against this, Gaetano Mosca wrote about it
in The Ruling Class, and Digby Baltzell warned about it in The Search for
Community in Modern America.
18
As a result of its special history, there is no real leadership class
amongst the Czechs today. There are many people with a followership
mentality but few with a leadership mentality; there is not much of an
entrepreneurial spirit but there is a lot of court intrigue, endless
bureaucratic rules and great, self-defeating internal fighting what is
called in African American sociology the crabs in a barrel mentality.
This is the result of four centuries of Czech history. The great Czech
writer Kafka wrote about this in part; few realize it still cripples the land.
It is obviously true that the Czechs have produced some of the
greatest musicians in world history, some of the greatest writers in world
history, some of the greatest moviemakers in world history and, in Prague,
one of the worlds most charming cities. They are a bright and oftentimes
driven people; before Hitler, Czechoslovakia had the seventh strongest
industrial economy in the world. But they are a nation that needs time to
become a liberal, open, democratic, really free community.
When the Czechs entered into the European Union on May 1,
2004, it was a major and, I think, salutary event. As the former president
and hero dissident, Vaclav Havel, said while he campaigned for the EU
over the past decade, accession to the EU meant returning the country to
its rightful place inside Europe. I believe that the Western Europeans will
help the Czechs to become civilisationally European again. Their
consciousness will be Europeanized and their worldview, weltanschauung,
more European. They will certainly be labelled Eastern European less
frequently and Central European more frequently. The Czech state will
rise above its discarded old social skeleton while being shaped and
absorbed into the New Europe.
Perhaps the Czech experience is not dissimilar to that of the other
formerly Communist countries: Poland, Hungary, and Slovakia the
Visegrad countries most closely, and then, Slovenia, Latvia, Lithuania
and Estonia, as well. They are all on the road to Westernization, or,
perhaps more accurately, what Weber called rationalization. Some may
Redefining Europe
____________________________________________________________
14
move faster than others, but thanks to the EU process, especially the
process of qualifying for EU membership, this may occur fairly
predictably for all.
That does not mean that it will be an easy journey as the Czechs
and the others join Europe nor is success necessarily assured. On the other
hand, it is hard to look at Greece, say, or Portugal and feel that the Czechs
and the Slovenians and the Poles cant get to that status at least in terms
of the economy within a few decades. When Spain and Portugal acceded
to the European Union, their standard of living was considerably below
that of the older members; today it is within striking distance of the others,
up roughly 25% since accession. Greece, I think, still lags behind on many
indicators. Nonetheless, it sees itself and others view it as the gateway to
Europe. Perhaps its social peripherality and its geographic location means
that it will simultaneously become the bridge to the Moslem world and the
definer of where Europe begins and, possibly, what it is.
6. Is This Progress?
The twentieth century saw the decline of great empires. The
Ottoman went early on, the Soviet late. The disappearance of these
behemoths meant that sovereignty passed increasingly to ethnic groups,
peoples and nationalities: to new states. The positive results, sought by
universal visionaries like Masaryk and Wilson, as well as by intellectuals
and politicians from amongst every new nationality and ethnic group,
were hailed continuously over the century, as new flags were hoisted at
the UN and new national anthems sung by men and women freed from the
shackles of colonialism.
In the joy of such moments it was often overlooked that new
states were predicated almost universally upon the nation which was, in
actuality, typically one national group. Those of other nationalities were
no longer fraternal fellow-subjects of the crown; typically, they became
guest populations, marginal peoples. Jews and Gypsies, Catalans and
Tyroleans, Scots and Hungarians in Romania: Europe had many such
groups.
19
As a result of World War I in Europe and the new nationalism,
population transfers also came into being. Especially important was a
genus of population transfer called population exchanges. These were
attempts by states to right history and to put people back in their proper
locations. Many transfers and exchanges of autochthonous or aboriginal
people to their appropriate homelands occurred in South-Eastern Europe:
Greece and Turkey; Greece and Bulgaria; Bulgaria and Romania;
Romania and Hungary.
The new European states became more ethnically solidified as a
result of these exchanges. Liberal thought had generally favoured such
Joseph Drew
____________________________________________________________
15
developments, but by mid century the unanticipated consequences of the
creation of the new states, and of the significant movement and
homogenisation of peoples were horrible, obvious to all; the worst
genocides in history had been unleashed by European nationalism.
Further, the victorious allies continued to separate the peoples. In one of
the greatest of such efforts, Germans were pushed physically from Eastern
and Central Europe to Germany.
The twenty-first century has dawned in Europe to a different
development. Twenty-five countries have voluntarily agreed to unite.
Utilizing the federal principle, they are attempting to coordinate their
economic, political and social efforts whenever possible. To avoid the
conflicts which marred the last century, the states are attempting to keep
their individuality, their sovereignty, and to pursue international
cooperation simultaneously. Through the tool of federalism, European
leaders are building a new type of entity.
To me, therefore, the European Union stands as a definitive
repudiation to the rightist nationalism of the past. The European Union
presents the possibility of combining the noblest in liberal nationalism
with the best in internationalism.
It is, I think, in the tradition of Mazzini, Cobden, Bright, and
others. For, as Mazzini wrote in The Duties of Man:
Your first duties first as regards importance are
toward Humanity. You are men before you are either
citizens or fathers. If you do not embrace the whole
human family in your affection, if you do not bear
witness to your belief in the Unity of that family.You
violate your Law of life, you comprehend not that
religion which will be the guide and blessing of the
future.
20
The essays which follow are all in that tradition. They help guide
the reader to an understanding of the role this new internationalism, built
on the principles of liberal nationalism and federally-based cooperation
amongst liberal, democratic states, in the creation of the expanded
European Union.
The future of the European civilization unfolds, and it is the hope
of the authors and the associations which have sponsored them the
Ashburn Institute, the EuroAtlantis Association of Prague, the Prague
Institute for Global Urban Development that these essays will guide us
to an understanding of the meaning and prospect of this step forward in
humanitys eternal quest for improvement while advancing successfully
the scholarly redefinition of Europe.
Redefining Europe
____________________________________________________________
16
I wish readers a pleasant excursion through this volume.
7. Thanks and Acknowledgements
This work would not have been possible without the constant
support of the President and Chief Executive Officer of the Ashburn
Institute, Col. Robert Frantz. He has been the chief supporter behind the
book, and the Prague conference which preceded it.
Most of the detailed editing work and coordination in this volume
has been carried out by Marielle Reiss, Executive Director of the Ashburn
Institute.
Behind the success of both volume and conference has been the
hard work of two genuine Czech heroes John Bok and Dr. Jiri Payne.
The committee which has determined the articles to be included,
and placed them in appropriate order, included Col. Frantz, Ms. Reiss, Dr.
Robert Lamson, and myself. Always in the background, pushing for the
completion of the book, has been the conference coordinator and respected
European scholar, Dr. Robert Fisher of Oxford.
The Board of Directors of the Ashburn Institute has campaigned
cheerfully for the conference and book over the past few years. The main
point has been to emphasize the altruistic labours of the founder of the
organisation, Clarence Streit, and the principles of international
cooperation for which he stood. The members of the board as of this
writing are: Paul Anderson, Ron Bach, George Brooks, Rick DiMassimo,
Joseph Drew, Randolph Flood, Irma Foley, Robert Frantz, Moyna
Hudgens, Tom Hudgens, Wayne Jacoby, Piotr Kaznacheev, Robert
Lamson, Robert Maddex, Menko Rose, Mervin Strickler, Robert Stuart,
Danja Therecka, and John Willard.
In addition to these individuals, the committee wishes to thank
the following: Boguslawa Bednarczyk, John Bok, Frank Burgdrfer,
Fausto Capelli, Isabel David, Mirella Eberts, Mariusz Frankowski,
Christina Maria Gheorghe, Priyanka Ghosh, Mark Gyandoh, Megan
Henkels, Kalin Ivanov, Barbara Jaworek, Kseniya Khovanova, Xenophon
Contiades, Zoltan Kraszai, David Adam Landau, Martin McGoldrick,
Wren Nasr, Zoran Oklopcic, Jiri Payne, Rebecca Rogers, Olivier Ruchet,
Joelle Schmitz, Ivana Simikova, Brooke Sorci, Maiken Umbach, Lisa
Vanhala, Marc Weiss, Julia White, Mitchell Young.
I wish to thank all those who have contributed to this book and to
the advancement of cooperation across the Atlantic.
Washington, D.C., October 2004.
Joseph Drew
____________________________________________________________
17
Notes
1
Max Weber, The Methodology of the Social Sciences, ed. by Edward
A. Shils and Henry A. Finch, New York: The Free Press, 1949, pp. 90 -
91.
2
Paul F. Lazarsfeld and others, The Uses of Sociology, New York:
Basic Books, 1967. Also, Paul F. Lazarsfeld and Jeffrey G. Reitz,
Toward a Theory of Applied Sociology (A Progress Report), New York:
Columbia University Bureau of Applied Social Research, 1970. Prof.
Lazarsfeld was Americas leading expert on the methods and importance
of applied social science. In his book The Uses of Sociology and in a
subsequent article he co-authored, Toward Theory of Applied Sociology
(A Progress Report), Lazarsfeld discussed the purpose of what he called a
research map.
3
See Joseph Drew, A Problem in the Theory of Research, in
Working Papers in the Social Sciences, Washington: University of the
District of Columbia, 1981, p. 36.
4
As such these maps are not unlike a net by which to catch reality, as
Karl Popper said of theory, a searchlight.
5
Emile Durkheim, The Rules of the Sociological Method, 8
th
Edition,
edited by George E.G. Catlin, New York: The Free Press, 1964, pp. 1, 3.
6
But because this is a problem with all such social science analyses
and methods, with participant observation, interviewing, fixed-choice
questionnaires, demography, and content analysis, writes Aaron Cicourel
in Method and Measurement in Sociology, this does not mean that social
scientists should stop all further research and measurement until the basic
categories have been clarified.
7
For a further discussion of these tools, see Robert K. Merton, Social
Theory and Social Structure, New York: The Free Press, 1968, especially
Chapter 2, On Sociological Theories of the Middle Range.
8
It is a concept, a model useful for examination and to help us
understand. As long as we define our terms carefully, we can proceed. If
we do so correctly, objections to our conclusions can go logically only
against our reasoning or to the research building from the original
definitions.
9
Christopher Dawson, Understanding Europe, New York: Sheed &
Ward, 1953, p. 223. See also, the essay by Araceli Duque at
<www.catholiceducation.org/articles/history/world/wh0087.html.>
10
Thierry de Montbrial, Debating the Borders of Europe,
International Herald Tribune, May 20, 2004.
11
This term is used by others with a variety of implications. A Google
search reports 36,000 entries on the term. For a review, see for example,
Redefining Europe
____________________________________________________________
18
Johan P. Olsen, Europeanization - a Fashionable Term, but is it useful?
at <www.arena.uio.no/publications/wp02_2.htm>
12
Milton M. Gordon, Assimilation in American Life: The Role of
Race, Religion, and National Origins, New York: Oxford University
Press, 1964. See p. 71 especially.
13
This term was used by Benedict Anderson in The Nation as
Imagined Community, London: Verso, 1991.
14
Karl Lowith, From Hegel to Nietzsche: The Revolution in
Nineteenth-Century Thought, Garden City, N.Y.: Anchor Books
Doubleday & Company, Inc., 1967, p. 33.
15
See Lewis Coser, The Functions of Social Conflict, New York: The
Free Press, 1956 for the most famous explication of this thesis.
16
I am indebted to a distinguished Ashburn Institute colleague, Dr.
Robert Lamson, who reviewed the draft of this chapter, for these insights.
17
The thoughts of the late comparative civilizationist are summarized
nicely in the Fall 2004 issue of the Comparative Civilizations Review; see
Leonidas Donskis, Vytautus Kavolis: Toward a Polylogue of
Civilizations.
18
See, especially, Sebastian de Grazia, The Separation of Rulers
from the Community, in E. Digby Baltzell, Ed., The Search for
Community in Modern America, New York: Harper & Row, Publishers,
1968, p. 14.
19
For the classic study of marginality, see Robert Parks analysis in
his introduction to E.V. Stonequists The Marginal Man, New York:
Charles Scribners Sons, 1937.
20
Giuseppe Mazzini, Duties Towards Your Country, from his work
entitled The Duties of Man, excerpted in Introduction to Contemporary
Civilization in the West, New York: Columbia University Press, 1961, p.
540.
Federalism in Europe: History and Future Options
Maiken Umbach
Abstract
It is often claimed that the European Union suffers from a
democratic deficit when compared with individual European nation-
states. This chapter adopts a historical perspective to deconstruct some of
the assumptions underpinning this claim. Constitutional theory since the
Enlightenment has linked nation building and democratisation. Yet in
practice, their historical affinity resulted less from lofty ideals than from
the fact that it could be invoked by state governments to further specific
political aims such as the introduction of universal conscription. There
was nothing natural about the notion of a national community of
citizens, and there is nothing unnatural per se about the notion of a
European demos. What is more, we have reason to doubt whether the
nation-state and democracy will continue to be mutually reinforcing in the
future. Regions, which in many parts of Europe have deeper roots in
collective identities but were historically slower to democratise, could be
much more effective vehicles in forging a civic ethic of the future. To
unleash their potential, however, a radical overhaul of the European
Unions patronising attitude to the issue of regionalism is required.
Key Words
Constitution, European integration, federalism, identity, nationalism,
regionalism
***
Two arguments underpin the process of European integration.
One is political, the other is economic. The first portrays the European
project as a great political utopia, banishing the evils of nationalism, and
opening the way to a peaceful co-operation of all European peoples. From
the perspective of a younger generation with no personal experience of the
last World Wars, such hopes often seem a little antiquated. Even fewer
Europeans think it plausible that another intra-European war, even if it
were a real threat, would be prevented by the existence of the Brussels
administration. In spite of this scepticism, the political vision of Europe is
certainly not dead. In fact, in the recent debate over enlargement, it has
risen to new prominence. After 1989, the artificial and enforced unity of
the former Soviet block gave way to a resurgence of nationalist sentiments
in several central and Eastern European countries. Entry into the EU
Federalism in Europe: History and Future Options
___________________________________________________________
20
seems to offer an antidote to both enforced unity and harmful nationalist
rivalry, allowing instead for a multiplicity of identities peacefully
coexisting and fruitfully co-operating. This vision has provided the
promise of European integration with a new political, one might even say
moral, raison dtre.
Parallel to this, a second discourse of European integration has
emerged. It focuses less on politics than on economics. European
integration, its advocates suggest, is a necessary concomitant of economic
modernization. In a world where production processes as well as
ownership of the means of production are typically multi-national, the
nation-state can no longer be the be-all and end-all of economic
organisation. It thus seems sensible to look to a larger organisational
framework to create the appropriate legislative infrastructure for an
integrated European market of goods and people. This second line of
reasoning derives much of its persuasiveness from the glance across the
big pond. It is difficult to believe that the sheer size of the US economy
and the countrys enormous military might could be unrelated. Indeed, for
some observers, the need to compete with US on the international stage is
the principal purpose of European integration. Only if Europe matches
Americas economic performance, they argue, can it ever expect to form
an effective counter-weight to American policy internationally. This
discourse gained an added sense of urgency from the recent realisation
that American and European responses to the threat of terrorism and
militant Islam differ considerably.
Yet the tide of anti-EU sentiment is rising. On the political level,
a new nationalist right objects to European integration, which is seen as
detrimental to national interests. A much more widespread and more
politically correct brand of Euro-scepticism, however, targets the
economics of European integration. The supposed economic benefits of
European integration, so these critics suggest, accrue not to normal
citizens, but to big business. What is worse, as corporate power is
strengthened, democratic participation becomes the inevitable victim.
Such reasoning is indebted to the broader discourse of anti-globalisation,
according to which supra-national policy-making by its very nature
bypasses ordinary people, robbing them of what is peculiar of their culture
as well as any active influence on political matters. But while few
globalisation sceptics go as far as demanding closed borders and a return
to protectionism, concerns about the EUs democratic deficit loom large
in current debates and find supporters across the political spectrum.
1
Indeed, the democratic deficit threatens to undermine the legitimacy of the
whole project, both in economic and in political terms. The
catastrophically low electoral turnout especially in central and Eastern
European countries during the elections of 13 June 2004 shows that even
Maiken Umbach
___________________________________________________________
21
the disadvantaged member states of the Union which supposedly stand to
benefit most in economic terms are at best indifferent, at worst hostile to
the project. In the long run, this lack of identification with the Union will
also undermine the larger political argument for integration. The EU is
unlikely to contribute to the peaceful evolution of its new member states if
these states perceive Brussels not as an aid, but as a threat to their newly-
gained democratic cultures.
The single most important question in deciding the future
development of the European Union is therefore whether the democratic
deficit is a temporary problem of adjustment or the inevitable price of
further integration.
Here, a historical perspective has much to teach us. For it is
history which has shaped many of the assumptions that underpin the very
idea of a right level of democratic participation. Objectively speaking,
there is no reason to assume that one type of polity, the nation-state, is by
definition more democratic than another. The association between the
nation-state and democracy is one that has evolved historically, and as a
result, has assumed the quality of a self-fulfilling prophecy. Voting in
national elections comes naturally; few people, however, even know who
represents them in the European Parliament. Most people agree on the
basic necessity of national government. EU institutions, by contrast, are
widely ignored. In Germany, a founder member of the Union, a recent poll
found that 31% of the public had never heard of the European
Commission. A Spanish poll revealed that a good 90% of Spaniards were
unaware of the European Conventions existence and only 1% knew its
goal was to write a constitution for the EU. And a British poll in 2001
discovered that a quarter of Britons did not know that their country was
actually a member of the European Union.
2
Why is it that political participation tends to focus on the nation-
state? In part, it may be a question of scale. Yet by that logic, local
elections should elicit even higher turnouts than national elections. The
opposite is true. National politics predominates over all its rivals, be they
local, regional, or pan-European. The explanation lies in history. The idea
of democracy, as we understand it today, is a relatively young historical
phenomenon. It is about as old as the European nation-state. Our modern
idea of the nation and the idea of representative democracy both originate
in the Enlightenment.
3
Its political theory found its first concrete
manifestations in the constitutions first of the American and then the
French Republic. Both defined the nation as a participatory promise.
Unlike the absolutist state, the nation referred not, or at least not primarily,
to a geographical space, but to the citizens in whose collective self
political sovereignty resided. Not only did membership in the nation
entitle its holder to political representation. Citizenship was itself an act of
Federalism in Europe: History and Future Options
___________________________________________________________
22
political will the watchword of the French National Guard patrols was
Are you of the Nation? Testing the commitment inherent in the notion of
the sovereign nation became an integral part of the modern political
habitus. In other words: we are conditioned to believe that non-
participation in national politics is a moral failing. From the 1790s
onwards, the very nature of language changed in such a way as to turn the
nation into an omnipresent point of reference.
4
And in doing so, French
revolutionary culture set the tone for the century that followed. Indeed, it
was during the nineteenth century that improved technologies of
communication and the mass market of the rapidly expanding cities of the
industrial age transformed the Enlightenment dream of an all-embracing
democracy of citizens into a concrete possibility.
5
This historical nexus between democratisation and nation-state
formation is the reason why we often assume today that the two are
connected by nature. Were this the case, then the attempt to construct
multi-national polities such as the European Union would be doomed to
failure. Yet there is little evidence to suggest that this is so. The unity
between the nation and democracy is far less organic than nationalists
would have us believe. Historically, the principal driving force behind the
state building process were political elites, and not the promise of political
participation.
6
Indeed, nation-state building was preceded by absolutist
state-building from the mid seventeenth-century onwards.
To be fair, by modern standards, those absolutist states were
relatively inefficient, and cannot be regarded as immediate predecessors of
modern nation-states. Early modern courts relied heavily on the co-
operation of provincial elites, lacking the resources and the technical
capabilities fully to control what went on in the provinces or regions.
7
But
as the states ambitions, competencies and, crucially, its tax-raising
powers expanded, new justificatory mechanisms were required.
Democracy was one. Take the example of the Napoleonic regime that
followed the French Revolution. Napoleons state depended on warfare,
and success in war depended on replacing mercenary armies with general
conscription.
8
To demand the ultimate sacrifice from their citizens was
easier for regimes that embraced the notion of popular sovereignty. Thus,
the nation that belonged to all its citizens was born in many ways a
consequence rather than a cause of the emergence of the modern state.
This is not of course the story that nationalists would tell us. The
likes of Fichte and Herder invested much energy into propagating an
image of the Volk as an eternal entity that awakens to full consciousness
over the centuries. Romantics constructed long historical ancestries for
their respective states, often reaching back to mythical figures from the
early days of the last millennium, such as the legendary Germanic warlord
Arminius.
9
In actual fact, however, the nation-state has comparatively
Maiken Umbach
___________________________________________________________
23
shallow historical roots. Paradoxically, this did not necessarily weaken its
legitimacy vis--vis its political competitors. In fact, in the later nineteenth
century, the relative novelty of the nation as a unit of political action
proved an asset, for it made it easier to capitalise on the political
opportunities created by the new mass market of political opinions. Being
a novelty itself, the nation-state was less wedded than other political
entities to traditional forms and rituals of political exclusion. Thus, for
much of the nineteenth century, progressive political forces, notably social
democratic parties and trade unions, looked to the nation-state for
salvation.
Regional governments, by contrast, were widely regarded as
strongholds of particularist privilege. And it is true that European regions
were comparatively slower to embrace democracy than nation-states. The
introduction of universal suffrage provides ample evidence for this. In
Europe, it was introduced first in Switzerland, in various stages from
1848. England followed suit between 1867 and 1884, France in 1875,
Denmark and Belgium in 1894, Norway in 1898, Finland in 1905, Austria
and Sweden in 1907, and Italy in 1913. In all these countries, however,
regional governments did not become fully democratic till after World
War One. Moreover, political participation was not just a question of
formal political rights. When it came to the evolution of a democratic
public sphere, too, the national level forged ahead. A national press with
mass circulation developed, replacing the multitude of regional papers that
appealed only to a small elite audience of educated and leisured readers.
National political parties evolved, in which national party leaderships
designed uniform national policies and enforced national party discipline.
They replaced a network of local political clubs and associations, which
had tended to recruit their members from a much narrower social
spectrum. All this activity also increased public participation in formal
political processes. In Germany, the first national elections with universal
suffrage were held in 1871, but the election turnout was only 51%.
However, after several decades of widespread political debate, party
agitation and propaganda, the election turnout of 1912, the last national
elections before WWI, was 85%.
10
This is the legacy that has shaped modern perceptions of the
nation-state as the prime bearer of democratic participation. Regions and
provinces were slower to respond to this process not because they were
less firmly grounded in civic culture and collective political
consciousness, but, paradoxically, precisely because they had deeper
historical roots. The various forms of regional government in Europe
from princely to republican with many mixed varieties in between, often
dated back to the Middle Ages. On the one hand, this meant that the
institutions and practices of regional government were an integral part of
Federalism in Europe: History and Future Options
___________________________________________________________
24
peoples sense of cultural belonging. On the other hand, it also meant that
these traditions proved harder to modify. For decades, historians therefore
regarded regions as obstacles to the process of political modernisation in
Europe. Thus, in a now classical study of 1979 which set the tone for
much scholarship that followed, Eugene Webers Peasants into
Frenchmen characterised French regions as primarily agrarian and often
traditionalist units that were forcefully modernised by a heroic centralising
nation-state.
11
In recent years, this historical picture has changed. A new
historiographical consensus is emerging, which regards strong regional
political cultures as a decisive advantage in the creation of cohesive and
stable nation-states. New studies show that new nation-states benefited
from the infrastructures, both physical and mental, that had been created
by successful regions; in countries where these were largely absent,
nation-building, too, floundered.
12
This has important implications for our
thinking about the role which regions can play in the European Union of
the future, and, more particularly, which contribution they might make to
its further democratisation. We should therefore take a closer look at the
regions.
In the early modern period, most European polities were what
historians call composite states: loose political frameworks, organised as
confederations, like Switzerland, or Empires, such as the Holy Roman
Empire, where the component parts enjoyed almost unfettered autonomy
in domestic affairs. Of these component parts, some of the most famous
and culturally productive were city-states, such as the famous Italian cities
of Venice and Florence, both of which had expanded in the early modern
period beyond the city boundaries and now ruled over their own,
substantial hinterland. Others were ecclesiastical states, most famously,
the papal states of Rome, but, throughout Europe, prince-bishoprics, with
their very own, peculiar constitutional forms. And thirdly, there were
countless smaller principalities, duchies and even kingdoms, like Bavaria,
with their own courts, but simultaneously subject to the higher authority of
an Emperor.
13
Political participation developed first in these regional
frameworks. This is most evident in city-states, which typically had
republican constitutions.
14
But even principalities developed elected
assemblies that shared power with the hereditary rulers a practice that
was formalised when written constitutions were introduced in most
regions during the nineteenth century. In addition, many European regions
had peculiar legal systems that were often quite different from the larger
national whole, and gave them a distinct sense of identity.
15
The formalisation of national unifications in much of Europe
during the later nineteenth century at first had no great impact on regional
Maiken Umbach
___________________________________________________________
25
government. In most of the new states, it was little more than foreign
policy that was conducted by the national centre. A quick look at national
budgets confirms this. In Germany, between 1871 and 1914, less than one
third of the national budget was allocated by the national parliament. Most
national spending was determined by regional and local government
instead. In cultural terms, too, regional identities persisted. People often
thought of themselves as Hamburgers or Saxons first, and Germans only
second. It was only when two world wars propelled foreign policy issues
to the centre of most peoples existence that national loyalties clearly
overrode older types of identity and belonging centred on the locality and
the region.
16
Broadly speaking, then, successful nation-states tended to be
federations. Federalism, many historians would now argue, proved a
successful recipe for a mutually beneficial cooperation between small and
large political units. No wonder that the term has assumed a central role in
the current debate about the shape of the European Union, too. This debate
is complicated, however, by the fact that federalism has come to mean
quite different things in different European cultures. In English, the
meaning of federalism has been shaped by the American history, where
federal gradually became synonymous with central. To British ears, to
speak of federalism in regard to Europe conjures up the threat of a
bureaucratic, Brussels-led super-state riding roughshod over the interests
of member states. This development had good reasons, but its end result
represents a distortion of the original meaning of federalism.
Federalism was first coined as a political concept in the
eighteenth century. Enlightenment thinkers such as Montesquieu and
Rousseau argued that federalism provided a geographical analogue to the
functional division of powers between the legislature, the executive and
the judiciary. Federal systems, Rousseau wrote, by distributing power
amongst multiple sub-centres, would help prevent the danger of tyranny,
and foster style of politics marked by careful deliberation and a search for
balance and compromise.
17
These ideas informed the Federalist Papers
of 1788, written against the backdrop of the American War of
Independence, and outlined the vision of a voluntary federation of
American states freed from the yoke of British imperialism. Americas
federal experiment excited Europeans as well: for the first time, it seemed
the theories of Montesquieu and Rousseau were translated into political
reality. In the process, however, the term federalism quickly assumed new
connotations. For the domestic opponents of American federalists were
not defenders of European absolutism; rather, they advocated complete
autonomy for the individual states. The label Federalist, by contrast, was
used by those who advocated some element of national unity, including a
uniform constitution, legal system, single currency and so on. In the
Federalism in Europe: History and Future Options
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26
political controversy that ensued, the label federalism thus gradually
became synonymous with promoting closer integration, while the original
opposition between federalism and centralism faded into oblivion.
18
A
federal institution or law was one that asserted a unitary authority over
the laws and customs of individual states. In the mid nineteenth century,
the American civil war seemed to confirm the equation between
federalism and the forceful imposition of common policies and
standards upon unruly regions. This plot has remained largely unchanged.
Countless popular US movies dramatise the clash between federal
institutions, exemplified by the FBI, with the spirit of self-reliance and
anti-Washington sentiment of their counterparts in remote Southern or
Western states. Waco has become emblematic of the authoritarian image
of federal America.
In this, the American usage of the term federal has moved a long
way from its original meaning. The development in Europe was different.
Here, the story of modern political federalism began at about the same
time - but soon took a different turn. Again, the ideas of Montesquieu and
Rousseau formed the starting point. But they soon left the realm of
political theory. Uninterested in pure speculations about an ideal state,
political and legal writers of the eighteenth century were concerned to
address the pressing problems of the day. The polycentric structure of the
Holy Roman Empire, which had shaped European politics for many
centuries, provided the background. Later nationalist historians often
characterized the decentralised structure of the Old Empire as excessively
fragmented and dysfunctional. But contemporaries saw it in quite a
different light. They found it highly effective in fulfilling its purposes -
above all, the maintenance of peace and the rule of law. Political
centralisation was not its purpose, and the absence of centralising moves
thus not a failure. During the later eighteenth century, enlightened
thinkers such as the German Johann Stephan Ptter believed that this
imperial constitution was threatened by ambitions of the new absolutist
rulers of Europe, such as those of Prussia and Austria. The answer was to
put this form of decentralised rule on a new intellectual footing: the Old
Empire was now defined as a federal state, safeguarding diversity within
unity. This had many benefits. The multitude of different polities within
the imperial framework, enlightened commentators argued, not only
preserved political pluralism; it also led to a healthy, peaceful competition
between these states, many of which became centres of enlightened
reform, ranging from the introduction of more efficient agricultural
methods to the abolition of torture.
19
In a system where the component parts exercised most political
powers, external boundaries were rarely invested with great symbolic
significance. The Holy Roman Empire provided a legal framework for
Maiken Umbach
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27
settling disputes between regions and for co-ordinating foreign policy. It,
and even more so its Eastern counterpart, the Habsburg Empire with
which it partly overlapped territorially, transcended linguistic and ethnic
boundaries, and accommodated cultural and religious diversity. In this
sense, empires were truly European entities, which thrived on regional
autonomy. We can find evidence for this on the micro- as well as the
macro-level of history. Let us take one example: the history of Prague.
The city, long the capital of the Habsburg Empire, before it was moved to
Vienna, offers numerous visual testimonies of the extent to which imperial
culture incorporated different European strands. St. Vitus Cathedral,
which towers over the city, was built under the Emperor Charles IV in the
fourteenth century. It is a prime example of the late gothic or
perpendicular style which architectural historians, with good reason, have
described as the first international style. The Parler family, who were
the architectural masterminds behind the cathedral, operated throughout
Europe and developed a visual idiom that was quite different from the
French-dominated high gothic. Their work crossed the boundaries
between national traditions, indeed between Western and Eastern Europe.
The Parlers built cathedrals in Cologne, Gmnd, Regensburg, Strasburg,
Ulm, Augsburg, and Nuremberg, but also in Basel, Vienna, Milan, Prague,
Buda, and Agram. Stylistically, their work incorporated a new realism,
which owed much to the resurgence of urban culture and civic humanism
in the late Middle Ages, and in some ways prefigured the Renaissance. In
this sense, the Parler gothic fused pan-European and regional motifs, and
replaced older, predominantly national paradigms.
20
This was very much
in keeping with the political ambitions of Emperor Charles IV, who spoke
five languages and who sought to turn Prague into a nodal point of
European trade. The erection of the Charles Bridge is one of the surviving
physical traces of a much wider programme of improving means of
transportation, roads and infrastructure to entice Europes East-West as
well as North-South trade to be channelled through Prague.
21
All this is not to suggest that we can connect directly with such
early modern traditions. In the modern period, most of these supra-
national empires disintegrated; the Holy Roman Empire collapsed under
the onslaught of Napoleon in 1806, the Habsburg Empire did not survive
the First World War. At about the same time, regions, too, lost most of
their autonomous powers to nation-sates. War undermined loyalties to
larger, supra-national units, while economic developments dissolved
traditional regions in the larger national whole. Yet this did not render this
legacy obsolete. We have already mentioned the new view amongst
historians that see successful regions as the building blocks of successful
nation-states. This argument can be extended to the economic sphere, too.
Industrialisation certainly changed the character of Europes regions, but it
Federalism in Europe: History and Future Options
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28
did not render them superfluous. Regional specialisation and
modernisation proved compatible in many ways. Indeed, one might argue
that Europes head start in the Industrial Revolution was largely a result of
the multiplicity and diversity of its economic sub-centres. Culturally, too,
the strength of European nations owes much to the interplay of different
regional cultures. Nowhere was this more true than in Germany: while
London and Paris assumed leading roles in their respective countries, in
Germany, culture was associated with Goethes Weimar, Beethovens
Vienna and Wagners Bayreuth but rarely with the grey Prussian capital
of Berlin.
At any rate, political centralisation itself was short-lived. While
the nation-state triumphed in 1914, after 1945 nationalism was no longer
hailed as the great new doctrine of a democratic age; instead, it was tainted
by its implication in two disastrous wars, and the fact that it had been
employed so effectively by totalitarian regimes. In Italy, Mussolini had
posed as the man to complete the half-hearted unification of Italy,
symbolically staged in the March on Rome that marked his take-over. In
Germany, Hitler had declared that federalism was a mask to be torn off
the face of the German nation, and in Spain, Franco ruthlessly suppressed
regional cultures, banning the use of the Basque and Catalan languages.
The same centralising impulse was to be found, albeit for different
reasons, in Eastern European governments during the Soviet era.
In post-totalitarian times, this association of national
centralisation with totalitarianism resulted in a powerful revival of
regional identities in a new, more democratic age. Germans, it is true, had
little choice in 1945: the Allies deemed subdivision of the country a useful
antidote to the resurgence of German nationalism. Yet West Germans
were quick to accept this solution as their own, interpreting it as a return to
healthier German traditions. Where nationalism had been so thoroughly
discredited, one could still take a sense of pride in being a citizen of
Bavaria or Hamburg. A very similar process occurred in East Germany,
where Ulbrichts regime had been ideologically committed to
centralisation. After 1989, East Germans were quick to dissociate
themselves from the political legacy of the GDR. Yet they did not simply
want to be annexed by the West either. Regional identities Saxon,
Thuringian etc. provided a welcome idiom for preserving a sense of
separate identity from the West that was untainted by the legacy of the
Soviet-style dictatorship.
22
This post-totalitarian scepticism towards nationalism also
facilitated the evolution of supra-national co-operation in a number of pan-
European movements and institutions of the post-war period, and today
plays a similar role in promoting the EUs enlargement to include Central
and Eastern European countries. In both cases, a post-nationalist stance
Maiken Umbach
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29
not only appears sensible from an economic point of view; it also seems
the right thing to do from a political point of view. But even when
nationalism is discredited, it seems that the association of the nation-state
with democracy endures. Voter turnout is still highest in national
elections. In this way, the democratic legitimacy of the nation-state
becomes a self-fulfilling prophecy. People vote in national elections
because they feel that the national parliament is the most important
representative body, and in doing so, they lend it more democratic
legitimacy than either pan-European or regional political bodies can
muster. Many commentators have suggested that this is inevitable,
because the European Union is too abstract and remote an entity to arouse
much enthusiasm amongst ordinary voters. But the same argument must
surely apply to the nation-state. It, too, is rather abstract and remote. Many
social, economic and environmental problems occur on a regional level,
and national policies are not always ideal for dealing with them. Take the
case of Britain. Fiscal policies designed to curb galloping house-price
inflation in the South have killed what little remained of manufacturing
industry in the North, where no serious inflation problem existed. Similar
discrepancies occur between regions with a more agrarian character versus
those that are more intensely urbanised, requiring different political
incentives. And that is leaving the wide spectrum of cultural and
confessional differences between regions on one side. All this should
make us sceptical about claims that the nation-state is the ideal instrument
with which to address all these issues. Already, in matters such as
education, cultural identity and economic regeneration, Europes regions
are coming to the fore. They seem all the more dynamic at a time when
national governments often get bogged down in a long-drawn out process
of reforming the welfare state.
The challenge for the future is to build on this sense of pragmatic
regionalism, and to mobilise it politically. Regionalism has the potential to
form a new democratic sub-structure that could put our identities as
Europeans on a more solidly democratic footing. The European Union has
made some moves in this direction. From 2000 to 2006, 90% of 213
billion euros in EU regional aid will be targeted directly at regions
(typically with matching funding put up by regional governments), thus
bypassing the nation-state. Yet if the project of federalism in Europe is to
succeed, the European Union has to move beyond its view of regions as
passive recipients of European aid and governance, towards an approach
that treats regions as active participants in the process of governing.
Historically, Europeanism and regional autonomy have proved
compatible; nationalism, by contrast, is the antithesis of both. Given that
regions today have become fully democratic, they should be seen not as an
Federalism in Europe: History and Future Options
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30
obstacle to a participatory political culture. On the contrary: they hold they
key to reconnecting the political process with the people.
There are already encouraging signs. Many regionalists see
Europe as a natural ally against the centralism of nation-states and as a
way of overcoming the potential isolation which greater autonomy may
entail. Visitors to the office of John Swinney, head of the Scottish
Nationalist Party, will find two flags prominently displayed, Scotlands
cross of St Andrew and the yellow stars of the European Union. Yet there
are also signs of trouble. The recently departed president of Catalonia, Mr.
Pujol, was a passionate pro-European for all of his political life. Indeed,
many of the achievements of the autonomous Catalan government of the
post-Franco years have led to a much greater opening of this region
towards Europe, perhaps most evident in the regions educational reforms.
Yet Mr. Pujol now believes that the EU is no longer encouraging
regionalism.
23
Efforts by Catalonia, Scotland, Flanders and the German
Lnder to have a bigger role for regions written into the draft of the new
EU constitution were rebuffed by the convention on the future of Europe,
partly thanks to pressure from Spain and France.
There is an even more telling sign of the problem, notably a shift
in political language back towards nationalism. It seems to be one of the
great paradoxes of contemporary European politics that the most powerful
regionalist movements in Europe tend to borrow the rhetoric of
nationalism to justify their regionalist claims. Catalonia and the Basque
country both have long traditions of political autonomy. Independent
political units in medieval times, in the early modern period, they became
part of the kingdom of Castille. But they preserved crucial elements of
their autonomy, both when it came to policy-making and in terms of their
different legal systems. These autonomous rights were championed
throughout the nineteenth century by regionalist movements - in
Barcelona, the political party that most ardently defended Catalan
autonomy was called the Lliga Regionalista. In the twentieth century,
however, these movements adopted the rhetoric of nationalism, which in
turn necessitated the construction of historical narratives that posited
problematic categorical, even ethnic differences between the peoples of
Spain.
24
This has done little to help the cause of regional autonomy; it
mostly served to lock the nation-state and its component parts into a state
of mutual suspicion and hostility, a stalemate which is still not resolved
today.
Such difference might be overcome if federalism took the place
of the competing ideologies of nationalism and sub-nationalism. For
federalism, understood in the continental as opposed to the Anglo-
American tradition, has great potential to disenchant the nation-state,
robbing it not only of its administrative supremacy, but also of the aura
Maiken Umbach
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31
that makes its rhetoric so pervasive. From this, the European Union as a
whole would benefit: after all, many of the stumbling blocks to its further
sensible evolution are entrenched national interests, perhaps most evident
in the debates over agricultural subsidies. The principal beneficiary of
such a process would be European democracy. For through
regionalisation, political decision-making can be brought closer to those
who are most immediately affected by it. This is not just a matter of
practicality. Ultimately, the process of ever-increasing political abstraction
which characterised the evolution first of nation-states, and then of the
Brussels bureaucracy, is one that destroys the very nature of the political.
A carefully constructed media image of todays political leaders as private
men is a misguided attempt to counteract his process of bureaucratisation
and abstraction: an attempt which is too transparent to convince. What is
required are not football-playing or baby-kissing politicians, but a revival
of the small scale in politics. Politics not as a remote spectacle, but as a
series of distinct and creative projects, in which citizens are themselves
invested. Regions, thus understood and empowered, might form the
building blocks of a federal Europe, in which politics the art of
governing the polis, the small city-state, could be rescued from what
Richard Sennett has famously described as the fall of public man.
25
University of Manchester and Universitat Pompeu Fabra.
Notes
1
The literature on the European Unions alleged democratic deficit
is too vast to be surveyed here. For a critical review of the key arguments,
see Andrew Moravcsik, In Defence of the Democratic Deficit:
Reassessing Legitimacy in the European Union, Journal of Common
Market Studies 40:4, November 2002.
2
These figures are derived from scientific opinion polls reported in
The Great Debate, The Economist, June 12, 2003, and Barbarians at the
Gate, ibid., June 10, 2004.
3
Useful surveys of the semantic history of both terms are provided in
Reinhardt Koselleck, Otto Brunner, Werner Conze, eds, Geschichtliche
Grundbegriffe: Historisches Lexikon zur politisch-sozialen Sprache in
Deutschland, 8 vols (Stuttgart 1972-97).
4
During the French Revolution, not only the content, but the scope
and reach of political language changed dramatically. A few dozen
political periodicals circulated in Paris in the 1780s, but more than 5000
appeared between July 1789 and August 1792. The Revolution produced
at least 1,500 new plays, the vast majority of them about topical political
events. Political clubs proliferated, political festivals were staged all over
the country, innumerable political songs were invented, streets were
Federalism in Europe: History and Future Options
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32
renamed after political virtues. In all these genres, the term nation was
central to the new discourse. Cf. Lynn Hunt, Politics, Culture and Class in
the French Revolution (London, 1984).
5
Dieter Langewiesche, Nation, Nationalismus, Nationalstaat in der
europischen Geschichte seit dem Mittelalter: Versuch einer Bilanz, in
idem and Georg Schmidt, eds, Fderative Nation: Deutschlandkonzepte
von der Reformation bis zum Ersten Weltkrieg (Munich, 2000), 9-30.
6
John Breuilly, Nationalism and the State (Manchester, second ed.,
1993).
7
Nick Henshall, The Myth of Absolutism: Change and Continuity in
Early Modern European Monarchy (London and New York, 1992)
concludes that French absolutism under the sun king Louis XIV was a
figment of the constitutional imagination. Absolutisms enduring impact
on French political culture and the idea of the state is analysed in Chandra
Mukerji, Territorial Ambitions and the Gardens of Versailles (Cambridge,
1997).
8
Philip Shaw, Romantic Wars: Studies in Culture and Conflict, 1793-
1822, (Aldershot, 2000); Alain Pigeard, Larme de Napolon, 1800-
1815: Organisation et vie quotidienne (Paris, 2000).
9
On the significance of invented traditions and memories in
nationalism, see Benedict Anderson, Imagined Communities, revised ed.
(London, 1991); Eric Hobsbawm and Terence Ranger, eds, The Invention
of Tradition (Cambridge, 1992); John R Gillis, ed., Commemorations: The
Politics of National Identity (Princeton, 1994); Pierre Nora, ed, Les Lieux
de Mmoire, 3 vols (Paris, 1984-92), translated as Realms of Memory:
Rethinking the French Past (New York, 1996); Hagen Schulze and
Etienne Francois, eds, Deutsche Erinnerungsorte, 3 vols (Munich, 2000-
1); Mario Isnenghi, ed., Luoghi della memoria, 3 vols (Rome, 1997-8).
10
Hans-Ulrich Wehler, Deutsche Gesellschaftsgeschichte, in progress
(Munich, 1987-), vol. iii, Von der Deutschen Doppelrevolution bis zum
Beginn des Ersten Weltkrieges, esp. part IV.
11
Eugen Weber, Peasants into Frenchmen: The Modernization of
Rural France, 1870-1914 (London, 1979).
12
Celia Applegate, A Europe of Regions: Reflections on the
Historiography of Sub-National Places in Modern Times, American
Historical Review 104, 1999, 1157-82; Alon Confino, The Nation as a
Local Metaphor: Wrttemberg, Imperial Germany and National Memory
1871-1918 (Chapel Hill and London 1997); Philipp Ther und Holm
Sundhaussen, eds, Regionale Bewegungen und Regionalismen in
europischen Zwischenrumen seit der Mitte des 19. Jahrhunderts
(Marburg, 2003); Maiken Umbach, ed., German Federalism, Past,
Present, Future, Basingstoke, 2002.
Maiken Umbach
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33
13
John H. Elliott, A Europe of Composite Monarchies, Past and
Present 137, 1992, 48-71.
14
Richard MacKenney, The City State, 1500-1700: Republican
Liberty in an Age of Princely Power (Basingstoke, 1989).
15
Thus, the Catalans argued that their English-style legal system had
helped them become the first industrial region of Spain, while the rest of
the country, with its French-style judicial system, lagged behind. Stephen
Jacobson, Law and Nationalism in Nineteenth-Century Europe: The Case
of Catalonia in Comparative Perspective, Law and History Review, 20 /
2, 2002, 307-47.
16
Abigail Green, Fatherlands: State-Building and Nationhood in
Nineteenth-Century Germany (Cambridge, 2001).
17
A. Bosco, ed., The Federal Idea, 2 vols (London, 1991-92),
especially i, The History of Federalism from Enlightenment to 1945;
Bernard Voyenne, Histoire de lide fdraliste (Nice, 1973); J. Touchard,
Histoire des ides politiques, especially ii, Du XVIIIe nos jours, 10th edn
(Paris, 1988); Reinhardt Koselleck, Bund, Bndnis, Fderalismus, in id.,
Geschichtliche Grundbegriffe, i, 624-35.
18
The controversy is documented in J. R. Pole, ed., The American
Constitution: For and Against. The Federalist and Anti-Federalist Papers
(New York and Toronto 1987). See also Isaac Kramnicks introduction in
James Madison, Alexander Hamilton, John Jay, The Federalist Papers, ed.
by I. Kramnick (Harmondsworth, New York, 1987), 11-82.
19
Wolfgang Burgdorf, Reichskonstitution und Nation:
Verfassungsreform-projekte fr das Heilige Rmische Reich (Mainz,
1998); Michael Hughes, Fiat justitia, pereat Germania? The imperial
supreme jurisdiction and imperial reform in the later Holy Roman
Empire, in John Breuilly, ed., The State of Germany: The National Idea
in the Making, Unmaking, and Remaking of a Modern Nation-State (New
York, 1992); Joachim Whaley, Federal Habits: The Holy Roman Empire
and the Continuity of German Federalism, in Maiken Umbach, ed.,
German Federalism, Past, Present, Future (Basingstoke, 2002), 15-41.
20
Anton Legner, ed., Die Parler und der Schne Stil, 4 vols (Cologne,
1978).
21
Frantisek Smahel, Zur politischen Prsentation und Allegorie im
14. und 15. Jahrhundert (Munich, 1994); Frantisek Kavka, Am Hofe Karls
IV, translated from the Czech by Rosemarie Born (Stuttgart, 1990).
22
On the repression and resurgence of regionalism in Germany, see
Jeremy Noakes, Federalism in the Nazi State, in Umbach, German
Federalism, 113-145, and Mary Fulbrook, Democratic Centralism and
Regionalism in the GDR, ibid., 146-171. On regionalism in post-Soviet
Eastern Europe, see Ther and Sundhaussen, Regionale Bewegungen,
especially Section Three, Die Renaissance der Regionen, 161-260. On
Federalism in Europe: History and Future Options
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34
the pattern of forceful centralisation and centrifugal backlashes in
twentieth-century politics, see P. Waldmann et al, eds, Die geheime
Dynamik autoritrer Diktaturen (Munich, 1982).
23
Quoted from Europes Rebellious Regions, The Economist,
November 13, 2003.
24
Daniel Conversi, The Basques, the Catalans, and Spain (London,
1997); Albert Balcells, Catalan Nationalism: Past and Present (New
York, 1996); Stanley G. Payne, Nationalism, Regionalism and
Micronationalism in Spain, Journal of Contemporary History, 26, 1991,
179-91; Joseph Llobera, La formaci de la ideologia nacionalista
catalana. La idea de Volksgeist com a element definidor, LAven, 63,
1983, 24-35.
25
Richard Sennett, The Fall of Public Man (New York, 1977).
From Dialectics to Political Theology: Rethinking
Complexity in Federalism
Isabel David
Abstract
Everything which exists hides its opposite. The Schmittian
dialectics friend/enemy can be considered the essence of federalist
thinking. Unity/diversity, individual/society, State/humanity,
sovereignty/supranational, self-rule/shared-rule (Elazar), liberty/authority
(Proudhon), autonomy/participation are all opposite poles of one and the
same reality and which, as in Schmitts doctrine, do not destroy each other
but rather coexist in a harmonic balance.
The underlying assumption that conflict is a source of complex
creativity and that all demands can be accommodated in a sort of nervous
system (Deutsch) capable of learning (i.e., questioning ones values and
certainties and posing new problems) to manage interdependence (Haas)
has led to the belief that federal principles can act as effective problem
solvers in virtually all issues. In this case, federalism acquires a strong
ideological stance. In the presence of mutually exclusive and competing
values, which promote a certain concept of man, federalism, as an
unfulfilled ideology, puts forward a combination of mythical, emotional
and rational elements capable of guiding political action and bringing
forth a new historical process. As a fulfilled ideology, however, it
personifies the institutional prosecution of the fact (Mario Albertini)
and manifests itself in politics in the shape of power, that is, federation.
Key Words
Democracy, dialectics, federalism, ideology, political theology,
sovereignty
***
1. Political Theology
All prolific concepts of modern theory of the State are
secularised theological concepts.
1
In the Beginning was the Word. The first systematic description
of the federal polity can be found in the Bible in both political and
religious terms, as a covenant between God and men for the joint
preservation of the common good.
2
Covenants do not merely consist in
simple alliances, in that they are based on moral grounds and involve a
From Dialectics to Political Theology
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36
commitment, sanctioned by oath and mutual trust (fides-foedus-
federalism), which means the contracting parties voluntarily agree to bind
to a certain course of conduct, anchored on mutual recognition, respect,
cooperation, negotiation, reciprocity, obligation and responsibility.
3
In
fact, it is not just men who accept limitations to their power, exchanging
natural for federal liberty, that is, freedom to do what the law allows. God
Himself submits to the same law he proposes for humans:
The God of Israel, who has never been a master
in the usual sense of despot, becomes the interpreter and
the guarantor of the law.
If the angel seizes the knife of Abraham in the
face of a tied up and trembling Isaac, it is undoubtedly
to show that the Eternal one is not an outlaw and that not
everything depends on his free will.
4
Although God refrains from interfering in human affairs, He
entrusts men with the power and authority to rule and to change the world,
beginning with Adams right to name His creation, making them morally
accountable for the path they choose to follow. There will be a time,
however, when the underlying concepts of science and progress drive both
parties into confrontation, an ever-present fact (Israel literally means one
who struggles with God), as men rebel and covet Gods place, but if this
man is a rebel, it is, first and foremost, because his God takes great risks.
5
Inferable from the relationship between God and men, the biblical
design envisages a series of subsidiary covenants, or public law
partnerships,
6
such as civil societies (and the inherent relationship
between rulers and the ruled), international alliances, and, ultimately, a
world confederation (resulting from the legitimate right to existence of all
nations, bound among themselves and with God by covenant). Primary
communities emerge out of the natural propensity of human beings to live
in society, where the sharing of common moral obligations is closely
intertwined with the existence of a framework of collective rights,
7
which
emulate the inalienable rights (life, liberty, property and the pursuit of
happiness) God granted men, as creatures who were created alike and in
His image.
Although the Bible does not establish a particular political
regime, the foundations of the biblical polity can be seen as federalist. The
political organisation of the twelve tribes of Israel, bound together by a
common constitution and law, revolved around a system which provided
for autonomy and power sharing among three levels of government, local,
tribal and national. Local councils, combining executive, legislative and
judicial powers, as well as tribal institutions, emerged from the clannish
Isabel David
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37
structure, ruled by the elders. At the national level, power is both shared
and separated among three domains, priestly (responsible for the
communication between the assembly of the Israelites and God), prophetic
(deals with the communication of Gods will to the assembly) and civil,
concentrated in the aforementioned assembly, whose representatives,
responsible to and elected by the people (as in the tribal arena), include
elders and magistrates - representing the tribes, judges, and officers of the
people, todays equivalent of public servants. Additional arrangements
include the establishment of special commissions composed of one
representative per tribe, smaller commissions including two such
representatives plus judges, and joint actions of the tribes for limited
purposes. The same structure was retained even after the introduction of
the monarchy, the king having to be elected by the people.
The central idea behind the Book is that of limited government.
Since God is the only sovereign, politics is subordinated to a higher goal -
the fulfilment of the divine plan -, and the commonwealth is a public
thing, a respublica, the property of all the citizens, who are committed to a
set of principles: civic virtue, knowledge of and respect for the
constitution (first and foremost on the part of the rulers), egalitarianism
and collective responsibility. Societies that fail to comply with these
provisions eventually collapse from the inside, before being destroyed by
a foreign power.
Anointing federalism with divine sanction may appear farfetched.
It can, however, be a very useful connection. Separation between Church
and State, initiated with Machiavelli and continued by Bodin (according to
whom sovereignty was to become a laic religion), was made to the
detriment of politics. The violent downfall of the inherently unstable
absolutist regimes (because the prince was always seen as a usurper of the
papal throne) demonstrated that tyranny was the inevitable outcome of a
secularised political domain and that politics needs the Church, not
only religion but the tangible existence in space of religious institutions in
order to demonstrate its higher justification with a view to its
legitimation.
8
When it thus became necessary to find an alternative
source from which to extract power, recourse was made to the biblical
teachings, which influenced both Protestant theologians of the 16
th
and
17
th
centuries, Huguenots, Scottish Covenanters, Puritans, and
philosophers (Locke, Montesquieu, Kant, Buber, Proudhon and his heirs),
who secularised and transformed it into a political concept. The American
Founding Fathers, in particular, understood exceptionally well the
complexities involved in the act of re-foundation they had just undertaken:
But what will become of men then ? without God
and immortal life ? All things are lawful then, they can
From Dialectics to Political Theology
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38
do what they like ?
9
Obedience to the law requires a transcendent source of
authority,
10
a future state of rewards and punishments.
11
On the eve of
July 4th, the necessary elements to meet that criterion were already in
place; the teachings (namely the idea of congregational horizontalism) of
an influential clergy with diverse religious backgrounds Anglicans,
Quakers, Huguenots, Lutherans, and Presbyterians, many of whom had
fled Stuart tyranny - were in full harmony with federal political thinking,
taught in colonial colleges. Not surprisingly, the foundational act of the
Declaration of Independence and the subsequent constitutional activity are
filled with recurrent references to God and to a divinely ordained reason,
which helps explain why the Constitution survives unchallenged to this
day, by the very coincidence of authority, tradition, and religion, all three
simultaneously springing from the act of foundation:
12
the beginning itself, prior to the era of revolution, has
always been shrouded in mystery and remained an
object of speculation. The foundation which now, for the
first time, had occurred in broad daylight to be
witnessed by all who were present had been, for
thousands of years, the object of foundation legends in
which imagination tried to reach out into a past and to an
event which memory could not reach.
the remembrance of the event itself a people
deliberately founding a new body politic has
continued to shroud the actual outcome of this act, the
document itself, in an atmosphere of reverent awe which
has shielded both event and document against the
onslaught of time and changed circumstances. And one
may be tempted even to predict that the authority of the
republic will be safe and intact as long as the act itself,
the beginning as such, is remembered...
13
The American Revolution, as the word suggests, was much more
than mere independence; it was an attempt to return to innocence,
conducted by a chosen people, which would enable humans to eliminate
the corruptions of civilisation a la Europe.
14
The same line of thought
permeates Jewish culture, both in Israel and in the Diaspora, whose
existence and continuation as a nation is deeply rooted in the biblical
narrative. Both are what Ivo Duchaek termed as ethno-ideological
states,
15
societies held together by a specific ideology that settled in
Isabel David
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39
territories where they could give it practical meaning. The Word could
finally become flesh.
2. Federalism as Dialectics: Thesis
Everything which exists hides its opposite.
16
The modern understanding of federalism was, in effect, born in
the United States. Along with the tripartite separation of powers and the
system of checks and balances, emerges the reconciliation of the above-
mentioned biblical principles with nascent individualism, creating a union
whose subject is the people, simultaneously members of the local and the
national communities dual federalism each of which possessing an
exclusive jurisdiction, neither of which is subordinate to or liable to be
deprived of its authority by the other. Therein lies precisely the essence of
federalist thinking, its inherent revolutionary feature, in its Latin meaning,
revolvere, through its ability to revolve around two conflicting elements.
Federalism rests on a number of paradoxes defined by Carl
Schmitt as friend/enemy dialectics. The opposite poles reflect one and the
same reality and do not destroy each other but rather coexist in an unstable
balance, generating movement and progress; the elimination of one leads
to the destruction of the whole. Identity, as Vclav Havel writes, is not a
prison, but an invitation to dialogue.
17
Federal arrangements seek to link individuals, groups and polities
in such a way as to allow them to retain their autonomy and integrity,
combining shared-rule with self-rule,
18
authority with liberty and unity
with diversity:
any given federal structure is always the institutional
expression of the contradiction or tension between the
particular reasons the member units have for remaining
small and autonomous but not wholly, and large and
consolidated but not quite.
19
The reasons that underlie such polyarchic arrangements are
varied and usually dictate the survival of the federation: diplomatic and
military defence (the most common feature); territorial expansion through
peaceful means, as an alternative to empire and to conquest; ethnic ties;
peaceful resolution of conflicts; economic relations; geography; political,
sociological or historical motives; the stimulus provided by the existence
of an external federator (like the US is to the European Union); beliefs
and ideologies. In all levels of government, constant negotiation and
power sharing devices help create what Daniel J. Elazar designates a non-
centralisation system,
20
or matrix, offering an alternative to the centre-
periphery model. Power is distributed among many centres, whose
From Dialectics to Political Theology
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40
existence is constitutionally guaranteed, neither enjoying primacy over the
other, enabling the whole and the parts to become stronger through
interdependence. At the same time, a number of formal and informal
institutional mechanisms help create multiple channels of communication
and redundancy, introducing flexibility/adaptability, efficiency and
stability into the system.
The end result is a self-regulating and self-restoring
organisational structure capable of learning (i.e., of questioning its values
and certainties and posing new problems),
21
which provides for limited
scale experimenting, permits power to be democratised, or domesticated,
22
increases the opportunities for political participation, and enhances
consensus and the peaceful resolution of conflicts. In sum, the central
interest of true federalism in all its species is liberty.
23
3. Federalism as Dialectics: Antithesis
Between theory and practice there is a long path, though. Systems
are self-regulating and self-restoring only to a certain extent; a number of
internal and external constraints interfere with the normal feedback
process, breaking down their self-regulating ability, which relies, as
Martin Landau explains, on error-detection mechanisms and reference
signals pointing to error:
In hard artificial systems, they are provided by an
external source and they automatically activate
corrective feedback loops.
When, however, the command source is internal to the
system, as is obviously the case in politics, the strict
separation that permits the observation and detection of
measurable discrepancies does not obtain. This means
that the command (internal to the system) cannot
provide clear and precise error signals a situation that
is further aggravated by the fact that much of our
political programming is cross-purposed and cross-
valued, as well as multi-purposed and multi-valued.
Reaching for multiple goals simultaneously, even when
not formulated in terms of necessarily vague charter-like
values, makes it exceedingly difficult to detect
measurable (i.e., observable) discrepancies between
program and outcome. And even when goals are agreed
to, when desired outcomes are generally accepted,
praxeologies which are deemed to be correct by one are
rejected by others. Nor can we minimize the matter of
our time constants. what is taken to be a correct
Isabel David
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41
action often leads to unanticipated consequences which
are disastrous.
24
Once self-correcting schemes fail, the very flaws which
federalism was deemed to rectify follow. If, on the one hand, an extremely
rigid division of powers can be counterproductive, on the other,
overlapping and, often, uncoordinated jurisdictions lead to duplication,
bureaucracy, large expenditures of time, money and effort, slower
decision-making processes, or even stalemates, and unaccountability. The
end result, in all cases, is inefficiency and a loss of coherence in the
decision. Jurisdictional fragmentation, in addition, goes hand in hand with
the loss of political control to specialists and elites of intergovernmental
relations, so that, in the end, local institutions have more power over less.
Reliance on local government, on the other had, entails
patronage, influence and personal fiefdom: Local governments, like all
governments, act as Leviathan, exploiting constituents to further enhance
their own power and authority,
25
a true centralisation of proximity.
26
Another argument stems from the fact that the territorial
dimension of federated entities tends to reify and reproduce the group
differences to which federalism is itself a response,
27
providing
protection for backward elements or minorities, who seek to utilise those
units for their own purposes, altering the will and spirit of federal
legislation to please local idiosyncrasies, thereby endangering the whole:
It [federalism] promises a rational, clean-edged
approach to managing conflict and encouraging political
participation. It is an Enlightenment doctrine par
excellence. In the context of the explosion of identity
politics this is precisely its main problem.
28
Classical examples can be found in the Secession War and the
civil rights issue in the United States, in the Quebec case or in South-
African Apartheid federalism.
29
The crux of the matter lies in the
question of which cultures should have the right to be recognised through
federation and here federalism takes on a much more Machiavellian cover:
I would argue strongly against [the]
assertion that one can separate a process of federalism
from the institutional arrangements of federation, as if
federalism were simply the unlimited variety of
everyday cleavages in society. The fact that these
federal characteristics of society mobilise in support
of the territorial fragmentation of the institutions of the
From Dialectics to Political Theology
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42
state highlights federalism as first and foremost a
political project clearly associated with transforming the
character of state power and with asserting certain types
of political subjects as central. The concepts and ideas of
federalism have given to certain political projects an
identity and legitimacy at the same time as they have
arguably provided the institutional means for resolving
intractable conflicts created by the production of
particular political identities. But it is the particularity of
the subject identities involved in federal arrangements
that should alert us to federalisms intrinsically political
character. For it is ethnic groups and territorially based
communities that find some relief in the federal position.
Rather than promoting a pluralist solution to political
problems, then, federalism restricts the nature of the
political terrain and is instrumental in re-shaping it in
ways which disadvantage some, and empower others.
Thus while federalism does not have moral
value in its own right, and assumes the meaning of those
who pursue a federal solution as the means to secure
their own advancement, it can also be thought of as a
discourse linked in to the particular limiting political
practices and ideas of the modern state.
Thus not only does a federal solution empower
particular political identities and organisations and
disempower others, but it is also likely to generate new
forms of political identity, not least territorial ones.
For the proto-federalist settlement which has
emerged not only contains more federalist elements than
the negotiators realised , but also set in place the
opportunity for an even greater decentralisation of powers
and autonomy.
30
Hence, groups which do not conform to the territorial criterion,
such as the new social movements, identified on the grounds of gender,
age, class or sexuality, are as underrepresented in federal systems as they
are in any other. In addition, new politics, in a context of globalisation,
poses a challenge to existing federal structures, in that the nature of the
demands those groups address extends beyond the regional and the
national level and is not, by definition, easily compatible with any type of
compromise.
Isabel David
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43
4. Resolution of the Dialectics: Centralisation
A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for
a bad execution; and a government ill executed,
whatever may be its theory, must be, in practice, a bad
government. (Alexander Hamilton, Federalist No. 69)
Institutions are the product of the specific political culture of the
polity in which they operate and are, therefore, resistant to change and
tend to perpetuate across time: inertia is on their side. Whatever their
imperfections, they are known models.
31
Through a characteristic
psychology labelled by Robert Michels as the iron law of oligarchy, state
becomes an end in itself. The larger, the more powerful, complex and
impersonal states are, the bigger their need to differentiate their organs and
functions, which are operated by a professional-bureaucratic complex,
32
a distinct tamed body of numerous officials, among whom prevails a spirit
of place-hunting and mania of promotion, which contaminates even the
most active element, so that the revolutionaries of today become the
reactionaries of tomorrow
33
; as they are completely dependent on the
state for their survival, they tend to produce organs for the defence of aims
and interests of their own, thus blocking initiative and innovation,
becoming utterly unaccountable, a state within the state. At the same time,
an inflated budget covers the whole country, through the multiplication of
state funded programmes, which usually lack coordination among them, as
beneficiary states play a programme against the other, to obtain more
advantages. Furthermore, new programmes continue along with the
previous ones, instead of replacing them, because each one is supported by
an interest group which is opposed to its suppression, therefore weakening
the authority of local government, since these state and federal special
interest groups see state and federal mandates as a means of gaining
benefits at low political costs as compared to local political actions.
34
The
statement is equally valid on the European Union level, where the
existence of a number of programmes and funds is intimately associated
with the emergence of new trans-national interest groups and lobbies.
Thus, those who have a stake in the system unite in what become tightly
knit oligarchies, subordinating pluralism to a new kind of structured
control over policies and programs.
35
A case in point is the obliteration of
dual federalism by Roosevelts cooperative federalism and later, by
Nixons new federalism, transforming the States into mere administrators
of a federally-designed agenda, as inter-governmentalism replaces
federalism.
When unaccountable private interests take over public life and
From Dialectics to Political Theology
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44
governments are perceived as little more than companies, that is, providers
of goods and services, the common good becomes little more than a
national sum of private ambitions.
36
This is because the two spheres, the
economic and the political one, have divergent goals, and once politics is
evicted by the market, democratic decisions lose credibility, given that
money can be neither democratised nor held responsible, and citizenship is
converted into plain ratification of decisions or consumption of
services.
37
Representation, in turn, fails and elections turn into a simple
appointment of agents and delegates of interest groups. Orientation is top-
down, i.e., the elected representative is the appointed agent of the voters,
dependant and subordinate.
38
For economy, as Hannah Arendt points out,
can never decide the question of which form of government is better;
39
it
can, however, contaminate politics through the notion of private property,
through which by a natural and psychological analogy, political power
comes to be considered as an object of private hereditary ownership.
40
It is namely the case of machine politics and boss rule. Electoral victory in
all three branches of government, legislative, executive and judicial,
enhances centralisation by overriding the constitutional separation of
powers, offering the boss the possibility to make use of public jobs, funds
and powers to marshal resources, reinforce the party machine and
strengthen his supremacy as a political actor. Personalisation of power (a
situation all the more worrying in a presidential regime) turns him not only
into the embodiment of the constitutional order, but also into the
interpreter of the general will, which would, otherwise, be the product of
the sum of the private will of each citizen, which is (if this is to be more
than a legal fiction) ever-changing by definition, and a structure built
on it as its foundation is built on quicksand.
41
Personalisation entails yet
another problem:
the great conflicts of view are fought out to an ever
diminishing extent in the field of ideas and with the
weapons of pure theory, that they therefore degenerate
more and more into personal struggles and invectives, to
be settled finally upon considerations of a purely
superficial character.
42
When citizen involvement is innocuous, elections, then, are
purely illusory and the draconian dictum of Rousseau gains renewed
validity:
The people of England regards itself as free; but it is
grossly mistaken; it is free only during the election of
members of parliament. As soon as they are elected,
Isabel David
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45
slavery overtakes it, and it is nothing. The use it makes
of the short moments of liberty it enjoys shows indeed
that it deserves to lose them.
43
In democracy, as de Tocqueville anticipated, power escapes the
powerless individuals and concentrates in the central government, even in
federal polities. Democratic homogeneity merges with homogeneity in the
federation and eliminates the political boundaries among member states to
make them coincide with the homogenous unity of the people, eradicating
the previous dualism between central and local governments, so that, in
the end, there is only one political entity: The dialectic is uncomfortable
with the contradictions immanent in a phenomenon and seeks to absorb or
transcend them in their unity.
44
Politics means organisation, which, in
turn, stands for power:
In the final analysis, federalism, as with all political
systems, is fundamentally about power who holds it,
how it is divided and shared, and how responsibly and
effectively it is administered.
45
Centralisation is thus the indelible mark of the encroachment of
both rationalism (i.e., of general and uniform solutions) and determinism
upon politics: In any age, under any regime, the best is the enemy of
diversity.
46
After all, isnt the creation of a central government the
beginning of a centralisation process?
47
5. The Corollary of Centralisation: Sovereignty
The essence of unity, in fact, is to be one.
48
All federations
aim at durability and are, therefore, perpetual, which means that the
presence of independent units within a federation is necessarily an
unsustainable contradiction. Political existence implies the possibility a
specific entity has to autonomously determine its own form, something
that cannot happen in a federation for the simple fact that the central
authority holds the right and the power to intervene in the internal affairs
of the member States, thus altering their status. The accuracy of the
statement can be attested by the primacy of federal law over State law; a
closer look at the history of constitutionality verification shows that, in
case of conflict, federal powers are almost invariably reinforced. It is the
case in the United States, where the Supreme Court is a kind of
Constitutional Assembly in continuous session,
49
and also in the
European Community. Here, if the federal thrust has to some extent been
contained on the institutional level through inter-governmentalism, and the
associated mechanisms of veto and unanimity (despite the Commissions
From Dialectics to Political Theology
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46
monopoly on legislative initiative, or the implications of a directly elected
European Parliament for the intertwined notions of citizenship, nationality
and sovereignty, or, still, the fiscal basis of the union and the existence of
a common currency), it has been successfully pursued on the legal stage,
aided by the ill-defined wording of the EC Treaty, in particular through
the principles of subsidiarity (article 5) and implied competences (articles
6, no. 4, 94, 95 and 308). Both can be easily used as instruments of
centralisation, when invoking efficiency motives, transforming
legal problems in political solutions. The debate then
tends to abandon the institutions where it should take
place to unroll in the national and international Law
Courts . There is a phenomenon of domination
through law, where the implementation of the
instruments foreseen by the texts leads up to
teleological debates.
50
On this basis - the fulfilment of Community goals the action of
the European Court of Justice (ECJ) has extended to all domains
economic, social and political, affecting directly not only governments but
also citizens (a feature which distinguishes a government of governments
a confederation from a government of a single people - a federation)
and its rulings have firmly established the principles of direct and
immediate applicability, uniform interpretation and the primacy of EC law
over national law, circumventing the member States through a new legal
order: Legal logic coincides with federalist logic.
51
When conflict calls for a decision, there can only be one
authority, above the parties. Otherwise, if we
adopt as a procedural norm the principle that every
inclination, act or policy ought always or generally to be
balanced or checked by the contrary inclination, act or
policy, we are at once reduced to immobilism.
52
And here resides the issue of sovereignty - the issue over who
has the last word, that is to say, who makes the final decision,
53
whose
essential subject is the link between supreme factual power and supreme
legal power.
54
Sovereign is he who decides on the exception
55
; the
exception disturbs the unity and the order of the rationalist outline
56
and
with it, real life crushes the shell of a mechanism frozen by repetition.
57
Such a definition is immediately applicable, regardless of ideologies or
forms of government.
The criterion of indivisibility is therefore fulfilled and, with it, the
Isabel David
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47
validity of the classical definition of sovereignty in federal polities. Herein
lies the distinction between confederations and federations:
Either the local governments can generally be overruled
within the system or they cannot be. If they can be, then
they do not enjoy an autonomous power and their
dependence demonstrates an imbalance. If they cannot
be, this must mean that they can either take over the
centre or simply secede from the federation. For within a
federation, not only does the secession of a locality
signify the cancellation of any federal authority over the
territory; it equally signifies the cancellation of the
central governments authority over its own citizenry
within that locality.
58
In case of conflict, confederations dissolve, while federations
dont precisely because sovereignty is the shape in which dissension
and conflict are solved. In fact, sovereignty as the transformation of
diversity into unity is the wager of civil war.
59
Machiavelli, Bodin and
Hobbes understood it exceptionally well. Typical examples are the 1847
Sonderbund War in Switzerland,
60
and the Secession War in the United
States (1861-65). Without a single political will, a confederation becomes
an inter-state relation, whereas a federation develops into a sovereign state
and drops its federal principles, as member States lose the right to
independent decision-making regarding their political existence and only
retain an administrative and legislative autonomy.
61
Proof of that is the
progressive loss of weight of the interests of federated states in the upper
houses of parliament, whose powers have been substantially reduced and
their members submitted to the principle of personal independence.
The question of sovereignty in federal states is not, then, merely
an incidental one,
62
subordinated to issues of constitutionality, utility,
and propriety,
63
nor are federal principles an alternative to (and a radical
attack upon)
64
it, despite subtle distinctions,
65
which seek to
differentiate sovereignty from its full exercise as independence, claiming
that one does not necessarily imply the other, while some others contend
that popular sovereignty pre-empts state sovereignty, replaced by the
expression delegated powers (justice, police, finances, legislation, taxes,
issuance of currency).
In the end, as the allusion to sovereignty is merely a symbolic
manifestation of a weak federal spirit,
66
one has to wonder if federalism
isnt but a simple technique for political integration - occasionally useful,
transitory in nature, and ultimately to evolve into a more simple form of
decentralisation within a strong unitary government,
67
gradually
From Dialectics to Political Theology
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48
discarded (in fact if not in form) as an unnecessary encumbrance.
68
6. Political Theology Revisited: Enter Ideology
Such an acknowledgement does not, however, come easily.
Federalism has been deified to an extent such that it is accepted almost as
a dogma,
69
as an end in and of itself:
70
because federalism possesses powerful persuasive
(valuational) connotations in addition to its descriptive
properties, only a very few of us are willing to make this
claim. To say that federalism is dead, that it is no
longer applicable to the present circumstance, seems to
be equivalent to saying that a cherished and enduring
value is dead. Unwilling to do so, we invent new
federalisms centralized, integrated, national, creative,
decentralized federalisms and say only that dual
federalism is dead. The others, however, remain vague,
ambiguous and confusing terms which cannot provide
any clear decision rules. What they do, apart from our
propensity toward reification, is to symbolize our
adherence to an evolutionary mode of analysis and our
loyalty to the enduring values of the mechanical mode.
It is as if scholars stand with one foot securely
planted in mechanics as they salute evolution with the
other. How else to understand the curiosity of a
permissive federalism.
71
Part of the explanation lies in the fact that federalism is a value
concept, that is, terms whose precise definition may be difficult or well
nigh impossible, but which are understood to have a common core
meaning within a particular culture,
72
something which influences the
way how its proponents are only too eager to apply federal solutions to the
widest range of trouble spots. In fact, federalism has come to embody a
comprehensive world-view fully identified with progress, justice, peace,
pluralism, liberty, rule of law and democracy. Based on these paradigms,
it will immediately distinguish genuine from usurped forms (like the
former USSR or Yugoslavia); hence,
There are forms of federalism to parallel virtually every
form of rule, except authoritarian and totalitarian rule,
which can be masked by federal systems and even
influenced by their federal structures, but which are, in
the last analysis, something else.
73
Isabel David
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49
One should recognise here a case of political theology, as
mankind and the democratic idea of rational legitimacy take the place of
God as the origin of all power, masked as ideology: whereas
Christianity has made God into a man, [federalism] will make man into a
god.
74
All political ideas in one way or the other take a stand on human
nature and assume that man has a good or a bad nature
75
and promote a
certain type of humanity.
76
Systematic denial or dismissal of the validity
of certain traits and the affirmation of uniqueness with regard to other
beliefs are two typical and inescapable attributes of any ideology. And so
is a methodical, systematic, rational theory and the absolute faith in its
potential, firmly defended by the adherents, who seek to translate it into
reality. When mutually exclusive and competing values recognise that
history has reached a crossroads, old structures are to be destroyed and
new ones created:
The master of a world which has to be altered, that is, of
a failed world (on whom one imposes the need to
change because he opposes it), and the liberator, the
agent of a new, transformed world, cannot be good
friends. In times of revolution, everything which is
old is the enemy.
77
All revolutions are, however, post-revolutionary. The almost
inevitable irreconcilability between thought and action already
demonstrated by modern revolutions makes it plain that it would be a folly
to make a revolution without reform and to believe that an opposite
constitution possesses within itself peace and harmony.
78
The full cultural
and political affirmation of an ideology does not coincide with the
complete fulfilment of its distinctive value.
79
From federalism the
unfulfilled ideology, or ideal type, to use a Weberian category , to
federation - the institutional prosecution of the fact that manifests itself in
politics in the shape of power -, there is a substantial difference:
Institutions are subtle and recalcitrant things. They are
not neutral with respect to human purposes; rather each
institution and process has its peculiar propensity to
produce certain outcomes and not others. human
beings often do not do their political work well. They
seek more than a given institution can supply, or they
seek from it contradictory ends, or they blend processes
which work at cross-purposes, etc. Thus deliberate
purposes often give way to or become blended with
unintended purposes, which institutions generate from
From Dialectics to Political Theology
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50
their natures. What men want and, as it were, what their
institutions want, blend and blur in the practical
unfolding of affairs. From this mixture of human
intention and institutional nature arises much of the
frustration of political life, its confusions, tensions,
failures, and partial successes.
80
Politics, moreover, is the work of men, with all their
imperfections, which means that those Vices, which render social
Institutions necessary, are the same which render the Abuse of such
Institutions unavoidable.
81
If the essence of the State, as Engels put it, is
the fear of humankind faced with itself, government cannot be but the
greatest of all reflections on human nature.
82
One is thus forced to conclude that federalism designates a set of
historical experiences and policies much older than its theory, but never
fully fulfilled.
83
Faculty of Social and Political Sciences - Technical University of
Lisbon, Portugal.
Notes
1
Carl Schmitt, Thologie Politique. 1922, 1969 (Paris: ditions
Gallimard, 1988), 46.
2
The description of the biblical account follows the work of Daniel J.
Elazar. See The Daniel Elazar On-Line Library at the Jerusalem Center for
Public Affairs, <http://www.jcpa.org/djeindex.htm>
3
Michael Burgess, Federalism and European Union: the Building of
Europe, 1950-2000 (London: Routledge, 2000), 13.
4
Chantal Millon-Delsol, Lirrvrence. Essai sur lesprit europen
(Paris: Mame, 1993), 186.
5
Ibid, 34.
6
Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of
Alabama Press, 1991), 115.
7
The cornerstone of the Western edifice of rights, in Elazars
words. Daniel J. Elazar, Deuteronomy as Israels Ancient Constitution:
Some Preliminary Reflections, The Daniel Elazar On-Line Library, 4
June 2004, <http://www.jcpa.org/dje/articles2/deut-const.htm>.
8
Hannah Arendt, Quest-ce que la politique ? (Paris: Seuil, 1995), 79.
9
Dostoyevsky, Fyodor Mikhailovich. The Brothers Karamazov
[online book], accessed 13 July, <http://eserver.org/fiction/brothers-
karamazov.txt>; Internet.
Isabel David
___________________________________________________________
51
10
Hannah Arendt, On Revolution, (New York: The Viking Press,
1971), 190.
11
Ibid, 191.
12
Ibid, 202.
13
Ibid, 205-206.
14
Daniel J. Elazar, Covenant and Constitutionalism: The Great
Frontier and the Matrix of Federal Democracy, The Daniel Elazar On-
Line Library, 28 May 2004, <http://www.jcpa.org/dje/books/ct-vol3-
int.htm>.
15
Daniel J. Elazar, Constitutionalizing Globalization. The
Postmodern Revival of Confederal Arrangements (Lanham: Rowman &
Littlefield, 1998), 21.
16
Schmitt, 69.
17
Vclav Havel, Il est permis desprer (Calmann-Lvy, 1997), 124.
18
An expression by Daniel J. Elazar.
19
Martin Diamond, The Ends of Federalism, in The Federal Polity,
ed. Daniel J. Elazar (New Brunswick: Transaction Books, 1974), 130.
20
Elazar, Exploring Federalism, 34.
21
Ernst B. Haas, When Knowledge is Power. Three Models of Change
in International Organizations (Berkeley: University of California Press,
1990), 3.
22
Millon-Delsol, Lirrvrence. Essai sur lesprit europen, 163.
23
Elazar, Exploring Federalism, 91.
24
Martin Landau, Federalism, Redundancy and System Reliability,
in The Federal Polity, 186.
25
Lino A. Graglia, Restoring the Federalist System: How to Return
Control of Local Affairs to Local Authority, 1, unpublished manuscript
prepared for the Advisory Commission On Intergovernmental Relations,
quoted in Clint Bollick, Grassroots Tyranny. The Limits of Federalism
(Washington D.C.: Cato Institute, 1993), 5.
26
Chantal Millon-Delsol, Le principe de subsidiarit (Paris: Presses
Universitaires de France, 1993), 87.
27
John Agnew, Postscript: Federalism in the Post-Cold War Era, in
Federalism. The Multiethnic Challenge, ed. Graham Smith (London:
Longman, 1995), 299.
28
Ibid, 300.
29
Bertus de Villiers, Federalism in South Africa: The Debate
Unfolds, in Vers une Constitution Europenne: lEurope et les
expriences fdrales. Towards a European Constitution: Europe and
Federal Experiences, ed. Thomas Fleiner and Nicolas Schmitt (Fribourg:
Institut du Fdralisme, 1996), 190.
30
Jenny Robinson, Federalism and the Transformation of the South
African State, in Federalism. The Multiethnic Challenge, 274-275.
From Dialectics to Political Theology
___________________________________________________________
52
31
Alan C. Cairns, States and Nations, in Federalism and the New
World Order, ed. Stephen J. Randall and Roger Gibbins (Calgary:
University of Calgary Press, 1994), 74.
32
Samuel H. Beer, The Modernization of American Federalism, in
The Federal Polity, 77-78.
33
Robert Michels, Political Parties: a Sociological Study of the
Oligarchical Tendencies of Modern Democracy (New Brunswick and
London: Transaction Publishers, 1999), 187.
34
Robert B. Hawkings, Jr., Power-Sharing and Municipal
Governance, in Constitutional Design and Power-Sharing in the Post-
Modern Epoch, ed. Daniel J. Elazar (Lanham: University Press of
America, 1991), 74.
35
Daniel J. Elazar, Cursed by Bigness or Toward a Post-
Technocratic Federalism, in The Federal Polity, 266.
36
Robert J. Pranger, The Decline of the American National
Government, in The Federal Polity, 98.
37
Hawkings, Jr., 82.
38
Carl Schmitt, Thorie de la Constitution (Paris: Presses
Universitaires de France, 1993), 356.
39
Arendt, On Revolution, 220.
40
Michels, 52.
41
Arendt, On Revolution, 162.
42
Michels, 334.
43
Rousseau, Jean-Jacques. The Social Contract. book on line
(accessed 16 July 2004); available from The University of Adelaide
Library, <http://etext.library.adelaide.edu.au/r/r864s/book3.html>;
Internet.
44
Heinz Eulau, Polarity in Representational Federalism: a Neglected
Theme of Political Theory, in The Federal Polity, 167.
45
Stephen J. Randall, Preface, in Federalism and the New World
Order, xxi.
46
Beer, The Modernization of American Federalism, 79.
47
Maurice Croisat, Le fdralisme dans les dmocraties
contemporaines (Paris: Montchrestien, 1995), 28.
48
Max von Seydel, Der Bundesrat. Staatsrechtliche und politische
Abhandlungen (Freiburg im Breisgau: 2 Bde., hg. v. Karl Krazeisen, 1893-
1902), 19, quoted in Carl Schmitt, Thorie de la Constitution, 520.
49
Edward S. Corwin, The Constitution and What it Means Today
(Princeton, 1858), 3, quoted in Hannah Arendt, On Revolution, 201.
50
Paul Sabourin, Ltat-nation face aux Europe (Paris: Presses
Universitaires de France, 1994), 159.
51
Michael Burgess, Federalism and European Union: the Building of
Europe, 1950-2000 (London: Routledge, 2000), 277.
Isabel David
___________________________________________________________
53
52
Preston King, Federalism and Federation (Baltimore: The Johns
Hopkins University Press, 1982), 61.
53
Carl Friedrich, Trends of Federalism in Theory and Practice
(London: Pall Mall Press, 1968), 76.
54
Schmitt, Thologie Politique, 28.
55
Ibid, 15.
56
Ibid, 25.
57
Ibid, 25.
58
King, 60.
59
Grard Mairet, Le principe de souverainet. Histoires et fondements
du pouvoir moderne (Paris: Gallimard, 1997), 194.
60
Sonderbund was the name of the union formed by seven Catholic
Swiss cantons (Fribourg, Lucerne, Schwyz, Unterwalden, Uri, Valais, and
Zug), which wanted to secede from the Confederation.
61
Schmitt, Thorie de la Constitution, 519, 521.
62
Elazar, Exploring Federalism, 108.
63
Ibid, 231.
64
Ibid, 109.
65
Schmitt, Thorie de la Constitution, 520.
66
Friedrich, 160.
67
Elazar, Exploring Federalism, 149.
68
Ibid, 155.
69
Richard H. Leach, Federalism: a Battery of Questions, in The
Federal Polity, 43.
70
Landau, 177.
71
Ibid., 179.
72
Max Kadushin, Organic Thinking (New York: Jewish Theological
Seminary, 1938) and The Rabbinic Mind (New York: Jewish Theological
Seminary, 1952), in Daniel J. Elazar, Covenant & Polity in Biblical
Israel: Biblical Foundations & Jewish Expressions, The Daniel Elazar
On-Line Library, 4 June 2004, <http://www.jcpa.org/dje/books/ct-vol11-
int.htm>.
73
Elazar, Exploring Federalism, 230.
74
Michels, 366. My adaptation from the original sentence:
whereas Christianity has made God into a man, socialism will make man
into a god.
75
Schmitt, Thologie Politique, 65.
76
Denis de Rougemont, Textes sur le fdralisme, Cadmos 36
(1986): 14.
77
Mignet, quoted in Schmitt, Thologie Politique, 177.
78
Schmitt, Thologie Politique, 152-153.
79
Mario Albertini, Il federalismo (Bologna: Il Mulino, 1993), 279.
80
Diamond, The Ends of Federalism, 129.
From Dialectics to Political Theology
___________________________________________________________
54
81
Rousseau, Jean-Jacques. A Discourse Upon the Origin and
Foundation of the Inequality Among Mankind. book on line (New York:
Lenox Hill Pub. & Dist. Co. (Burt Franklin), 1971; available from
GeoCities
<http://www.geocities.com/paris/chateau/6110/rousseau14.htm>; Internet.
82
Madison, James. The Federalist No. 51. book on line; available
from the Constitution Society
<http://www.constitution.org/fed/federa51.htm>; Internet.
83
Fabrizio Frigerio et al., Fdralisme chez Rougemont, in
Dictionnaire International du Fdralisme, ed. Franois Saint-Ouen
(Bruxelles: Bruylant, 1994), 203.
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Arendt, Hannah. Quest-ce que la politique ? Paris: Seuil, 1995.
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Beer, Samuel H. The Modernization of American Federalism. In The
Federal Polity, edited by Daniel J. Elazar, 49-95. New
Brunswick: Transaction Books, 1974.
Burgess, Michael. Federalism and European Union: the Building of
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Diamond, Martin. The Ends of Federalism. In The Federal Polity, edited
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June 2004).
Elazar, Daniel J. Exploring Federalism. Tuscaloosa: University of
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Elazar, Daniel J. Federal Liberty and the Jewish Political
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Eulau, Heinz. Polarity in Representational Federalism: a Neglected
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222. Fribourg: Institut du Fdralisme, 1996.
This page intentionally left blank
The Democratic Principle as an Organisational Basis
of the European Union
Xenophon Contiades
Abstract
In the pluralistic European society, which is characterised through
the fragmentation and over-differentiation of interests, a dynamic
approach to democracy is not exhausted in safeguarding the rights of
groups and national identities. Given that at the Union level a single
social subject is not recognized, the method of democratic organisation
of the European Union cannot be based exclusively on the quest for
compromises, but primarily in the attempt to achieve overlapping
consensus between different national and supranational collective
subjects, values and interests. Furthermore, the emphatic connection of
the democratic principle with the social principle is of particular
importance for the definition of the content of the democratic principle in
the Union.
Key Words
Democracy, democratic deficit, democratic principle, European Union,
integration
***
1. Democratic Deficit or Lack of Democracy? A Conceptual
Query
A. The Singularities of the Union as a Source of Conceptual Vagueness
The status of democracy in the European Union has long been
described in the scientific and political debate with the term democratic
deficit. Very few question the inadequacy of the democratic legitimisation
of the European Union. According to a less diplomatic wording, it would
be more accurate to state that democracy in the European Union does not
exist, at least not in the concept and form that is recognizable at the level
of nation states.
Regarding the democratic organisation of the European Union, a
vast international bibliography has been amassed, attempting either to
describe and explain the so-called democratic deficit or to propose
alternative models of democratic governance, initiating from different
starting points concerning the nature, status and desirable form of
European political integration. The dialogue concerning democracy in the
European Union constitutes therefore an expedient field for theoretical
The Democratic Principle as an Organisational Basis
___________________________________________________________
60
proposals, given that all the conceptual tools used are exceptionally vague,
just as the very development of the European Union is open and
unpredictable. More specifically, the study of the theories of European
integration leads to the ascertainment that international bibliography offers
at least fifteen theoretical models that enjoy a relatively high degree of
validity, each of which advocates a different perception concerning
European democracy.
1
The obstacles encountered when attempting to elaborate
fundamental principles and rules for the democratic organisation of the
European Union are basically connected with certain significant
conceptual queries. A first set of questions arise in relation to the content
of the term democracy at the level of European Union institutions and the
extent to which a state-generated perception regarding democracy is
exploitable for the governance of a singular confederal entity like the
Union, which claims linking elements of statism with elements of
international cooperation, which claims a union of peoples with strong
homelands, which claims finally the formation of a single public sphere
without a new nation, and all the above with reference to a debatable
common European culture.
Besides the conceptual difficulties that arise during the analysis of
the terms and preconditions for democratising European institutions, the
arguments become weaker when the democratic governance of the Union
is approached in the light of a future European political integration, a goal
widely promoted as both necessary and desirable in the post-cold war era,
but without having the possibility to clearly specify the geopolitical,
cultural and economic conditions in which the political decisions for its
future institutional form will finally be shaped. Already, for example, the
decision to enlarge the European Union with ten new member-states
constitutes a political choice that inevitably readjusts all the theories
concerning the political structure of Europe in the future and functions
as a deterrent in the process of deepening European integration, or at least
reinforces the prospect of a multi-speed development, a fact that directly
affects the issue of democracy.
2
The abovementioned doubts have been
confirmed by the problems that arose during the last Intergovernmental
Conference, which resulted in the non-adoption of the Draft Constitutional
Treaty.
B. The Asymmetry between Economic and Political Integration as an
Element of Tension in the Democratic Deficit
The previous observations reinforce the attitude that the problem of
democracy should no longer be approached as an innate deficit of the
European integration process due largely to the genetic ideological and
political orientation of the European Communities towards the creation of
Xenophon Contiades
___________________________________________________________
61
a single market; hence it cannot be treated as a deficit which could be dealt
with by introducing some new elements (or fragments) of democracy in
every revision of the Treaties and, in any event, cannot be resolved by
being relegated for solution in the unknown future.
Today two interlinked reasons ordain that the democratic deficit be
highlighted as the top-ranking issue in the European constitutional and
political debate: first, the increasing asymmetry between the economic and
political integration of Europe; and second, the fact that the European
integration process has now entered a stage in which the issue of the
political and institutional form of the European Union cannot allow any
postponements, a fact undisputedly expressed in the decision to form the
European Convention and to elaborate a Constitutional Treaty.
In particular, it was obvious even from the founding Treaties that
free competition and coordination of the economic and monetary policies
of the member-states would follow a more rapid course of implementation
compared to the political aspect of integration. However, it could be
maintained that the increasing asymmetry between the economic and the
political aspects of European integration appeared to bring about
significant realignments within the Union, especially after the Economic
and Monetary Union.
The restriction of nation states in the exercise of macroeconomic
policy within the framework of EMU, without constituting a concession of
state sovereignty to the Union institutions, does however constitute a
development which affects directly the core of state sovereignty,
3
macroeconomic decisions and social balances, and stresses the necessity
for entrenching political integration. Consequently, if at the present stage
of the integration process, the Economic and Monetary Union is not
accompanied by a deepening of political integration and methods of
democratic governance with legitimising powers analogous to the
competencies transferred, then significant unbalances and inequalities will
occur.
It is accurate therefore to observe that the problem of democracy
in the European Union and the extent of the democratic deficit are
indissolubly interconnected with the extent of transfer of sovereign powers
to the organs of the European Union.
4
In this light, after all, the need to
hasten the process of political integration was expressed in the Laeken
Declaration by assigning to the Convention, as an organ with a complex
legitimising basis, the elaboration of a text of constitutional quality aiming
at reinforcing democracy, transparency and effectiveness and rationalizing
the institutional structure of the European Union. Even though a European
Constitution could not by itself transform overnight the dysfunctional
European Union into a legal order with guaranteed democratic quality,
5
it
would not be right to underestimate the fact that in the Draft Constitutional
The Democratic Principle as an Organisational Basis
___________________________________________________________
62
Treaty significant references to the democratic principle are included,
heralding the commencement of a new round of debate on its content. On
the other hand, however, one cannot ignore the fact that, to the extent that
the European Union remains an entity where intergovernmental elements
prevail, any interpretative approach to the references of the Treaties or the
European Constitution to the democratic principle in a way analogous to
the use of the principle at national level would lead to erroneous
deductions, with unforeseeable ideological-political consequences.
2. Elements of Democracy in the EU and Proposals to Transcend
the Democratic Deficit
A. Stages of Evolution of the Democratic Principle in the European Union
To look back into the evolutionary course of the democratic
principle in the European Union, initiating from the founding Treaties and
concluding in the Draft Constitutional Treaty, could eventually contradict
certain theoretical and political views which claim that democracy in
Europe constitutes an a priori lost case. Provided one accepts the position
that the fundamental rules of the European Union possess constitutional
quality,
6
regardless of whether they have taken the form of a constitutional
text, a preferential method for deducing important conclusions regarding
the content and the dynamics that the democratic principle could attain in
the European institutional structure is the study of the evolutionary stages
of the Treaties.
According to the theory of evolutionary stages of texts
(Textstufenanalyse),
7
every legal text and particularly texts with
constitutional quality, evolves constantly, thus widening its field of
application within the context of a comprehensive process of formulation
of a common European institutional culture. This theory, which highlights
the enrichment and redefinition of the principles and norms through their
dialectic relation with reality, appears to find a preferential field of
application in the framework of European institutions, where political
trends, deviations and cohesive choices of the member-states of the
European Union are expressed, in perpetual negotiation with other
member-states and also with the organs of the Union.
From a brief analysis of the evolutionary stages of the democratic
principle in the European Union, a clear trend is demonstrated to broaden
both references of declaratory-programmatic nature in the Treaties as well
as the institutional mechanisms for their specification. Undoubtedly, this
evolution can be considered subsequent to the deepening of the integration
process. Within this context the democratic principle gradually tends to be
consolidated as an organisational basis for the Union, albeit without
adequate consolidation in the distribution of competencies and the
legitimisation of the institutions of the Union.
Xenophon Contiades
___________________________________________________________
63
More specifically, it is worth mentioning that in the founding
Treaties there was no reference to the democratic principle either as an
organisational basis or as a programmatic aim. At the same time, the
composition, the function and the competencies of the European
Parliament did not ensure in the least the direct democratic legitimisation
of the community organs. Thirty years later, the Single European Act
signalled the beginning of a period for hastening the integration process
and the formation of a new dynamic concerning the aims and the prospects
of integration. In the preamble of the Single European Act reference is
made for the first time to the need for the states to jointly promote
democracy. At the same time, the Single European Act significantly
reinforced the competencies of the European Parliament during the
decision-making process for legislation pertaining to the internal market
and reinstated the principle of qualified majority.
The Treaty of Maastricht in both the preamble and in the first title
declared the will to reinforce the democratic function of the community
organs, yet it did not significantly differentiate the slow process of
democratisation of the Community. Nevertheless, one should not
underrate the fact that the Maastricht Treaty redefined the balances
between the European institutional organs, solidifying the position of the
European Parliament as the third pole of power in the hitherto bipolar
distribution of competencies between the Council and the Commission. In
particular, the most significant innovation regarding the democratic
governance of the Union was the adoption of the co-decision process and
the recognition of the right for the European Parliament to reject proposals
of community acts previously approved by the Council.
The revision of the Treaty of the European Union by the Treaty of
Amsterdam in 1997 was received with intense doubt, characterized an
incomplete text that failed to respond to the need for enhancing the
legitimisation and the effectiveness of the institutional system of the
European Union. Yet the reforms adopted in the Treaty of Amsterdam
strengthened the role of the European Parliament, simplified the process of
co-decision and extended it to more fields, while the Parliament was
attributed an equal role in the appointment of the President of the
Commission. In addition, important steps for the democratisation of the
European Union were the explicit reference to the protection of
fundamental rights and the fight against discrimination, and the
enhancement of common policies affecting the social field, such as
employment, social protection, the protection of the environment and
consumer protection.
The agenda of the Intergovernmental Conference that resulted in
the adoption of the Treaty of Nice was pre-determined by the pending
issues which remained unsolved by the Treaty of Amsterdam, in
The Democratic Principle as an Organisational Basis
___________________________________________________________
64
particular, first, the size and composition of the European Commission and
second, the balance of the votes of the member-states in the Council in
order to adopt decisions by qualified majority. At the same time, the
Intergovernmental Conference of 2000 aimed at institutionally preparing
the European Union for its new enlargement. From one point of view, the
Treaty of Nice incorporated in the Treaty the existence of a directorate of
big states at the expense of small ones, through the re-distribution of votes
in the Council. Seen from another point of view, the Treaty incorporated
elements fortifying the democratisation of the institutional system of the
European Union, par excellence through the co-assessment of the
population factor in the decision-making process as well as the extension
of the process of co-decision and the acknowledgement of the competence
of the European Parliament to appeal to the Court. The different
interpretations that may be attempted concerning the impact of the Treaty
of Nice converge in the ascertainment that more critical issues of
constitutional nature remained open and were relegated to the
Intergovernmental Conference of 2004.
From a brief retrospective look at the evolutionary stages of the
democratic principle as an organisational basis of the European Union,
one can deduce, first of all, a slow and hesitant but yet firm trend towards
enriching both programmatic, declaratory references and institutional
mechanisms pertinent to the democratic principle. Nonetheless, it would
be inaccurate to maintain that this evolutionary course signals a limitation
of the democratic deficit; and this is so, because at the same time a
weakening of the sovereign powers of the member-states took place, to a
much greater extent and intensity, along with the simultaneous transfer of
critical competencies to the Union organs, including also certain fields of
high-level politics.
8
Moreover, the gradual enhancement of the competencies of the
European Parliament and the broadening of its participation in different
areas of Union activity may be regarded in the light of the traditional,
state-generated theory of democratic legitimisation as the fitting
response to the democratic deficit. Yet one should be aware not to be led
to erroneous deductions when attempting to compare democracy in the
European Union with democracy in the nation states either with the aim to
evaluate the degree of democratisation of the Union or with the aim to
transcend the democratic deficit. The aforementioned observation is
undoubtedly confirmed if one takes into account the singular nature of the
European Parliament in comparison to national parliaments, regarding
both the differentiation in the function of political parties as well as the
different nature of relation with national electorates.
Xenophon Contiades
___________________________________________________________
65
B. Models for transcending the democratic deficit
The transfer of significant powers by the member-states to the
Union was not counterbalanced by mechanisms of democratic
legitimisation and control.
9
The legislative and auditing competencies of
the European Parliament are deemed inadequate.
10
Moreover, an auditing
function of the European Parliament similar to the auditing function of
national parliaments would presuppose the existence of an organ
counterpart to national governments, a role undertaken neither by the
Council nor by the Commission.
11
Furthermore, it would presuppose,
based on the model of representative democracy, the consolidation of the
principle of separation of powers and, further, the distinction between
governing majority and controlling minority. Such a distinction is not
institutionally safeguarded at the Union level, given that it is overlapped
by interstate coalitions of power and by constant intergovernmental
consultation through which political differences are refracted and finally
eliminated. Primarily, though, what is missing at the Union level is a
single electorate corresponding to a European people, a European public
sphere and the substantial operation of political parties.
12
Seen in this light, the question arises as to what extent
democratisation of the Union could and ought to be sought with the same
institutional mechanisms employed by representative democracy at the
national level. The answer undoubtedly depends on the wider theoretical
and political positions concerning the future evolution of the European
Union, the limits of retreat of the sovereignty of the nation states and the
compatibility of the model of state-generated constitutional democracy
with a singular confederal entity such as the European Union. From the
classification of the views that have been defended concerning the
transcending of the democratic deficit, four main categories of proposals
are highlighted, which are connected to broader perceptions both
regarding the causes of the democratic deficit and the further evolution of
the Union legal order.
13
According to a first view, the democratic deficit constitutes a
genetic characteristic and a structural component of the institutional
organisation of the European Union, which has been consolidated in its
founding treaties.
14
According to this view the consolidation of the
democratic principle as an organisational basis both at the level of the
Treaties as well as at the level of national Constitutions implies that
further shrinking of the democratic legitimisation of the Union would not
be tolerated. It is thus maintained that, to the extent that democratic deficit
is conceptually interwoven with the national sovereign powers being
transferred to the Union, it is no longer considered acceptable to transfer
further competencies to the Union organs.
15
As a result, what is being
proposed in essence is to stop the process of further deepening of
The Democratic Principle as an Organisational Basis
___________________________________________________________
66
European integration in the name of the democratic principle.
16
A second and widely spread position supports the evolution by
stages of the democratic structure of the Union institutions in a way so as
to enhance the competencies of the European Parliament to an extent
comparable with the competencies transferred by the nation states.
17
According to this viewpoint, it is accepted that the institutional
organisation of the European Union can adjust gradually to the model of
constitutional democracy of the nation state. These viewpoints could have
as their starting point either the federal or the community model for
organizing the European Union, given that it is accepted there is a
possibility to eliminate the democratic deficit at the level of supranational
institutions.
A third viewpoint regarding the transcending of the democratic
deficit starts from a critical approach to the previous position, maintaining
that a counterbalance between the competencies subtracted from national
parliaments and the consolidation of democratic guarantees at the Union
level is structurally infeasible.
18
This means that the lack of democratic
legitimisation of the Union cannot be covered by the European Parliament
because the democratic deficit is not identical with a parliamentary deficit,
but rather is due to the absence of fundamental preconditions such as the
existence of a European people, adequate socio-cultural homogeneity and
finally, a European public sphere.
19
In this sense, the European Union
essentially lacks, by its very nature, the ability to acquire democratic
composition and, consequently, the return to national parliaments, as
intermediary organs, is proposed in order to achieve the democratic
legitimisation of Union decisions.
Finally, a fourth position maintains that the European Union can
acquire democratic governance under the condition that the concept of
democracy will be separated from the state-generated concept of
parliamentarism and the institutional restructuring of the Union will be
attempted on the basis of the fundamental acceptance that it cannot
resemble any of the already familiar types of organisation of political
power.
20
3. The Regulatory Content of the Democratic Principle at the
Union Level
A. From the State-Generated Concept of Democracy
The view that the European Union constitutes a singular confederal
entity, which is not equivalent to other forms of confederal organisation,
tends to predominate in theory, thus, considering ineffective the
mechanistic transfer of national political systems at the Union level.
Provided however that this position is accepted, the debate concerning
democracy can be relieved of its historical and conceptual burden, as the
Xenophon Contiades
___________________________________________________________
67
former has been formulated within nation states.
It is obvious that the diagnosis of the democratic deficit
presupposes the comparison with an ideal level of democracy,
determining whether and to what extent the Union institutions deviate.
21
If
this ideal level of democracy is defined on the basis of the organisation of
democratic institutions in nation states, inevitably the comparison will lead
to the ascertainment of significant deviations of the European Union from
the standards that it has set concerning the democratic quality of the
national legal orders of the member-states. And this is so because the
peculiarities of the political system of the European Union do not permit
its structure based on the state perception of democracy.
According to the aforementioned thoughts, the democratisation of
the European Union could be approached under the following options:
either to accept that European integration is incompatible to the concept of
democracy, hence it is a priori deemed historically unavoidable for the
European Union to remain an entity characterized by lack of transparency
in the functioning of its organs and by the absence of directly legitimised
organs exercising fundamental legislative and auditing competencies
according to the model of representative democracy; or to attempt a
procrustean adaptation of the Union to the model of state-generated
democracy, eventually of a federal type, with unknown results both on the
cultural physiognomy of the member-states as well as on the functionality
of this model within the framework of the Union; or, finally, to attempt a
new approach of the content of democracy, taking into account the
peculiarities of the Union.
The first of the aforementioned solutions is evidently not consistent
with the common European political and constitutional culture and the
enhancement of European integration already constituting the democratic
deficit explosive. On the other hand, federalists highlight the need to
strengthen the federal prospect of the Union, which however unavoidably
leads to historically erroneous or precarious constructions, such as, the
discovery of a European people, that will select one common language and
shall acquire a single European conscience, in order to serve a perception
of democracy inherited by national states. According to this view, the
Union could serve the geopolitical, geo-strategic aim to make the United
States of Europe the rival force of the USA, organized preferably based on
a federal system of 15, 25 or 32 states, hence, the consistently increasing
parallelisms of the Union with the compromises of Philadelphia in 1787.
22
The necessity to define the regulatory content of the democratic principle
at the Union level becomes obvious, in order to differentiate it from its
state-generated historical origin, but also in order for it to preserve an
unaltered symbolic, organisational and legitimising function.
The conceptual content of the term democracy has been formulated
The Democratic Principle as an Organisational Basis
___________________________________________________________
68
in relation to the concept of national sovereignty as a way of organizing
authority at the level of nation states.
23
The ideological, theoretical and
institutional genealogy of the democratic principle is indissolubly linked
with specific historical references, particularly with claims related to the
political autonomy of the national middle classes. According to the
prevailing theory, democracy is the form of government in which people
are sovereign and constitute the source and carrier of state authority.
Democracy is linked with the guarantees of political liberalism, with the
concept of political representation, parliamentary control, as well as with
the operation of political parties. The organisation of the democratic
process was established on the basis of the nation state as a territorial
realm with independent sovereignty.
24
If the weakening of the concept of sovereignty on a national scale is
due largely to globalisation, neither a global cosmopolitan state foreseen
by Kant and Kelsen nor a supranational entity like the European Union
can incorporate in their organisational structure the principles of
democracy and social solidarity.
25
In particular, at the level of the Union
the basic components of democracy appear altered, distorted or poor
imitations, starting from the concept of the people, not only as a nation but
especially as a demos, as the political unit of a pluralistic society. The
transition from intergovernmental agreements to a constitutional polity
does not only require a common process of democratic legitimisation that
transcends nationally defined electoral rights and national publicity, but
also a common practice to shape opinion and volition, which will be
supported by a European civil society and will grow in a European arena.
26
Nevertheless, to the extent that contentious political and socio-cultural
preconditions are not yet applicable, the question arises as to the
regulatory content that the democratic principle can acquire in the Union
legal order.
B. to the function of the democratic principle within the Union
Initiating from the point that any reference to democracy in Europe
must be free of the historical and conceptual burden of the term, as
formulated within the context of the nation state, it would be expedient to
use complex terms such as post-nation democracy or Union democracy,
which would correspond to the adaptation of the democratic principle to
the standards of the Union. The multi-level system of governance and the
absence of a European public sphere and a homogenous European people
as a legitimising factor, require a redefinition of the democratic principle
on the basis of the multinational and multicultural character of the
European people.
The attempt to identify the function of the democratic principle
within the Union is undertaken in scientific and political debate in relation
Xenophon Contiades
___________________________________________________________
69
with the issue of the institutional architecture of the European Union and
the need for redefining the relations within the institutional triangle of the
Union, particularly with reference to the advantages or the risks of every
proposed model for election, legitimisation, assignment of competencies,
checks and balances between the European Commission, the European
Council and the European Parliament.
At the same time, the function of the democratic principle is related
to the crucial issue of the relation between the institutional organs of the
European Union and national organs. Seen from one angle, the models of
governance determine the object of the debate concerning the democratic
deficit. However, the definition of the democratic principle as an
organisational basis of the Union should not be attempted only in relation
to the aforementioned issues. The democratic principle does not draw its
regulatory content from the constantly under negotiation- institutional
architecture of the European Union, but rather has an autonomous function
within the context of the Union, indicating to the interpreter and the
revisionist of the Treaties the nexus of values that ought to guide his or her
task. Indeed, the revisionist of the Treaties is bound by the democratic
principle, which constitutes a criterion for the evaluation, and therefore of
the legitimisation of his or her decisions.
The study of the conceptual content of the democratic principle, as
an organisational basis of the Union which guides the attempt to put
together a paradigm of post-nation democracy, is by necessity founded in
the Treaties. The main references of the Treaties to the democratic
principle, whether explicit or through the enactment of rules directly
related to its content, are found in Article 1 of the Treaty, stating that:
decisions are taken as closely as possible to the citizen, in article 6 1
of the Treaty stating that the Union is founded on the principles of
liberty, democracy, respect for human rights and fundamental freedoms,
and the rule of law, principles which are common to the Member States.
Article 6 3 of the Treaty states that the Union shall respect the national
identities of its Member States, in article 6 2 of the Treaty respect for
fundamental rights is proclaimed, in article 17 1 of the Treaty where
European citizenship is consolidated, as well as in article 191 of the Treaty
where the institution of political parties is consolidated. In addition, in the
draft Constitutional Treaty explicit reference is made to the participatory
and representative nature of democracy in the European Union, while the
Charter of Fundamental Rights has been incorporated into its text.
The clarification of the content of the democratic principle in the
Union presupposes its connection with the characteristics of the Union.
Summarizing these characteristics, the democratic function of the
European Union is linked with two preconditions: first, to the guarantee of
democratic expression of all European citizens and, second, to the
The Democratic Principle as an Organisational Basis
___________________________________________________________
70
guarantee of the national institutional existence of the peoples of Europe.
27
More specifically, the democratic function of the Union means that on the
one hand, the rule of majority and its necessary guarantees are adopted
and the European Parliament is granted the necessary competencies and,
on the other hand, the application of the principle of majority at the Union
level retreats, where a majoritarian decision affects the core of the
institutional culture of one or more member-states, as consolidated in
national Constitutions.
28
Consequently, the content of the democratic
principle in the European Union is essentially defined by its double role as
a union of states and a union of peoples.
The European Union constitutes an example of a pluralistic society
in its nascent state. The model of democracy that will be formulated
cannot but be founded in the principle of pluralism. Union democracy,
responding to the pluralistic European society, cannot be restricted to a
one-dimensional representative system, where the collective subjects can
be ignored in the name of a non-existent social homogeneity or harmony,
expressed by the terms the people and the public interest. On the contrary,
Union democracy must be built as a political system where the source and
formation of power should imply participation in the democratic dialogue
and the democratic procedures for all its vital components, that means,
both for individuals as persons and agents of human value as well as for
social groups but also for the nation states that comprise the European
Union. The aim of the Union democratic authority is not an abstract social
interest but rather an interest defined by dialogue and the synthesis of the
different interests of a pluralistic society.
Every contemporary pluralistic democracy, hence primarily the
Union democracy, is formed as an alternative model to the degeneration of
the representation mechanisms of post-war mass democracy. Pressure
groups, opinion polls and mass media have become the new representation
mechanisms. It is obvious that traditional constitutional theory concerning
representation has now become unrealistic, since democratic
representation implies only the representation of concrete interests and
groups, the synthesis of which is sought through constitutionally
consolidated procedures. Seen in this way, Union democracy is not shaped
only within the context of a process to elect representatives, but it is
developed particularly at the level of activity and intervention of citizen
organisations, European political parties, the regions, the member-states
and their mutual relations with the institutional organs of the Union.
According to the previous thoughts, it could be claimed that, in the
framework of a Union approach to the democratic principle, a change
between the composing elements of its state-generated content is
identified; and more specifically, that the traditional, archetypical
components of the democratic principle retreat in favour of the newer
Xenophon Contiades
___________________________________________________________
71
ones. The previous position is supported if a brief reference is made to the
different aspects of the democratic principle in its state-generated
concept and an evaluation of their functionality is attempted at the level of
Union:
1) In the state-generated approach to the democratic
principle, particular emphasis is attributed to the
principle of majority and to the relation between
majority and minority. At the level of the European
Union, however, its innate interstate character does not
permit a clear fundamental democratic distinction
between the governing majority and the opposition
minority. Furthermore, as has already been mentioned,
the function of political parties as components of
contemporary democracy and as an intermediary link
between state and society becomes difficult. Moreover,
the procedural nature of the democratic legitimisation of
the organs of the European Union, through a
mechanistic application of the representative and
parliamentary principles appears ineffective. It is also
difficult to speak about a minimum homogeneous
European society that would allow the adoption of direct
forms of democracy.
2) On the contrary, certain other aspects of the democratic
principle could be considered in harmony with the
singularities of the Union, starting with the pluralistic
dimension of the democratic principle and the
importance of organized groups of civil society, as
subjects of European policy with more flexibility in
intervening in the Unions activities in comparison to
political parties. Moreover, the majority principle
retreats in the name of the synthesis of opposing
political, social and national interests. Seen in this light,
it is crucial for the Union content of the democratic
principle to highlight the elements of consensual
democracy which could be preferentially developed
within an entity combining intergovernmental and
federal elements.
29
Additionally, the reinforcement of
the protection of fundamental rights, as the main
element of indirect democratic legitimisation is also
deemed to be in harmony with the singularities of the
Union, especially through the enrichment and
The Democratic Principle as an Organisational Basis
___________________________________________________________
72
recognition of the regulatory content of the Charter of
Fundamental Rights.
In the pluralistic European society, which is characterised through
the fragmentation and over-differentiation of interests, a dynamic
approach to democracy is not exhausted in safeguarding the rights of
groups and national identities. Given that at the Union level a single
social subject is not recognized, the method of democratic organisation of
the European Union cannot be based exclusively on the quest for
compromises, but primarily in the attempt to achieve overlapping
consensus between different national and supranational collective subjects,
values and interests. Furthermore, the emphatic connection of the
democratic principle with the social principle is of particular importance
for the definition of the content of the democratic principle in the Union.
The aforementioned arguments could constitute the methodological
basis for defining the regulatory content of the democratic principle within
the Union. In this light, however, certain wider questions arise: In essence,
do democratic institutions, in their traditional dimension, tend to reach
their limits at the level of nation states as well? Furthermore, does the
content of the democratic principle tend to gradually be redefined at the
level of nation states as well? Do the elements that appear to be closer to
the Union paradigm of democracy tend to prevail? Finally, does the
European Union of democratic and social deficits constitute a preferential
area for the rejuvenation of democracy and the social state? The answer to
these questions remains undoubtedly open, as does the prospect of
democratisation of the European Union. To the extent, however, that
political integration remains in the shadow of economic integration and
the democratic deficit is not dealt with substantially, further weakening of
the sovereignty of the national states would imply a significant risk for
democracy and the collective liberty of national societies of the states
participating in the Union process.
Centre for European Constitutional Law, Athens and University of
Pelloponese, Greece.
Notes
1
B. Rosamond, Theories of European Integration, 2000, 130.
2
D. Tsatsos, Die europische Unionsgrundordnung, in same author,
Verfassung-Parteien-Europa, 1999, 579.
3
J. Isensee, Vorrang des Europarechts und deutsche
Verfassungsvorbehalte offener Dissens, FS fr K. Stern zum 70.
Geburtstag, 1997, 1239.
Xenophon Contiades
___________________________________________________________
73
4
K. Doehring, Demokratiedefizit in der Europischen Union? (DVBl.
1997), p. 1133 ff. (1137), where it is noted that es wre also eine Frage
der Quantitt der bertragenen Hoheitsrechte, von wann an man von
einem Demokratiedefizit in Europa sprechen knnte. See also the critical
remarks of M. Zrn, Regieren jenseits des Nationalstaats, 1998, 249.
5
W. Hertel, Supranationalitt als Verfassungsprinzip, 1999, T.
Bruha/J.J. Hesse/C. Nowak (Hrsg.), Welche Verfassung fr Europa? 2001.
6
D. Tsatsos, op. cit.
7
Hberle, Textstufen als Entwicklungswege des Vervassungsstaates,
FS fr K. J. Partsch, 1989, 555.
8
T. Christiansen, Intra-institutional politics and inter-institutional
relations in the EU: towards coherent governance? Journal of European
Public Policy, 2001, 747.
9
H. Abromeit, Ein Vorschlag zur Demokratisierung des
europischen Entscheidungssystems, PVS 1998, 80 ff.; A. Duff,
Building a Parliamentary Europe, in M. Tel (Ed.), Dmocratie et la
construction europenne, 1995, 251; R. Hrbek, Der Vertrag von
Maastricht und das Demokratiedefizit der Europischen Union, in A.
Randelzhofer/R. Scholz/S. Wilke (Hrsg.), Gedchtnisschrift fr E.
Grabitz, 1995, 171; H. Klager/I.P. Karolewski/M. Munke, Europische
Verfassung, 2002, 163; P.G. Kielmansegg, Integration und
Demokratie, in M. Jachtenfuchs/B. Kohler-Koch (Hrsg.), Europische
Integration, 1996; P. Scully, Democracy, Legitimacy and the European
Parliament, in M. Green Cowles/M. Smith (ed.), The State of the
European Union Vol. 5, 2000, 228.
10
R. Stentzel, Integrationsziel Parteiendemokratie, 2002, 90; H.
Kleger/I.P. Karolewski/M. Munke, Europische Verfassung, op. cit.,
168; P. Huber, Demokratie ohne Volk oder Demokratie der Vlker? in I.
Drexl/K.F. Kreuzer/D.H. Schening/U. Sieber (Hrsg.), Europische
Demokratie, 1999, 27 & 37; H.H. Rupp, Anmerkungen zu einer
Europischen Verfassung, JZ 2003, 18.; M. Zrn, ber den Staat und die
Demokratie im europischen Mehrebenensystem, PVS 1996, 27.
11
A. v. Bogdandy, Supranationaler Fderalismus als Wirklichkeit
und Idee einer neuen Herrschaftsform, 1999, 33; I. Kielmansegg,
Integration und Demokratie, op. cit., 49; R. Dehousse, European
Integration and the Nation State, in M. Rhodes/P. Heywood/V. Wright
(eds.), Developments in West European Politics, 1997, 37.
12
H. Kleger, Transnationale Staatsbrgerschaft: Zur Arbeit an einem
europischen Brgerstatus, in R. Erne/A. Gro/B. Kaufmann/H. Kleger
(Hrsg.), Transnationale Demokratie, 1995, 34. (56): symptomatisch fr
die Diskrepanz zwischen Wunsch nach wirklicher europischer Politik
und der Wirklichkeit der Nichtexistenz berstaatlicher politischer
Programme ist die Tatsache, dass sich noch keine wirklich transnationalen
The Democratic Principle as an Organisational Basis
___________________________________________________________
74
Parteien gebildet haben. Ihnen kme die Aufgabe der Bildung einer
europischen ffentlichkeit zu. T. Papadopoulou, Politische Parteien auf
europischer Ebene, 1999, 53; R. Stenzel, Integrationsziel
Parteiendemokratie, op. cit., 348.
13
A. Peters, Elemente einer Theorie der Verfassung Europas, 2002,
627.
14
A. Randelzhofer, Zum behaupteten Demokratiedefizit in der
Europischen Gemeinschaft, in P. Hommelhoff/P. Kirchhof (Hrsg.), Der
Staatenverbund der Eurpischen Union, 1994, 39.
15
K. Doehring, Demokratiedefizit, op. cit., 1137, as well as the
critical remarks of M. Zrn, Regieren jenseits des Nationalstaats, 1998,
250, F. Scharpf, Demokratie in der transnationalen Politik, in: U. Beck
(Hrsg.), Politik der Globalisierung, 1998, 228.
16
A. Peters, Elemente, op. cit., 628-629.
17
Ibid., 629, where it is noted that the said model supports eine
Kompensation der Entscheidungsmacht der nationalen Parlamente durch
den Ausbau europischer parlamentarisch demokratischer Strukturen.
18
P. G. Kielmansegg, Integration und Demokratie, op.cit., 58, D.
Grimm, Das Demokratiedefizit der EG, Jb. Staats und
Verwaltungswissenschaften, 1993, 13, same author, Does Europe need a
Constitution?, ELJ 1995, 303, M. Kaufmann, Europische Integraration
und Demokratieprinzip, 1997, 337.
19
A. Peters, Elemente, op.cit., 629.
20
Ibid., 630.
21
A. Peters, Elemente, op.cit., 630: die Diagnose eines
(demokratischen) Defizits setzt voraus, dass ein bestimmtes Soll nicht
erreicht wird. Es kommt also zunchst einmal darauf an, dieses Soll zu
ermitteln, d.h. den demokratischen Standard fr die EG/EU festzulegen.
22
L. Siedentop, Democracy in Europe, op.cit., passim, as well as the
critical remarks on the positions of J. Habermas, Warum braucht Europa
eine Verfassung, Die Zeit, 29 June 2001.
23
E. W. Bckenfrde, Demokratische Willensbildung und
Reprsentation, in: HdbStR II, 30, p. 29 ff., D. Grimm, Der Staat in
der kontinentaleuropischen Tradition, in same author, Recht und Staat
der brgerlichen Gesellschaft, 1987, 53; F. Vilmar, Strategien der
Demokratisierung, Bd. I, Theorie der Praxis, 1973, 21; H. Quaritsch,
Souvernitt, 1986, 39, 62. As notes R. B. J. Walker, One World, Many
Worlds: Struggles for a Just World Peace, 1988, 83, it is only in the
context of the sovereign nation-state that we have come to understand
what is meant by democracy. See also A. Osiander, The States System of
Europe, 1640-1990, 1994, 33.
24
J. Habermas, Die postnationale Konstellation, 2001, 97.
25
J. Rawls, he law of Peoples, 1999, 187.
Xenophon Contiades
___________________________________________________________
75
26
J. Weiler, European Citizenship Identity and Differentity, in M.
La Torre (ed.), European Citizenship, 1998, 1 , J. Habermas, Warum
braucht Europa eine Verfassung, op.cit.
27
D. Tsatsos, op.cit.
28
Ibid.
29
D. N. Chrysochoou, Democracy in the European Union, 1998.
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The European Unions Institutional System as the Basis
for a New Form of Democracy
Fausto Capelli
Abstract
Within the European Union, two democratic institutional
structures, largely superimposed on each other, find application: the
traditional one practiced by the various Member States and the one
applied at European level within the Union. In the first, the democratic
method operates in accordance with the traditional pattern based on the
principle of government of the majority and alternating political power
based on free elections. In the second, the democratic method enables the
institutional players within the European Union (i.e., the European
Parliament and the Council of Ministers, with the participation of the
European Commission) to exercise legislative power without holding
direct political power. Such is the surprising solution to the problem posed
by Platos paradox.
Key Words
Democratic deficit, European Union, institutions, democratic foundations
***
The evolution of the legal system in the European Union has
made possible the mitigation of some institutional anomalies. Such
irregularities have been a constant issue of a caustic, at times ruthless,
debate with criticisms spawning from not only jurists and political
scientists but also philosophers and sociologists. The most evident among
these has been present since the creation of the European Communitys
institutional structure, namely, the rightly focused democratic deficit,
which is determined to undermine solid democratic foundations
In reference to the Communitys experience, the crude simplicity of the
democratic deficit is the absence of a genuine representative of the
European citizenry. Rather, the elective organ adopting the laws of the
Community is a government appointment, giving legislative power solely
to the Council of Ministers, each a representative to an individual Member
State, in which they adopt all legally binding laws of the European Union.
To appreciate the apparent anomalies, one must reflect on the consequen-
ces first generated by the European Community. For instance, legislation
adopted in the most wide ranging fields,
1
during the 1970s and 1980s,
including some of economic significance, have only one author, the
The European Unions Institutional System
___________________________________________________________
78
Council of Ministers, which acted as the representative of the governments
of Member States in conjunction with the European Commission, a
technical body essentially of executive power. On the other hand, for
many years, the European Parliament was not involved in the legislative
processes of the Community,
2
in which its function was purely
consultative due to its self-limitation of providing mere opinions,
accompanied by references to bills submitted for approval by the
Commission to the Council of Ministers.
Once adopted and enforced in accordance with the rules,
Community regulations, under the jurisprudence of the Court of Justice,
became legally binding not only on the Member States, but also on public
bodies, companies, and citizens.
3
Indeed, an EC ruling (EC-regulation)
adopted from a proposal of the Commission by the Council of Ministers,
had the effect of paralysing the legislative activities of the national Parlia-
ments, prevailing over any domestic laws that the latter might promulgate.
This precedence took effect not only over previously passed national laws,
but also over subsequent national legislation.
The European Judiciaries (especially the Italian and German
Constitutional Courts) encountered difficulty in solving the
aforementioned problems in order to adapt their internal legal systems to
that of the Community.
4
Despite these difficulties, the Judiciaries of all
Member States, even before the significant institutional reform introduced
in 1987 by the Single European Act, had nevertheless decided to observe,
in their own legal systems, the two basic principles of Community law: the
direct effectiveness and precedence of that law vis--vis internal laws
(whether previous or subsequent) adopted by the national Parliaments.
However, even acceptance of the aforesaid principles on the part of the
judges of the Member States could not, from the legal and institutional
point of view, render non-existent mentioned anomalies.
Indeed, in no statutory structure based on democratic principle,
would it have been possible to accept that the provisions adopted by a
government body (Council of Ministers) should prevail over the laws
passed by a Parliament freely elected by its citizens. Therefore, this was
the essence of the democratic deficit subjected to the harsh criticisms
which had to be eliminated at all costs. In effect, three institutional
reforms introduced in the space of one decade by the Single European
Act,
5
by the Maastricht Treaty,
6
and by the Treaty of Amsterdam
7
had
the effect of involving the European Parliament in the Communitys
legislative process, substantially bestowing upon it the same powers as
those previously held by the Council of Ministers. If the Text of the
Constitution prepared by the European Convention presided by Mr.
Giscard dEstaing is approved, the powers of the European Parliament will
Fausto Capelli
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79
further be strengthened (including some role in budgetary matters), thus
make them wholly equivalent to those of the Council of Ministers.
According to the Text of the Constitution, legislative power
within the European Union, currently shared on an equal basis between the
European Parliament and the Council of Ministers, will have to be
exercised by means of a single (co-decisional) legislative procedure in
which each of the two institutions will have identical powers, with the
result that legislative acts, including those of annual accounts, will not be
able to become legitimately adopted at the European level without the full
consent of both the aforementioned institutions.
At this point, if we wish to compare the institutional system of
the European Union with that of any democratically based state
organizations in existence today, whether centralized or federal, one
reaches an unambiguous conclusion. The outstanding difference between
the two systems lies in the fact that in democratically-based state
organizations (of the traditional kind), legislative power is wholly and
exclusively wielded by the elected Parliament (whether single- or dual-
chamber), directly representing the citizenry, while, in the European
Unions institutional system, legislative power is jointly and equally
exercised by two different bodies, one of which (the Council of Ministers)
is not elected but acts as the representative of the governments of the
Member States, which, in turn only indirectly represents the citizen-ele-
ctors of the said States.
The existence of this difference alone is sufficient to fuel
scholarly distrust, which continues to criticise the existence of a demo-
cratic deficit within the institutional structure of the European Union that
should be eliminated. The surest way of eliminating the defect would be to
limit legislative power to elected bodies, only they can be fully
accountable to the citizens who elected them. Among the solutions
suggested is that of coupling the European Parliament with another
permanent body, also consisting of elected members, representing the
different States of the European Union, modelled on that of the United
States Senate. Since legislative measures would have to be jointly
approved at the European level by these two such bodies, both would be
directly elected by the citizenry. Thus, the widely criticized democratic
deficit would be eliminated.
However, it is my personal conviction there is no need to
introduce any substantial change, as mentioned above. This is because of
the European Unions present institutional system, supplemented by the
appropriate modifications suggested in the new Text of the European
Constitution, would make for a more effective safeguard of the interests of
European citizens in general. It seems obvious that the substantial change
desired by critics of the present system such as the one described above
The European Unions Institutional System
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80
would inevitably lead to the creation of a federal structure. This would
involve the need to set up a governing body expressing the will of a
federal parliamentary majority responsible to the two legislative bodies
(the European Parliament and the Permanent Body), which in their turn
would be accountable to the European citizenry. In an institutional system
thus constituted, vis--vis a majority whose task would be to form the
federal government, there would be a necessity to have a minority whose
job would be to act as the opposition. As the result, there would be a
recurrence of the classic problems experienced within States (whether
centralized or federal) whose systems are of the traditional democratic
kind.
8
These are the practical, inevitable problems that are bound to
develop, with monotonous frequency, both in the majority and in the
minority.
In the majority, such problems might be posed by seasoned
pressure-groups operating within the government who are in a position to
influence decision-making while overriding citizens general interests.
9
It
may be assumed that the opposition will systematically reject the motions
of the majority on the sole grounds that they stem from the latter. The
manner in which both the majority and the minority conduct business
will be part and parcel of normal democratic interplay, with both sides
playing the political power game: the majority aiming to retain power and
the minority to gain it.
10
Democratic interplay can in fact work as long as
it enables the majority to be replaced and offers the minority a chance to
form a government upon legitimately gaining power by means of free
elections.
The replacement of the majority and the change of government
brought about by the opposition are two fundamental events to democratic
intercourse. However, this is not entirely satisfactory if safeguarding the
citizens general interests is taken as the reference parameter. If a
government supported by a resolute majority exercises its power in an
inadequate or incorrect manner throughout its whole term, specifically by
passing laws contrary to the interests of the citizenry as a whole, it would
be insufficient to eliminate the government and its majority in the
following elections in order to remedy the harm caused in the course of
the majoritys term.
The main objective, therefore, rightly pointed out by Karl
Popper,
11
is to prevent the adoption of erroneous legislation, while acting
to safeguard citizens interests in general. The purpose of this paper is to
show how the European Unions current institutional system, sup-
plemented by the amendments suggested in the aforementioned Text of
the European Constitution, and by the additional proposals advanced in
certain quarters, might achieve the aforementioned objectives more
satisfactorily.
Fausto Capelli
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81
In my opinion, there is a decisive factor that makes it possible to
function while drawing a clear distinction between an institutional
structure based on a democracy of the traditional type and that of the
European Union (with its amendments). Specifically, it lies in the fact that
in the case of the Text of the European Constitution, political rivalry
among the parties concerned does not aim to keep in power or cause the
downfall of a government any more than its main concern is with the
maintenance or acquisition of power. This means that a significant
psychological factor, as it plays a decisive part in political rivalries within
a democracy, is lacking. It is a highly important psychological factor,
constantly fuelling the aggressiveness of parties and those engaged in
political activities, committing them to continual intensive confrontation.
12
Any subject, however objectively irrelevant, can be taken as a pretext for
unleashing relentless political conflict involving an enormous waste of
energy and offering the mass media a great deal of ammunition, often
exploited in far from disinterested ways, by those who are in a position to
influence public opinion. One can merely read the first pages of
newspapers published in any democratic country to realize that this is self-
evident.
The purpose is always the same: catching the political adversary
off guard, causing him embarrassment and also bringing pressure to bear
on public opinion in the attempt change its political bias. In essence, what
counts is the defeat of a political adversary, because his defeat will lead to
the continued exercise of power by the majority, or the coming into power
of the minority, that is the opposition. As previously stated, no objections
can be raised to this kind of behaviour from a legal or institutional point of
view, as this is the political rivalry, however relentless and aggressive, that
is an essential part of democracy, since it is one of the basic prerequisites
for its proper functioning.
13
Nevertheless, the problem to consider is how
far the institutional system, which is entirely unobjectionable within a
democratic structure of the traditional kind, might advantageously be
transposed as it stands to the European Union, given the latters
peculiarities.
14
Far from being an advantage, it would be counter-productive to
transpose the aforementioned institutional system within the European
Union. I will try to explain the reasons for this as simply and concisely as
I can.
In Book VII of The Republic,
15
in concluding a detailed process
of reasoning the object of which is to convey the idea that under no
circumstances should power be given to persons who intend to exercise it
for their own material enrichment, Plato reaches the following paradoxical
conclusion: Government should be given to persons who do not enjoy
governing, otherwise their rivalry will end in conflict. A paradox, whose
The European Unions Institutional System
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82
content is always bizarre or extravagant, sometimes conceals within it
what is simply a seemingly implausible truth.
16
If, however, we consider
the institutional situation of a normal democratic State in which the
objective of the rival parties (majority and opposition) is that of attaining
political power to be able to exercise it, how will it be possible to achieve
the result suggested in Platos paradox? To be more precise, if all those
who engage in politics, as acknowledged by Max Weber,
17
enjoy
exercising power, how will it be possible to entrust with power those who
do not desire it?
Perhaps, if we extend its scope, the reasoning on which the
paradox examined is based may mean that those who exercise power
would find themselves in a situation whereby they become obsessed with
it, not as an end in itself, but as an instrument enabling them to operate.
Translated into other terms, the paradox may therefore mean that those
who join a government must be in a position to exercise legislative power
in order to govern in the widest sense without, however, holding
political power, only fuelling rivalry that leads to conflict.
18
If this is true, Platos paradox, in its monumental simplicity, takes
on general validity, neutralizing the effects of that fundamental human
characteristic, founded in psychology and destined to fuel the political
conflict to which we have referred. The problem inherent in the paradox
can therefore find but one solution in institutional terms, of which the
most reliable might be that based on experience, within the system
employed by the European Union. The solution would consist, therefore,
not so much in depriving the representatives of each political party in
competition with each other of their love for power, so much as putting
them in the psychological position of not having to depend on the defeat
of the other party in order to exercise legislative power. This is, in fact,
what happens within the European Unions institutional system.
19
Indeed, in the absence of a pre-established majority, which is
legally entitled to form and sustain a government by the European Union,
an opposition bent on contesting that majority with the aim of bringing
about its downfall will also be lacking.
20
The political parties, competing
with each other within the European System, thus find themselves in the
psychological state, required in Platos paradox, of being able to provide
for the exercise of legislative power without the need to first and foremost
maintain or acquire political power in order to be able to exercise the
former. Consequently, each of the parties feels obliged to make its own
contribution to the procedures and votes involved in the passing of laws,
in such a way as to optimise the form and content of such legislation.
21
It has been taken for granted, and deemed credible, that the
persons taking part in the voting process in the European system may be
exposed to all kinds of temptation and persuasion on the part of the
Fausto Capelli
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83
pressure-groups involved, but such attempts result in cancelling each other
out, given the peculiarities of the system whereby the Union arrives at its
decisions. Consequently, given the correct observance of that system, it
might be possible to adopt and apply, at the European level, including
involvement of the civil society,
22
technically, economically, and legally
reasonable measures designed to safeguard, in the most effective way, the
general interests of citizens.
23
It follows that, within the European Union, two democratic
institutional structures, largely superimposed on each other, find
application: the traditional one practiced by the various Member States
and the one applied at European level within the Union. In the first, the
democratic method operates in accordance with the traditional pattern
based on the principle of government of the majority and alternating
political power based on free elections. In the second, the democratic
method enables the institutional players within the European Union (i.e.,
the European Parliament and the Council of Ministers, with the participa-
tion of the European Commission) to exercise legislative power without
holding direct political power. Such is the surprising solution to the
problem posed by Platos paradox.
The subject that might require more detailed research is the
possibility of improving the mechanisms applicable within the two
institutional structures in order to boost the efficiency and effectiveness of
relationships and interactions. Such studies might likewise make it possible
to collect interesting suggestions calculated to promote application of the
system described above on other continents too, where processes of
integration from the economic-political point of view have been set in
motion.
24
To promote the launching of such studies and research, it would
be worth attempting to set up an integrated research project, in elaboration
and subsequent implementation of which the scholars of various European
and non-European countries might take part.
European College of Parma, Italy.
Notes
1
Obviously, after the coming into force of the Single European Act
(1st July 1987), the situation changed, as is mentioned later on in the text.
2
As indicated in Note 1, beginning with the coming into effect of the
Single European Act, the European Parliament began to play a part in
legislative activities. The European Parliament, originally called the
Common General Assembly and subsequently the European Parliamentary
Assembly, adopted its present name by its own decision, voted in 1962.
The European Unions Institutional System
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84
3
As is known, this was a decision of the Court, laying down the
principle of the direct effectiveness of EC law, which was to take
precedence over legislation passed within Member States.
4
As regards Italy, the decision of the Constitutional Court handed
down in the ICIC case (No. 232 of 22nd October 1975), and as regards
Germany, the decision of the German Constitutional Court of 29th May
1974 in the Solange 1 case. As is known, these decisions in their turn
influenced those of the Court of Justice. See, most recently, R. CALVANO,
La Corte di giustizia e la Costituzione europea, Padova, Cedam, 2004, p.
260 ss.
5
Cf. note 1.
6
Came into force on 1st November 1993.
7
Came into force on 1st May 1999. With the Treaty of Nice which
came into force on 1st February 2003, no significant amendments were
made with reference to the aspects examined here.
8
These are problems examined briefly later on in the text.
9
J. M. Buchanan - G. Tullock, The Calculus of Consent. Logical
Foundations of Constitutional Democracy (Ann Arbor, The University of
Michigan Press, 1965); Ital. trans., Il calcolo del consenso (Fondamenti
logici della democrazia costituzionale) (Bologna, Il Mulino, 1998), 67-68;
F. Zakaria, The Future of Freedom: Illiberal Democracy at Home and
Abroad (New York, W. W. Norton & Company; 2003); Ital. trans.,
Democrazia senza libert (in America e nel resto del mondo) (Milano,
Rizzoli, 2003), 255 ss.; R. A. Dahl, How Democratic Is the American
Constitution? (Yale University Press, 2001); Ital. trans., Quanto
democratica la Costituzione americana? (Roma-Bari, Laterza, 2003), 28
ss.
10
With reference to a famous passage from Il principe by N.
Machiavelli (Chapter XVIII), S. Petrucciani, Modelli di filosofia politica,
(Torino, Einaudi, 2003), 21, expresses himself as follows: If someone
engaged in politics, he is contesting the power of others, and so he must
expect his rivals to use, against him, all the means enabling them to win
this battle for power (free translation from the Italian inserted by editor).
11
K. Popper, The Open Society and Its Enemies (Routledge & Kegan
Paul, 1945); Ital. trans., La societ aperta e i suoi nemici (Roma,
Armando, 1973), 174.
12
Cf. Note 10.
13
According to J. A. Schumpeter, Capitalism, Socialism and
Democracy, (New York, 1942); Ital. trans.; Capitalismo socialismo
democrazia, (Milano, Etas Libri, 1984), 242: The democratic method is
the institutional means of taking political decisions, based on which
individuals obtain the power to decide through a competition the purpose
Fausto Capelli
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85
of which is the popular vote (free translation from the Italian version
inserted by editor).
14
Moreover, it must be borne in mind that in modern states, the
democratic system is more and more often losing its original
characteristics, as is proved by the progressive transfer to executive
(government) bodies of powers traditionally reserved for parliaments. F.
Modugno - D. Nocilla, Crisi della legge e sistema delle fonti, in Diritto
e societ (1989), 411 ss.
15
Plato, The Republic, Book VII, in Opere, (Bari, Laterza, 1966), vol.
II, No. s. 520-524.
16
According to Pascal, the paradox is, moreover, merely a mental
shortcut. With reference to Platos thesis, as is known, Karl Popper, in his
famous book The Open Society and its Enemies analysed the paradoxes
inherent in liberty and democracy as well as in tolerance. The paradoxes
inherent in liberty and democracy concern the hypothesis whereby a
sovereign people decide its own free will to be governed by a tyrant, thus
forgoing freedom and democracy. The paradox of tolerance refers to the
hypothesis whereby unlimited tolerance of necessity leads to the abolition
of that tolerance.
17
M. Weber, Politik als Beruf, (Stuttgart, Ernst Klett Schulbuchverlag
GmbH, 1995); Ital. trans., La politica come professione, (Roma, Armando,
1997), 33: Those who engage in politics aim to gain power: power as a
means of securing other objectives, whether idealistic or egotistical, or
power in the narrow sense of the word that is, to enjoy the feeling of
prestige that power bestows (free translation from the Italian version
inserted by editor).
18
The paradox seems almost to foreshadow an application in the
radical sense of the theory of the separation of powers as stated by
Montesquieu. As is known, Montesquieu, De lesprit des lois, (Paris,
Garnier, 1875); Ital. trans., Lo spirito delle leggi, (Torino, Utet, 1973,
edited by S. Cotta), Book XI, Chapter IV, 274, based his theory on the
need to establish limits to power in order to make possible political
freedom in States, by affirming, among other things, that: Political
freedom is found in moderate governments. But it is not always found in
moderate states: It does not remain in them except when there is no abuse
of power. However, the experience has always been that every man who
possesses power is inclined to abuse it, persisting with it till he encounters
limits . For it to be impossible to abuse power, it is necessary that, given
the situation, power should constrain power (free translation from the
Italian version inserted by editor).
19
Something in some ways similar also happens in the constitutional
system of the Swiss Confederation. B. Ackerman, The New Separations
The European Unions Institutional System
___________________________________________________________
86
of Powers, Harvard Law Review, vol. 113, n. 3, January 2000, 633-729;
Ital. trans., La nuova separazione dei poteri (Roma, Carocci, 2003, 54).
20
As is known, the majority in the European Parliament manages to
set itself up on the basis of the most diverse criteria with reference to each
individual act to be adopted. Sometimes, a majority is formed that is quite
different in respect of individual articles of the same act to be adopted.
The socialists and liberals may, for example, form a majority together
regarding an article and may oppose each other on another article within
the same bill.
21
That particular logical-rational mechanism, to quote J. Rawls,
Political Liberalism (Columbia University Press, 1993); Ital. trans.
Liberalismo politico, (Torino, Edizioni di Comunit, 1999), 62, may be
called reasonable dissent.
22
Cf. F. Capelli La partecipazione della societ civile alla
costruzione dellunione politica dellEuropa, Diritto comunitario e degli
scambi internazionali, 2001, 651.
23
Obviously, members of the European Parliament are not better or
worse than the parliamentarians of nation states. However the legislative
technique of the EU (especially if based on Green or White Papers)
forces not only parliamentarians but also all those taking part in the
legislative process to follow a praiseworthy procedure. In the European
Parliament, when the act to be voted on is legislative, institutional rules
find application that compel parliamentarians, almost mechanically, to
adhere to the logical-rational process that the American philosopher and
political scientist John Rawls (see Note 21) might have called reasonable
dissent (starting from a well-structured proposal prepared by the
European Commission, the motion moves on to a lively debate within the
Parliamentary Committees); the debate is resumed by comparing the
points of view of the European Parliament with those of the Member
States expressed within the Council of Ministers; account is taken of the
opinions of the consultative bodies; lastly, the controversial points are
settled by adopting decisions within the Committee of Conciliation.
Experience has shown that the system works. In ten years of application of
the system, hundreds of measures have been approved in Europe, many of
which were very important, while in only three cases were not approved
incidentally on entirely understandable and reasonable grounds. On the
other hand, when European parliamentarians have to take decisions on
subjects of a non-legislative but political nature , they end by developing
the postures typical of national parliaments, launching attacks against one
European institution, against the government of this or that Member State,
or against a specific politician or national party, always with the objective
of creating problems. The difference is as follows: European
parliamentarians usually adopt these postures only when they have to take
Fausto Capelli
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87
political decisions (on the other hand, sticking to the rules described above
when laws have to be passed), while national parliamentarians, for the
reasons described above, as a rule adopt this attitude usually whatever the
nature of the measure to be passed.
24
It is quite possible that a method of this kind, adapted as necessary,
may even be applied to specific situations in which resorting to traditional
democratic methods would create problems. And here our thoughts
immediately turn to the situation in Iraq. Exporting to Iraq a democracy as
conceived in the West would be very difficult. Suffice it to say that
exporting democracy by means of one of the classic federal structures of
the Western type would probably be impossible. The European Union
could take steps to initiate a proposal of its own. It might, for example, be
possible to consider introducing in Iraq a system similar to the EU-system
based on three institutions: a technical body with both advisory and
executive functions, conferring legislative power on two separate bodies
(one elected by the people and the other consisting of representatives of
the ethnic communities, chosen from within those communities) which
would exercise such power jointly and equally (that is to say, 50% of the
legislative power to each of the two bodies). An institutional system of
that kind, which might avail itself of the experience acquired in the EU
might be integrated, obviously with necessary changes, bearing in mind
the exceptional conditions under which it would have to operate.
Bibliography
Ackerman, B. The New Separations of Powers. Harvard Law Review,
vol. 113, n. 3, January 2000.
Buchanan, J. M. and G. Tullock G. The Calculus of Consent. Logical
Foundations of Constitutional Democracy. Ann Arbor: The
University of Michigan Press, 1965.
Calvano, R. La Corte di giustizia e la Costituzione europea. Padova:
Cedam, 2004.
Capelli F. La partecipazione della societ civile alla costruzione
dellunione politica dellEuropa. Diritto comunitario e degli
scambi internazionali. 2001.
Dahl R. A. How Democratic Is the American Constitution? New Haven:
Yale University Press, 2001.
Modugno F. and D. Nocilla Crisi della legge e sistema delle fonti.
Diritto e societ. 1989.
Montesquieu. De lesprit des lois. Paris: Garnier, 1875.
Petrucciani, S. Modelli di filosofia politica. Torino: Einaudi, 2003.
Plato. The Republic. Opere, Bari: Laterza, 1966
The European Unions Institutional System
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88
Popper, Karl. The Open Society and Its Enemies. London: Routledge &
Kegan Paul, 1945.
Rawls, John. Political Liberalism. New York: Columbia University Press,
1993.
Schumpeter, J. A., Capitalism, Socialism and Democracy. New York:
1942).
Weber, Max. Politik als Beruf. Stuttgart: Ernst Klett Schulbuchverlag
GmbH., 1995.
Zakaria, F. The Future of Freedom: Illiberal Democracy at Home and
Abroad. New York: W. W. Norton & Company, 2003.
Incorporating the Principle of Co-Equal Branches into the
European Constitution: Lessons to be Learned from the
United States
Mark K. Gyandoh
Abstract
With the European Union on the verge of adopting a
Constitution, it seems only natural for those interested in the future of the
European Union to study the successes and failures of a similarly
conceived federal system that of the United States. The general
consensus is that the European Union Constitution is in part modelled
after the United States Constitution. Of particular interest in the
comparison of the two constitutions is the United States Constitutions
conception of the co-equal branches of government. Although the
Constitution creates a legislative, executive and judicial branch, it does
not delineate which branch has final say on the constitutionality of laws.
The common assumption is that the Constitution grants this power to the
judiciary branch. But a careful reading of the Constitution will disabuse
anyone of this notion.
Key Words
Co-equal branches, constitution, European Union, federalism,
government, United States
***
1. Introduction
With the European Union on the verge of adopting a
Constitution, it seems only natural for those interested in the future of the
European Union to study the successes and failures of a similarly
conceived federal system that of the United States. The general
consensus is that the European Union Constitution is in part modelled
after the United States Constitution. Of particular interest in the
comparison of the two constitutions is the United States Constitutions
conception of the co-equal branches of government. Although the
Constitution creates a legislative, executive and judicial branch, it does not
delineate which branch has final say on the constitutionality of laws. The
common assumption is that the Constitution grants this power to the
judiciary branch. But a careful reading of the Constitution will disabuse
anyone of this notion.
Similarly, under the European Constitution, five main branches
Incorporating the Principle of Co-Equal Branches
____________________________________________________________
90
are established: the European Parliament, the European Council, the
Council of Ministers, the European Commission and the Court of Justice.
Although the Court of Justice is given some authority on interpreting the
European Constitution, the Constitution falls short of naming the Court of
Justice as having the final word on deciding the constitutionality of
enacted laws.
To fully appreciate the experience of the United States with
regard to the principle of co-equal branches, one has to journey back to the
fledgling days of the Union when battles were waged over the meaning of
the Constitution. In the late eighteenth century and early nineteenth
century those intimately familiar with the Constitution like Alexander
Hamilton, James Madison, Thomas Jefferson and John Marshall
expounded on the meaning of the Constitution. Each proffered arguments
addressing the glaring failure of the Constitution to name a final arbiter of
the constitutionality of laws. Some favoured the view that, under the
principle of co-equal branches, each branch could declare a law
unconstitutional. Others were convinced that the judiciary alone ought to
be the final arbiter of constitutional matters.
These constitutional battles left behind a rich source of materials
and lessons regarding the interaction of the three branches of government.
The foremost lesson is that the European Union should take a step not
taken by the United States Constitution and entrust one branch with the
authority to decide if laws passed are constitutional. This is a lesson the
European Union would do well to heed in order to prevent potentially
destructive acrimony between the various branches. For example, conflicts
could arise between the several branches of the Union as well as the
Member States leading to rifts that could endanger the very existence of
the European Union.
2. Examination of the European Union Constitution
The outcome of a European Council meeting on December 14
and 15, 2001, in Laeken, Belgium, was a mandate to hold a convention on
the future of Europe. The convention delegates were to produce a draft
treaty establishing a constitution for the European Union. Over the course
of seventeen months ending on July 10, 2003, delegates met to create a
new constitution. Delegates included 15 representatives of the Heads of
State or Government of the European Union Member States, 13
representatives of the Heads of State or Government of the Candidate
States, 30 representatives of the national parliaments of the Member
States, 26 representatives of the national parliaments of the Candidate
States, 16 members of the European Parliament and 2 representatives of
the European Commission.
1
Comments that preceded the convention to establish the
Mark K. Gyandoh
____________________________________________________________
91
European Constitution acknowledged that inspiration was found in the
United States Constitution. Taking a cue from the United States
Constitution which begins with the phrase We the People of the United
States . . . do ordain and establish this Constitution for the United States of
America; the European Constitution similarly states grateful to the
members of the European Convention for having prepared this
Constitution on behalf of the citizens and States of Europe, who, having
exchanged their full powers, found in good and due form, have agreed as
follows: . . .
2
In so stating, the preamble of the proposed European
Constitution sets forth from the very beginning that the Constitution is
meant to be a constitution for the people. As will be explained further in
this paper, a constitution for the people embodies the republican principle
of government.
Among the various provisions put forth in the European
Constitution is Title IV, which establishes the Unions Institutional
framework, which is comprised of The European Parliament, The
European Council, The Council of Ministers, The European Commission,
and the Court of Justice. Of the five institutions, all but the European
Council was created by the 1951 Treaty of Paris, which of course gave rise
to the European Coal and Steel Community (ECSC).
3
Through various
other treaties over the years the powers of these institutions have changed.
There was the subsequent Treaty of Rome in 1957, and European Atomic
Energy Community (EURATOM). Each of these treaties also empowered
a Council of Ministers, A European Commission, and a Court of Justice.
Significantly, each of the European Community institutions, derived its
power and authority from the terms and conditions of whatever treaty it
was acting under. Thus, under the new European Constitution, the
Institutions derive their power and limits of actions from the Constitution.
In practical terms, this means the European Institutions cannot assume that
powers they enjoyed under prior treaties exist under the new proposed
Constitution.
Under the European Constitution, a number of power-centres are
delineated:
Executive and Legislative Power:
Article 19:
The European Parliament shall jointly with the Council
of Ministers, enact legislation . . . as laid down in the
Constitution.
Article 20:
The European Council shall provide the Union with the
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necessary impetus for its development . . . It does not
exercise legislative functions.
Article 22:
The Council of Ministers shall, jointly with the
European Parliament, enact legislation . . . as laid down
in the Constitution.
Article 25:
1. The European Commission shall promote the
general European interest and take appropriate
initiatives to that end. It shall ensure the application of
the Constitution, and steps taken by the Institutions
under the Constitution. It shall oversee the application
of Union law under the control of the Court of Justice.
2. Except where the Constitution provides
otherwise, Union legislative acts can be adopted only on
the basis of a Commission proposal. Other acts are
adopted on the basis of a Commission proposal where
the Constitution so provides.
Judicial Power:
Article 28:
1. The Court of Justice shall include the European
Court of Justice, the High Court and specialized courts.
It shall ensure respect for the law in the interpretation
and application of the Constitution.
2. The Court of Justice shall: give preliminary
rulings, at the request of Member State courts, on the
interpretation of Union law or the validity of acts
adopted by the Institutions.
In establishing the above institutions, the European Constitution
follows closely the framework of the United States Constitution which
establishes comparable institutions. These institutions under the United
States Constitution are the judiciary, legislative and executive branches.
As will be examined in greater detail below, the European Union
Constitution like the United States Constitution fails to appropriately
address which institution has the final say on the constitutionality of laws.
This is readily apparent in reading the above provisions of the European
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Union Constitution. For instance, under the European Union Constitution,
both the European Parliament and Council of Ministers have power to
legislate pursuant to Articles 19 and 22. Yet Union legislative acts can
only be adopted on the basis of a Commission proposal according to
Article 25. The role set for the judiciary lends more confusion to which
institution has the final say on the constitutionality of laws. Under the
European Union Constitution, the Court of Justice seemingly has power to
rule on the validity of the constitutionality of laws enacted, although the
power is not absolute. Under Article 28, the Court of Justice only has
authority to give preliminary rulings on the validity of acts adopted by the
constitutional institutions, and only at the request of member states.
It is quite apparent under the provisions of the European Union
Constitution that there is no clarity as to which one of the five
constitutionally created institutions has the last say in declaring acts
unconstitutional. Although the Court of Justice is given limited power to
declare acts valid or constitutional, each of the other institutions, except
perhaps the European Council because it does not exercise legislative
functions, seemingly has a legitimate claim to the authority to declare acts
unconstitutional. That is because each of the institutions derives its power
from the same source: the Constitution. Other than the European Council,
the other constitutional bodies have comparable power in influencing
legislative acts. It follows that because these institutions have equal power
to influence legislative acts each should have equal power to interpret the
acts and determine the constitutionality of acts emanating from the
constitution. The consequences that can flow from this situation are
addressed below.
3. Structure of the United States Constitution
A. Republican Principles
From May 1787 to September 1787, 55 delegates representing 12
of the 13 original States gathered in Philadelphia, Pennsylvania for the
constitutional convention. Rhode Island was the lone holdout, choosing to
boycott the convention. The venue for the convention was the East Room
of the State House where the Declaration of Independence had been
signed. After years of operating under the Articles of Confederation, the
States decided it needed some tweaking. Thus, the convention was in
theory supposed to revise the existing Articles of Confederation.
4
However, once the convention began in earnest, Edmund Randolph of
Virginia presented a plan that sought to eliminate the Articles of
Confederation altogether and create a new national government.
5
The
Virginia Plan called for a bicameral legislature, an executive branch,
and envisioned a national judiciary.
6
For the most part, deliberations
during the convention were held in secret. However, a collection of 85
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94
essays known as the Federalist Papers, or simply the Federalist, which
were published soon after the convention, provides an invaluable guide to
the intentions and paramount concerns of the framers of the United States
Constitution.
The authors of the Federalist, John Jay,
7
Alexander Hamilton,
8
and James Madison,
9
endeavoured to foster support among the States to
adopt the Constitution after the constitutional convention ended. Both
Hamilton and Madison were members of the constitutional convention
while John Jay had held important positions dealing with foreign policy,
and as such his contributions to the Federalist focused on foreign policy.
Not surprisingly James Madison, the father of the Constitution
itself, was the foremost constitutional expert among the three
collaborators. He explains that the aim of the convention delegates was to
create a federal government based on republican principles. Madison
describes a republican government as a government which derives all its
powers directly or indirectly from the great body of the people . . . It is
essential to such a government that it be derived from the great body of the
society, not from an inconsiderable proportion or a favoured class of it . .
..
10
The idea behind a republican government is that the people have the
final say in all matters. Thus, Thomas Jefferson remarked that the farther
the departure from direct and constant control by the citizens, the less has
the government of the ingredient of republicanism.
11
In the Federalist, Madison further explained the difference
between a federal government and national government. According to
Madison, a federal form of government is simply a confederacy of
sovereign states.
12
That is, states which essentially maintain their identity
as independent entities decide to form a union for any number of reasons,
but usually for security and commercial benefit. Federalism then is the
uniting or the structuring of various levels of authoritative government,
such as state or local governments.
A federal government is held in contrast to a national government
wherein states consolidate to become one larger entity and in the process
essentially lose their sovereignty. According to Madison, it is possible to
have a republican government within either a national or federal
framework so long as ultimate authority derives from the people. Madison
maintains that the United States Constitution is a federal one since each
state, in ratifying the Constitution, is considered as a sovereign body
independent of all others, and only to be bound by its own voluntary
act.
13
At the same time, the Constitution also contains all the necessary
elements of a republican government as it derives its power from the
people.
The first three articles of the United States Constitution establish
the three branches of government. Article I
14
calls for a legislative branch;
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article II
15
provides for an executive branch and article III
16
creates the
judicial branch. In establishing the three branches the framers had in mind
a system of checks and balances in which none of the branches would be
superior to the other, but instead would be co-equal. This intent for the
branches to be equal is made plain in Federalist No. 49 where Madison
explains that the several departments being perfectly co-ordinate by the
terms of their common commission, neither of them, it is evident, can
pretend to an exclusive or superior right of settling the boundaries between
their respective powers.
17
B. Which Branch Has Final Say on Constitutionality of Laws?
In Federalist No. 78, Hamilton addresses the issue of the
constitutionality of laws passed by the legislature. He begins by
acknowledging that the constitution does not entrust the legislature with
the authority to pass judgment on its own powers nor does it entrust any
other branch of government with that responsibility. He states quite
directly:
If it be said that the legislative body are themselves the
constitutional judges of their own powers and that the
construction they put upon them is conclusive upon the
other departments it may be answered that this cannot be
the natural presumption where it is not be collected from
any particular provisions in the Constitution. (emphasis
added).
Present day constitutional scholars have recognized this omission
as well. It is noted that curiously enough, this power of judicial review, as
it is called, does not derive from any explicit constitutional command.
18
Interestingly enough, the United States Constitution is in deviation from
most modern-day constitutions in other nations in that it does not
explicitly grant judicial review power to any branch.
19
C. Marbury v. Madison: The Court Assumes the Power of Judicial
Review for Itself.
It was not until Supreme Court Chief Justice John Marshalls
opinion in the justly celebrated Marbury v. Madison
20
that the Supreme
Court established itself as the final decision maker on the constitutionality
of laws. In Marbury, the United States Supreme Court was presented with
the following set of facts. Prior to leaving office after losing the bitter
presidential election of 1800, President John Adams attempted to saddle
the incoming Jefferson Administration with several partisan appointees.
Though legal, these last minute appointments were frowned upon by the
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incoming Jefferson administration.
21
Forty-two nominees for justices of the peace of the District of
Columbia were rushed to John Adams for his signature on March 3, 1801,
the day before he was to leave office.
22
Among the nominees was William
Marbury, a Georgetown businessman. After signing the documents
appointing the nominees as justices, the documents were transported to the
Secretary of States office where they were to be affixed with an official
seal of the United States. John Marshall happened to be the Secretary of
State for John Adams. After affixing the seal, the Secretary of States
office was to deliver the commissions to the nominee. For one reason or
another Marshall failed to have the commission for justice of the peace
delivered to William Marbury.
23
When Jefferson took office it came to his attention that several
commissions, including that of William Marbury had not been delivered.
He then instructed his acting Secretary of State, Levi Lincoln, not to
deliver the commissions. It was Jeffersons belief that the commission to
justice of peace was not complete, and therefore not valid, until the
commission was actually delivered to the nominee.
24
Jefferson described
his position to a friend years later. He stated that
if there is any principle of law never yet contradicted, it
is that delivery is one of the essentials to the validity of
the deed. Although signed and sealed, yet as long as it
remains in the hands of the party himself, it is fieri only,
it is not a deed, and can be made so only by its
delivery.
25
Once William Marbury learned that his commission would not be
forthcoming from the Jefferson administration, he brought suit to force
James Madison, Thomas Jeffersons Secretary of State, to deliver his
commission. The Case went before the Supreme Court.
Pursuant to the Judiciary Act of 1789, the Supreme Court was
given original jurisdiction to issue writs of mandamus, in cases warranted
by the principles and usages of law, to any courts appointed, or persons
holding office, under the authority of the United States.
26
Certainly by
this language the Supreme Court was authorized and required to issue a
writ of mandamus against James Madison as it had been shown that
Marbury was entitled to a commission and Madison was indeed an officer
of the United States.
Chief Justice John Marshall
27
delivered the opinion of the
Supreme Court. First, Marshall concluded that once Adams had signed
Marburys commission and the seal of the United States had been affixed
by the Secretary of State, the commission was complete.
28
Marshall then
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concluded that Marbury had been wrongly deprived of his commission.
Marshall next found that in order to right the wrong that had been done to
Marbury, the commission ought to be delivered to him. The method for
forcing Secretary of State Madison to deliver the commission would be by
writ of mandamus. As defined, a mandamus is a command issued by the
court directing an official to do some particular thing, which pertains to
their office and duty, and which the Court has determined to be consistent
with right and justice.
29
The question the Supreme Court posed itself was
whether it had the authority to issue such a writ to Madison.
Writing for a unanimous Court, Marshall found Section 13 of the
Judiciary Act of 1789 to be in violation of the Constitution and therefore
void. Marshall reached this conclusion from his interpretation of the
Constitution. The second paragraph of section 2 of Article III states:
In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall
be a Party, the Supreme Court shall have original
jurisdiction. In all the other Cases before mentioned, the
Supreme Court shall have appellate jurisdiction, both as
to law and fact, with such exceptions, and under such
regulations as the Congress shall make.
According to Marshall, this provision left no room for Congress
to enact a law that would confer original jurisdiction to the Supreme Court
outside of what was provided for in the above provision. In essence, the
Judiciary Act of 1789 had conferred original jurisdiction (to issue a writ of
mandamus) in an area outside of what was provided for under Article III
of the constitution. Recognizing that the Judiciary Act was contrary to the
Constitution, Marshall asked if the Supreme Court was still not bound to
follow the Act as Congress had duly passed it. His answer was a definitive
no. Marshall went further to declare that it fell on the lap of the Supreme
Court to say what the law is.
30
Marshall continued to explain that it
would be unsound to follow a lower law which stands repugnant to the
Constitution.
Although Marshall adequately explains that Congress should not
pass laws contrary to the Constitution, he does not adequately explain why
it falls to the Supreme Court to make the decision as to whether such laws
are unconstitutional. He seemed to ultimately rely on the argument that the
Supreme Court Justices take an oath to support the Constitution and in that
regard they are empowered to strike down acts contrary to the
Constitution.
31


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98
D. Varying viewpoints.
1) Support for Marshall.
Hamiltons viewpoints were in agreement with Marshalls
decision. In the Federalist, Hamilton argues that the Supreme Court
should have such jurisdiction over the legislature. He states in Federalist
No. 78:
It is far more rational to suppose that the courts were
designed to be an intermediate body between the people
and the legislature in order, among other things, to keep
the latter within the limits assigned to their authority.
The interpretation of the laws is the proper and peculiar
province of the courts. A constitution is, in fact, and
must be regarded by the judges as, a fundamental law. It
therefore belongs to them to ascertain its meaning as
well as the meaning of any particular act proceeding
from the legislative body.
32
It is not surprising that Hamilton was a proponent of judicial
review. His earliest views on government revealed a belief that there
ought to be a final arbiter in any governmental system of checks and
balances. Hamilton took the opportunity during the constitutional
convention to expand on his idea of a new type of government, which
differed from the Virginia Plan of government that was ultimately
embodied in the constitution. It is said that on June 18, 1776 Hamilton
rose to the convention floor to deliver a six-hour speech regarding his plan
to create a new hybrid form of government that would have the
continuity of a monarchy combined with the liberties of a republic.
33
Under Hamiltons plan, there would be an elected monarch who would
serve for life on good behaviour.
34
The purpose of this monarch would be
to serve as an impartial arbiter to transcend class warfare and regional
interests.
35
According to Hamilton there ought to be a principle in
government capable of resisting the popular current.
36
Although
Hamiltons plan was dismissed as innovative but unworkable it gave
insight to his strong disposition toward having an entity that could
exercise control over other branches of government.
2) No branch has exclusive right to declare a law unconstitutional
Jefferson, Jackson.
Not everyone - particularly President Jefferson - was thrilled with
Marshalls pronouncement of judicial review. We know of Thomas
Jeffersons view of the Marshall decision through correspondence with his
long-time friend Abigail Adams, wife of John Adams. In a letter to her, he
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wrote: The opinion which gives to the judges the right to decide what
laws are constitutional, and what not, not only for themselves in their own
sphere of action, but for the legislature & executive also, in their spheres,
would make the judiciary a despotic branch.
37
Jefferson believed that
each coequal branch of the government stood as its own unchallenged
judge of what was constitutional.
38
After all, the president and members
of Congress took an oath to uphold the same constitution as had the Chief
justice.
39
This was obviously a rejection of Marshalls argument that
judges take an oath to uphold the constitution and thus should be
empowered with the ultimate say on the constitutionality of laws.
In other correspondence, Jefferson elaborated on his views of the
co-equality of the branches. In a letter to William Jarvis, he wrote:
You seem [to] consider the judges as the ultimate
arbiters of all constitutional questions; a very dangerous
doctrine indeed, and one which would place us under the
despotism of an oligarchy. [The] constitution has erected
no such single tribunal, knowing that to whatever hands
confided, with the corruptions of time and party, its
members would become despots. It has more wisely
made all the departments co-equal and co-sovereign
within themselves. If the legislature fails to pass laws for
a census, for paying the judges and other officers of
government, for establishing a militia, for naturalization
as prescribed by the constitution, or if they fail to meet
in congress, the judges cannot issue their mandamus to
them; if the President fails to supply the place of a
judge, to appoint other civil or military officers, to issue
requisite commissions, the judges cannot force him.
40
Jeffersons wish to avoid a constitutional battle with Marshall,
not to mention the fact that, in the result, Marshall had ruled in the
Jefferson administrations favour, kept Jefferson from publicly assailing
the Marshall decision. Thus, he avoided a confrontation between the
executive and legislative branch that could have jeopardized the fledgling
Country. But the question was not, and indeed is still not, definitively
answered.
41
Two decades after the Marbury decision another potential
crises loomed over the still young United States.
In 1832, a Congressional bill to recharge the Bank of the United
States was presented to President Andrew Jackson for his approval. The
creation of the Bank of the United States had itself been subject of fierce
political debate concerning whether or not it was constitutionally
mandated.
42
The recharge effort was even more contentious. After
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100
reviewing the bill prepared by Congress, Jackson delivered a blistering
attack on the bill. He asserted that the bill included provisions that were
unconstitutional and that, as executive, he was within his province to
declare it as such.
43
He stated I sincerely regret that in the act before [me]
I can perceive none of those modifications of the bank charter which are
necessary, in my opinion, to make it compatible with justice, with sound
policy, or with the Constitution of our country.
44
Jackson then ripped into
the wound that the Marbury decision had attempted to cover, stating:
It is as much the duty of the House of Representatives,
of the Senate, and of the President to decide upon the
constitutionality of any bill or resolution which may be
presented to them for passage or approval as it is of the
supreme judges when it may be brought before them for
judicial decision. The opinion of the judges has no more
authority over Congress than the opinion of Congress
has over the judges, and on that point the President is
independent of both.
45
3) Commentary on friction between the branches
The reactions of Jefferson and Jackson to Marshalls position
demonstrate the potential for tensions in a government reliant upon
principles of co-equality. The fact that these disagreements did not lead to
a confrontation between the judicial and executive branches of the
government was remarkable. It was probably a testament to the character
of the individuals involved that they were willing to acquiesce rather than
endanger the stability of the United States. But the potential for a fractious
confrontation should not be underestimated. It is rumoured that on one
occasion, prior to the bank recapturing battle, Andrew Jackson said of a
Supreme Court decision, John Marshall has made his decision, now let
him enforce it.
46
Jackson was referring to the Supreme Court decision in
Worcester v. Georgia, 6 Pet. (31 U.S.) 515 (1832).
47
The underlying
litigation in that case was eventually dropped thus making the case a moot
point, but Jacksons comment showed his ready disposition to openly
reject a Supreme Court decision.
Similarly, in the twentieth century President Franklin Delano
Roosevelt
48
had planned to deliver a speech which expressed his intentions
to take action that would subvert a Supreme Court decision regarding the
constitutionality of abrogating gold clauses in federal obligations.
49
Fortunately, the Court ruled in the Roosevelt administrations favour and
his speech was never delivered.
50
E. Analysis of Marbury Implication for the European Union
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101
Was Marshall correct in his analysis in Marbury when he finds
that the Supreme Court ought to be the final arbiter on constitutional
matters? Marshalls logic and arguments are strong, but his whole premise
is undermined by the fact that there is no support for his position in the
Constitution. As noted, nowhere in the Constitution is the Supreme Court
given the power of judicial review. Under the principle of co-equality, it
seems that the view promoted by Jefferson and Jackson that each branch
has the right to declare laws or matters unconstitutional is the more logical
constitutionally. But under this view, there would be nothing but
confusion. For example, what if the legislature passes a law it believes to
be constitutional and the judiciary exercises its right to say it is
unconstitutional, but a Jackson or Roosevelt decides to enforce the
legislative decision? This would result in a chaotic impasse where the
country would be left in an awkward position of not knowing which
branchs ruling to adhere to.
A simple solution to the problem is to grant power to one branch
to be the final arbiter of the constitutionality of laws promulgated pursuant
to the constitution. Of the three branches in the United States government,
the legislature seems to be the appropriate choice to be entrusted with this
power. As mentioned earlier, the United States is based on the republican
theory that government derives its source of power from the people. In the
strata of a federal government, Madison acknowledges that the legislature
is probably the closest to the people; and the judiciary probably the
furthest removed.
51
Consider also President Abraham Lincolns First
Inaugural Address where he acknowledges that the peoples voice on
constitutional matters is not heard if acted upon by the judiciary. He
stated:
I do not forget the position assumed by some that
constitutional questions are to be decided by the
Supreme Court . . . [but] at the same time the candid
citizen must confess that if the policy of the Government
upon vital questions affecting the whole people is to be
irrevocably fixed by decisions of the Supreme Court . . .
the people will have ceased to be their own rulers,
having to that extent practically resigned their
Government into the hands of that eminent tribunal.
52
That eminent tribunal which Jefferson astutely noted can
become despotic through the corrupting influences of time and party
affiliation.
Further, placing the power of judicial review in the hands of the
judiciary is also counter-majoritarian, meaning it is against democratic or
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102
republican principles. As the noted constitutional scholar Alexander
Bickle remarked, the reality is that when the Supreme Court declares
unconstitutional a legislative act or the action of an elected executive it
thwarts the will of representatives of the actual people of the here and now
. . .
53
This correlates with Jeffersons reasoning that of the three branches,
the judiciary is seriously anti-republican because [its members are
chosen] for life.
54
It may be argued that passions may influence legislators who vote
for laws which may run counter to the constitution. However, this same
argument could be made against the judiciary or the executive branch.
The judiciary or executive could declare an act unconstitutional simply
based on personal beliefs. In fact, with their smaller numbers any decision
made by an individual justice or the executive is magnified compared to
the decision by a sole legislator.
Lawmakers should be assumed to understand the words of a
constitution just as the judiciary or executive can understand those words.
And since lawmakers have taken an oath to support the constitution like
members of the other branches of government, they should be expected
not to pass any laws contrary to the constitution. After all, a core
republican principle is that the people elect their representatives and
entrust them to obey the constitution and act on the peoples behalf.
The belief that the legislature should be empowered to make such
determinations on constitutionality is a logical conclusion based on the
republican theory of government. Admittedly, this is a theoretical premise
and it is understood that in practice the results may be quite different than
expected. If the legislature can pass laws without any other constitutional
body having the authority to question its decisions, then the legislature can
ostensibly reign supreme. But other checks and balances may be put in
place, such as the power of the executive veto, or a system whereby the
judiciary is empowered to rule on whether the legislature followed
procedural norms in enacting a law. Thus, the judiciary, although not
empowered to rule on the substantive content of a laws constitutionality
would be allowed to have some influence over the legislature.
Additionally, the judiciary would retain all other interpretative functions
authorized by the constitution.
With regard to the European Union, the question is which of the
five main European Constitutional bodies should be given final say over
the constitutionality of laws promulgated under the European Union
Constitution. Because the European Union Constitution is also based on
republican principles of government, the constitutional body that should
be given this power must be one that best expresses the will of the people.
Under the United States Constitution, as explained above, it is the
legislature that holds this status. Perhaps under the European Union
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Constitution it is the parliament that best expresses the will of the people
since its members are voted into power directly by the people. Under the
European Union Constitution, it should be noted, however, that the
parliament makes laws in conjunction with the Council of Ministers.
Thus, the power to make laws would have to remain with both
institutional bodies, but the power to determine the constitutionality of
laws could be retained by the parliament. It should be remembered though
that it is not important as to which institution is entrusted with the
appellation of final constitutional arbiter, as it is that at least an institution
be named as a final arbiter. This is the surest way to avoid potential
conflict between the different institutions.
4. Conclusion
It is well known that delegates at the constitutional convention in
Philadelphia were aware that the product they had created in the form of
the Constitution was a product created out of compromise. Even Hamilton
whose own unique ideas of a new government, when discounted,
wholeheartedly supported the new constitution principally through his
authorship of the Federalist. Because of these compromises, it was agreed
that the Constitution was far from perfect. Its infallibility was never
touted. Thus, all future generations who seek to emulate the United States
Constitution ought to be warned of its possible pitfalls. In the 200 plus
years following the creation of the Constitution, the one pitfall which has
been made clear is the failure to name a final constitutional arbiter. Yet,
even through some tough times, the United States managed to survive. In
looking at the United States Constitution, Madisons words regarding the
task that faced the Philadelphia delegates should be remembered. He
stated:
It has been shown that the other confederacies which
could be consulted as precedents have been vitiated by
the same erroneous principles, and can therefore furnish
no other light than that of beacons, which give warning
of the course to be shunned, without pointing out that
which ought to be pursued. The most that the convention
could do in such a situation was to avoid the errors
suggested by the past experience of other countries, as
well as our own; and to provide a convenient mode of
rectifying their own errors, as future experience may
unfold them.
55
Madisons words were as appropriate for the Philadelphia convention as it
should be for the European convention. The delegates from the European
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104
Union who gathered to draft the constitution made it plain that the United
States Constitution was one they looked to for guidance. This paper has
sought to show the imperfections of that document. But as Madison points
out, knowing the mistakes of the United States Constitution is only half
the battle because it only gives a warning of the course to be shunned but
does not leave a road map of the road to take.
56
Fortunately for the
European Union, the early battles between the founding fathers of the
United States has left sufficient resources from which to make an educated
guess as to the right path to choose. That path is to clearly state which
constitutionally created institution has the last say in declaring legislative
acts constitutional.
Philadelphia, PA, United States of America.
Notes
1
For comprehensive information on the European Union
Constitutional Convention and to view a copy of the Constitution please
visit the European Convention website at
<http://european-convention.eu.int/bienvenue.asp?lang=EN>
2
The European Constitution may be viewed at
<http://european-convention.eu.int/bienvenue.asp?lang=EN>.
3
The predecessor to the European Union was the European
Community, which was formed after the 1957 Treaty of Rome. Under the
European Community directives or laws would be given by the
Community which the individual national governments would have to
implement in their respective countries through statutes, decrees or
referenda. The directives established Community policy. These directives
under Article 189 of the Treaty of Rome were promulgated by the Council
of Ministers and European Commission. The Council of Ministers was
composed of ministers from the member states. The European Parliament
did not have power to propose legislation nor enact it. Parliaments role
was consultative. Since 1979, Citizens of member states have been able to
vote in the members of the European Parliament, making universal
suffrage alive and well with respect to the European Parliament. The
European Council consisted of heads of states of the member states sort
of like a super council of ministers. Beginning in 1974 the European
Council unofficially met twice a year to formulate broad policy guidelines
for the Community. Article 2 of the Single European Act of 1987
officially recognized the European Council. Lastly, the Court of Justice
was composed of one justice from each country.
4
Ron Chernow, Alexander Hamilton (New York, NY: Penguin Press,
2004), 230.
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105
5
Ibid.
6
Ibid.
7
John Jay (1745-1829), a prominent lawyer, drafted the New York
Constitution of 1777 and also negotiated the Treaty of 1783 that ended the
Revolutionary War, along with Benjamin Franklin and John Adams.
8
Alexander Hamilton (1755-1804), served as the first Secretary of the
Treasury under President George Washington from 1789 to 1793.
9
James Madison (1751-1836), was first appointed in 1801 as
President Thomas Jeffersons Secretary of State and later was elected the
fourth president of the United States.
10
James Madison, The Conformity of the Plan to Republican
Principles, in The Federalist Papers, ed. Clinton Rossiter (Penguin
Putnam Inc., 1961), 208-214, 209.
11
Thomas Jefferson, Letter to John Taylor, May 28, 1816 (Thomas
Jefferson, Writings (Merrill Peterson ed. 1984), 1391-195, 1393.
12
Madison, The Conformity of the Plan to Republican Principles,
209.
13
Madison, The Conformity of the Plan to Republican Principles,
212.
14
The first section of Article I of the constitution states: All
legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of
Representatives.
15
The first section of Article II states: The executive Power shall be
vested in a President of the United States of America. He shall hold his
Office during the Term of four Years, and, together with the Vice
President, chosen for the same Term, be elected as follows . . . .
16
The first section of Article III states: The judicial Power of the
United States, shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish.
17
James Madison, Method of Guarding Against the Encroachments
of Any One Department of Government by Appealing to the People
Through a Convention, in The Federalist Papers, ed. Clinton Rossiter
(Penguin Putnam Inc., 1961), 281-285, 282.
18
Alexander M. Bickel, The Least Dangerous Branch (Binghamton,
NY: Bobbs-Merrill Company, Inc., 1986), 1.
19
Gerald Gunther and Kathleen Sullivan, Constitutional Law
(Westbury, New York, The Foundation Press, Inc., 1991), 15.
20
5 U.S. 137 (1803).
21
Jefferson belonged to the Republican Party while Adams belonged
to the Federalist party.
22
James F. Simon, What Kind of Nation (New York, NY: Simon &
Schuster, 2003), 173.
Incorporating the Principle of Co-Equal Branches
____________________________________________________________
106
23
Simon, 174.
24
Simon, 189.
25
Thomas Jefferson, Letter to Justice William Johnson, June 12, 1823
(Thomas Jefferson, Writings (Merrill Peterson ed. 1984), 1469-1477,1474.
26
Marbury v. Madison, 5 U.S. 137, 173.
27
Marshall did not recuse himself despite his close connection to the
case. He was the Secretary of State responsible for delivering the
commission to Marbury; and his brother James Marshall had delivered
some of Adams last-minute appointments.
28
Marbury, 5 U.S. 137, 162.
29
Marbury, 5 U.S. 137, 170.
30
Marbury, 5 U.S. 137, 177.
31
Marbury, 5 U.S. 137, 180.
32
Alexander Hamilton, The Judiciary Department, in The
Federalist Papers, ed. Clinton Rossiter (Penguin Putnam Inc., 1961), 435.
33
Chernow, 232.
34
Ibid.
35
Chernow, 233.
36
Ibid.
37
Simon, 189.
38
Ibid.
39
Ibid.
40
Thomas Jefferson, Letter to William C. Jarvis, Sept. 28, 1820 (10
The Writings of Thomas Jefferson (Ford ed. 1989), 160), quoted in
Gunther, 21.
41
Consider the recent controversy in San Francisco concerning Mayor
Newsom presiding over gay marriage ceremonies in apparent conflict to
California State law. Only marriage between a man and a woman is valid
or recognized in California. However, Newsom, 36, who took office Jan.
8, insists he merely is fulfilling his duty. A little more than a month ago, I
took the oath of office here at City Hall and swore to uphold Californias
Constitution, which clearly outlaws all forms of discrimination, Newsom
said, according to the San Francisco paper. Newsom, in essence, is
exercising his right as an executive to decide what laws are constitutional
under the California Constitution.
42
Alexander Hamilton as George Washingtons Secretary of the
Treasury had been the biggest proponent of a Bank of the United States.
His belief was that it would help provide needed credit to the federal
government and function much in the same way as the Bank of England
had in Great Britain. Simon, 30. Although the Constitution made no
provision for Congress to create a national bank, Hamilton found support
for the constitutionality of the bank under the clause of the constitution
stating: [Congress shall] make all laws which shall be necessary and
Mark K. Gyandoh
____________________________________________________________
107
proper for carrying into Execution the foregoing powers [among which
were the power to lay and collect taxes, duties, imposts and excises, and to
pay the debts of the United States], and all other Powers vested by this
Constitution in the Government of the United States, or in any Department
or Officer thereof. Article I, Section 8, paragraph 17. Hamiltons
position was that a federal bank was necessary and proper to execute the
powers granted to Congress, in particular, the power to collect taxes,
borrow money, regulate commerce, and raise and support armies. Ibid.
Opposing Hamilton was Thomas Jefferson, George Washingtons
Secretary of State. Jefferson contended that a federal bank was not
absolutely necessary for Congress to exercise its constitutional authority;
and nowhere in the constitution was Congress authorized to establish a
national bank. Simon, 30. Thus, for Congress to establish a Bank of the
United States would be contrary to the Constitution.
43
Jacksons Veto Message, July 10, 1832 in Major Problems in the
Early Republic, 1787-1848, ed. Sean Wilentz (D.C. Heath and Company,
1992), 385.
44
Ibid.
45
Id. at 387.
46
Gunther and Sullivan, 24.
47
Ibid.
48
Franklin Delano Roosevelt (1882-1945) was the 32
nd
president of
the United States.
49
Gunther and Sullivan, 23.
50
Ibid.
51
James Madison, Periodical Appeals to the People Considered, in
The Federalist Papers, ed. Clinton Rossiter (Penguin Putnam Inc., 1961),
284.
52
Abraham Lincoln, First Inaugural Address, March 4, 1861 (6
Messages and Papers of the Presidents (Richardson ed. 1897), 5-9-10),
quoted in Gunther, 22.
53
Bickel, 17.
54
Thomas Jefferson, Letter to John Taylor, May 28, 1816 (Thomas
Jefferson, Writings (Merrill Peterson ed. 1984), 1391-1395,1393.
55
James Madison, Concerning the Difficulties of the Convention in
Devising a Proper Form of Government, in The Federalist Papers, ed.
Clinton Rossiter (Penguin Putnam Inc., 1961), 192-199, 194.
56
Ibid.
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Institutional Redress of the Democratic Deficit:
Redefinition within a Democracy-Efficiency Continuum
Joelle Anne Schmitz
Abstract
Sir Leon Brittans Committee of Parliaments proposal provides
an instructive analysis for federalism within the European Union. While
meritorious with regard to substance (all that he proposed should,
definitively, be incorporated at the supranational level and the national
parliaments should be granted a greater direct representation), it does not
offer the most effective structure for the realization of his philosophical
aims. In fact, it may be argued that the resurrection of his ideas is more
accurately perceived as an attempt to augment the powers of the
Commission which would ironically only exacerbate the democratic deficit
in its entirety. A preferable alternative, however, would suggest that these
powers (subsidiarity and legal review, especially of legislation that brings
the EU into new territory and/or that moving from inter-
governmentalism to centralized decision-making) be accorded the
European Parliament, as the only democratically elected institution
responsible to the peoples of the European Union and not its Member
States.
Key Words
Committee of Parliaments, federalism, democratic deficit, institutionalism,
subsidiarity, Brittan, comitology
***
1. The Challenge
Now, awaiting the actualisation of unprecedented enlargement,
the European Union finds itself at one of the most definitive positions in
its 50 year history. Many contend that it must first fortify its institutional
foundation before it fully encapsulates its new geographical and
ideological expanse: the prolific depth before breadth argument. Few,
however, argue the nearly universally accepted need for the European
Union to address what is commonly known as its democratic deficit, or the
gap created between Member State sovereignty relinquished to the Union
and the efficacy of its popular oversight and control.
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
110
As such, the European Union now enters an era where it will
need to reshape, even redefine, its historically compelling mission. As the
last vestiges of the Single Market in such culturally sensitive areas as
pharmaceutical and food-additive approvals, environmental standards,
taxation, and diplomas equivalence are increasingly delayed, the EU must
revisit its original motives if it is to maintain its integration momentum.
Economics has always proven an effective catalyst (as it has provided the
average European Union citizen with the most tangible evidence of a
Europe without international frontiers), but now perhaps has exhausted its
utility as a mobilizing force. Institutional reform may therefore provide an
adequate substitute to reengineer public confidence as it simultaneously
creates a more efficient and effective governmental system.
Thus, for several reasons, the early 2000s remain pivotal for the
European Union. The age presents us with both the culmination of several
long-term initiatives and new, unforeseen external dynamics. Now, in the
absence of strict East/West polarization, such imposing agenda items as
institutional reform are accredited renewed attention. In fact, today within
Europe, there is a void; a void created by (1) the exhaustion of the Single
Market as a political tool; and (2) the dissipation of the conventional
threats of a long-term Cold War. As a result, the entire nature of the
discourse has changed, leaving Europe with an opportunity ripe for
fundamental reform. Now that the original telos, or at least that of the
Single Market, has been achieved with some satisfaction, integrationists
may find themselves in search of a new means to galvanize popular
support if the original goals of Monnet and Schuman are to be maintained,
and eventually achieved in their entirety.
This is, of course, compounded by recent efforts towards
constitutionalisation. For example, one undeniable success of the most
recent convention is that the prospects for institutional reform are no
longer constrained by a political intellectual environment. In fact, the
extent of the political debate that surrounds institutional reform remains
relatively expansive despite a growing Euroscepticism and occasional
trends toward integration pullback. Unfortunately, however, as
constitutionalisation is increasingly accepted, a degree of competition
continues to diminish its potential as every actor and institution with a
vested interest attempts to promote their ideals before the structure
solidifies and is irreversibly hardened by the enlargement of the European
Union.
2. The Democratic Deficit
When a new institutional structure is formed of sovereign states,
the original fail-safes and checks against the potential abuses of power are
sometimes neglected in the interest of efficiency. As J. H. H. Weiler first
Joelle Anne Schmitz
____________________________________________________________
111
explained the effective nature of the European Unions continuing
democratic deficit:
...the governments of the Member States, which in their
own countries may normally legislate only with (at
least) the passive assent and scrutiny of the national
parliaments, may, in the Community domain, legislate
without meaningful control or even assent of the
European Parliament. De facto, this often means that
they can legislate without the meaningful control of any
parliament.
1
So, before the Union effectively serves as an area from which a
given government may escape burdensome Parliamentary scrutiny,
increased protection of individual rights must balance the majoritarianism
currently overwhelming the Union. For this reason, most contemporary
institutional reforms involve the European Parliament, as the only
institution democratically accountable to the peoples of the European
Union.
A. The European Parliament
The European Parliament presently consists of 626
representatives, each brought to office by direct universal suffrage within
their Member States, as a result of a 1976 Council decision. It today
remains, the only body of the five major Union institutions directly
accountable to the citizens of the Union. The problem lies in the fact that
its powers and influence are relatively weak in comparison with those of
the other institutions. Consequently, the democratic accountability of
national Member State governments has never been effectively translated
to the Union level and remains egregiously absent.
Although the Council and Commission may be described as
indirectly democratic, these institutions do not literally derive their
authority from the people. Instead, their power is derived from the
Member States, each represented by one Minister at every Council and
one or two Members of each Commission. The European Parliament
therefore remains the only institution symbolically and literally
representative of the people within the ever closer union among the
peoples of Europe (emphasis added) envisioned by the 1958 Treaty of
Rome.
Regardless, the Parliament should not be considered nearly as
influential as parliaments of common definition because it maintains little
authority of its own and extends hardly any influence over Commission
proposals and Council proceedings. Both the Commission and the Council
Redefinition within a Democracy-Efficiency Continuum
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112
have a right to be heard by Parliament, which has no formal powers of
initiation, sanction, or review. For example, Parliament cannot require the
Council to respond to its inquiries or even report regularly on clandestine
activities. Even the Parliaments budgetary powers (often the most
significant indication of comparative influence), merely refer to non-
compulsory expenditure. Therefore, the relatively weak influence of the
Parliament signifies to some degree the equally lacking influence of the
European people.
B. Prestige
This institutional imbalance is further affected by the little
prestige accorded the European Parliament which somewhat de-legitimises
the democratic process through its impact upon popular participation. This
is especially damaging since it affects an institution of such limited
influence where true representation is all the more important to
democracy. Accordingly, European Parliamentary elections consistently
receive low voter turnouts within the Member States. Consequently, they
fail to attract both well-known national politicians and, more importantly,
the media coverage which could garner greater public attention and, in
turn, truer representation. Thus, as it stands, consistently poor voter
participation compromises the validity of the entire process as well as the
outcome.
C. Comitology
The lack of Parliamentary oversight is further compounded by
comitology, as upheld by Einfuhr-und Vorratsstelle fur Getreide und
Futtermittel v. Koster, Berodt & Co. [1970], which granted wide breadth
to the interpretation of the implementing powers clause of Article 155 in
the EC treaty. The case consequently laid the foundation for a virtual
explosion of bureaucracy within Brussels. As a result, before legislative
proposals are presented to the Parliament, the content of each is often
greatly influenced, even modified, by a plethora of non-elected civil
servant committees. As such, the democratic deficit has been
metaphorically filled by a network of national civil servants operating as
European experts or as members of regulation and management
committees.
2
To further illustrate the increasing lack of democratic validity in
the acquis communautaire - the body of law from which the institutions
derive their powers, one might quantitatively investigate the degree of
relative institutional influence. Since 1994 for example, the number of
directives and regulations issued by Brussels has risen each year, as has
the number of Commission regulations which have immediate effect
throughout the EU and do not even require Council of Ministers review.
Joelle Anne Schmitz
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113
Thus, this largest-growing area of legislation is effectively unaccountable
to the demos,
3
a situation which evidences an essential devolution to the
purest distillation of rule by bureaucracy.
4
Therefore, given the lack of democratic oversight and the
significance of the early 2000s as a period for its redress, it is the
unfortunate yet predictable finding of this chapter that recent proposals
alleging a response to the deficit, such as the re-birthed Committee of
Parliaments plan, merely cloak more power-driven aims.
3. The Committee of Parliaments Proposal
Concern for the democratic deficit within an environment
demanding institutional reform for reasons such as enlargement, has,
however, produced several worthy proposals. Given the magnitude of this
undertaking, each must be thoroughly analysed in order to derive some
insight into beneficial reform.
In the early 90s, Sir Leon Brittan first proposed the creation of a
Committee of Parliaments to satisfy the Unions lack of democratic
accountability through the direct incorporation of national parliaments at
the supranational level. This structure would not only enhance EU
credibility by augmenting democratic principles, but also strengthen an
otherwise tenuous and inefficient link between national parliaments and
supranational institutions. Although a similar idea was articulated at
Maastricht, where government leaders declared national and European
parliaments should hold a Conference of the Parliaments whenever they
deemed it necessary, Brittan argues until such a body is granted
fundamental rights and responsibilities at the Union level, it will remain
largely ineffective. By Brittans ideology, the Conference of the
Parliaments represents a merely superficial, and, thus, unsatisfactory,
cosmetic treatment of a problem warranting more substantive attention.
In response, Brittan introduced several imperatives, all of which
are quite important and should be permanently incorporated into the Union
at the supranational level. These are: (1) the enforcement of the principle
of subsidiarity; (2) the right to routinely challenge the legal basis upon
which Union and national laws are drafted; (3) the scrutiny of laws which
carry the Union into new territory; and (4) the scrutiny of laws by which,
via the Treaty on European Union, governments decide to cede their rights
to the institutions of the EU. Many of the latter areas are especially
significant in that they comprise the very sensitive issues of immigration
and asylum presently lacking in degree of democratic oversight except
through the European Court of Justice (ECJ).
Although Brittans proposal is mostly instrumental, especially in
defining an agenda and voicing a response to the democratic deficit
quandary, it remains largely problematic. It is the intention of this chapter
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
114
to explore both the positive and negative aspects of Sir Brittans
clairvoyant suggestion and derive what prescriptive insights they may
offer institutional reform. Under each subsequent presidency, such reforms
will constitute priorities stemming from the last Intergovernmental
Conference (IGC) on European Union.
4. The Brittan Proposal, on its Merits
The Brittan proposal is possessed of two fundamental strengths:
(1) the enfranchisement of national parliaments at the European Union
level and (2) the incorporation of the newfound responsibilities of
institutional review. Each of these must be addressed at the next IGC, if
not necessarily in conjunction with the suggested forum. Indeed, Brittan
was correct in that these concepts are left unaccounted for at the
supranational level and that past efforts toward enhanced national
parliamentary responsibilities remain largely inadequate.
A. Incorporation of National Parliaments
1. The Conference of Parliaments
For example, as Brittan asserted, the Conference of Parliaments
provided under the Treaty on European Union is patently not sufficient
in its establishment and in its intention.
5
Its failure is attributable to two
main factors (which are, to Brittans credit, addressed by the Committee of
Parliaments proposal). First, as the Conference is accorded no permanent
responsibilities, its foundation and potential are inherently disadvantaged.
Brittan himself asserts, Their [the Conference members] collective
wisdom will only lead to concrete improvements in EU rules if they know
their views really count.
6
Therefore, if a committee accorded these
responsibilities is to be effective, it is mandatory that it be granted, what
Brittan describes as real powers, within the Union. Second, as their
meetings are voluntary and only required . . . as necessary (emphasis
added), there is nothing to bind participants nor to ensure their
continuance as suggested by the Treaty. Yet, even the Declaration on the
Role of National Parliaments in the European Union articulates the need
for greater institutionalised European Parliament/national parliament
communication. Unfortunately, however, little has been achieved toward
such larger ideals by the Conference due to these fundamental flaws of its
construction.
2. National Parliaments
The Member State parliaments remain the governmental entities
most objectively accountable and representative, if for no other reason
than that they are the closest to the people of todays Union. As such, they
must be better co-opted into the project of European integration. To
Joelle Anne Schmitz
____________________________________________________________
115
deny their input would be greatly disadvantageous from both strategic and
democratic viewpoints. By the same token, however, to relegate their
contributions to a subsidiary level would be equally as detrimental, if not
more so, since it could compromise their prestige in the eyes of the public
and likely increase popular frustration with the workings of government.
Moreover, incorporation of the national parliaments (as
symbolized by the efforts of the recent convention) would produce
tangential benefits. Specifically, it would stem the further erosion of their
powers and ameliorate and secure more effective relations with the
European Parliament. First, and perhaps most importantly, the proposed
incorporation of national parliaments would effectively reverse the current
trend towards further diminution of their limited influence in Union
affairs. This would proactively address the problem of significance since
the little influence of national parliament has been further reduced by: (A)
comitology and (B) European Monetary Union (EMU) convergence
criteria standards, (which mandated a loss of budgetary autonomy through
adherence to the arbitrary and Union-controlled standards of government
debt and budget deficit). Second, formal incorporation of national
parliaments into the European project would ameliorate otherwise
ineffective relations between the supranational and national parliamentary
bodies and produce a synergy from their enhanced interaction.
Therefore, if for no greater reason than to enhance
communication, national parliaments need to be incorporated at the
supranational level. Indeed, this argument represents a concern of
developing significance. National parliamentary input will become
increasingly imperative as the issues of supranational taxation and fiscal
harmonization come to the forefront, since revenue-raising powers are so
integral to national parliament sovereignty.
However, to facilitate a synergistic relationship, as evidenced by
the insignificant effect of the Conference of Parliaments proposal, an
institutional link between the European Parliament and the national
parliaments should be also be developed. The ideal extent of this link is
open for debate. However, the fact remains that the importance of
national/European parliamentary interaction is of sufficient magnitude to
merit an established protocol of communication and information
exchange. This is easily reconciled to the ultimate, definitive goal of the
European Parliament: joint decision-making over the whole of
Community legislation.
7
Additionally, it can only be achieved by first
reducing the contemporary conflict between European and national
parliaments.
B. The Proposed Responsibilities
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
116
The substance of Brittans suggested responsibilities under the
Committee of Parliaments proposal is in itself insightful. Perhaps his
greatest contribution in this regard is the identification of distinct needs of
the Union so important they would constitute likely amendments if the EU
already possessed a ratified Constitution. (Accordingly, however, they
must be instituted at the appropriate level within the Union that of the
institutions themselves since any subsidiary level might compromise their
effective operation.)
Regardless, if democracy is to be strengthened in the face of
diminished or limited European Parliament influence, then additional
review of institutional authority must be incorporated, especially if it can
be enacted on the part of the otherwise forgotten masses. For example,
there currently exists no other means by which national parliaments may
exercise any checks upon the power of the other institutions, let alone
challenge the legality of legislation, additional integration initiatives,
questions of subsidiarity, and/or especially sensitive areas contained under
the second and third pillars which include the most fundamental human
rights questions remaining wholly within the realm of intergovernmental
control, and not the people.
8
The Parliaments proposal would thus satisfy
a definite need with regard to these especially significant areas of
legislation.

1. Subsidiarity
The proposed subsidiary review by national parliaments, in
substance if not form, would enhance the overall democratic
accountability of the Union. Thus, it would provide insurance that actions
are truly taken at the closest possible level to the people and conversely
not used as an excuse to create a new directive (since the acquis
communautaire is the only body of law that confers powers upon the
institutions) to further aggrandise the authority of the Commission or
Council. Moreover, the opportunities for spontaneous review by national
parliaments will accelerate the process, a consideration of importance as
the Union expands and the ECJs docket is continuously overloaded. As the
ECJ can only be asked to intervene after legislation is passed at the Union,
and not a lower level weeding out pieces of legislation that need not be
granted the attention of Union-level institutions could have a significant
impact. One of the greatest values of the subsidiary concept is therefore,
efficiency; one that will only be facilitated if the principle is allowed a
requisite enforcement capacity.
2. Legal Review
Again, both efficiency and stability would be provided with an
institutional check upon the legal basis of all proposed European Union
Joelle Anne Schmitz
____________________________________________________________
117
legislation. Moreover, it would discourage opt out clauses (especially
within the sensitive realm of social policy) and perhaps promote further
integration and a movement away from increased inter-governmentalism.
As with subsidiarity, it would reduce inefficiency by allowing review
before the legislation is enacted and also by rendering individual
challenges less popular. In addition, it might ameliorate relations between
the national governments and the Commission, since today this remains an
area replete with conflict. Most importantly, as with the subsidiarity
review, it would promote a degree of finality in Union legislation,
encouraging greater confidence and acceptance by the public.

3. Legislation That Takes the Union into New Areas
More importantly, perhaps, the voice of national parliaments
should be presented and amplified in debates regarding the conference of
new powers upon the European Union. Although many governmental
systems include constitutional clauses allowing for the creation of
additional powers, few are as vague as Article 235 of the Treaty
establishing the European Economic Community (Treaty of Rome).
9
Upon
inspection of the Article, one will notice accountability to the populous
remains wholly absent from consideration. Accordingly, this provision for
review probably represents the most beneficial and imperative of Brittans
suggestion to reform institutional powers.
4. From Inter-governmentalism to Centralized Decision-making
Finally, it is only fitting that national parliamentary influence be
exerted within the realm of legislation currently contained under the
second and third pillars which are currently conspicuously divorced from
popular oversight. This is especially significant because it is under these
pillars that such sensitive civil rights issues as immigration, asylum, and
rules governing the crossing of external frontiers, are maintained.
Although national parliaments approved this inter-governmentalism
indirectly through their passage of the Treaty on European Union, popular
accountability remains desperately insufficient for such fragile human
rights considerations. By all democratic principles, they must be accorded
greater public influence to prevent against the most egregious abuses of
rule by elites. The function of monitoring their transfer from the protection
provided by unanimity requirements is of critical importance.
Thus, both national parliamentary influence and the substance of
the proposed powers themselves must be incorporated into the existing
institutional system of the European Union. If Sir Leon Brittan is
somewhat misguided as to the most acceptable structure to achieve these
aims, there is merit to be found in the propositions themselves. However,
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
118
the larger organizational problems incumbent upon Sir Brittans
Committee of Parliaments, renders it, in its entirety, unfeasible.
5. Critique of the Proposal
Although Sir Leon Brittan provides invaluable insights into the
needs of the evolving Union, his proposition incorporates two substantial
flaws. First, the proposal would have the effect of merely augmenting the
powers of the Commission relative to those of the European Parliament
and to the sublevel national parliament committee yet to be created.
Second, although Sir Brittan stresses the development of the EUs
democracy and . . . credibility as an essential objective, it would,
ironically, be impeded by the structure of the proposal.
A. Augmentation of Commission Powers
To best analyse the inherent problems with Brittans plan, one
must first investigate the environment in which it was created. The
dramatic reorganization potential manifested in anticipation of an
intergovernmental conference had created a degree of competition over
competences by existing institutions. Thus, the Committee of Parliaments
might have been interpreted as a Commission proposal so that, despite
what it eventually achieves, it will always be marginally influenced by its
allegiance and subservience (realistic or perceived) to the Commission.
The evidenced phenomenon is supported by James Q. Wilsons
1989 concept of turf battles, whereby governmental institutions find
themselves constantly engaged in a struggle for enhanced relative power
and autonomy. Unfortunately, such a characterization clearly highlights
both the true deficiencies of the Brittan proposal and the disadvantages it
would reap upon existing governmental structure. By this ideology, the
Committee of Parliaments may aptly be perceived as an instrument to
aggrandize the relative influence of the Commission within Brussels. As
Renaud Dehousse, Department of Law, European University Institute,
Florence, expresses it, The European Parliament made of it [the
democratic deficit] one of its chief weapons of battle.
10
The Commission
(through Brittans proposal) is now seemingly following a similar strategy.
From a cynical point of view, therefore, the Committee of Parliaments is
more readily interpreted as a function of Wilsons turf battle theory than
as an altruistic attempt to relieve the democratic deficit.
Moreover, Wilson argues the entire motivational compulsion
behind turf battles is surprisingly not defined by an unguarded thirst for
more responsibility or influence. Rather, it is by an autonomy which
would be clearly threatened if institutional authority were to be
subdivided.
11
Philip Selznick defined autonomy, (what Wilson refers to as
the greatest indicator of a given entitys turf battle success), as a
Joelle Anne Schmitz
____________________________________________________________
119
condition of independence sufficient to permit a group to work out and
maintain a distinctive identity.
12
Accordingly, this logic supports normative assertions as well. If,
for example, the European Parliament is interested in maintaining or
expanding its influence, perhaps to lessen the deficit, then it would be wise
to develop greater independent control over its current responsibilities.
This is a strategy well supported within academic discourse. For example,
John Wanats study of the patterns of growth in various American federal
agencies between 1952 and 1966, determined that most federal
departments did not experience economic growth. The one exception was
research agencies in which he found several unique characteristics,
namely, supportive constituency, undisputed jurisdiction, and coherent
sense of mission. This is all achieved when an agencys goals are popular,
tasks are simple, rivals are nonexistent, and constraints are minimal.
13
Although the study was executed at a departmental level in the United
States, the findings are justifiably applicable to the supranational level of
the European Union. Therefore, any proposed division of similar duties
(such as the review of other institutions) between the European Parliament
and a new Committee of Parliaments would consequently diminish their
respective powers.
Thus, the Brittan functions might be better attributed to existing
institutions, at least, temporarily, to maintain efficiency when it is at
premium for two reasons: (1) the public confidence in European
institutions is tenuous and (2) the stability of the structure will be further
jeopardized with the imminent enlargement of the Union. As J. Orstrom
Mller, Former State Secretary, Ministry of Foreign Affairs, Denmark,
writes, Not many would agree that the European institutions have found
their final stage, but the skeleton of an institutional structure can be
seen.
14
The point may be made, therefore, that any proposal to weaken
this structure before it can solidify, especially in a time of unique
upheaval, would be disadvantageous.
B. Counteracting Democracy
In fact, the Committee of Parliaments proposal, given its
suggested structure, would ironically only lessen democracy at the
supranational level for two main reasons. First, it would actually diminish
the European Parliaments authority by creating a rival to the
established institution.
15
Second, it would complicate existing structure
and through newfound complexity, decrease public confidence and
participation.
1. A Rival to the EP?
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
120
First and foremost, the Committee of Parliaments would
essentially provide a rival to the EP, the only truly representative
democratic institution of the EU.
16
Despite the fact that the committee
would itself ostensibly promote democratic principles, its larger negative
structural ramifications would outweigh the benefits. By creating a sub-
hierarchy under its effective, if not literal, control, the Commission would
only augment its powers while diminishing the influence of the European
Parliament. Moreover, the EP would lose authority by Wilsons ideology
because it would henceforth compete against the new Committee of
Parliaments for the amount of vested power as the Commission would
increase. This too would be compounded by the current contentious state
of relations between the national and European Parliaments.
In other words, by Wilsons ideology, intra-governmental tension
and consequential inefficiency will erupt when power is divided across
institutions by a structure such as that suggested by Sir Leon Brittan. Thus,
rather than enhance the European Parliaments powers, the Committee of
Parliaments would only effectively decrease it. Division, in this case,
would promulgate institutional weakness. As Wilson might argue, it
would produce a turf battle analogous to the long term power struggle
between the Commission and the Parliament resulting from their shared
budgetary authority. Moreover, Wilson responds to this fundamental
compulsion with a normative prescription, No agency . . . can ever
achieve complete autonomy . . . the best . . . [it] can do is to minimize the
number of rivals and constraints.
17
Thus, these phenomena within the European Union represent an
identified trend that may provide valuable insights toward the achievement
of Brittans substantive aims. As example, one might apply the analysis to
the development of contemporary American government in general and
more specifically in response to the 9/11 tragedy. Within the United
States, the workings of government have been disadvantaged by the fact
that, as the variety of government activities has increased, the
opportunities for any agency to have an uncontested jurisdiction and a
wholly supportive constituency have shrunk.
18
This too, is increasingly
evidenced within the European Union. Consequently, if a new sub-
hierarchy is attributed responsibilities that may impinge upon the authority
of other governmental institutions, then it is only the public who suffers.
As both Kingdon and Wilson agree, such a situation will, in fact, [retard]
the possibilities for governmental action,
19
because, as the maxim goes,
where you stand depends on where you sit.
20
As the Professor Raymond
Vernon, Professor Emeritus at the Kennedy School of Government once
suggested, the creation of additional committees would thus represent, an
invitation to [inertia].
21
Joelle Anne Schmitz
____________________________________________________________
121
By this organizational behaviour analysis, the proposed
Committee of Parliaments would deny the European Parliament the goal
of greater autonomy and thus only yield institutional posturing and
inefficiency. Brittan even identifies the fact that national and European
parliaments often see themselves as in opposition to each other, even
though they are doing the same job of ensuring democracy in Europe but
fails to recognize that the struggles arise from tension over this shared
responsibility and the consequential need for such liabilities to be
assigned. This therefore represents a fundamental insight that remains
nonetheless absent in Brittans own suggestion for institutional reform.

2. Increased Governmental Complexity
Secondly, the creation of any new committee would increase the
complexity of an already obscure governmental structure and further
alienate a public distanced by the complicated proceedings. To enfranchise
the public and thus reduce the democratic deficit, procedures and
institutional structure must be simplified. Yet the Committee of
Parliaments would only unfortunately produce the opposite effect. It
would render the institutional structure even more incomprehensible and
reinforce the lack of confidence for existing institutions by fostering the
idea that they must be policed. This, however, would not result if the
proposed competences were attributed instead to the European Parliament.
In other words, if the European Union continues to resort to
external cures for internal ills; it will only undermine the integrity and
confidence of its existing institutions. Moreover, the Union cannot afford
to perpetuate such trends toward an excessively large bureaucracy when
the original institutions must first be fortified in response to and
preparation for enlargement. For these reasons, the Union must resort,
primarily, to internal resolutions.
In fact, the fundamental problem exacerbated by external cures
is not that there are too few institutions now but that they are accorded
both too little faith and too little prestige. The responsibilities Brittan
proposes must indeed be instituted but the Commission lacks confidence
in assigning them to the Parliament because the public lacks confidence in
that institution itself. This, among other reasons, is due to the European
Parliaments popular characterization as a collection of dilettante and
second-class politicians. In fact, the body does attract a unique mlange of
individuals, with only the will to spend a good proportion of their political
lives promoting the concept of European integration. Consequently, Right
Honourable Shirley Williams attributes the European Parliaments failure
to [attract] few well-known national politicians to the fact that [the
European Parliaments] powers have been so limited and its coverage so
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
122
slight.
22
Thus, perhaps if the Parliament were accorded increased power,
it might be expected to attract a new breed of politician with whom the
people may more readily identify.
Today, however, the related poor voter turnout only decreases an
already tenuous democratic legitimacy. Participation in most countries is
usually significantly lower than that for national parliamentary elections
(in Brittan, with objectively the most apathetic voter population, the
difference still varies by a sizeable 10%).
23
Moreover, opinion polls
suggest that few know much about government at the supranational level
nor even the name of their MEP. The solution, therefore, is not to hijack
the prestige already accorded to national politicians, but to develop a
greater familiarity and respect for the supranational institutions among the
public. This will only be created in time; yet it is inevitable, and once it
has become convention, democratic accountability will greatly improve.

3. The Devolution of Democracy?
The Brittan proposal presents a fundamental irony in portending
to ameliorate the democratic deficit through the creation of a committee
that would effectively reduce the influence of the European Parliament. As
German Social Democrat MEP, Magdalene Hoff, when asked if she
approved of the Brittan proposal, once responded How can the European
Commission accept the fact that one of its Members publicly states it is in
favour of the creation of a body that would weaken the European
Parliament, while its declared objective is the reinforcement of the
Parliament?
24
In this, Ms. Hoff raises the important point of the effect of a
marginal institution similar to the European Parliament.
25
Her concern
rightly stems from the fact that, then, the only representatives directly
elected for the purposes of supranational representation would be
marginalized by the creation of an additional institution at the same or at a
comparable level to their own.
For the same reasons, one cannot relegate these powers to a
position in a hierarchical system so low as to render them unable to
successfully and objectively fulfil their democratic responsibilities. In
other words, these evolved Union needs are too important to be designated
to a sublevel of government. Legislative and subsidiarity review at this
stage of integration merit institutionalisation at a higher level, if for no
other reason than it may lend the requisite credence and enforcement
capabilities necessary for implementation. Moreover, if they are otherwise
effectively subservient to the Commission, the structure will only further
disequilibrate the current structural imbalance against democratic interests
and limit the democratic advantages to be wrought from such insightful
proposals.

Joelle Anne Schmitz
____________________________________________________________
123
4. Decentralisation
In addition to its augmentation of the democratic deficit, the
Brittan proposal would further a developing trend toward decentralisation
which itself may foretell another period of Euroscepticism in the absence
of a galvanizing integration agenda. To increase the intergovernmental
nature of the European Union now, however, would be a disservice to all
that it has achieved and would jeopardise the feasibility of future expected
enlargements. After all, what is most important, a Guardian editorial
attests, is to preserve the Communitys established characteristic and to
avoid the dilution of the EU into a vast free trade zone.
26
The two goals are inseparable because, if the Unions continued
expansion is allowed to proceed upon its current path toward more inter-
governmentalism, it will move further away from the original ideals upon
which it was established (the goals of Monnet and Schuman) and only
devolve to the whims of special interest and institutional turf battles.
Rather, as Klaus Hansch once advocated, the Union needs to consolidate
in order to enlarge
27
rather than resort to the creation of additional
committees for problems as they expectedly arise. In fact, if the EU does
not get its institutional house in order before attacking radically new
agendas, the ramifications could be devastating, even lethal. As Valery
Giscard dEstaing once claimed, an enlargement of the EU without prior
institutional reform would [lead] to a crisis of the Community which
could turn out to be fatal.
28
Sir Brittan himself admits that the Committee of Parliaments
seeks to decentralize but defends his position in that the trend of opinion,
both in the public at large and among governments, despite the best efforts
of the convention, is still moving away from centralization.
29
The
European Union (unlike France, for example) has no precedence of
centralized power. Brittan argues, therefore, it is neither essential, nor
useful to concentrate governmental power at the centre, but more
important to ensure national parliaments a voice. However, Brittan fails to
appreciate that these two objectives are not mutually exclusive and can
both be achieved simultaneously and in their entirety.
6. A Federalist Alternative
A. The Accordance of Powers to the European Parliament
Accordingly, given the extreme importance of legal review at this
stage of integration, and the need to substantively address the current
democratic deficit, an alternative must be found. All the aims Brittan
suggested as important would be best achieved if the Union were to accord
the suggested responsibilities to a more appropriate level by granting
them to the European Parliament as opposed to an entirely new committee.
Moreover, increased interaction between national parliaments and the
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
124
European Parliament, enhanced respect for populist ideals, and the
improved accountability of MEPs to home governments are all desirable
aims, but not worthwhile if the resultant provision were to jeopardize the
effectiveness of the implementation of the new responsibilities.
Thus, instead of creating yet another committee external to the
only democratic institution of the EU, we must consider the creation of
committees within Parliament to address these tasks. If one accepts both
the value of Brittans goals and the recommendations from Wilsons,
Kingdons, and Wanats analysis of organizational behaviour, one can
easily understand why Brittans Committee and the European Parliament
cannot achieve the same ends. Consequently, this mandates reorganization
on a functional rather than an institutional level. An intergovernmental
conference provides the perfect opportunity, as this presents a problem for
which the Union must provide internal resolution.
Subsequently, the solutions should lie in the creative reforms of
existing institutions and not in the development of entirely new ones.
Among the drawbacks previously mentioned, additional institutions
created today would encounter new problems to be overcome as they
struggle toward a level of maturity and acceptance already achieved by the
current institutions, when they were created in an environment itself
liberated from the strong political pressures that otherwise motivate
contemporary proposals.
Consequently, the newfound powers should rightly be accorded
the European Parliament if, for no greater reason, than in the interest of a
reduction of the democratic deficit. Such an effort would solve two
problems simultaneously. (1) It would augment the influence of the
Parliament and therefore increase the Unions democratic accountability
and (2) it would provide an acceptable forum for the worthy proposals of
oversight and allow them the greatest probability for successful
implementation. Conversely, unlike the Brittan structure, it would not
limit Parliamentary power, nor disproportionately expand the influence of
the Commission relative to the other institutions via a new governmental
committee to be openly or subversively, consciously or subconsciously,
administered by that body.
B. Merits of the Alternative Proposal To Strengthen Parliament
1. Lessening the Deficit
Thus, according the responsibilities to the European Parliament
would provide for greater democracy by creating a stronger parliament. In
so doing, it would aggrandise public support, reduce governmental
complexity, allow the arguably natural progress of democracy to proceed,
and grant some responsibilities - those ideals important in a democracy,
Joelle Anne Schmitz
____________________________________________________________
125
namely subsidiarity and legal review - more credence at the appropriate
supranational level.

2. Public Support
One way that the accordance of these powers to Parliament
would lessen the democratic deficit would be in heighten public support
for the Union and its institutions. According to Wilson, political support
is at its highest when an agencys goals are popular, its tasks simple, its
rivals nonexistent, and the constraints minimal.
30
This would be
facilitated, therefore, by a less complex governmental structure than the
one proposed by Brittan, and a more prestigious European Parliament to
entice politicians and citizens, alike.
This solution would also indirectly ameliorate what Dehousse
calls the political deficit whereby relatively weak political parties do not
provide the requisite political realism to force great societal debates.
Dehousse attributes this weakness to the fact that as the EUs primary
vocation was an economic one, it has only gradually extended its
activities into a number of neighbouring areas, by reason of the links
which unite economic integration with sectoral policies such as social
policy, environment policy, or consumer policy.
31
But, by this logic, the
argument can be made that, as the Union continues to expand inevitably to
these additional areas and the European Parliaments powers are
proportionately increased, so too will public confidence and involvement
grow, with stronger political parties functioning as a catalyst to greater
public participation.

3. Governmental Complexity
If Parliament, rather than a newly formed additional committee,
were accorded the proposed powers, procedural measures would be
relatively streamlined, better understood and better appreciated by the
average citizen. This would allow for greater interest in supranational level
affairs and perhaps, greater turnout at European elections.
Moreover, the suggestion presents an alternative to the
cumbersome development of an entirely new institution. On the other
hand, for example, the Committee of Parliaments would necessitate a
public outreach initiative in order to educate the public on its functions
and mission. As Dehousse asks, how can the voter be in a position to
scrutinize actions at the European level, if he is unaware of the role
allotted to the various institutions and how these institutions actually use
their powers?
32

4. Natural Evolution
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
126
Indeed, the accordance of these powers to the existing European
Parliament represents a much less drastic diversion from the original
visions of Monet and Schumann. Accordingly, if the institutions
themselves were just allowed to evolve via the stipulations of the Treaty of
Rome and the Treaty on European Union, the popular impact would be
increasingly evident at the European level. Dehousse, for example, in
describing the Parliaments newfound influence over the Commission,
claims that,
its [the European Parliaments] powers of control
that have been strengthened, which should allow it to
make its influence felt in a more constant way on day-
to-day decisions. One cannot rule out the possibility that
the European electorate may eventually become aware
of this power shift.
33
In fact, one might suggest that the history of the European Union
reflects a fundamental evolution of greater democratic accountability to an
ever-widening public.
34
The situation is also better illuminated by the
conventional debate between trustee (European Parliament) and
representative (Council, Commission) forms of democracy. Here too, in
periods of transition, the trustee function may be considered ethically
preferable, if the original prevention-of-war intent of the first peaceful
integration in the history of the world is to be preserved. At least
temporarily, this may afford a public policy maker the luxury of a more
Machiavellian perspective, in one of the few situations where it may be
justified. It is a history, therefore, which attests to the potential for
Parliaments relative ascendancy, one that might come about naturally and
more fundamentally if we merely avoid diversions from the essential
merits of the original plan. Accordingly, the Committee of Parliaments
proposal is merely an external obstacle to an otherwise natural evolution
toward increased democracy as governmental efficiency becomes less
imperative throughout progressive stages of integration.
This gradual yet consistent movement toward greater
democratisation is further evidenced by developments throughout the
history of the European Parliament. In the 1950s, a manifestation of the
Coal and Steel Community, the Parliament consisted merely of 78 part-
time workers. It had no legislative authority and was called an assembly
in order to threaten national parliaments less. It was only as the Member
States became both comfortable and invested in the idea of integration,
that the Parliament was accorded any authority or effective status. In fact,
it was not until the Paris summit of 1974 that the heads of government
decided to finally provide for direct elections to the European Parliament,
Joelle Anne Schmitz
____________________________________________________________
127
a requirement stipulated in the Treaty of Rome. Even then, it was another
five years before this ideal was ever realized.
35
The argument can be made
that Parliament didnt receive any real powers until Maastricht and is just
now beginning to adapt along with its European constituency.
Several more relatively recent developments further the idea of
a natural progress toward greater democracy as the Union matures. The
new Article 158, for example, may be considered illustrative of such an
evolution.
36
It dictates that only subsequent to consultation with the
European Parliament, may national governments nominate the individual
they intend to appoint as Commission President, in an effort to improve an
ineffectual relationship. Also, in addition to the Article 158 provisions
and, of course, to the Maastricht reforms especially the
institutionalisation of the co-decision procedure the ascendancy of
Parliament has been most recently evidenced by one further indicator of
the bodys evolving status: namely, by the plethora of lobbyists that have
increasingly targeted the EP since 1993. Previously, the European
Parliament was generally considered an institution not worth lobbying and
has only recently adapted to this explosion of newfound attention.
On the other hand, the importance of momentum to the success of
integration cannot be underestimated. The history of the European Union
may even be characterized as a struggle to preserve it. Whenever
momentum waned, leaders such as Delors always successfully
reformulated an ideal around which the Community might rally. Against
this backdrop, the functions of the institutions were then streamlined,
fortified, and attributed greater public confidence. Now, as problems with
enlargement perhaps foretell of the advent of renewed Eurosclerosis and
Euroscepticism, the European Union must remain vigilant against any
action that would otherwise threaten its proactive development.
Thus, in such a period of fundamental transition, the Union must
stridently avoid an over-bureaucratization of Brussels which would
otherwise impede public confidence and sacrifice integration momentum.
Therefore, the attribution of these the worthy reform competences to an
existing institution would represent the least radical departure from an
established and successful path.
5. Citizenship
In consequence to the concept of a gradual democratic and
federalist evolution, there have been substantive strides with regard to the
individual European citizen. Expectedly, individuals may feel more
enfranchised within the Union, an integral consideration of the increased
democratic accountability of a peoples Europe. As an early newsletter
once stated, We will not win peoples hearts and minds through debates
on Constitutional reforms, nor in trying to find out if recourse to a hard
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
128
core will result in the fusion or division of Europe. We can win peoples
hearts only if, through our European policies, we can remove some of their
fears and worries, if we can link the task of European unification to their
dreams and hopes. This is essential to the development of both greater
public partnership and strong central governance.
Moreover, the developing concept of European citizenship may
somewhat compensate for the lack of supranational popular accountability.
As it matures, it should foster a sense of investiture within the minds and
hearts of current Member State nationals and thus promote greater public
participation: the essence of democracy. As Sean ONeachtain of Ireland
attests, the concept of European citizenship is beginning to be felt and
will contribute to the reduction of the democratic deficit.
37
Therefore, it is
along this original path that the Union must focus its energies rather than
divert
38
its attention to the temptation of increased inter-
governmentalism.
39
8. Conclusion
The EU now faces a strategic precipice in its short history. Going
forward, it will only find itself increasingly confronted by a nagging
dilemma: its democratic deficit. The discussion will be of particular
significance to forthcoming Intergovernmental Conferences and to the
prospects for even greater Union enlargement. Decisions at this juncture,
will indeed determine the long-term future of European integration.
Consequently, the Union must exercise extreme caution in the
evaluation of all reform proposals. A resurrected Committee of
Parliaments plan, while substantively instrumental, cannot be adopted in
its entirety for the structural reasons discussed above. Yet, the fact
remains, as the result of an ever-more evident democratic deficit, the
European Parliament has sought increased powers since the 1984 Draft
Treaty Establishing the European Union. Today, we must again address
proposed solutions to facilitate that institutional aim, enhance democracy
and reassure voters that power over their lives is not ebbing abroad.
40
Indeed, the European Union will soon need to have settled upon an
acceptable communion of ideas if integration is to be furthered and the
visionary federalist ideals of Monnet and Schuman still realized in their
entirety.
McGill University, Montreal, Canada
Notes
1
Joseph H. H. Weiler, After Maastricht: Community Legitimacy in
Post-1992 Europe (1992), 13
Joelle Anne Schmitz
____________________________________________________________
129
2
Robert Keohane and Stanley Hoffmann, eds., The New European
Community: Decision Making and Institutional Change (Boulder, CO:
Westview Press, 1991), 162.
3
J. H. H. Weiler with U. Haltern & F. Mayer, European Democracy
and its Critics: Five Uneasy Pieces, 1995.
4
Christopher Booker, The Sunday Telegraph, (February 19, 1995).
5
Sir Leon Brittan, Europe: The Europe We Need (London: Hamish
Hamilton, 1994), 227.
6
Ibid.
7
Democracy in the European Union, The Economist, 21 May 1994,
172.
8
In response to this problem, national perspectives may be
institutionalized into the European Parliament, or European perspectives
may be institutionalized into the national parliaments.
9
Article 235 (Treaty of Rome, 1958): If action by the Community
should prove necessary to attain, in the course of the operation of the
common market, one of the objectives of the Community and this Treaty
has not provided the necessary powers, the Council shall, acting
unanimously on a proposal from the Commission and after consulting the
European Parliament, take the appropriate measures.
10
Renaud Dehousse, Institutional Reform in the European
Community: Are There Alternatives to the Majoritarian Avenue? (May,
1995).
11
In other words, the united we stand, divided we fall philosophy
may be applied with respect to institutional imperialism
12
James Q. Wilson, Bureaucracy: What Governments Do and Why
They Do It (New York: Basic Books), 1989, 182.
13
Ibid., p. 195.
14
J. Orstrom Mller, The Future European Model: Economic
Internationalization and Cultural Decentralization (Westport, CT:
Praeger), 1994.
15
Wilson. 195.
16
Ibid.
17
Ibid., 188.
18
Ibid., 195
19
John W. Kingdon, Agendas, Alternatives, and Public Policies,
(Little, Brown, and Company: Boston), 1984, 164.
20
Ibid, 162
21
Interview, Professor Raymond Vernon, (Clarence Dillon Professor
of International Affairs, Emeritus, The Kennedy School of Government),
May, 1995
22
Robert Keohane and Stanley Hoffmann, eds., 164
Redefinition within a Democracy-Efficiency Continuum
____________________________________________________________
130
23
Democracy in the European Union, The Economist, 21 May
1994.
24
EU: Commission Mrs. Hoff Raises, Reuter Textline (23
September 1994).
25
As this question was never selected by the authorities in the EP for
submission, it never received a response - Interview, David Coyne (The
Office of Sir Leon Brittan - Institutional Issues), 3 May 1995.
26
The French want to Run Rings Round the EU, The Guardian (1
December 1994), 22
27
Frontier -Free Europe Monthly Newsletter (November/December,
1994) European Commission, 1
28
Juppe Says Voters Alienated From Europe, The Reuter European
Community Report (June 14, 1994).
29
Interview, David Coyne (Office of Sir Leon Brittan - Institutional
Issues), 30 May, 1995
30
Wilson, 181
31
Renaud Dehousse, Institutional Reform in the European
Community: Are There Alternatives to the Majoritarian Avenue? (May,
1995).
32
Ibid., 8
33
Ibid., 7
34
By this conception, the age-old conflict between efficiency and
democracy within government becomes all the more instrumental. In any
government, these two ideals often find themselves conflictive. As earlier
mentioned, in a transitory stage, perhaps, perfect democratic ideals must
be temporarily sacrificed to efficiency in the interest of a larger goal and
as long as the democracy (or legitimacy) dialogue is maintained
35
George A. Berman, Roger J. Goebel, et al., eds., Cases and
Materials on European Community Law (St. Paul: West Publishing, 1993)
36
Article 158 (Treaty on European Union):
37
Tim McKeown, The Workings of the EC, The Irish Times,
(October 12, 1993), 15
38
Interview, Ingrid Persaud, The Fletcher School of Law and
Diplomacy, April 12, 1995
39
Europe Des Patries: As a backdrop to this entire discussion, there,
of course, remains the fundamental argument that proposed reforms are
essentially unnecessary as the Union does, already in fact, enjoy full
democratic legitimacy by de Gaulles construction of Europe des
Patries (Europe of the states)
40
Sir Leon Brittan quoted in The Economist, 1 May, 1994
Joelle Anne Schmitz
____________________________________________________________
131
Bibliography
Dehousse, Renaud. Institutional Reform in the European Community:
Are There Alternatives to the Majoritarian Avenue? RSC
Working Papers, May 1995.
Democracy in the European Union. The Economist, 21 May 1994.
The European Commission. Frontier-Free Europe Monthly Newsletter.
November/December 1994, p. 1.
Juppe Says Voters Alienated From Europe. The Reuter European
Community Report, 14 June 1994.
Keohane, Robert and Stanley Hoffman, eds. The New European
Community: Decision-making and Institutional Change. Boulder,
CO: Westview Press, 1991.
Moller, J. Orstrom. The Future European Model: Economic
Internationalization and Cultural Decentralization. Westport,
CT: Praeger, 1994.
Kingdon, John W. Agendas, Alternatives, and Public Policies. Boston:
Little, Brown, and Company, 1984.
Wilson, James Q. Bureaucracy: What Governments Do and Why They Do
It. New York: Basic Books, 1989.
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Constituent Power and Polity Legitimacy in the European
Context: A Theoretical Sketch
Zoran Oklopi
Abstract
Can constitutions establish states or only governments? Or, in
Arendts terms: does the constitution include pactum unionis besides
pactum subiectionis? This question is debatable. Instead of the state of
nature as a starting point for the creation of political communities, in
todays world we are faced either with failed states or with the demands
for secession from more or less liberal -but established, states. Only in the
latter case can we speak of a role of the constitutions in establishing new
polity. The EU Constitutional Treaty provides for the unilateral exit from
the Union. It is debatable whether such a solution might provide the
framework in which novel, but morally relevant claims to political
subjectivity may be disentangled.
Key Words
Constituent power, constitution, democratic deficit, European Union,
polity, polity-building, polity legitimacy
***
1. Introduction
In recent years, theories analysing the development of the
European Union have often focused on the normative issues which
underpin the process of European integration. This phenomenon is easily
understandable: European integration has reached a stage in which the
usage of old political concepts such as constitution, constitutionalism, or
demos is undermining the sui generis nature of the integration process.
The discussion about the finality of Europe and the adoption of a
Constitution for Europe conveys a sense of intended perpetuity of the
European project, which in turn requires the thorough examination not
only of the ins and outs of the European Union political process, but also
of more fundamental questions such as: What does Europe intend to
achieve? Or: Why Europe? In a recent article, Bellamy and Castiglione
suggest that further conceptual clarifications should be made when talking
about political legitimacy in the context of the EU. They define legitimacy
as normatively conditioned and voluntary acceptance by the ruled of the
Constituent Power and Polity Legitimacy
___________________________________________________________
134
government of their rulers.
1
According to them, there is an internal and
an external aspect to political legitimacy. Equally important, the question
we need to address is: political legitimacy of what? In answering that
question, Bellamy and Castiglione distinguish between regime and polity
legitimacy. Democratic deficit of EU institutions and issues of their
responsiveness and accountability all point toward the problem of the
legitimacy of the EU regime. Prior to considering the conditions of a
legitimate political authority in a political community, we need to consider
the legitimacy of this particular political community. In other words, why
should the citizens owe their allegiance to this particular polity rather than
to an other?
In this chapter, I will analyse the relationship between the
concepts of constitutionalism and polity legitimacy with accounts of
polity-building. As a starting point, I will briefly explore the tension in
Emmanuel Joseph Sieyes seminal work What is the Third Estate? I will
argue that the incoherence of the account of a Nation as a pouvoir
constituant leads us to explore three possible avenues for polity building. I
suggest the following accounts, using them as heuristic devices: the Fact
of Nature account, the Arendt-Elazar account, and the Statist-
Confederalist account. Then, I will attempt to sketch out possible
relationships between these three accounts and the visions of polity
legitimacy existing in normative political theory. Finally, I will examine
how the concept of constitutionalism relates to the process of constituting
a political community.
2. Building a Polity: the Chicken-Egg Dilemma and Polity
Legitimacy
In his celebrated work What is the Third Estate? Emmanuel
Joseph Sieyes asserts that the nation should be conceived as a pre-legal,
pre-political entity: if a nation had to wait for some positive way of being
in order to become a nation it would simply never have had an existence.
Nation is created only through natural right.
2
At the same time, later in
that text, he defines the Nation as [a] body of associates, living under a
common law, and represented by the same legislature. Adapted to the
European context, these two statements appear contradictory: Demos,
defined by referring to the polity which it is supposed to create, supersedes
the pre-political Nation, which is supposed to create the pouvoir
constituant. Looking at it from another angle, the same dilemma appears:
the purported European identity fails to provide criteria for the exclusion
of the other precisely because it has been couched in non-nationalistic,
universalistic terms. Thus, writes Strth, humanistic ideals such as
equality, freedom and pluralism have come into conflict with the need to
exclude.
3
Zoran Oklopi
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135
One seeming way out of this chicken-egg dilemma is to follow
Michael Zrns suggestion: It seems much more practical to establish
what kind of democratic processes can be generated on the basis of the
(partially) given components of a demos. He breaks down the concept of
demos into five components: mutual acceptance of rights, mutual trust,
public spirit, public opinion, and solidarity.
4
For example, if members of
demos acknowledge each other as autonomous individuals, each with a
right to personal self-fulfilment, then this component of demos can be
taken into account in the process of supranational adjudication. Similarly,
the sense of collective identity required for public-spirited deliberations
can be found in sectoral demoi, in which institutional deliberations and
decisions are legitimate because members of such groups share identical
concerns and interests.
Putting these remarks aside, I would like to suggest three possible
scenarios from which the purported constituent power might emerge. For
the sake of the argument, I will bypass rich and engaging sociological and
empirical bodies of thought that deal with the role of collective violence in
polity building.
5
My aim here is to try to tease out some of the conceptual
and normative premises that lie beneath particular narratives of polity-
building. I am suggesting the three following accounts:
A. the non-political force of nature account (re) birth of a Nation;
B. the statist-confederalist account; and
C. the Arendtian - Elazarian account.
6
D.
These accounts (or historical narratives) of how a specific polity
came into being bear a direct import on the normative question of that
politys legitimacy. However, they are not final assertions: a particular
normative account of polity legitimacy is not necessarily the only possible
narrative for a particular type of polity-building.
A. The Force of Nature Account: Enterprise Association and the Lack of
Liberal Justification
The anthropomorphic perception of the Nation as a person serves
as a powerful rhetorical instrument for various ethnic entrepreneurs across
the globe. Legitimising the polity-building of this particular polity as
opposed to some other is pretty straight-forward, but in a certain way
rather misleading: the state as a political structure is essential not to solve
collective decision making problems or protect individual property or
freedoms, but to serve as a vehicle for the perpetuation of the national
existence. In this account, the state resembles an Oakeshottian enterprise
association: [it is] composed of persons related in terms of a specified
common purpose and who recognize one another in terms of their common
Constituent Power and Polity Legitimacy
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136
engagement.
7
According to this line of reasoning, the question of
dissenting national minorities and legitimate scope of the political unit
does not make sense: if the state is a vehicle carrying the Nation into its
perpetual future, then it should be as comfortable as it can possibly be.
The scope of the subjects legitimately expected to obey the ethno-national
state is not grounded in a liberal justification resting on some morally
relevant performative act (consent) or on the overall appraisal of the
community (for example being just), but on the historical narrative
justifying the usually most extensive claim to territory.
8
The underlying
conceptual commitments of the ethno-nationalist movements should not
be conflated with the rhetoric used in the actual constitutions of the newly
formed communities; they define the newly formed polity as the national
state of a majority nation, but also vouchsafe the minority rights to the
individuals belonging to minority groups within that state. The enterprise
association in terms of common purpose, as Mapel observes, is never
association simply in terms of that purpose alone.
9
The morally
disputable nature of such a legitimising formula - although rather accurate
in sociological terms, only rarely becomes a matter of concern outside the
academic world. Only serious civil strife, like the one in Macedonia in the
spring of 2001, may garner the international support necessary for the
symbolic transformation of a polity based on the Staatsvolk, into a state
based on a multinational partnership.
10
B. The Statist-Confederalist Account: Expecting the Internal Polity
Legitimacy
The nation-state emerges from the strenuous process of civil strife
or national liberation wars, in which (para)-military elites assume political
power over a defined piece of land and organize the provisional legal
framework, thus providing an effective legal framework for an already
ethnically homogenous population. The question of mutual solidarity, or
acquiescence to the new political framework, is not only assumed by the
fact of common ethnic belonging, but is most often reiterated by the
participation in the common military struggle. Unlike the nation-state
based on the Staatvolk, the demos of the federal-type polity does not exist
yet at the time of the adoption of the constitution. Although the federal
level of government is usually legitimised by the federation-wide
elections, the sense of belonging to a common polity usually appears later.
What then, of the polity legitimacy in federal-type states? Using
Bellamy and Castigliones concepts we might argue that until the sense of
belonging to the federal polity emerges, the only legitimacy we can speak
of is the external legitimacy. On that account, the polity is legitimate
because it is created by a process which does not violate the peremptory
norms of international law and polity because its objectives satisfy the
Zoran Oklopi
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same standard. Its regime, on the other hand, is legitimate from an external
point of view because it does not violate the norms on internal self-
determination of peoples, such as meaningful participation in
governmental bodies and non-discrimination of peoples within its
territory.
Internal polity legitimacy, on the other hand, emerges as parasitic
upon the essentially statist mechanism by which the external polity
legitimacy of the proto-polity is created. Polity achieves its internal
legitimacy because of the customary obedience of its subjects and because
it is relatively just. On that account, legitimacy has a blend of normative
and empirical elements. In the Weberian sense, we can perceive it as a
sociologically observable fact of acquiescence to the European legal
system. In normative terms, this account does not take the consent of the
governed as constitutive of polity legitimacy. What matters is the fact that
the polity enables fair-play interaction amongst its members, and that it is
overall just. This remark points to a different direction suggested by
Weiler. Rather than conceiving demos at the EU and national level as
based on the same set of premises, we should conceive it not only as
overlapping but also as founded on different principles. The legitimate
group for the purposes of decision making - the demos, would be
embedded in a shared sense of cultural and national belonging in the
national context; however, in the European context, the legitimacy would
spring from the fact that the participants are confined in a collective
endeavour in which they share certain substantive standards and are
governed by the decisional procedures representing range of interests and
sensibilities going beyond the national polity.
11
C. The Arendt-Elazar Account: Taking Consent Seriously?
Although Hannah Arendt does not give an elaborate account of
the normatively acceptable way of constituting political communities, we
can reconstruct her account by taking a closer look at some of her works.
Hannah Arendts commitment to the celebration of freedom, perceived as
the sheer power of beginning, which sets in motion and inspires all
human endeavours and is the hidden source of production of all great and
wonderful things,
12
is the backbone of her vision of a normatively
desirable way of constituting political communities. According to Arendt,
freedom is primarily a political concept; it is the fact of everyday life in
the area of politics. It is not the philosophical inner freedom The New
European Community: Decision-making and Institutional Change an inner
space in which people can hide from outer coercion and feel free.
13
Arendt argues that before it became the attribute of thought or the
quality of will, the freedom in the political sense of the word was
understood as the condition of the free man which enables him to move,
Constituent Power and Polity Legitimacy
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138
leave his home, step into the world and meet other people by conversation
and action.
14
This is the freedom to establish something that did not
exist before something that was not given.
15
On that account, the new
beginning the act of foundation of the new political community, is at the
same time the principle of every action, and as such, the principle
inspires the deeds that are to follow, and remains apparent as long as the
action lasts.
16
The legitimacy of the political community is derived
neither from the will of the pre-political Nation, as in post-revolutionary
France, nor from some abstract moral rights to life, liberty and the pursuit
of happiness. Rather, it is derived from the practice of freedom, the
initial gathering, the act of foundation,
17
which for Arendt has the form
of pactum unionis horizontal social contract among the fellow-
inhabitants of the particular local communities. Responding to the
standard anti-contractarian charge about the historical impossibility of
such initial contract, Arendt points to the Mayflower Compact and the
Plantation Agreement to show that social contracts were not a fiction in
the pre-revolutionary American society.
18
By means of the common
practice of mutual promises, embedded in the local townships, the
American Revolution managed to avoid the difficult task of establishing
the new order of things. Consequently, the constituent power was in
possession of the regularly elected representatives of constituted
municipalities, who were elected from below, and not appointed from
above. Therefore, the people in the American context revealed itself not
as the fictitious Nation as in France, but as the present reality.
19
Daniel Elazar, endorsing the Althusius federalist theory, makes a
similar point.
20
For Althusius, polity building involved creating a
compound political association established by its citizens through their
primary associations on the basis of consent rather than a reified state,
imposed by a ruler or an elite: the Bodinian model.
21
In the context of the
European integration, that should transpose into a polity appropriately
made up of more than two or three arenas where one of the most
important thing[s] to be done is to have them assert that involvement.
They should not wait to ask permission, but they must assert that
involvement as part of the overall restructuring of Europe which is taking
place.
22
Arendt and Elazars emphasis on the possibility of establishing
social contracts invites us to consider the approval both of the political
community and of the government as a functioning normative ideal
political community created from the bottom up.
At this point, one might question the difference between the
Arendt-Elazar account and the statist-internationalist one. After all, arent
they both based on the same set of premises? First, the premise that there
are smaller units coming together to become a larger unit; second, that the
units at stake are taken as already politically established entities; and third,
Zoran Oklopi
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139
that the concept of compact, which ignores the fact that polities are
constituted with bigger or lesser degrees of coercion, is generally used to
justify creating the polity. In that case, the difference between two
accounts would consist in the size of the constituents, be they townships or
states. Another difference bearing a certain normative overtone would be
the fact that the Arendtian-Elazar account allows for the fine tuning of the
size of the political community, thus maximizing the size of the people
content to live in a particular polity. Finally, the Arendt account does not
unambiguously solve the basic problem of the foundation of community.
As Keenan rightly points out, the act of foundation is torn between the
temporality of beginning and the demand that something be begun and
then maintained.
23
2. Constitutionalism and the Constitution of a Polity
Can constitutions establish states or only governments? Or, in
Arendts terms: does the constitution include pactum unionis besides
pactum subiectionis? This question is debatable. Instead of the state of
nature as a starting point for the creation of political communities, in
todays world we are faced either with failed states or with the demands
for secession from more or less liberal, but established, states. Only in the
latter case can we speak of a role of constitutions in establishing a new
polity. The constitution in that case does create a new polity, but puts
forward a more or less detailed framework in which the competing claims
arising from the demand for statehood can be disentangled. According to
Sunstein, however, constitutions should not provide the means for a
radical reconstruction of the polity which might lead to the creation of a
new independent people. By doing that, the constitution would in fact:
reduce the prospects for compromise and deliberation in
government; raise dramatically the stakes of day-to-day
political decisions; introduce irrelevant and illegitimate
considerations into those decisions; create dangers of
blackmail, strategic behaviour, and exploitation; and,
most generally, endanger the prospects for long-term
self-governance.
24
From the standard vantage point of public international law,
however, the emergence of a homogenous political community is almost a
natural process in which law does not play a role. The act of recognition
has only a declaratory force in international law. The law steps in at the
moment when the political community, an independent state, is already in
place, the criteria for statehood being territory, population, and
government in control (Montevideo criteria). In any event, the idea of the
Constituent Power and Polity Legitimacy
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140
states being masters of treaties would thus go against the idea of the pre-
commitment, which is, according to some authors, central to the idea of
constitutionalism. On the other hand, following Gross, we may be inclined
to conclude that there is no fundamental difference between constitutional
and treaty-based founding. In both cases, the existence of the composite
organ entrusted to rule on the observance of the treaties vouchsafes the
initial (pre-) commitment. As Gross writes, attributing to one party alone
the capacity of an organ, that is, the right to decide the meaning of the
treaty, would amount to conferring on it the right to create a norm binding
on the other state to subordinate the other state to the jurisdiction of the
former.
25
It thus does not seem clear whether the idea of constitutionalism
requires that the political community already be in place.
26
In the state
context, for example, the preamble of a constitution often has symbolic
force: it serves to justify the existing political community (or the aspiring
one, for example, if the constitution gets adopted in times of civil war),
invoking a venerable historical narrative of the nations struggle and
attachment to the territory in question. The second rhetorical move, which
usually goes hand in hand with invoking the narrative of struggle and
oppression, is the claim that the creation of an independent state represents
the exercise of a norm of international law, namely the right to self-
determination. If, on the other hand, the constitutional document serves to
create the federal-type polity, it often remains unclear what is the true
nature of the constituting document.
27
Is it a compact among units coming
together or is it a self-imposed, full-blown constitution that an already
formed Nation imposes upon itself? Although there are several yardsticks
according to which a student of federalism might try to distinguish
between a proper federal state and a confederation (a union of states), it
is not necessary to rehearse those arguments here. It is important to stress,
however, that the mere fact of the coming together of previously
independent political units creates the possibility of creating historical
narratives claiming that what was in fact created was not a Federal Demos
or a Nation, but a sheer compact capable of being rescinded at will.
Alternatively, one might try to circumvent the whole problem of
constituent power and state-based constitutionalism by going beyond the
statist assumption and by searching for inspiration in the concept of
cosmopolitan federalism, which in turn finds its inspiration in medieval
political forms such as the Holy Roman Empire. The problem of ultimate
arbiters and sovereignty in the contemporary European context would thus
be dissolved in the impersonality of law.
28
More importantly, the
concept of cosmopolitan federalism challenges the idea of the democracy
as the rule of the people. It requires a conceptual shift in which the demos
will not be perceived as the unitary actor which legitimises the polity.
Zoran Oklopi
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141
Instead, the concept of people-hood should be supplanted with the idea of
civil multitude.
29
That would require setting aside what Canovan
maintains to be [o]ne of the fundamental claims of any version of
democratic theory: that the existence of a professional bureaucratic state
is not enough for political legitimacy, and that it should be our state: that
political institutions should belong to and express the people.
30
The
people on that account is more than a mere assemblage of individuals
residing within the confines of a particular state. However a civil
multitude is precisely that, a sum of people sharing nothing but the fact
that they belong to the same legal framework. The problem of the
legitimate scope of the polity, therefore, does not exist because the
territorial contiguity and economic viability rather than a sense of
belonging are the decisive factors.
31
Such a conceptual shift would
require not only discarding the concepts of people-hood and self-
determination but, by the same token, the adoption of a concept of politics
that would treat the collective emancipation with utmost suspicion. The
fear of Derridean mythic violence that accompanies every political
founding drives constitutional politics away from institutionalising space
where novelty as a collective endeavour can arise and be negotiated.
3. Conclusion
Should we then agree with Neil Walker who claims that:
the solution does not seem to lie, as with many national
constitutions, in mounting a distinction between
eternity clauses and other clauses capable of regular
review for who in our multi-cultural multi-preference
polity is qualified to be the arbiter of what is eternal?
32
The answer the new EU architecture provides is essentially the
conventional one: units which are vested with the right to initiate, and
ultimately carry out the radical political changes are the member states.
This of course does not deny the institutional innovations which
distinguish the EU from a standard version of a federal-type polity.
Looking back at the three accounts of the polity-building set out
in brush strokes above, I have hopefully identified certain difficulties
which affect either their moral worth, or the practicability of the models
presented. Does this mean that the chicken-egg dilemma is insolvable?
Weiler, for example, considers it to be an inescapable feature in the
dynamics of polity building. He maintains that:
in many instances, constitutional doctrine presupposes
the existence of that which it creates: the demos which is
Constituent Power and Polity Legitimacy
___________________________________________________________
142
called upon to accept the constitution is constituted,
legally by that very constitution, and often that act of
acceptance is among the first steps towards a thicker
social and political notion of constitutional demos. Thus
the empirical legitimacy of the constitution may lag
behind its formal authority and it may take generations
and civil wars to be fully internalised.
33
Maybe, then, one should perceive a (stable) polity as a battle
beset by deadlock or ceasefire long enough to have been forgotten by the
combatants, but always ready to erupt in a renewed struggle and new
conquests, conquests in turn awaiting new acts of concealment, and new
authorizations of the fundamental laws of the political.
34
What is more
important than squaring the normative circle of polity legitimacy for
Europe is to find ways to deal with the political change and the emergence
of new legitimate interests the passage of time will ultimately bring. One
way to deal with this issue would be to place emphasis on the concept of
new ethos of governance for the European Union, constitutional tolerance.
Advocates of such a view invite us to stretch the limits of our
constitutional imagination, relinquish the Kelseno-Schmittian turf, and
stop thinking in terms of final interpreters and ultimate arbiters.
35
The
blunt, and hopefully not grotesque, way of putting this could be:
there is no point for us in investing in the symbolical
scare-crows (Constitutional Courts, Sovereign
Parliaments, or Weimarian Presidents) which should by
its authoritative decision fence off the summum malum
of civil war, because we can ultimately start killing each
other anyway.
36
Yet, as Articles I.5 and 59 of the agreed Constitutional Treaty
reveal, the ultimate arbiter does exist, and it is the member state.
37
Does
the default position reveal the European polity-to-be as Calhouns
confederation in disguise?
38
Irrespective of the label, the fact remains that
the Convention chose not to embrace the possibility of democratic
contestation by sub-state political movements, which seek to locate their
aspirations, which may, or may not amount to the construction of a
separate polity within a constitutional discourse.
39
Compare this with the
approach of the Canadian Supreme Court in the Reference re Secession of
Quebec, where it rejected the preconceived outcome of the reconfiguration
of the Canadian polity as the result of secessionist demands, but instead
insisted on good faith negotiations where all legitimate interests would be
entertained in the course of the negotiating process.
40
The Court decided to
Zoran Oklopi
___________________________________________________________
143
share the interpretative responsibility between itself and the political
actors claiming that deciding what figures are legitimate and what is the
content of good faith negotiations essentially pertains to the political and
not the juridical sphere.
41
The refusal of the Convention to acknowledge
the continuous and agonic nature of the struggles for mutual recognition
endemic in every multinational polity (or aspiring polity) is
understandable: there are downstream constraints which prevent the
entrenchment of the provisions that would enable its radical
reconstruction.
42
The Constitutional Treaty is expected to be ratified by the
member-states which understandably do not want to see their territory
impaired in any event.
The problem, it seems, does not lie in the dangers of an implied
desert crossing from an assemblage of national demoi to a full-blown
federal demos. The difficulties, however, might stem from a refusal to
acknowledge that struggles for recognition and reconfiguration of a polity
will not wither away and cannot simply be limited to the contested
multinational member-states such as Spain and Belgium, or prospective
members such as the countries of the Western Balkans. In the final
analysis, the demands for (national) recognition cannot be expected not to
spill over into the arena of European politics at a certain point in the
future. In such a case, normative and practical reasoning will be required
that might well go beyond the proposed default solutions.
University of Toronto, Canada.
Notes
1
Richard Bellamy and Dario Castiglione, Normative Theory and the
European Union: Legitimizing the Euro-Polity and its Regime,
European Journal of Political Theory, 2:1 (2003): 7-34, 10.
2
Emmanuel Joseph Sieyes, Political Writings: including the debate
between Sieyes and Tom Paine in 1791, ed. Michael Sonencher
(Indianapolis: Hacket Publiching, 2003), 136-7.
3
Bo Strth, A European Identity To the Historical Limits of a
Concept, European Journal of Social Theory 5:4 (2002): 387401, 399.
4
Michael Zrn, Democratic Governance Beyond the Nation-State:
The EU and Other International Institutions, European Jounal of
International Relations, 6:2 (2000): 183221, 195 passim.
5
e.g. Doug McAdam et al., The Dynamics of Contention,
(Cambridge: Cambridge University Press, 2001); Doug McAdam et al.,
The Politics of Collective Violence (Cambridge: Cambridge University
Press, 2003).
Constituent Power and Polity Legitimacy
___________________________________________________________
144
6
The taxonomy offered here resembles the one offered by Elazar in
Contrasting Unitary and Federal Sytems, International Political Science
Review (1997), vol. 18, no. 3, 237-51, p. 240. Elazar distinguishes
between three types of polity based on: conquest, accident and reflection
and choice.
7
Michael Joseph Oakeshott, On the Character of a Modern European
State in On Human Conduct, (Oxford and New York: Oxford University
Press, 1996), 315.
8
For a more optimistic view of the role of the historical narratives in
creating the sense of peoplehood see Rogers M. Smith, Stories of
Peoplehood: The Politics and Morals of Political Membership
(Cambridge: Cambridge University Press, 2003), 189.
9
David R. Mapel, Civil Association and the Idea of Contingency,
Political Theory, 18:3 (1990): 392-410, p. 396.
10
Jenny Engstrm, Multi-ethnicity or Bi-nationalism? The Framework
Agreement and the Future of the Macedonian State, Journal on
Ethnopolitics and Minority Issues in Europe,
<http://www.ecmi.de/jemie/download/Focus1-2002Engstrom.pdf>;
accessed on July 22 2004, p. 14.
11
J.H.H. Weiler, The Constitution of Europe. Do the New Clothes
Have an Emperor? and Other Essays on European Integration
(Cambridge: Cambridge University Press, 1999), 344-46.
12
Hanna Arendt, What is Freedom? 1968 in Eseji o politici
Political Essays ed. . Puhovski (Zagreb: Antibarbarus, 1995), 82.
13
Arendt, What is Freedom, 61.
14
Ibid., 65.
15
Ibid., 66.
16
Hanna Arendt, O Revolucij, (Beograd: Filip Vinji, 1991), 184.
17
Arendt, in Puhovski, 187.
18
Arendt, On Violence, in Puhovski, 250.
19
Arendt, O Revoluciji, 181; also see Keenan, 311.
20
Daniel Elazar, The United States and the European Union:
Models for Their Epochs in The Federal Vision: Legitimacy and Levels
of Governance in the United States and the European Union, eds. Kalypso
Nicolaidis and Robert Howse (Oxford and New York: Oxford University
Press, 2001), 33
21
Ibid.
22
Ibid., 44.
23
Alan Keenan, Promises, Promises. The Abyss of Freedom and the
Loss of Political in the Work of Hannah Arendt, Political Theory, 22(2)
(1994): 297-322, 298.
24
Cass Sunstein, Constitutionalism and Secession, University of
Chicago Law Review 58 (1991): 633-670, 635.
Zoran Oklopi
___________________________________________________________
145
25
Leo Gross, States as Organs of International Law and the Problem
of Autointerpretation in Essays on International Law and Organization
167, 182-96 (1993), quoted in Weiler, 1999, 300.
26
Cf. Christoph Dorau and Philipp Jacobi, The Debate over a
`European Constitution: Is it Solely a German Concern? European
Public Law, Volume 6, Issue 3, 413-428, 416 passim for the review of the
discussion on the relationship between state and constitution in German
constitutional theory.
27
In the European context see Pavlos Eleptheraidis, Constitution or
Treaty? The Federal Trust for Education and Research, July 2004, online
paper 12/04.
28
Richard Bellamy and Dario Castiglione, Building the Union: The
Nature of Sovereignty in the Political Architecture of Europe, Law and
Philosophy 16 (1997): 421445, 428.
29
Ibid., 430.
30
Margaret Canovan, Nationhood and Political Theory (Cheltenham,
Brookfield: Edward Elgar, 1996), 23.
31
Bellamy and Castiglione, 1997, 430.
32
Neil Walker, Europes constitutional passion play, European Law
Review 28 (2003): 905-908, 907.
33
J.H.H. Weiler, Federalism Without Constitutionalism: Europes
Sonderweg in The Federal Vision: Legitimacy and Levels of Governance
in the United States and the European Union, eds. Kalypso Nicolaidis and
Robert Howse (Oxford and New York: Oxford University Press, 2001), p.
56; see also tienne Balibar, We, the People of Europe? Reflections on
Transnational Citizenship (Princeton and Oxford: Princeton University
Press, 2004), 184 Unless one is willing to create the unity of a political
community by force, the people can only be invoked in an ideal way.
34
Jens Bartelson, Second Natures: Is the State Identical with Itself?
European Journal of International Relations 4:3 (1998): 295326, 322;
Bartelson writes about the state, but his logic is applicable to every polity
which aspires to identity and spatiotemporal continuity.
35
J.H.H. Weiler, Federalism Without Constitutionalism: Europes
Sonderweg in The Federal Vision: Legitimacy and Levels of Governance
in the United States and the European Union, eds. Kalypso Nicolaidis and
Robert Howse (Oxford and New York: Oxford University Press, 2001).
36
cf. Jean Hampton, Hobbes and Social Contract Tradition
(Cambridge: Cambridge University Press, 1986), 63-74.
37
Raymond J. Friel, Providing a Constitutional Framework for
Withdrawal from the EU: Article 59 of the Draft European Constitution,
International and Comparative Law Quarterly, 53 (2004): 407-428, cf.
422-24 for the various submissions to the Convention regarding the
withdrawal of the member state from the EU.
Constituent Power and Polity Legitimacy
___________________________________________________________
146
38
For the parallels between US and EU in the context of Maastricht-
Urteil see Steven Boom, The European Union after the Maastricht
Decision: Will Germany be the `Virginia of Europe? American Journal
of Comparative Law, 43 (1995): 177-225.
39
Neil Walker, The Idea of Constitutional Pluralism, EUI working
Papers, LAW, 2002/1, <http://www.iue.it/PUB/law02-1.pdf>, 32
accessed on March 15 2004.
40
[1998] 2 S.C.R. 217; <http://www.lexum.umontreal.ca/csc-
scc/en/pub/1998/vol2/html/1998scr2_0217.html>.
41
[1998] 2 S.C.R. 217, para 100; see also Sujit Choudry and Robert
Howse, Constitutional Theory and the Quebec Secession Reference,13
Canadian Journal of Law and Jurisprudence, (1999)143, 160.
42
see James Tully, Introduction in Multinational Democracies
Alain G. Gagnon and James Tully (Cambridge: Cambridge University
Press, 2001), 20-21.
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Circumventing the State?
The Demands of Stateless Nations, National Minorities,
and the European Constitution
David Adam Landau and Lisa Vanhala
Abstract
The European debate over the inclusion of specific minority
provisions in the proposed European Constitution challenged state
constitutions as the primary determinant of state-minority relations. Using
the cases of Basques and Catalans in Spain and ethnic Hungarians in
Romania and Slovakia, this paper analyses critical aspects of the
European constitutional debate relevant to the formation of basic state-
minority and supranational-minority relationships. Even though greater
EU competences have already restructured some minority groups
objectives, it was the drafting process of the proposed Constitution alone
that has potentially allowed for a fundamental reorganisation of the
political relationships between minorities and their host-states. While
stateless nations generally sought increased state-level autonomy through
supranational means, national minority groups sought individual and
group rights through supranational constraints on state-level policies.
Key Words
Constitution, European Union, minorities, stateless nations
***
1. Introduction
Constitutions, in a basic sense, fix the political constraints
operating on minority groups. In turn, these constraints shape minorities
demands and aspirations. When minority groups seek expanded rights,
political representation, or the achievement of other goals, their aspirations
challenge the fundamental political order established by the constitution.
Just as constitutions define the political boundaries of a state and structure
the relationships between different institutions, so too do they give
meaning to minority identities by either recognizing or ignoring minority
groups and by providing or withholding explicit rights and protections.
The inclusion of specific minority rights provisions within state
constitutions, although not an altogether common phenomenon, recognises
a fundamental link between states and the minority groups encompassed
within them either stateless nations or national minorities.
Circumventing the State?
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150
National minorities here are defined as minority groups living
outside of a state with which they identify historically, culturally, or
linguistically (i.e. Turks in Cyprus). Stateless nations are geographically
concentrated populations sharing common identities but which are situated
within some larger composite state or states (i.e., Kurds in Turkey and
Iraq).
As discussed by Stephen Deets, theories of New
Constitutionalism capture many of the dimensions of minority rights
issues that depend on particular constitutional arrangements. Deets
examines the three central claims of the literature on new
constitutionalism to link states legal designs with their responsibilities to
fulfil minority aspirations. The first claim of the new constitutionalism is
that constitutions are designed to limit arbitrary political power. Deets
argues that this function is important in establishing particular minority
protections including identity and linguistic rights. The second claim
involves the promotion of social problem solving, which he interprets as
providing the right to minority representation, general political
participation, and even federal and autonomous divisions of power. Lastly,
new constitutionalism theory posits that constitutions define citizens
character. For Deets, this last point is the most contentious because the
way in which a government approaches citizenship directly impacts its
responses to the first two purposes of constitutions.
1
But in what ways do constitutions define the scope of the
political debate between states, stateless nations, and national minorities?
First, constitutions structure the most basic relationship a state has with
resident minority groups by defining the character of the state such that
minorities may or may not be incorporated in the basic concept of the
state.
2
As Kymlicka argues, [the] state unavoidably promotes certain
cultural identities, and thereby disadvantages others.
3
Constitutions thus
set the scope of debate on state-minority relations, either limiting the
debate through specific minority provisions/guarantees/protections or
creating a wide space in which any issues can be framed. Second,
constitutions determine the territorial organization of a state, by means
including the creation of a unitary or federal system that further structures
state-minority relations. Third, constitutions prescribe the institutional
mechanisms through which state-minority debates can be discussed and
provide basic guidelines for addressing minority demands. By specifying
the relationship among and between the legislative, executive, and judicial
aspects of government, constitutions describe the methods of recourse
available to minorities making demands and to states reacting to their
claims. Stated another way, Constitutional rights also need clear laws and
court precedents to create a framework for predictable and accepted
implementation of [minority] rights.
4
David Adam Landau - Lisa Vanhala
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When constitutions include specific rights or guarantees for
minority groups, they effectively restrict the state-minority relationship
vis--vis those particular issue areas. Perhaps counterintuitive, this often
empowers the legal basis from which minority demands can be negotiated
by providing a minimum standard from which to proceed. When either
overly broad or no protections are constitutionally determined, a wide
political space is created in which minorities can fully determine the
character of their demands. If there are no basic provisions that prescribe a
minimal state-relationship on issues of concern to minority groups, then
the scope of debate on minority demands can take on any form. This may
increase the difficulty of negotiating settlements because both the state and
minority groups can claim that their interpretations are correct in the
absence of any clear guidelines.
In the case of the European Constitution, minorities sought to
legitimise their demands in certain areas by lobbying for the inclusion of
particular minority clauses. As the European Convention was ultimately
charged with drafting the Constitution, it became the main arena of
lobbying and debate. As a result of this process, the Conventions draft
proposal and the version adopted by the Intergovernmental Council (IGC)
relies upon a strategy in which the supranational-state-minority
relationship is completely undefined and indeterminate.
In order to analyse and better understand minority demands on
the European Convention, this paper attempts to answer several questions
regarding minority groups and constitutions. First, how have European
state constitutions set the boundaries defining state-minority relationships?
Second, how did minorities utilise the debate over the European
Constitution to affect the evolving supranational-state-minority
relationship? Will their efforts to include specific minority protections in
the European constitutional text restructure minority demands?
In answering these questions, the cases of Basques and Catalans
(stateless nations) in Spain and ethnic Hungarians (national minorities) in
Romania and Slovakia are instructive. Spains stateless nations are already
embedded within the European institutional framework and attempted to
use the debate over the proposed Constitution to further enhance
autonomy within their domestic setting. Similarly, the Hungarian national
minorities in Slovakia and Romania increasingly recognise that the
proposed Constitution may provide new opportunities to secure rights that
have been either loosely granted or blatantly denied at the state level.
Although Hungary, prior to its accession to the EU in May 2004, put forth
several proposals for minority protections in the Constitution, ethnic
Hungarians outside of its borders used Hungarys dialogue with the EU
and other member states to further their goals.
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152
While the Basque and Catalan cases represent the disparate
interests of distinct stateless nations under a single constitution, the cases
of ethnic Hungarian national minorities in Slovakia and Romania
represent the operation of similar demands on vastly different
constitutionally-defined states. The selected cases are therefore important
for analysing competing constructions of state-minority relationships that
give rise different expressions of minority demands.
2. A Conceptual Framework for Comparison
Although a direct causal link between constitutions and minority
aspirations is difficult to demonstrate, the minimalist approach to
understanding state-minority relationships adopted here helps reduce
problems associated with confounding variables and endogeneity. In this
analysis, the independent variable is the basic state-minority relationship
structured by constitutions. The dependent variable is represented by the
range of minority demands and aspirations associated with stateless
nations and national minorities. Following a diagnostic formula created by
Mikesell and Murphy, we operationalise minority group aspirations as a
set of six demands: recognition, access, participation, separation,
autonomy, and independence (represented by the formula rap/SAI).
5
Mikesell and Murphy argue:
the formula draws attention to the break between
territorial and nonterritorial minority aspirations by
grouping demands designed to elicit changes in the ways
that individuals and groups are treatedand those with
explicit territorial implications.
6
While we agree with Mikesell and Murphys set of six demands, we offer
a new categorization for understanding these demands in relation to
constitutional boundaries on state-minority affairs. We prefer to
distinguish between groups that view participation as the desire for greater
access to central institutions and those who view participation as gaining
greater decision-making autonomy over ones own minority-group. We
therefore posit that recognition, access, and participation are constitution-
affirming demands while separation, autonomy, and independence are
constitution-challenging demands.
7
The former type of demand affirms
basic constitutional methods for enacting change while the latter type
inherently challenges a states constitutional political order.
Minorities seeking recognition, access, and/or participation must
be willing to utilise the institutional structures of the central government,
as provided for in state constitutions, to alter their positions vis--vis their
host states. In his discussion of poly-ethnic rights, Kylmicka asserts that
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153
groups will work within the economic and political institutions of the
larger society, but that these institutions must be adapted to reflect the
increasing cultural diversity of the population they serve.
8
Aspirations
related to these goals are therefore constitution-affirming. Groups seeking
separation, autonomy, and/or independence, however, all challenge the
fundamental political order of the constitutionally-designed state. On this
point Kymlicka argues that [demands] for self-governmentreflect a
desire to weaken the bonds with the larger political community, and
indeed question its very authority and permanence.
9
Thus, this type of
demand is constitution-challenging.
A constitution that addresses any of these demands by
providing for guaranteed rights such as minority educational rights or
limited degrees of autonomy does not, however, necessarily prevent the
constitution from being further affirmed or challenged. Even in situations
where minority groups are entitled to some autonomous functions, the
general political order established by the constitution can be challenged by
calls for expanded autonomy or shifts between autonomy and aspirations
for independence. Similarly, minority groups achieving greater
recognition may subsequently seek guaranteed participation in
government and may even move for greater autonomy.
Although it may seem contradictory at first, minority groups may
also express both types of demands simultaneously. Constitution-
challenging demands do not preclude groups from also possessing
constitution-affirming demands whose attainment may be either more
realistic or provide short-term solutions to more complex problems in
state-minority relations. Frequently, minority groups shift their emphases
from constitution-affirming demands to constitution-challenging demands
when the former are not met by positive state responses. Our
understanding of minority demands avoids rank-ordering minority
aspirations within and between these categorizations, precisely because of
their complementarity, and can address them as direct responses to the
most basic political ordering of the state as determined by constitutions.
This new framework allows for the direct comparison of various
cases and also provides a dynamic model describing shifts in minority
aspirations over time and in different contexts. This framework is useful in
understanding how state constitutions have shaped minority-group
demands and how these may change if the proposed European
Constitution is ratified.
3. State Constitutions and Minority-Group Aspirations
A. Basques and Catalans under the Spanish Constitution
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154
Both Catalonia and the Basque Country have historically been
considered to be stateless nations. Their populations are territorially
concentrated in economically important regions, and they each maintain
distinct languages. Their linguistic differences form the basis of their
important collective identities in contrast to the Castilian-centred Spanish
state. Yet the Spanish Constitution limits these groups rights to actualise
their identities by establishing a state political order emphasizing Spanish
national sovereignty as the basis of statehood. Nonetheless constitutional
provisions on Autonomous Communities have prompted the majority of
Catalan political parties to abandon the quest for an independent state.
They are instead concerned with enhancing autonomy within Spain and,
through the Constitution on European Union, under the wider context of
European integration. The Basque movement on the other hand primarily
centres its demands around calls for independence despite deep schisms
within Basque society on this issue. Both Catalan and Basque demands are
thus constitution-challenging, though Catalans have also adopted
constitution-affirming aspirations in support of their claims as a minority
group.
The 1978 Spanish Constitution provides the basic legal
framework shaping the demands of Basque and Catalan nationalists. In
some ways the constitution was a concession to sub-nationalist groups
whose frustrations escalated during the repressive Franco era. It
acknowledges the existence of other nacionalidades (nationalities) within
the one and indivisible Spanish nacin (nation).. Yet article 2 proclaims
that The Constitution is based on the indivisible unity of the Spanish
Nation, common and indivisible homeland of all the Spaniards. Defining
the state in purely national terms structures overall state-minority relations
in a way that includes stateless nations within the Spanish state but regards
them as sub-equals among the collective Spanish nation. Despite this
conception of Spanish Unity, the Constitution does not distinguish among
minority groups in its claim to protect all Spaniards and peoples of Spain
in the exercise of human rights, their cultures and traditions, languages
and institutions.
10
These sentiments are further reflected in specific
constitutional provisions that narrowly define the place of stateless
minorities in Spain.
In Article 143, the constitution allows for the establishment of
Autonomous Communities and enunciates a list of their competences.
Article 3, which declares Castilian the official state language, provides for
the official use of minority languages in their respective Autonomous
Communities according to their own Statutes and makes minority
languages the object of special respect and protection. These provisions
anticipated Basque and Catalan constitution-challenging demands and
David Adam Landau - Lisa Vanhala
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155
attempted to address them with provisions for greater autonomy while
narrowing debate on linguistic issues.
Despite these attempts to constitutionally appease minority
frustrations, certain articles of the constitution downplay recognition of
distinct national identities and limit the degree of autonomy of stateless
nations. For example, the article providing for Autonomous Communities
does not specifically mention Spains three historical national groups that
are regionally clustered in Catalonia, the Basque Country and Galicia.
While the constitutional measure regarding autonomy was originally
intended to satisfy their constitution-affirming aspirations, increased
regional decentralization has instead transformed some of these demands
into constitution-challenging ones. The 1978 constitution has also in
some ways strengthened or even created demands and identities which
were not apparent thirty years ago. Over time this has begun to dilute the
uniqueness of the Basque and Catalan claims. For example, Galicia now
has a nationalist party while Andalusia is taking advantage of the process
of devolution by asking for a revision of its statute the agreement that
each region has with the central government that defines its powers and
prerogatives. Even invented regions
11
are being transformed from purely
artificial and administrative areas into economic and political players.
12
Although cultural claims do not yet accompany all movements within
Spain for greater regional prerogatives, the Basque and Catalan cases
demonstrate the potential to transform regional differences into
constitution-challenging or constitution-affirming demands.
B. Ethnic Hungarians under the Slovak and Romanian Constitutions
Ethnic Hungarians in Slovakia and Romania are national
minorities that have been territorially separated from Hungary, their
historic kin-state, since the redrawing of the map of Europe by the Treaty
of Trianon in June 1920.
13
Today, ethnic Hungarians represent 9.68
percent
14
and 6.61 percent
15
of the Slovak and Romanian populations
respectively. Potential constitution-challenging demands against both
states by the Hungarian minority, however, have been largely de-
legitimised and settled by the Helsinki Final Act of 1975. The Act strictly
forbids modifying borders through the use of force. The Basic Treaties
Hungary negotiated with Slovakia in 1995 and Romania in 1996 also
provide for inviolable borders and have subsequently hampered debate
over remaining calls for greater ethnic-Hungarian autonomy in both states.
These agreements, although concluded outside the bounds of any of these
states constitutions, preclude the possibility of separation and
independence for ethnic Hungarians. The groups constitution-challenging
demands have essentially been muted. As a result, constitution-affirming
demands are now prevalent in the minorities discourse in both states,
Circumventing the State?
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156
responding directly to the constitutional structures that define state-
minority relationships in different ways.
The Slovak Constitution was adopted on 1 September 1992 and
was predicated on the formation of an ethnically Slovak state. Although
several of its clauses seemingly accommodated the constitution-affirming
demands of ethnic Hungarians, the provision for constitutional protections
through other laws actually undermined many of its principles. While
Article 6(1) declares Slovak the official state language, Article 6(2) states
that The use of other languages in dealings with the authorities will be
regulated by law. Similarly Article 12(2) provides for basic rights and
liberties regardless of language and national or ethnic affiliation, but
Article 26(5) mandates that State bodies and territorial self-
administration bodies conduct business in the state language in a manner
specified by law. Article 34(2) provides that:
citizens belonging to national minorities or ethnic
groupshave, under conditions defined by law, a
guaranteed a) right to education in their own language,
b) right to use their language in dealings with
authorities, c) right to participate in the solution of
affairs concerning national minorities and ethnic groups.
By mentioning several areas in which state-minority relations
will be conditioned through further law, the constitution recognises the
national minorities constitution-affirming demands but fails to directly
address them. In regards to language policy, for example, Slovakia
enacted the controversial Language Law of 1995 and a more liberal law in
1999 that established the conditions and manner of minority language
use.
16
The 1995 law nullified the 1990 Law of Official Languages in
Slovakia, created prior to the ratification of the new constitution, which
provided for the use of minority languages in constituencies where
minority groups formed at least twenty percent of the population. The
1999 law reinstated the original 1990 law, but many ethnic Hungarians
still find the law anathema, inter alia, to their constitution-affirming
demands for education conducted in their native tongue. Their four-year
experience under the 1995 law also coloured their demand for greater
overall minority guarantees. Nonetheless the enactment of both laws
conformed to Slovakias constitutional provisions to determine actual
minority language policy as opposed to broad protections through
subsequent laws.
Even though Romanias candidacy for accession to the European
Union has not been finalised, it adopted a new constitution in accordance
with EU principles (most of which related to issues other than minority
David Adam Landau - Lisa Vanhala
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157
rights) that came into force on 29 October 2003. The new constitution
declares that The national sovereignty shall reside within the Romanian
people, effectively establishing a national state that does not account for
Romanias national minorities.
17
Similar to Slovak constitutional
provisions, Article 13 of the Romanian Constitution declares Romanian to
be the official state language while Article 32(3) states that The right of
persons belonging to national minorities to learn their mother tongue, and
their right to be educated in this language are guaranteed; the ways to
exercise these rights shall be regulated by law. Article 127 was amended
to allow Romanian citizens belonging to national minorities to use their
mother tongues in court instead of solely granting them the right to an
interpreter as stipulated under the previous constitution. The most
important change addressing ethnic Hungarian demands was the
amendment to Article 41 on the Right to private property, which now
provides for equal guarantees and protection under the law for private
property irrespective of its owner.
The 2003 Romanian Constitution, unlike the 1992 Slovak
Constitution, does provide specific guarantees that address several of the
ethnic Hungarians constitution-affirming demands. Although the newly-
formed Transylvanian Hungarian National Council hopes to adopt a
European-style model of autonomy,
18
the Councils demands contradict
the overwhelming support given to the new constitution by Hungarian
nationals. The constitution has restructured the state-minority relationship
in Romania by attempting to create greater symmetry between minority
demands and state interests, which have been markedly shaped by the
prospect of European Union accession. Nonetheless these changes have
not completely negated all of the ethnic Hungarians constitution-
affirming demands, but it is likely too soon to measure the full impact that
the 2003 constitution will have on national minority aspirations.
4. The European Constitution and Minority-Group Aspirations
The ultimate decision to accept or reject minority demands at the
supranational level lay with the European Convention responsible for
drafting the Treaty on a European Constitution and with the
representatives of the subsequent IGC. However the current draft excludes
explicit references to both minority rights protections and guarantees,
avoiding clear prescriptions structuring supranational-state-minority
relations. The question thus remains whether or not the supranational
constitution, in its current form, will be able to address effectively the
constitution-affirming and constitution-challenging aspirations of stateless
nations and national minorities.
Circumventing the State?
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158
A. Stateless Nations and the Shaping of the EU Constitution
Through the European Parliaments European Free Alliance
(EFA) political group and the Stateless Nations Intergroup, to which
Basque and Catalan Members of European Parliament belong, stateless
nations across Europe expressed their constitution-affirming and
challenging demands to the European Convention. The most radical
proposal provided for the inclusion of the principle of internal
enlargement within the text of the Constitution. Internal enlargement
would permit stateless nations to secede democratically from their
respective host-states while remaining members of the European Union.
The Stateless Nations Intergroup has argued that [the] new Constitution
has to contain mechanisms for the practical exercise of the right to internal
enlargement, as a concrete modality of exercising the right to self-
determination in this particular historical process.
19
The proposal was
flatly rejected by the Convention.
Part of the rejection of the principle of internal enlargement rests
on the presupposition of the sovereignty of the Member States who
together sustain and empower the Union. The strongest constitutional
obstacle to realizing constitution-challenging demands comes from Article
I-5 (1), which holds that The Union shall respect the equality of Member
States before the Constitution as well as their national identities, inherent
in their fundamental structures, political and constitutional, inclusive of
regional and local self-government. It shall respect their essential
functions, including ensuring the territorial integrity of the State,
maintaining law and order and safeguarding internal security.
20
There is another potential reason for the rejection of this notion
of internal enlargement. The preamble to the latest version of the
European Constitution explicitly includes protection of minorities as a
goal of the Union. Interestingly, this was added by the members of the
IGC. It can perhaps be viewed as an attempt on the part of state
representatives to mitigate the constitution-challenging demands of
stateless nations and national minorities.
Also, procedurally, admitting new states to the Union requires a
unanimous vote in the European Council. Thus it is highly implausible
that the Council would accept internal enlargement via secession because
a) the seceding groups host-state would likely oppose such a vote and b)
other states vulnerable to secessionist movements would vote against
membership to avoid setting a precedent for minority groups within their
own states. Host states thus have a credible threat against the constitution-
challenging demand for secession: the ability to lock national groups out
of the European Union.
Unlike constitution-challenging demands, constitution-affirming
demands have been more readily accommodated by the Convention on
David Adam Landau - Lisa Vanhala
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159
issues in which member states themselves have recognised the need for
limited protections. According to Article I.3.(3): The Union shall respect
its rich cultural and linguistic diversity, and shall ensure that Europes
cultural heritage is safeguarded. However, this clause neither guarantees
nor protects official minority language use which is important for
increasing stateless nations and national minorities recognition and
access to the state.
What does this imply for the evolution of stateless national
demands? For those movements that have abandoned the quest for
independent statehood and focus mainly on enhancing autonomy, like
Catalonia, the proposed Constitution will not greatly affect their demands.
Although constitutional provisions do not increase opportunities to
achieve minority demands, neither do they limit the levels of autonomy
permitted under state constitutions. Institutionalising the primacy of states
as actors within the EU will, however, further encourage groups such as
Basque nationalists who primarily hold constitution-challenging
demands to seek a state of their own.
21
B. National Minorities and the Shaping of the EU Constitution
The special circumstances linking the ethnic Hungarian
minorities in Slovakia and Romania to the Hungarian state have
transposed the groups constitution-affirming demands indirectly onto the
EU constitutional debate: the Hungarian government has proposed the
inclusion of specific minority rights clauses on behalf of their ethnic kin.
Since Hungary has maintained a historic interest in seeing other states
protect the rights of ethnic Hungarian minorities within their borders, it
was well poised during the accession process to propose amendments that
conform to the constitution-affirming demands of its ethnic kin abroad. In
fact, the Hungarian government has clearly been trying to create model
policies which it hopes will be adopted by its neighbours, where there are
large Hungarian minorities.
22
By supporting measures to that effect,
national minorities with kin-states within the EU were able to affect the
European constitutional debate even though no concrete commitments to
minority groups were made.
Supported by EU Enlargement Commissioner Guenter
Verheugen, as well as several Member States, Hungary proposed
amending Part I, Article I(2) of the draft Constitution to provide for the
protection of minority rights, not just human rights, throughout Europe.
While this change may seem minor, Hungarian Foreign Minister Laszlo
Kovacs argues:
Ifthe protection of minority rights will not be included
in the EU constitution, it would indicate that
Circumventing the State?
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160
something has changed, that these [constitutional]
documents are no longer valid, or that they are not
equally valid for everyone.
23
Kovacs sentiments are supported by the Hungarian Coalition Party
(SMK) in Slovakia and the Union of Democratic Hungarians in Romania
(UDHR) who believe that a protectionist supranational-minority provision
will transcend state-minority orderings that are difficult to change.
Particularly for the Hungarian national minority in Slovakia, endorsing the
Hungarian governments proposal presents a new and rare opportunity to
constitutionally legitimise their demands, even if this opportunity is
created outside of the states boundaries. Ethnic Hungarians in Romania,
by contrast, recently achieved a decisive but not final victory in improving
state-minority relations through its support for the new constitution.
While Romanian Foreign Minister Mircea Geoana would accept
an EU proposal to include a minority rights clause within the text of the
draft Constitution,
24
Slovak Prime Minister Mikulas Dzurinda has rejected
Hungarys proposal for an amendment believing that the anti-
discrimination clauses are sufficient.
25
As it currently stands, the
Constitution does not specifically provide for the protection of national
minorities and therefore leaves the debate over appropriate supranational-
minority interactions open to further contests by various European
national minorities.
5. Conclusion
Minority groups frustrated with the limits placed on their
demands by state constitutions have begun to mobilise support for their
aspirations at the supranational level. By granting stateless national
minority groups access to supranational decision-making processes, the
EU has become a new arena within which such groups can affirm and/or
challenge constitutional political boundaries of the states in which they
reside. For national minorities, the debate over the proposed EU
Constitution provides an opportunity to decide for themselves, by
proposing amendments in connection with their kin-states, what types of
protections will satisfy their constitution-affirming demands. Pluri-
national democracy theorists argue that this ability to circumvent the state
has allowed minority-group demands, ranging from linguistic protection to
greater participation, to be met at the supranational level.
26
Even though
the Constitution does not include specific provisions according with the
aspirations of stateless nations and national minorities, their involvement
in the drafting process itself signals a potentially new system structuring
supranational-state-minority relations.
David Adam Landau - Lisa Vanhala
____________________________________________________________
161
For the stateless nations of Spain, the outcomes of the
Convention have been relatively disappointing and may serve to
exacerbate political frustrations. As it currently stands, the Constitutional
treaty for Europe will institutionalise the stateless nations disadvantages
vis--vis particular states by failing to reconcile their constitution-
affirming and constitution-challenging demands. Instead the proposed
Constitution leaves open the debate regarding the nature of supranational-
state-minority relations. This ambiguity could be used to the advantage of
stateless national groups while opening the door for the European Court of
Justice to become an interesting player in defining the future of the
minority group-state-supranational relationship. However, at this stage it
seems that just as the Spanish Constitution privileges the Spanish nation,
so too will the European Constitution advantage European states over
national groups.
For the ethnic Hungarian national minorities in Slovakia and
Romania, the proposed Constitutions omission of a minority clause is less
damaging than for stateless nations. Ethnic Hungarians in Romania, who
have just redefined their rights and restructured their aspirations in relation
to the state via the October 2003 constitutional referendum, would not
likely shift their demands at the state level in response to supranational
protections. Since their aspirations have long been constitution-affirming
rather than constitution-challenging, the states new constitutional
framework will likely be sufficient for addressing any outstanding
demands. Although some ethnic Hungarian groups within Romania
continue to push for autonomy, which would fundamentally alter the
character of the Romanian state if granted, their efforts have been met
with strong opposition. Disapproval has been found within the ethnic
Hungarian community in Romania, from the Romanian government, and
increasingly from Hungary itself. In June 2004, the upper house of the
Romanian Senate unsurprisingly rejected a bill to declare certain lands
inhabited by ethnic Hungarian Szeklers. The move seems to demonstrate
agreement that the Hungarian minoritys constitution-affirming demands
are legitimate while their constitution-challenging demands are symbolic
a sign of dissatisfaction meant to highlight core issues using autonomy as
a point of contrast.
While many of the constitution-affirming demands of ethnic
Hungarians in Slovakia remain largely unaddressed at the state level,
recognition of the rights of minorities in the draft EU Constitution would
be too vague to provide specific rights at the state-level. However, the
Hungarian national minority continues to support Hungarys efforts to
amend the current draft because supranational minority rights protections
will help legitimise their constitution-affirming demands at home.
Circumventing the State?
____________________________________________________________
162
The absence of specific minority rights provisions in the draft
Constitution on European Union is creating a wide space in which the
demands of stateless nations and national minorities can be either
addressed or contested at the supranational level. When state constitutions
completely negate the existence of national minorities and stateless
nations, they likely exacerbate these groups frustrations and increase
tensions between minority groups and states. Conversely when
constitutional provisions recognise and protect minority groups, they
likely mitigate these groups demands or alter the way in which they
expressed. Since the proposed EU Constitution represents a new
experiment in supranational constitutionalism, the door is left open to
influence the political order that will shape the dynamic between
supranational institutions, states, and the stateless nations and national
minorities that exist under both layers of government.
Oxford University, United Kingdom.
Notes
1
Stephen Deets, Nationalism and Constitutionalism in Eastern
Europe, in Minorities and Tolerance: Central and Eastern Europe & the
NIS, ed. Sabina A-M. Crisen (Washington, DC: Woodrow Wilson
International Centre for Scholars), 9-21.
2
Robert M. Haydens concept of constitutional nationalism,
defined as a constitutional and legal structure that privileges the members
of one ethnically defined nation over other residents in a particular state,
confirms the important basic boundaries that constitutions place on state-
minority relationships. He further argues that constitutional nationalism
grants sovereignty to members of particular national groups rather than in
individuals, deviating from democratic constitutional norms. Although
democratic constitutional debates are beyond the scope of this paper, his
points are useful for understanding constitutional impacts on subsequent
minority aspirations. Robert M. Hayden, Constitutional Nationalism in
the Formerly Yugoslav Republics, Slavic Review 51:4 (1992): 654-673.
3
Will Kymlicka, Multicultural Citizenship: A Liberal Theory of
Minority Rights (Oxford, England: Clarendon Press, 1995), 108.
4
Deets, 13.
5
The authors refer to combinations of these demands using the
formula rap/SAI, with each letter representing each of the six demands.
Mikesell and Murphy, 581-604.
6
The authors also posit that these aspirations can be depicted as a
progression of demands along a left-right spectrum starting with
recognition and ending with independence. We reject this premise because
minority demands understood this way preclude groups from occupying
David Adam Landau - Lisa Vanhala
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163
several places along the spectrum at one time. However, minority group
demands often simultaneously encompass several of these categories. Ibid,
583.
7
Kymlicka refers generally to this first set of demands as special
representation rights and to the second set as self-government rights.
However, he does not explicitly define the range of rights associated with
each as we do. Ibid., 27-33.
8
Kymlicka, 181.
9
Ibid.
10
Quoted in Deets, 10.
11
The term invented regions refers to the fact that the borders
created around certain regions are artificial and do not reflect any type of
linguistic or historical community.
12
A House of Many Mansions The Economist, 26 June-2 July
2004.
13
According to the terms of Trianon, Transylvania was returned to
Romania, and Upper Hungary became part of what is today southern
Slovakia.
14
Population Data by Nationality by County and District, Stanie
Obyvatelov, Domov A Bytov 2001, Slovak Census May 2001,
<http://www.legacyrus.com/library/May2001SlovakNationalCensus/popul
ationData_Nationality2.htm> (14 January 2003).
15
See <http://www.recensamant.ro> (14 January 2003).
16
For the full text of the laws, see Law of the National Council of
the Slovak Republic from November 15, 1995, on the state language of the
SlovakRepublic,
<http://www.minelres.lv/NationalLegislation/Slovakia/Slovakia_StateLan
guage_English.htm> (4 February 2003) and Law on the Use of Minority
Languages
<http://www.minelres.lv/NationalLegislation/Slovakia/Slovakia_MinorLa
ng_English.htm> (12 February 2004).
17
Robert Hayden refers to this as constitutional nationalism, which
privileges the members of one ethnically defined nation over other
residents through constitutional design. Robert Hayden, Constitutional
Nationalism in the Formerly Yugoslav Republics, Slavic Review 51:4
(Winter 1992): 655.
18
The report put out by the president of the Democratic Alliance of
Hungarians in Romania. Budapest Analyses No. 34, 30 January 2004.
19
See Constitutional Theses by the Stateless Nations Intergroup in
the European Parliament, no date available, EFA Archives and Interview
with Jose Luis Linazasoro General-Secretary for EFA, 9 May 2003.
20
The previous draft of Article I-5 (1) reads that the Union shall
respect [Member States] essential State functions, including those for
Circumventing the State?
____________________________________________________________
164
ensuring the territorial integrity of the State, and for maintaining law and
order and safeguarding internal security.
21
Hudson Meadwell, Stateless Nations and the Emerging
International Order, in International Order and the Future of World
Politics, eds. T.V. Paul and John A. Hall (Cambridge, England:
Cambridge University Press, 1999), 262-82.
22
Deets, 14.
23
No objection to Hungarian proposal on minority rights at EU
conference, TV says. Financial Times Information 27 October 2003.
24
Romanian FM comments on minority rights in Brussels.
Financial Times Information, 27 November 2003.
25
Hungary Politics: Trouble in the Near Abroad, The Economist
Intelligence Unit, 15 December 2003.
26
See Michael Keating, Plurinational Democracy: Stateless Nations
in a Post-Sovereignty Era (New York, New York: Oxford University
Press, 1997).
The Catholic Church and Polands Accession to the
European Union
Mirella Eberts
Abstract
The Church can play a very positive role in the European
integration debate in Poland, especially if it can help to educate and calm
the suspicions of the countrys Euro-sceptics about the costs and benefits
of EU membership, but it remains to be seen how well it will stand up to
this challenging opportunity.
Key Words
Church, enlargement, European integration, European Union, Poland,
subsidiarity,
***
On 1 May 2004, Poland became a member of the European
Union (EU). This long awaited return to Europe has been the de facto aim
of Polands post-1989 democratic and market reforms. Regardless of the
ideological stripes, every post-1989 governing coalition pursued a policy
of EU accession.
1
But the push for EU membership did not go
unquestioned or unchallenged by a wide-range of political and societal
actors, including the influential Roman Catholic Church. In fact, in the
Polish case, the Church became an integral participant in the public
discourse on EU accession. The Church emerged from the communist
period as the most prominent institution in the country, and its presence
carried important implications for the shape and direction of Polish
democracy.
2
The sheer size of its membership and the visible institutional
presence make it rather difficult to overlook the Churchs place in the
debate on Polands EU accession. Some may argue that the Polish clergy
has been loosing the battle over the Catholic souls of Poles, as they too
have fallen into the trappings of increasing consumerism and the loosening
of moral values. However, most are bound to agree that the Church
maintains a visible presence in Polish society and that political leaders pay
heed to the directives issued by the Church hierarchy.
One of the main thorns in Polands EU accession has been its
agricultural sector. Poles engaged in this sector of the economy account
for a largely devout base of the Church membership. Consequently, the
Church is not indifferent to the concerns of the countrys rural population.
The Catholic Church and Polands Accession to the EU
___________________________________________________________
166
In addition, the (in)famous Radio Maryja and other nationalist Catholic
groups are hotbeds of Euro-scepticism in Poland, and their direct or
indirect connection to the Church further illuminates the Church-EU
dynamics in Poland.
The Church in Poland belongs to the universal Roman Catholic
Church, currently headed by the Polish-born Pontiff, John Paul II. The
Roman Catholic Church has been interested in the European integration
project from its early stages. This is perhaps not surprising since European
integration was conceived largely as an idea rooted in the European Judeo-
Christian heritage and the Christian beliefs of its founding fathers,
specifically Konrad Adenaur (1876-1967), Alcide de Gasperi (1881-
1954), and Robert Schuman (1886-1963).
3
Since 1970, the Holy See has
had an official representative in Brussels, and since 1980, the Church has
had an official representation of the member states Episcopates, the
Commission des Episcopats de la Communaute Europenne (COMECE).
Other Catholic organisations are also present in Brussels. In fact, there is a
diverse set of Catholic interests operating vis--vis the European Union
institutions and its decision-making processes. In other words, there is
certainly Catholic lobbying
4
going on in Brussels. The connection
between the Polish Church and a variety of Catholic groups operating at
the European level, and the impact of opinions and directives coming from
the Vatican on the Polish Churchs attitude toward the EU, are
underdeveloped topics in the literature on European integration.
5
And yet,
these do merit attention if one is to have a more solid understanding of
both the EU accession dynamics in Poland and the complexity of
European integration in general.
The aim of this chapter is to examine the Churchs attitude
towards European integration and its role in EU enlargement politics in
the Polish case. First, it provides an overview of the position of the Holy
See, especially that of John Paul II, on the European integration project
and on Polands efforts to join the EU. Then, it examines the changing
attitude of the Church in Poland towards European integration and the
nature of its involvement in the domestic politics of EU accession. The
chapter illustrates that the Churchs official position on European
integration has evolved from that of scepticism to one of conditional
support.
The chapter concludes that the Church-EU dynamics in Poland
have to be understood in terms of a three-dimensional set of relationships:
(1) the Church vis--vis John Paul II and the Holy See; (2) the Church vis-
-vis the Polish government and domestic politics; and (3) the Church vis-
-vis its Euro-sceptic followers. Underlining this set of relationships are
two crucial elements: (1) the institutional interests of the Church (those of
both religious and material nature); and (2) internal diversity within the
Mirella Eberts
___________________________________________________________
167
Church itself. The Church in Poland has been engaging in a complex
balancing act between these three often conflicting relationships, while
seeking to protect its institutional interests and maintaining cohesion. Its
conditional support for Polands entry into the EU is a direct reflection of
this complexity. Although the Churchs conditional support for Polands
EU membership has aided the government in drawing support for the
countrys return to Europe, its push for recognition of Christianity and
Christian values in the EU constitution and its firm stance against
abortion, homosexual marriages, or other similar issues lend support to its
Euro-sceptic followers. One can anticipate that, whether speaking out in
Rome, Brussels or Warsaw, the Church will remain vocal on such issues.
From the beginning of the European integration project the
Roman Catholic Church was a keen observer of the whole process,
however only recently it took on a more pro-active attitude. As Llorens
points out, in the early years, the Church had a certain degree of faith in
the Catholic architects (Shuman, Gasperi et al.) of the European project,
which were initially concerned mainly with economic issues.
6
The
Churchs more pro-active attitude emerged as the European integration
project was taken over by a new generation of diverse decision-makers
and became engulfed by a wider set of issues. Although, as Llorens notes,
the Church has started to be deeply and actively involved in the process
of European integration mainly via its non-official/lay organisations,
7
its hierarchy has not been silent on the topic of European integration. The
same author observes that the process of European integration provoked
the intervention of the Popes, but also numerous postulates of the Social
Doctrine of the Catholic Church have notably influenced the development
of the EC and its policies, such as the need of public accompaniment to
correct the defects of the free market.
8
Additionally, Llorens points out:
[c]oncepts like common good and subsidiarity, or
the environmental notion of sustainable development
have to a certain extent also become part of the
European political culture and continue with the deep
presence of Christian layers underlying the foundations
of the European identity.
9
The general argument here is the European integration project is
not void of certain ethical undertones, which, at least in part, come from
the Catholic Social Teaching.
Pope Pius XII spoke on the idea of a united Europe in the context
of the need to maintain peace and justice in a recovering Europe. He
stressed that:
The Catholic Church and Polands Accession to the EU
___________________________________________________________
168
only the Christian message, which for Europe is like the
yeast in the dough, is capable together with the idea
and the pursuit of the basic freedoms of the human being
in a supranational community of ensuring respect for
cultural diversities and the spirit of reconciliation and
cooperation.
10
Concerned with the threat of communism, he urged for a united
Western Europe [to] become the bastion of the Christian civilisation.
11
John XXIII was less vocal on the question of a united Europe since he was
too busy modernizing the Church. He expressed support for democracy
and urged Catholics to take an active part in public life in order to build a
better world for all.
12
Paul VI called for Ecumenism, which he hoped
would help to reduce the religious and social cleavages in Europe:
The Christian tradition belongs essentially to Europe.
Even those people who do not share our belief, even
where belief is buried and extinguished, the human
traces of the Gospel are still to be encountered and
henceforth represent a common heritage, which we
should make fruitful in the interests of the development
of the individual person.
13
The teachings and official statements issued by Pope John Paul II
would continue to emphasize the importance of Christian values for the
European integration. At the same time, John Paul II clearly renounced the
medieval-type idea of a Christian Europe,
14
and his engagement with
the European integration issues. Obviously, with the question of eastern
enlargement, he has been more pronounced than his predecessors.
From the very beginning of his papacy, John Paul II expressed
support for the idea of an integrated Europe. In this context, he cautioned
against the erection of barriers against the Central and Eastern European
members of the European family. During his 1991 visit to Poland, and in
reference to Polands so-called return to Europe, John Paul II emphasized
that Poland does not have to return to Europe per se since Poles had never
left. The Pope was evoking here the argument, at least in cultural terms,
that Poland has never been outside of the bounds of Europe and has made
contributions to European culture.
15
In June 1997 he continued in this
spirit, as he spoke to a mass gathering in Gniezno, Poland, also attended
by the presidents of Poland, Germany, Czech Republic, Slovakia, Ukraine,
Hungary and Lithuania:
Mirella Eberts
___________________________________________________________
169
Cannot one say that after the fall of one wall, the visible
one, another wall was even more uncovered, the
invisible one, the one that still divides our continent, the
one running through human hearts? It is build out of
fear and aggression; out of lack of understanding toward
people of different background, skin colour, religious
beliefs; out of political and economic egoism; and out of
the weakened sensitivity toward the worth and dignity of
human life. Even the undeniable successes in the
economic, political and social areas do not overshadow
the existence of this wall. The road is still a distant one
toward a real integration of the European continent.
There will not be a European unity until it will not be a
unity of spirit.
16
In the eyes of John Paul II, this unity of spirit was to be sought
through the unifying elements of the common Christian heritage of the
European continent. He clearly expressed support for the idea of an
integrated Europe, but one that should not be devoid of an ethical
substance.
John Paul II came out very strongly in support of the EU,
particularly in support of the Polish efforts to gain membership, during his
address to the Polish Parliament in June 1999:
I wish to express my acknowledgement of the
determined and solid efforts, whose aim, from the
moment of sovereignty, is a search for and a
solidification of an independent and safe place of Poland
in an uniting Europe and world. The integration of
Poland into the European Union has been from the very
beginning supported by the Holy See. The historical
experience of the Polish nation and its spiritual and
cultural riches can effectively contribute to the overall
good of the whole human family.
17
At the same time, he re-emphasized that the Church is against
any reduction of a united European vision to solely the economic and
political aspects.
18
In sum, the position of Paul John II on the European
integration project has been a supportive one, but, to no great surprise
given the mission of the Roman Catholic Church, this support has a
moral/ethical dimension attached to it.
In the early post-1989 stages, the return to Europe motto stirred
passionate emotions and produced new fears in Polish society. At first,
The Catholic Church and Polands Accession to the EU
___________________________________________________________
170
there was a certain level of positive excitement among the Church
hierarchy that Poland will finally rejoin the European family after being
unjustly separated from it by the Iron Curtain. In the first months
following the Roundtable negotiations in Poland, there was an element of
joy rather than fear in the voices coming from the Church.
19
There were
those who envisioned a great opportunity for the Polish Church to spread
the strength of Polish Catholicism to the more sinful Western European
members of the Christian family. In fact, there was a certain degree of
conviction among the Church hierarchy that Polish Catholicism was
somehow more superior to the liberalized Christianity in Western
Europe.
20
But these voices of joy were quickly replaced by scepticism
toward the return to Europe.
The Polish Churchs sceptical attitude toward the EU was largely
rooted in the negative perception of contemporary culture and lifestyles in
the West.
21
Western Europe as a home to secularisation, privatisation of
religion, liberalisation, loosening of family values, and national traditions
was perceived by the Church hierarchy as a threat to Catholic values and
traditions in Poland. In the early 1990s, the voices coming from the
Church and those whom the majority of the Church supported largely
conflated two distinct issues: (1) the demoralisation and the sins of
European societies; and (2) the EU institutions and its decision-making
processes.
22
By the mid-1990s, the Church was urged to make a
distinction between the two:
If part of our clergy has objections toward Europe, it
should not direct these toward the European Union, but
rather to the very wide Europe, in which there does exist
excessive individualism and materialism, in which there
are instances of demoralisation - all of these are things,
upon which the Church is looking with justified concern.
But these have nothing to do with the Union.
23
Toward the mid-to-late 1990s the Church appeared ready to
openly make this distinction and to take a step, albeit a cautious one,
towards the support of Polands membership in the EU.
The common word of Polish and German bishops issued in
December 1995 was the first sign of the Polish Churchs changing attitude
toward the EU. In the joint statement, the Polish and German bishops
expressed support for the European integration project.
24
But the most
notable shift in the Polish Churchs attitude toward EU came in November
1997, when a delegation of the Polish Episcopate paid an official visit to
Brussels. Seeking answers to such questions as the potential loss of
national identity upon EU membership, Polish Bishops met with a number
Mirella Eberts
___________________________________________________________
171
of European Union representatives over a course of several days. After the
meetings, Bishop Tadeusz Pieronek declared: The Church will be
encouraging Poles to support [European] integration. We are doing it
already and we will be doing it even better.
25
Once back in Poland,
Bishop Henryk Muszyski spoke of the necessity to tell the Polish nation
what kind of benefits can be expected from the EU entry, but also what
kind of inconveniences and heavy burdens are tied to it.
26
The Polish
Bishops seemed to have been impressed with what they saw and heard in
Brussels.
The visit itself and the commentaries surrounding it marked a
shift toward a new, more Euro-enthusiastic attitude of the Church. Despite
Bishop Pieroneks claim that the Church did not change its position on the
European Union, but simply became more vocal on the topic, there
appeared a more Euro-enthusiastic tone coming from the Church
hierarchy.
27
At the same time, and perhaps to no ones surprise, this new
open attitude of the Church has retained some elements of scepticism or a
certain degree of fear and uncertainty about the European integration
process. In this way, it is more appropriate to speak of the Polish Churchs
cautious support; and more so, of its conditional support for the European
project.
About a month before the November 1997 visit to Brussels,
Bishop Pieronek addressed the question of whether the Church in Poland
is afraid of the European Union, exclaiming: Yes! The Catholic Church
in Poland is afraid of a united Europe!
28
But then went on to argue that he
doesnt see this as anything unusual,
29
especially since there are
enormous costs and sacrifices that have to be made by Poles in order to
join the EU. At the same time, he continued, one must not be afraid of a
united Europe.
30
In Bishop Pieroneks opinion the Church in Poland
views European integration both as a great opportunity and a challenge for
the mission of the Church. He concluded that in fact the Catholic Church
in Poland sees a united Europe as a goal, in whose realisation it will be
fully engaged, no matter the fears that this may awaken.
31
In February of 2002, a delegation of Polish bishops made another
visit to Brussels, which included a number of meetings with the
Commission officials, including with Franz Fischler. The Commissioner
responsible for Agriculture and Fisheries, an Austrian Catholic, urged the
visiting bishops to lend a helping hand in converting the Euro-sceptic
farmers in Poland. Fischler appealed to the Polish Church to rally its
troops of rural priests in educating the Polish farmers about the
complexities and opportunities of the EU membership. The bishops did
not give a clear or unanimous response to Fischlers appeal, as they
expressed different individual concerns over the accession process. Thus,
for example, Bishop Edward Janiak questioned the fairness of any
The Catholic Church and Polands Accession to the EU
___________________________________________________________
172
proposal the Polish farmers get lower levels of support than the EU-15.
Bishop Jan Szlaga, on the other hand, expressed his concern over the
communitys position on issues such as euthanasia, abortion and
homosexuality.
32
These concerns were echoed in the official document on
European integration issued by the Polish Episcopate on 21 March 2002.
The document, Biskupi Polscy wobec integracji europejskiej, was
signed by Cardinals, Archbishops and Bishops attending the 316 Plenary
Meeting of the Conference of the Polish Episcopate in Warsaw, and
represents the current official position of the Polish Church on the process
of European integration. According to the document the Catholic Church
is supportive of unifying initiatives which respect those fundamental
human rights that minister to the integral development of human beings
and promote the common good of both nation and country.
33
When it
comes to European integration, the document notes:
The Universal Church and the Catholic Church in
Poland have been supportive of this process from the
beginning. Europe in the eyes of the Church is not
purely an economic and political structure, but primarily
a historical and cultural community based on the lasting
ideas and tradition of Judeo-Christian spiritual values,
Roman law and Greek philosophy.
34
In this context, the Church in Poland views European integration
primarily through a religious, Christian lens.
The document emphasizes the integration process cannot be
dominated by political and economic concerns alone, but also needs to pay
heed to spiritual and ethical dimensions of unification. The bishops place
particular emphasis on the need to preserve the unique Polish religious and
national identity, and see themselves as having an important role to play
here:
The Church will stand guard over the rights of man and
will defend fundamental principles enshrined in the
Decalogue and those spiritual and moral values that
have fundamentally shaped the identity of our nation,
which has developed for over one thousand years in the
spirit of Christs Gospel.
35
More specifically, the Church in Poland wants the resolutions
worked out by the Convention to guarantee the fundamental right to life of
every human being from conception until their natural death and the
right of marriage as a permanent relationship between a man and a
Mirella Eberts
___________________________________________________________
173
woman.
36
The latter is found in the 1997 Polish Constitution and the
Church fears that under the European Union law this provision will be
challenged. Similarly, the Church is afraid that European integration may
throw the door wide open to a weakening of strict Polish anti-abortion law
or even its complete liberalisation. Along with these two guarantees, the
Church wants to see that in Europes future legislation there will be an
invocation to God who for believers is the ultimate reason of the existence
of fundamental values, [and the] religious, moral, and social order.
37
This
is the same expectation that the Church had of the Polish constitution
makers, and the 1997 Polish Constitution includes the Invocatio Dei.
In addition to these specific spiritual/ethical dimensions, the
document calls for cooperation and dialogue among the different political
factions in Poland. It urges both the Polish and European Union officials
to be particularly sensitive to the past difficulties and to those yet to be
faced, and not to inflict a disproportional burden on some groups of Polish
society. Most significantly, the document makes an appeal to those groups
in Polish society that comprise the bulk of Polish Euro-sceptics: We
direct our words of encouragement to everyone who has suffered from the
painful results of transformation, particularly to farmers and the
unemployed not to succumb to despondency and whenever possible to
undertake initiatives aimed at overcoming the existing difficulties.
38
The
Church makes here a poignant plead for Poles not to lose hope in the wave
of the socio-economic and political change. What makes the timing of this
appeal interesting is it followed on the heals of an alleged deal struck
between the Miller government and the Church hierarchy over the issue of
abortion, and preceded the government launch of a major pro-EU
information campaign.
Since coming to power after the September 2001 parliamentary
elections and led by the Democratic Left Alliance (SLD) comprised of
many old communists or Polish United Workers Party (PZPR) members,
the government is trying very hard to maintain friendly relations with the
Church in Poland. The government appears to be doing its best to stay
away from any policy initiatives or changes that may upset the Church
hierarchy in Poland, where abortion seems to be the central bargaining
tool. For example, during the 2001 parliamentary elections, SLD promised
to liberalize the restrictive anti-abortion law. It quickly set aside the issue.
The government has been accused of striking a deal with the Church: no
changes to the current abortion law, in exchange for the Churchs support
for Polands accession to the EU. When confronted about the promise to
liberalize the restrictive anti-abortion law, the SLD leadership has argued
that there are more important items on the governmental agenda at that
time with the entry into the EU on top of the list.
39
The Catholic Church and Polands Accession to the EU
___________________________________________________________
174
Whether an actual deal between the government and the Church
hierarchy was struck, the governments friendly attitude towards the
Church in the hopes to obtain its support on the EU question is
reminiscent of what took place under the old communist regime. During
the communist period, the Church served as the de facto opposition to the
PZPR, but in times of trouble, the communist authorities would actually
appeal to Church officials for help. In exchange, the Church would obtain
various concessions from the regime. Thus, for example, when in 1956 the
communist government found itself amidst workers revolt crisis in
Poznan, it sought the Churchs help to resolve the unstable situation. The
Church agreed to help in exchange for a number of concessions, including
the release of the Polish Primate, Cardinal Stefan Wyszyski, who was
arrested in 1953. Once released, Wyszynski made a quick appeal to the
Polish Nation: Our motherland demands now from you much calm, much
caution, and many, many prayers.
40
In exchange for helping to calm
down the restless workers, the authorities signed a new agreement with the
Polish Episcopate in December 1956.
41
Among others, the agreement
reinstated the Churchs control over its internal affairs and appointments.
This strategy of bargaining in times of crisis was a distinct
feature of Church-state relations under the old regime. It seems that the
SLD-led government resorted to such techniques in order to secure a
victory in the referendum on EU membership. The government clearly felt
the need to have the Churchs support on the European integration
question. This only attests to the prominent position that the Church holds
in Poland. At the same time, it is not clear what effect the Churchs
conditional support for European integration will have on its Euro-sceptic
followers, especially since there are those, either within the Church or
closely linked to it, who do not march to the official tune.
According to the reputed CBOS in June 1994 the support for EU
membership in Poland was 77%.
42
A number of years later, in March
2002, CBOS reported that only 55% of Poles surveyed supported EU
membership, while 29% were against it.
43
In the period leading up to the
June 2003 referendum, there was evidence of declining support for EU
membership in Poland, but 77.45% of those who turned out to vote
(58.85% of the eligible voters, and a smaller number than expected) voted
in favour of EU membership.
44
The Church urged its followers to go out to
the polling stations, while indirectly stirring them to vote for Polands EU
membership. One week prior to the referendum, the priests across the
country read the Episcopates appeal to Poles to embrace the words of
John Paul II that the quest for Polands proper place in political and
economic structures of a united Europe is a rightful one.
45
However, the
low turnout and the lower support for the EU membership in rural areas
than in urban ones (26% in rural areas voted against the membership, as
Mirella Eberts
___________________________________________________________
175
opposed to 14% in large cities) clearly indicated that not all Poles were
ready to listen to the Popes message.
Among the leading Euro-sceptics in Poland, one finds
organisations and parties waving the Roman Catholic Church banners,
often with depictions of the Virgin Mary or John Paul II. The leader
among these is the (in)famous Radio Maryja (RM) headed by a member of
the Redemptorist Order, Father Tadeusz Rydzyk, and the popular
movement build around it, the so-called Radio Maryja Family (RRM:
Rodzina Radia Maryja).
The centre of the RM is in Toru and its programming can be
heard not only across Poland, but also around the world. The RM claims
to have around 5 million listeners and the RRM to have around 600 offices
and clubs.
46
The general populist message of RM and the loosely
monitored phone-in segments of its regular programming have often come
into conflict with the official position of the Church hierarchy in Poland. It
appears that this too is the case when it comes to the question of Polands
entry into the EU. In tune with his listeners, Euro-sceptic Father Rydzyk
has voiced worries over the rich EU citizens buying out Polish land,
expressing the common populist message that Poland is going to be given
away for free. The RM has not stayed away from a nationalist, xenophobic
rhetoric, appealing to those who have feared painful adjustment costs
following Polands entry into the EU. In reality, and contrary to its claims,
what one hears on the RM airwaves is rather a monologue than a dialogue
on the question of Polands place in the EU.
Despite the Episcopates open condemnations of the extremist
messages blasted by the RM, especially towards political and socio-
economic areas of public life, the Church in Poland has not damned the
movement as a whole. This is in part because RM is also spreading the
fundamental teachings of the Roman Catholic Church, including the
teachings of John Paul II (albeit often in a very selective way to suit its
populist message), and because it does have a large following of devout
Catholics that actively participates in the regular life of the Church in
Poland. For example, in 1997, 150 thousand of Polish Catholics travelled
in the annual pilgrimage to Czstochowa as part of the RRM group.
47
In
addition, there are those in the Church hierarchy who are close to the
movement and who do lean towards its Euro-scepticism. It is therefore not
clear how the Church in Poland, in view of its current pro-EU bend, will
respond to the Euro-sceptic populism coming from the RM. However, it is
doubtful that the Episcopate could manage to curb the RM populist
excesses since it does not have a direct control over it, and the radio may
be one of the very few outlets through which Polish Catholics can express
their frustrations, including their opposition to European integration, while
praising the Virgin Mary at the same time.
The Catholic Church and Polands Accession to the EU
___________________________________________________________
176
RM has been spewing its Euro-sceptic and anti-liberal messages
since 1991, but there are other Euro-sceptic actors on the Polish political
stage. The Polish Family League (LPR) also carries the Catholic banner
and Euro-sceptic attitudes. This conservative and nationalist-Christian
party was one of the several surprises of the September 2001
parliamentary elections in Poland. Its parliamentary members consider
themselves to have exemplary Polak-Katolik qualities and argue that the
partys programme is the only one with Polands true national-interests in
mind. LPR too manipulates the official Church position on the EU
question to suit its political agenda, but at the same time, some of its views
certainly coincide with those of the Church hierarchy in Poland.
The Church-EU dynamics in Poland, and more specifically the
Churchs position on Polands EU membership, have to be understood in
terms of 3 dimensions: (1) the Church vis--vis John Paul II and the Holy
See; (2) the Church vis--vis the Polish government and domestic politics;
and (3) the Church vis--vis the Euro-sceptic Catholic followers. While
the Church in Poland seeks to protect and advance its interests, these three
dimensions structure its position on European integration.
The Church in Poland must pay heed to the directives coming
from the Vatican, and is even more inclined to pay attention to them if
they are coming from John Paul II. It would be very difficult for the
Church leaders in Poland to stake a position against European integration,
while their countryman and Superior both supports the idea and sees in it a
place for Poland. At the same time, the Roman Pontiffs conservative
views on sexuality and other matters, and his criticisms on the breakdown
of traditional family values across Western Europe, are reflected in the
cautious approach of the Church hierarchy in Poland toward EU
membership. If the Pope has expressed some concern over the
spiritual/ethical state of Western Europeans, one can only expect that the
Church hierarchy in Poland would be inclined to hold certain fears about
the consequences of returning to Europe.
When SLD won the 2001 parliamentary elections on a campaign
platform that included, among others, a promise to liberalize the tough
anti-abortion law in Poland, the Church must have looked on with some
concern. But the restrictive anti-abortion law appears to be safe for now,
as SLD-led government needed all the support it could muster to sell the
EU idea to Poles, especially to the more Euro-sceptic rural population.
The Church appeared ready to support the governments efforts on the
road to EU membership as long as its institutional interests were protected
and advanced. The Church has staked out a conditional support position
for European integration because this allows it to exercise a certain check
on the policies pursued by the current government. As long as the
government did not pursue any course of action that threatened the
Mirella Eberts
___________________________________________________________
177
Churchs interests, it could count on the Polish Episcopate for some
support in selling the EU membership.
Finally, the Church has to take into account those believers who
are not riding the EU-bandwagon in Poland. Some of the most devout
Catholics are to be found among these Euro-sceptics, or even Euro-
phobes. The Radio Maryja Euro-sceptics and Euro-phobes are not always
toeing the official Church line, and their take on the teachings of Christ is
much more narrow and intolerant than the one of John Paul II, but they do
show up en masse at the most important public displays of Catholicism in
Poland (like the already mentioned annual pilgrimage to the famous
Madonna shrine in Czstochowa). They are also the ones who fill the
pews on a weekly basis, and some members of the Church hierarchy share
their scepticism on EU membership. Hence comes the somewhat
ambivalent attitude of the Polish Episcopate toward RM and its
supporters. It is also part of the explanation for the conditional nature of
the Churchs pro-EU position. In large measure, the Polish Euro-sceptics
and Euro-phobes are also devout, practising Catholics. They are also
largely the losers of EU enlargement: rural, less educated, poorly skilled,
elderly, and so forth. The Churchs appeal to the Polish negotiators and
EU officials to be particularly sensitive to the problems faced by these
socio-economic groups reflects its sympathetic stance. In addition, if one
is to measure the institutional strength of the Church by the number of
followers, it is in the Polish Episcopates interest to retain the Euro-sceptic
and Euro-phobic Catholics under its wings.
The actual strength and future trajectory of the conditional
element of the Churchs support for Polands EU membership is likely to
be an important factor in any ongoing Polish discourse on European
integration. This conditional element serves as an important qualifier of a
seemingly clear pro-EU position of the Polish Church. The Polish Church
does not want the EU membership to weaken Polish Catholic traditions,
values and morals. At the same time, it seems quite prepared to take its
religious mission into this European uncertainty, whatever fears that may
materialise in the process. Those who do support Polands place in the EU
can only hope that the Church will continue to preach from the pulpit
about the evils of consumerism, the breakdown of family values,
traditions, and so on. After all, this is its rightful mission, but on that will
not conflate these sins with the EU institutions and decision-making
processes. They should also hope that the Church will project a louder
voice on distancing itself from any Catholic fundamentalists, those who do
not toe the official Church line, but who do wave the Catholic Church
banners to support their Euro-phobic political agenda. The Church can
play a very positive role in the European integration debate in Poland,
especially if it can help to educate and calm the suspicions of the countrys
The Catholic Church and Polands Accession to the EU
___________________________________________________________
178
Euro-sceptics about the costs and benefits of EU membership, but it
remains unknown how well it will stand up to this challenging
opportunity.
University of Toronto, Canada.
Notes
1
In 1991 Poland signed an Associate Agreement with the European
Community, which established the legal basis for bilateral relations
between the two. It submitted an application for EU membership in April
1994, and began the official accession negotiations with the EU on 31
March 1998. For a quick overview of East-Central European transitions
and the process of integration with West European institutions see John D.
Nagle and Alison Mahr, Democracy and Democratization (Thousand
Oaks: SAGE, 1999),45-51.
2
Mirella Eberts, The Roman Catholic Church and Democracy in
Poland, Europe-Asia Studies, 50:5 (1998), 817-842.
3
Aniela Dylus et al., Unia Europejska: Informator o Kocioach
(Warsaw: Komitet Integracji Europejskiej, Centrum Informacji
Europejskiej, 1999), 2-7.
4
Felipe Basabe Llorens, The Roman Catholic Church and the
European Union: an Emergent Lobby? (Brussels: European
Interuniversity Press, 1996), 105.
5
I have in mind here other than Polish scholarship. There has been a
growing interest among Polish scholars in addressing the question of
Church-EU dynamics. Most notable is the work produced by scholars
associated with Studium Generale Europa at the Kardynal Stefan
Wyszyski University in Warsaw, including by Aniela Dylus, as cited in
this paper.
6
Llorens, 20.
7
Ibid., 20.
8
Ibid., 23.
9
Ibid., 23-24.
10
Pius XII, quoted in ibid., 21.
11
Ibid., 21.
12
Ibid.
13
Paul VI, quoted in Ibid., 22.
14
Ibid., 22-23.
15
For a good overview of the speeches of John Paul II on the EU and
on Polands entry into the EU see Maciej Drzonek, Entuzjazm czy
sceptycyzm? Kocio katolicki i integracja europejska, in Bogumia
Grotta, ed., Religia i polityka (Cracow: Jagellonian University Press,
2000), 323-328.
Mirella Eberts
___________________________________________________________
179
16
John Paul II in Poland (Cracow: ZNAK, 1997),78.
17
John Paul II, quoted in Janusz Poniewierski, Pielgrzymka 1999:
Dzie po dniu (Cracow: ZNAK, 1999), 36-37.
18
Poniewierski, 36-37.
19
Jarosaw Gowin raises this argument in his Koci w Czasach
Wolnoci, 1989-1999 (Cracow: ZNAK, 1999), 225-226.
20
Gowin, 226.
21
Ibid., 227.
22
Ibid.
23
J. ukaszewski quoted in Aniela Dylus, Globalny rynek i jego
granice (Warsaw: Fundacja ATK, 2001), 266.
24
Gowin, 233.
25
Tadeusz Pieronek, quoted in apcie Pana Boga za poy, Gazeta
Wyborcza, 7 November 1997, 13.
26
Henryk Muszynski, quoted in Unia Kocioa z Europ, Gazeta
Wyborcza, 8-9 November 1997, 1.
27
See Do Europy bez lku, Gazeta Wyborcza, 6 November, 1997,
3.
28
See Tadeusz Pieronek, Koci nie boi sie wolnoci (Cracow:
ZNAK, 1998), 133.
29
Ibid.
30
Ibid., 134.
31
Ibid., 139.
32
Jdrzej Bielecki, Komisja Europejska liczy na pomoc biskupw,
Rzeczpospolita, 5 February 2002 <http://www.rzeczpospolita.pl> (13
April 2002).
33
Konferencja Episkopatu Polski, Biskupi Polscy wobec integracji
europejskiej, 21 March 2002. I quote from the English version, Polish
Bishops on European Integration, translated by Katarzyna azarz-Grska.
http://www.episkopat.pl (25 July 2004).
34
Konferencja Episkopatu Polski, Biskupi Polscy wobec integracji
europejskiej.
35
Ibid.
36
Ibid.
37
Ibid.
38
Ibid.
39
Eliza Olczyk, Przede wszystkim Unia Europejska,
Rzeczpospolita, 15 February 2002 <archives,
http://www.rzesczpospolita.pl> (13 May 2002).
40
B. Szajkowski, Next to God Poland (London: Francis Pinter,
1983), 17
41
Ibid.,18-19.
The Catholic Church and Polands Accession to the EU
___________________________________________________________
180
42
See CBOS figures cited in Aleks Szczerbiak, Polish Public
Opinion: Explaining Declining Support for EU Membership, Journal of
Common Market Studies, 39:1 (2001): 107.
43
CBOS: Polacy proeuropejscy, Gazeta Wyborcza, 13 March 2002
< http://wyborcza.gazeta.pl> (14 March 2002).
44
W referendum wzio udzia 59% uprawnionych. 77% gosowao
TAK, Gazeta Wyborcza, 8 June 2003,
<http://www2.gazeta.pl/info/elementy/druk.jsp?xx=1520305&plik=&tabli
ca=DOCUMENT> (13 June 2003).
45
Konferencja Episkopatu Polski, Sowo Biskupw Polskich w
sprawie wejcia Polski do Unii Europejskiej, 2 May 2003.
<http://www.episkopat.pl/dokumenty/slowobue.html> (25 July 2004).
46
Jagienka Wilczak, Okopy ojca Rydzyka, Polityka, 4 November
1995, 17.
47
Ibid., 17.
Inclusive Education as a Human Right and
Slovakias Accession to the European Union
Julia M. White
Abstract
While the Slovak Republic has made tremendous strides in
accession to the European Union by amending its education legislation to
afford certain disabled students greater access to the general curriculum,
and in some cases access to the regular classroom, students labeled with
mental disabilities, which includes 75% of Roma students, are still denied
meaningful educational opportunities, which leads to continued economic,
social, and political oppression. Equal access, equal opportunity, equal
protection, and equal participation are the roots of democratic society and
it is through reducing inequalities in schools, through inclusive education,
that Slovak Roma will enjoy meaningful membership in the social,
political, and economic spheres of European (and global) society.
Key Words
Discrimination, Education, European Union, exclusion, Human Rights,
inclusive education, protection, Roma, school
***
1. Introduction
Radko is a six-year-old Roma boy who attended the first grade
of basic school in a small town in the south-eastern region of the Slovak
Republic. He sat in the last row, in the last seat, closest to the door. He
did not identify an A on a page, nor did he name the number seven
when asked. His teacher spoke to him only to tell him to sit down or to
scold him for not having coloured pencils. She requested that Radko be
given psychological testing in order to attend the regions special school
(next door to the basic school), and after four months in the regular
school, he was labelled as mentally retarded and placed in the special
school. Radko is now identified as disabled.
1
Radkos situation is a common one for Roma students in the
Slovak Republic (and throughout Eastern and Central Europe). Non-
governmental organizations (NGOs) and the Slovak government recognise
that Roma students are over-represented in special education for students
labelled as pupils with mental disabilities, and the most widely agreed
upon estimate is that 75% of Roma students are placed in special schools
for pupils with mental disabilities due to language lags and what non-
Inclusive Education as a Human Right
____________________________________________________________
182
Roma consider to be poor socialisation.
2
By virtue of their placement in
special schools, Roma are from the first years, in most cases, permanently
denied full and equal participation in the educational, political, economic,
and social milieus of their non-Roma peers.
Through ingrained and discriminatory special education policies
and practices that I will explore in this chapter, I assert that Roma are
caught in the crosshairs of the intersection of the social constructions of
race and disability. They are labelled as disabled almost directly as a result
of their ethnicity and perceived incompetence, and the educational policies
associated with special education relegate them to schools of mops and
brooms
3
that afford no opportunity to advance in social or economic
standing. Due to their exclusion from the labour market, Roma are viewed
as drains on the social welfare system, and the Slovak education system
perpetuates this view through exclusionary and segregated education for
Roma children, and indeed, for non-Roma students who are placed in
special schools.
In this chapter I will examine international, European, and
domestic protections afforded to people labelled with disabilities who
belong to minority populations. I am interested in the experiences of
primary school pupils, particularly Roma pupils, as their disability label
has broad implications for their future social, political and economic
status; therefore, I will concentrate mainly on the primary education of
students identified as having mental disabilities. I will use United States
federal special education legislation, the Individuals with Disabilities
Education Act (IDEA), as a comparative tool to explore how this
legislation might inform policies and practices that affect the education of
Roma students in the Slovak Republic.
A. Inclusive Education as a Human and Civil Right: The Shift from a
Medical to a Rights Model
Special education has traditionally been a prescriptive enterprise,
built upon the medical model of disability and the Soviet concept of
defectology, aimed at intervention, remediation, care, and cure.
4
This
remains the dominant paradigm of special schooling in the Slovak
Republic. The deficit is found almost exclusively within the learner, and
it places the major onus of adaptation on the learner and very little on the
institution.
5
Lynch suggests that the shift from the medical to the
social/rights model requires adherence to the idea that inclusive
education is a unitary concept, which recognizes that there is a continuum
of needs, requiring a continuum of provisions, which may be made in a
variety of different forms.
6
In moving away from the medical model and towards a social,
rights-based model, Kliewer offers one of the foundations of a social,
Julia M. White
___________________________________________________________
183
rights based model of inclusive philosophy, the human reciprocity
element of education that all members of the community are valued and
that participation in the community enriches the educational experience of
all.
7
Human value and the principles of equality equal access, equal
opportunity, equal protection, and equal participation are essential
elements to foster an inclusive approach to education.
IDEA asserts that [d]isability is a natural part of the human
experience and in no way diminishes the rights of individuals to
participate in or contribute to society.
8
This also applies to membership in
a minority population, yet the majority of Roma children are labelled as
disabled and are denied the education that is the primary vehicle by
which economically and socially marginalized adults and children can lift
themselves out of poverty and obtain the means to participate fully in their
communities.
9
Artiles sees the issue of identification for special education
services as
inextricably linked to issues of equity and social justice.
According to the rights-and-ethics discourse, the
maintenance of a segregated education system is
incongruous with socially just educational systems, and
ultimately with democratic ideals.
10
In a democratic and just society, children of all kinds are
educated together. Linton asserts that [i]nclusion is not an educational
plan to benefit disabled children. It is a model for educating all children
equitably.
11
2. Human Rights, Civil Rights, and the Right to (Inclusive)
Education
A. International Protections
The right to education is enshrined in every United Nations
human rights instrument, and language found in these instruments can
serve to justify implementing the practice of inclusive education in Slovak
schools. The Universal Declaration of Human Rights states that
[e]veryone has the right to education
12
and that [e]ducation shall be
directed to the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms.
13
Article 13 of the International Covenant on Economic, Social and Cultural
Rights echoes the UNDHR: the right of everyone to education
directed to the full development of the human personality and the sense of
its dignity.
14
Slovak Roma pupils in segregated special education settings
are arguably not being educated to the full development of their
Inclusive Education as a Human Right
____________________________________________________________
184
personalities, nor do these settings contribute to the dignity of the
segregated pupil.
The Convention on the Rights of the Child mandates the
preparation of the child for responsible life in a free society,
15
which the
continued and prevalent segregation of Roma students in special education
classrooms does not provide.
The Convention against Discrimination in Education prohibits
limiting any person or group of persons to education of an inferior
standard and establishing and maintaining separate educational systems
or institutions for persons or groups of persons (unless by gender,
religion, or parental choice).
16
Clearly the educational system of the
Slovak Republic continues to reproduce the marginalisation and poverty
status of Roma through segregatory educational practices. School
segregation influences their later economic spheres, as by law students
who attend special basic schools must attend special secondary schools.
17
These schools offer no school leaving certificates, so adults who have
attended these schools are not looked upon favourably by the labour
market. This is similar to special education students in the US who get
only Certificates of Attendance.
The International Covenant on Civil and Political Rights,
reminiscent of the Fourteenth Amendment of the US Constitution,
18
asserts that [a]ll persons are equal before the law and are entitled without
any discrimination to the equal protection of the law.
19
While it can be
argued that children labelled as mentally disabled in Slovakia are enjoying
equal protection of the law, as the segregated schooling system is defined
by Slovak law, it can also be asserted that a segregated educational setting
for any child based on ethnicity and perceived incompetence is
discriminatory.
B. European Protections
Member States and candidate countries must ratify international
human rights instruments, as well as the instruments of the European
Union. The European Convention for the Protection of Human Rights and
Fundamental Freedoms contains education and non-discrimination
clauses. Article 2 (as amended by Protocol 11) states that [n]o person
shall be denied the right to education
20
and Article 14 prohibits
discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.
21
The Commission of the European Communities defines the three
main goals of education as:
Julia M. White
___________________________________________________________
185
the development of the individual, who can thus realise
his or her full potential and lead a happy and fruitful life;
the development of society, in particular by reducing the
disparities and inequities as between individuals or
groups; and the development of the economy, by
ensuring that the skills available on the labour market
match the needs of businesses and employers.
22
The segregated education of Roma (and non-Roma) pupils
labelled with mental disabilities does not begin to meet these goals, as full
potential cannot be developed in a segregated setting with a watered down
curriculum and low teacher (and societal) expectations; inequities and
disparities are increased as a result of continued segregation; and these
students by law have no possibility of acquiring any sorts of skills
transferable to the European labour market.
The Commission recognises, however, that children with
disabilities and/or special educational needs are not always properly
integrated into the education systems and that the aim of creating a
barrier-free Europe requires the provision of places for children with
disabilities in the mainstream education system and to make the latter
accessible to everyone.
23
While Slovakia has made mainstream education
available to pupils with physical and sensory disabilities, the possibility
for this does not yet exist for pupils labelled with mental disabilities.
The European Social Charter mandates that Member States
protect children and young persons against negligence, violence or
exploitation.
24
The placement of Roma children in special schools for the
mentally disabled can be construed as negligence and educational violence
on the part of the Slovak Republic. The Charter calls for the effective
access of persons who live or risk living in a situation of social exclusion
or poverty, as well as their families, to, in particular, employment,
housing, training, education, culture and social and medical assistance.
25
Roma who attend special schools do not get school leaving certificates;
they by law cannot attend regular secondary or tertiary institutions, which
effectively denies them this access and keeps them locked in the cycle of
poverty.
Article 12 of the Framework Convention for the Protection of
National Minorities calls for Member States to promote equal
opportunities for access to education at all levels for persons belonging to
national minorities. While Slovakia is making efforts to harmonize its
legislation and systemic practices to meet this mandate, Roma continue to
be overwhelmingly over-represented in special schools and are inequitably
underserved in their schooling.
Inclusive Education as a Human Right
____________________________________________________________
186
The Draft Treaty establishing a European Union Constitution,
26
in part a consolidation of previous Treaties and the Charter of
Fundamental Rights of the European Union, states in Article II-24 that
[i]n all actions relating to children, whether taken by public authorities or
private institutions, the childs best interests must be a primary
consideration while Article II-26 recognizes and respects the right of
persons with disabilities to benefit from measures designed to ensure their
independence, social and occupational integration and participation in the
life of the community. The placement of Roma children in special
schools for the mentally disabled does not ensure social and occupational
integration. Students with physical and sensory disabilities are treated
more equitably in the Slovak education system, but students labelled as
mentally disabled do not enjoy meaningful participation in the life of the
community.
Finally, the European Union has adopted the Organization for
Security and Co-operation in Europes Decision No. 566, the Guiding
Principles for Improving the Situation of Roma in Candidate Countries.
27
The general context of the principles is the phrase For Roma, with
Roma, which echoes the slogan of the international disability rights
movement, Nothing about us without us.
28
Paragraph 73 of the Decision
calls for countries to
[d]evelop and implement comprehensive school
desegregation programs aiming at discontinuing the
practice of systematically routing Roma children to
special schools or classes and transferring Roma
children from special schools to mainstream schools.
There has been some progress in Slovakia in this regard, as the
government has ideologically supported the Wide Open School
Foundations Special Schools Initiative, aimed at identifying
misidentified and misplaced Roma students and mainstreaming them from
special schools into regular schools.
29
But this pilot program has not been
adopted on a broad scale by the Slovak government and PHARE funding
for the project has ceased, so as it affected only a small percentage of the
population while it was active, it affects even a smaller portion now.
C. Domestic Protections
Under the Slovak Constitution, citizens are guaranteed their
fundamental rights and freedoms.
30
However, the Constitution codifies the
other in the first sentence of the Preamble: We the Slovak nation
together with members of national minorities and ethnic groups living on
the territory of the Slovak Republic. This othering of minorities by their
Julia M. White
___________________________________________________________
187
constitutional separation from the Slovak nation is transferred to
educational policies that affect Roma children (and later adults).
The Constitution guarantees equality and non-discrimination
under Article 12 and the right to a free education at primary and secondary
schools under Article 42. While Roma children might be educationally,
socially, and emotionally harmed by placement in special schools, they are
not legally discriminated against, as segregated special schools are
specifically established by law, and students are presumably placed there
according to systemic procedures. However, Article 33 of the Constitution
states that [m]embership of any national minority or ethnic group must
not be to anyones detriment, and it can be argued that if one is a Roma
child, membership in that group quite probably leads to detrimental
education, as while education is being provided, the schooling is
segregated and inequitable.
3. Slovak Education through the Lens of Two Federations
A. European Union Governance and the Slovak System of Education
The European Union does not have a common policy on
education. Article III-182 (ex. 149, Amsterdam Treaty, ex. 126,
Maastricht Treaty) of the Draft Treaty Constitution states that:
[t]he Union shall contribute to the development of
quality education by encouraging cooperation between
Member States and, if necessary, by supporting and
complementing their action. It shall fully respect the
responsibility of the Member States for the content of
teaching and the organization of education systems and
their cultural and linguistic diversity.
31
The European Union supports education programs such as Da
Vinci, Tempus, and Socrates, that encourage cooperation between
Member States, and the Union offers Structural Funds to assist in
educational programming, but there is no common policy as there is in the
economic, political, and security spheres.
The Council of the European Union and the Ministers of
Education adopted a Resolution Concerning the Integration of Children
and Young People with Disabilities into Ordinary Systems of Education,
which states that:
[f]ull integration into the system of mainstream
education should be considered as a first option in all
appropriate cases, and all education establishments
Inclusive Education as a Human Right
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188
should be in a position to respond to the needs of pupils
and students with disabilities.
32
The most recent amendments to Slovak Act No. 29/1984, on
Schools Law, attempt to do this through the possible integration of pupils
with physical and sensory disabilities, but the Slovak school system is still
able to effectively completely segregate children labelled as mentally
disabled.
Recommendation 4 (2000) on the Education of Roma/Gypsy
Children in Europe states that [a]ppropriate support structures should be
set up in order to enable Roma/Gypsy children to benefit, in particular,
through positive action, from equal opportunities in school.
33
The Slovak
Government has implemented Act No. 408/2002 Coll. Of Laws on Public
Service,
34
which allows for the employment of Teacher Assistants in some
classrooms with Roma pupils. The assistants often serve as tutors, liaisons
with Roma families and communities, and as role models for Roma
children. But the implementation of Teacher Assistants is left to the
discretion of individual schools, and schools often do not take advantage
of the opportunity, or use the assistants to pull out Roma students in
regular schools for segregated lessons.
B. Slovak Republic Education Law and the Individuals with Disabilities
Education Act
Brown v. the Board of Education
35
is the philosophical
grandparent of IDEA. This seminal desegregation case overturned Plessy
v. Ferguson,
36
which had established the precedent of separate but
equal. In Brown, the Court held that separate schools for students of
colour were not equal. Brown paved the way for two cases involving
students with disabilities, Pennsylvania Association for Retarded Citizens
v. Commonwealth of Pennsylvania (PARC)
37
and Mills v. the Board of
Education of Washington, D.C. (Mills),
38
the ideological and legislative
parents of IDEA, as elements from both were incorporated into the law
that eventually became IDEA.
IDEA is legislation in which the Federal government sets out to
make available to local education agencies the financial resources to
provide free and appropriate special education and related services and
aids for supports in the regular classroom
39
to students with disabilities.
While IDEA is funding legislation, its basis is in civil rights law,
specifically Brown and subsequent decisions. IDEA mandates that
students be provided with a free appropriate public education in the least
restrictive environment in accordance with an individualized education
program. The text of IDEA does not specifically say the word inclusion,
but the law specifies components that must be provided by schools to
Julia M. White
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189
ensure a childs meaningful participation in the regular classroom to the
maximum extent possible.
40
I will examine Slovak education law through
the framework of IDEA, using the conceptual touchstones of the law: free
appropriate public education; least restrictive environment; and
individualized education programs. While the US system of education is
far from perfect, its broad language and inclusive philosophy that is not
found in Slovak law allows for states and local education agencies to
determine themselves how they will spend their allocated funds, and many
districts choose to use those funds toward inclusion initiatives.
C. Free and Appropriate Public Education (FAPE)
A guiding principle of the human rights instruments presented in
this paper is the right to education. The right to a free education is
mandated in the Free Appropriate Public Education (FAPE) clause of
IDEA and in Article 42(2) of the Slovak Constitution. IDEA defines
FAPE as special education and related services that have been
provided at public expense, under public supervision and direction, and
without charge and are provided in conformity with the individualized
education program.
41
Related services for IDEA include rehabilitative, social work,
therapeutic, transportation, medical, and other services that must be
provided by the schools at public expense. The Slovak education system
also provides these related services, but while IDEA mandates that related
services be provided in the Least Restrictive Environment, Slovak law
codifies exclusion and segregation by establishing what it deems to be
appropriate special schools according to type of disability (and separate
curricula for students labelled as mentally disabled).
42
However, equality
of access to the regular curriculum in special schools is guaranteed by Act.
No. 29/1984, the Schools Law, except for pupils with mental disabilities.
43
Slovak education law determines the scope of what pupils
labelled with mental disabilities can and cannot learn, and therefore what
constitutes an appropriate education. Section 29 of the Schools Law, in
setting out special schools, states that [s]pecial basic schools provide
pupils with special educational needs, except pupils with mental
disabilities, education according to 5 and 6 in a manner adequate for
their disabilities.
44
From an inclusive/rights based perspective, however,
this is problematic, in that 5 lays out the provisions of basic education
that pupils are:
secured intellectual nurturing in empirical scientific
knowledge and in accordance with principles of
nationality, humanities and democracy and provided
Inclusive Education as a Human Right
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190
ethics, aesthetics, work, health, physical education and
environmental education to pupils
45
The law clearly determines that pupils identified as mentally
disabled are not able to be intellectually nurtured in accordance with
principles of empirical knowledge and democracy. Like former
immigration policies in the United States concerned with degenerate
classes and poor quality immigrants, this clause segregates pupils
according to their ability to function as good citizens.
46
D. Least Restrictive Environment (LRE)
Inclusion is not defined in IDEA; rather, school placement is
discussed in the context of Least Restrictive Environment (LRE). FAPE
needs to take place in the Least Restrictive Environment and US law
provides that students should be educated with non-disabled children to
the maximum extent appropriate
47
and should be segregated:
only when the nature or severity of the disability of a
child is such that education in regular classes with the
use of supplementary aids and services cannot be
achieved satisfactorily.
48
As stated earlier, state and local education agencies have much
discretion in the use of their special education funds, and while districts
often use the LRE clause to justify segregation, as Biklen states, civil
rights with escape clauses,
49
parents often resist this and are a driving
force in influencing a school or district on where their children are taught.
In part as a response to this, teacher-training programs in the United States
are increasingly adopting an inclusive approach to preservice teacher
education.
The nature of the system of education as it currently exists in
Slovakia, with its emphasis on defectology and special schools set up
according to type of disability, is inherently most restrictive. Special
schools are established for pupils with visual impairments, hearing
impairments, speech impairments, autism, and mental disabilities, and
there are residential facilities established for pupils with behavioural
disorders.
50
Only lately, to harmonise legislation to the acquis and
Copenhagen Criteria, do the laws contain inclusive language, but
legislation regarding pupils labelled with mental disabilities is still firmly
entrenched in segregatory language. While the law allows for the
establishment of special classes in regular schools and the integration of
individual pupils labelled with certain disabilities in regular schools,
Julia M. White
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191
pupils with mental disabilities continue to be segregated and marginalized
in accordance with the law.
Inextricably linked with LRE are supplementary aids and
services provided by IDEA, that include:
aids, services, and other supports that are provided in
regular education classes or other education-related
settings to enable children with disabilities to be
educated with nondisabled children to the maximum
extent appropriate.
51
The Slovak government provides the possibility for teacher
assistants in both regular and special classrooms with more than 6 Roma
pupils;
52
their presence does not facilitate the education of students
labelled with disabilities with their non-disabled peers. However, in
addition, supplementary aids and services are almost always provided on
site at special schools, but not in regular classrooms. Instead, the costs of
these services usually fall to the families, who must pay for the services
primarily through social disability benefits, as the government holds the
constitutional position that education itself is free, but that other
provisions must come from other sources.
53
E. Individualized Education Program (IEP)
IDEA defines the IEP as a written statement for each child with
a disability
54
that should enable the child to be involved in and progress
in the general curriculum.
55
The IEP clause of IDEA in large part deals
with evaluation (and re-evaluation), the IEP itself, and the IEP team.
Slovak education law, while mandating IEPs for students, has a less broad
scope in the development and implementation of them.
Evaluations. According to IDEA, students must be evaluated for
special education services (and re-evaluated every three years) with the
consent of the parent or guardian, tests must be selected so as not to be
discriminatory on a racial or cultural basis
56
and administered in the
childs native language.
57
The student cannot be removed from the
regular classroom until he or she has been determined eligible for special
education services.
In contrast, before a Slovak child is placed in a special school,
the pupil may be designated to be a diagnostic resident in the school to
which the pupil may be placed Diagnostic residence of the pupil lasts at
the longest one-year.
58
This is problematic, in that diagnostic centres are
special schools, in which the child receives a watered down curriculum for
an extended period of time, and if the child is re-evaluated, the test results
will most likely reflect this. Hrabinska points out that one of the weak
Inclusive Education as a Human Right
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192
points of the Slovak school system is that the criteria for enrolment and
involvement into individual constituents of the school system are not
sufficiently specified; re-diagnosis is absent.
59
In addition, psychological testing is linguistically and culturally
biased, and it is on this basis that many Roma children are placed in
special schools. There are pilot programs currently operating in Slovakia
to retest Roma children in special schools and to reintegrate them into
regular schools. While these pilot programs have very good results, the
fact that dialects of the Romany language vary from region to region, and
some Romany children do not speak Romany at all; rather, they speak
Hungarian. Subsequently, the retesting and reintegration initiatives cannot
be implemented nation wide until the tests are developed according to
regional dialects and are verified.
60
While testing may be an integral issue
connected with the segregation of Roma students, teacher actions in the
classroom are a major factor. In the introductory anecdote, Radko was
obviously having academic difficulties from the first day of school. The
teacher seated him in the back of the room and she rarely spoke to him,
rarely looked at him or his work, and the one encounter I recall her having
with him was when she yelled at him, telling him, You cant do your
work if you dont have any coloured pencils! She made no attempt to
either give him a pencil or to modify the activity for him. He is now in a
special school.
The IEP: A major focus of IDEA is that the pupil be involved
and progress in the general curriculum.
61
While Slovak pupils with other
disabilities enjoy the right to access the general curriculum, with
modifications, in special schools (and in some individually integrated
classrooms),
62
the curricula for special schools for students labelled as
mentally disabled are rigid and are defined in the law. Students with
mental disabilities are educated according to curriculum variants A, B, and
C, based on the perceived severity of the mental disability.
63
The curricula
in special basic schools for pupils with mental disabilities are restrictive
and thus put people labelled with mental disabilities (which includes 75%
of Roma who attend school) in situations, according to the Slovak
government, where they are not capable to cope with their problems in
the spirit of the exercise of their rights, to meet their obligations, to find
jobs, housing, to improve their social status, etc.
64
IDEA emphasizes that the first issues to consider in developing
an IEP are the strengths of the child and the concerns of the parents for
enhancing the education of their child.
65
There is no language in Slovak
education laws that touches upon either the strengths of the child or the
concerns of the parents.
In adherence to IDEA, the IEP must be reviewed annually to
determine whether the annual goals for the child are being achieved
66
In
Julia M. White
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193
Slovak law, re-evaluation is subjective, based on [i]f during attendance to
the special school the character of the pupils impairment changes or the
placement is not appropriate for the character of the pupils disability, the
school director in conjunction with the expert committee will decide on
the placement of the child.
67
The IEP Team: Both IDEA and Act No. 212/1991, on Special
Schools, mandate IEP teams (called an IEP team in IDEA and an expert
committee in Act No. 212/1991). The IEP team, according to IDEA, must
consist of (in order of their appearance in the law) the parents, a regular
education teacher, a special education teacher, a local education agency
representative, someone who can interpret evaluation results, and
whenever appropriate, the child with a disability.
68
In sharp contrast, the
Slovak expert committee serves in an advisory capacity to the special
school director, who has final word in the placement and transfer of
pupils. The expert committee consists of special pedagogs, psychologists,
and other experts, for example a doctor, representative of the special-
pedagogical advisory board or pedagogical-psychological consultants.
69
The placement or transfer of pupils to a special school or special class in
basic school is carried out with the agreement of the legal representative of
the pupil,
70
and parents have a minimal functionary role in this process,
and the student is completely absent. Also, no regular teachers are
required to be on the expert commission.
4. School Inclusion, Societal Inclusion
IDEA and Slovak Act. No. 212/1991 are legislation geared
specifically toward students with disabilities, but if all students were
educated inclusively and equitably, the need for such legislation would not
exist. IDEAs discussion of the permissive uses of funding, however,
captures the philosophical grounding of inclusive education even if one
or more non-disabled children benefit from such services.
71
Inclusive education requires a shift in thinking about classroom
methodologies. In order to meet the needs of all students in the classroom;
the classroom can no longer be a place where the teacher stands in the
front of the room and quizzes the children. It must become a place where
the myriad strengths that all children possess are honoured and addressed.
It needs to become a place that is child- rather than teacher-centred, and
this can be accomplished through governmental support of and
cooperation with educational NGOs, cooperation with Ministries of
Education of Member States that educate children inclusively, and an
increased focus on inclusive philosophy and training in university teacher
preparation programs.
While the Slovak Republic has made tremendous strides in
accession to the European Union by amending its education legislation to
Inclusive Education as a Human Right
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194
afford certain disabled students greater access to the general curriculum,
and in some cases access to the regular classroom, students labelled with
mental disabilities, who are overwhelmingly Roma, are still denied
meaningful educational opportunities, which leads to continued economic,
social, and political oppression. Equal access, equal opportunity, equal
protection, and equal participation are the roots of democratic society and
it is through reducing inequalities in schools, through inclusive education,
that Slovak Roma will enjoy meaningful membership in the social,
political, and economic spheres of European (and global) society.
Slovak Republic
Notes
1
I conducted my doctoral dissertation research in thirteen schools in
different regions of Slovakia during the 2003-2004 academic year. Radko
was in one of the regular first grade classrooms I observed, he was then
transferred to one of the first grade classrooms in one of the special
schools in which I observed.
2
See Dina Ringold et al., Roma in an Expanding Europe: Breaking
the Poverty Cycle (Washington, DC: World Bank, 2003); Government of
the Slovak Republic, Strategy of the Government of the Slovak Republic
for the Solution of the Problems of the Roma National Minority and the
Set of Measures for its Implementation: Stage I (Bratislava: Government
Printing Office, 1999); Claude Cahn et al., Roma in the Educational
Systems of Central and Eastern Europe, in Roma Rights: Race, Justice,
and Strategies for Equality, ed. Claude Cahn (New York: International
Debate Education Association, 2002).
3
See Cahn.
4
Simi Linton, Claiming Disability: Knowledge and Identity (New
York: New York University Press, 1998), 123.
5
Ibid., p. 20.
6
James Lynch, Inclusion in Education: The Participation of Disabled
Learners (Paris: UNESCO, 2001) 17.
7
See Christopher Kliewer, Schooling Children with Down Syndrome:
Toward and Understanding of Possibility (New York: Teachers College
Press, 1998).
8
20 U.S.C. 1400.601(c)(1).
9
ICESCR Comment 13, E/C.12/1999/10 para 1 (1999).
Julia M. White
___________________________________________________________
195
10
Alfredo Artiles, Special Educations Changing Identity: Paradoxes
and Dilemmas in Views of Culture and Space, Harvard Educational
Review, 73 (2003), 170.
11
Linton, p. 61.
12
Universal Declaration of Human Rights, G.A. res. 217A (III), U.N.
Doc. A/810 at 71 (1948), Article 26(1).
13
Universal Declaration of Human Rights, G.A. res. 217A (III), U.N.
Doc. A/810 at 71 (1948), Article 26(2).
14
International Covenant on Economic, Social and Cultural Rights,
G.A. res. 2200A (XXI), 21 U.N. GAOR Supp (No. 16) at 49, U.N. Doc.
A/6316 (1966), 993 U.N.T.S. 3 (1976).
15
Convention on the Rights of the Child, Article 29(1)(d).
16
Convention Against Discrimination in Education, 429 U.N.T.S. 93
(1962), Articles 1(b) and 1(c).
17
Act No. 29/1984, Collection of Laws, as amended in the text of
subsequent bills, Schools Law, 17(1) and Act No. 29/1984, 30.
18
United States Constitution, Amendment XIV: not shall any
state deprive any person of life, liberty, or property without due process of
law, nor deny to any person within its jurisdiction the equal protection of
the laws.
19
International Covenant on Civil and Political Rights, G.A. res.
2200A (XXI), 21 U.N. GAOR Supp. (no. 16) at 52, U.N. Doc. A/6316
(1966), 999 U.N.T.S. 171 (1976).
20
European Convention for the Protection of Human Rights and
Fundamental Freedoms, 213 U.N.T.S. 222 (1953, as amended by Protocol
11, 1998).
21
European Convention for the Protection of Human Rights and
Fundamental Freedoms, 213 U.N.T.S. 222 (1953, as amended by Protocol
11, 1998).
22
Commission of the European Communities, Report from the
Commission: The Concrete Future Objectives of Education Systems
COM(2001) 59 final (13 January 2001).
23
M. Hermange, Report on the Communication from the Commission
to the Council, the European Parliament, the Economic and Social
Committee and the Committee of the Regions Towards a Barrier-Free
Europe for People with Disabilities (COM(2000) 284 C5-0632/2000
2000/2296(COS)), A5-0084/2001 Article G (1 March 2001).
24
Ibid., Article 17(1)(b).
25
Ibid., Article 30(a).
26
Draft Treaty Establishing a Constitution for Europe, CONV
820/1/03 REV 1, CONV 847/03, CONV 848/03 (2003).
Inclusive Education as a Human Right
____________________________________________________________
196
27
Organization for Security and Co-Operation in Europe, Decision
No. 566 Action Plan on Improving the Situation of Roma and Sinti within
the OSCE Area, PC.DEC/566 (27 November 2003)
28
See also James Charltons comprehensive study of the international
disability rights movement, Nothing About Us without Us: Disability
Oppression and Empowerment (Berkeley, CA: University of California
Press, 1998).
29
Personal communication with Eva Koncokova, the executive
director of the Wide Open School Foundation this initiative has been
successful on a small scale, but it was funded by the Open Society
Foundation and PHARE funds, and the funding for this project is ended.
See also Open Society Institute, Step-by-Step Roma Special Schools
Initiative: Evaluation Report (New York: Open Society Institute, 2003).
30
Constitution of the Slovak Republic, 1993,
<http://www.government.gov.sk/VLADA/USTAVA/en_vlada_ustava.sht
ml> (28 January 2003).
31
Draft Treaty.
32
Council of Europe and the Ministers of Education, Concerning
Integration of Children and Young People with Disabilities into Ordinary
Systems of Education (90/C 162/02) para 2 (1990).
33
Recommendation 4 on the Education of Roma/Gypsy Children in
Europe para 6 (2000)
34
Slovak Republic Government Office, Monitoring Report on the
Slovak Republics Progress in Its Preparation for the EU Membership,
September 2002 May 2003 (Bratislava: Government Printing Office,
2003), 67. Teacher assistants are jointly financed by the ministry of
Education and the ministry of Labor, Social Affairs, and Family (67);
according to a principal with whom I spoke, hiring a Teacher Assistant is
discretionary at the local educational level, so while the law exists, there is
limited means of enforcement. See also the Amending and supplementing
Act No. 313/2001 Coll. of Laws, On Public Service.
35
Brown v. Brd of Ed. 347 U.S. 483 (1954)
36
Plessy v. Ferguson 163 U.S. 537 (1896).
37
343 F. Supp. 1257 (E.D. Pa. 1971).
38
348 F. Supp. 866 (D.C. 1972).
39
20 U.S.C. 1400.601(c)(5)(E).
40
20 U.S.C. 1400.601(c)(5)(A).
41
20 U.S.C. 1400.602.(8)(A) and (D).
42
Act No. 212/1991, Coll. of Laws, as amended by the text of
subsequent bills, On Special Schools; translations of laws are the authors.
43
Act. No. 29/1984, except for pupils with mental disabilities. 33(2):
Education acquired in special school, except education acquired in
Julia M. White
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197
special schools for pupils with mental disabilities, is equal to the education
acquired in basic schools and secondary schools.
44
Act. No. 29/1984, 29(1).
45
Act. No. 29/1984, 5.
46
See E. Carlson, The Unfit: The History of a Bad Idea (Cold Spring
Harbor, NY: Cold Spring Harbor Laboratory Press, 2001), 189.
47
20 U.S.C. 1400.602(29).
48
20 U.S.C. 1400.602(29).
49
Douglas Biklen, Schooling without Labels: Parents, Educators and
Inclusive Education (Philadelphia: Temple University Press, 1992), 85.
50
Act No. 212/1991, 3, 4, and 5.
51
20 U.S.C. 1400.602(29).
52
See Monitoring Report. Slovakia provides supplementary aids and
services to Roma students (both in special schools and in regular
classrooms) by providing through Act No. 408/2002 Coll. Laws, on Public
Service, the opportunity for local school districts to employ (jointly
financed by the Ministries of Education and Labor, Social Affairs and
Family) teacher assistants in classrooms with more than 6 Roma pupils.
53
Government Committee for the Issues of Citizens with Disabilities
in the Slovak Republic, National Programme for the Development of
Living Conditions for Citizen with Disabilities in All Areas of Life, 6.2
para.3,<http://www.employment.gov.sk/en/social_assistance/np_develop
ment_of_living_conditions> (15 January 2003).
54
20 U.S.C. 1400.602(11).
55
20 U.S.C. 1400.614(4)(d)(1)(A)(i)(I).
56
20 U.S.C. 1400.614(b)(3)(A)(i).
57
20 U.S.C. 1400.614(b)(3)(A)(ii).
58
Act No. 212/1991, 14(4).
59
M. Hrabinsk, The Development of Education: National Report of
the Slovak Republic (Institute of Information and Prognoses of Education,
2001), 9.
60
Personal communication, Slovak Ministry of Education official,
July 27, 2004.
61
20 U.S.C. 1400.614(d)(A)(iii)(II).
62
Act No. 29/1984, 33(2).
63
Act No. 212/1991, 8: (8) Pupils with mild mental disabilities are
educated according to the educational plan and learning design of
educational alternative A; (9) Pupils with moderate mental disabilities are
educated according to the educational plan and learning design of
educational alternative B; (10) Pupils who may not be educated according
to educational alternatives A or B, are educated according to individual
education programs or educational alternative C.
64
See Strategy, p. 16.
Inclusive Education as a Human Right
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198
65
20 U.S.C. 1400.614(d)(3)(A)(i).
66
20 U.S.C. 1400.614(d)(4)(A)(i).
67
Act No. 212/1991, 16(1).
68
20 U.S.C. 1400.614(d)(B).
69
Act No. 212/1991, 14(2).
70
Act No. 212/1991, 14(2).
71
20 U.S.C. 1400.613(a)(4)(A).
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Inclusive Education as a Human Right
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Editors Note
In considering the European Union, analysts have described
various alternate future scenarios and options, each evaluated in terms of
a different degree of feasibility, desirability, costs and impacts. Among
these scenarios and options is one advocated in the following essay by
Tom Hudgens, former President and Honorary Chairman of the Board,
Association to Unite the Democracies, based on his remarks at the Prague
Conference, March 2004.
***
The US Must Merge with the EU
Tom Hudgens
The United States has gone to Europe four times in the past
century in order to combat, contain and help get rid of dictatorships, those
of: 1. Kaiser Wilhelm; 2. Hitler and Mussolini; 3. Stalin; and 4. Milosevic.
The United States is tied to Europe through the World Trade
Organization (WTO), the North Atlantic Treaty Organization (NATO), the
Organization for Economic Cooperation and Development (OECD), and
the Organization for Security and Cooperation in Europe (OSCE). These
are all alliances and treaties and are not binding federations. Federation
and UNION of the Western democracies is the absolute necessity to bring
about world peace.
Every effort must be made to help Russia and the Ukraine to
democratise and join the UNION. Also, India, Indonesia, South Africa,
Japan, Australia, New Zealand, and other functioning democracies should
be invited to join. Why all these democracies? So that the UNION will be
so strong and prosperous that other nations seeing the benefits of
belonging will throw off their dictators and join. Perhaps, some of the
dictators themselves will relent and democratise their countries.
The UNION would have control in three areas only, concerning
political, military, and economic issues which the individual nations alone
are unable to solve. All other matters, including culture and language,
would remain under the control of each individual nation.
Politically, there would be one President or Prime Minister, one
Foreign Minister, and an Assembly elected by the citizens; if a President,
he or she will also be elected by the citizens; if a Prime Minister, he or she
will be elected by the Assembly. The EU and the US could hold a
common Constitutional Convention to form the political side of the
UNION. This would involve 28+ nations as the EU expands eastward.
The US Must Merge with the EU
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204
Militarily, the North Atlantic Treaty Organization (NATO) could
be the military part of the UNION. It already contains 26 member nations
and will add more in the future from its Partnership for Peace (PfP) list of
20 nations.
Economically, the North Atlantic Free Trade Association
(NAFTA) could unite with the European Common Market and be folded
into the UNION. Margaret Thatcher has suggested that the merged units
should be called Trans Atlantic Freed Trade Association (TAFTA).
Under the scenario outlined above, the EU and the US should
each hold a referendum to see if their citizens want to unite. The door
should be left open for any other nation that meets the standards required
by the UNION founders. Initially, there would probably be 28+ founding
members. Quickly, other nations seeing the benefits of joining will
democratise to the founding standards and join. This would build the
UNION to 100+ nations by 2025. By the end of the century (2099) the
whole world will be democratised and united under one UNION.
The United Nations should be kept intact during all this
realigning of the democracies. It would still serve as the forum of nations
of the world and would continue with its Commissions.
This concept of a federation of democracies is not a new one. In
1939, Clarence Streit, a New York Times reporter, published a book
entitled Union Now. He proposed a UNION of the democracies around the
Atlantic that would be so strong that Hitler would never attack. Though
Churchill offered to unite with France, both he and Streit were too late,
and WWII was fought.
After the war, Streit saw that the United States did not have the
power to rid the world of the scourge of war. So he continued his crusade
to form a democratic federal UNION of democracies. His concepts are as
valid today as they were in 1939.
Streit formed an organization called Federal Union, which
changed its name in the 1980s to The Association to Unite the
Democracies (AUD), and although Streit died in 1986, his concepts live
on and are strongly advocated by AUD, the Ashburn Institute, and the
Streit Council.
His greatest support came from members of the Board of AUD,
some now deceased: Justice of the US Supreme Court, Owen Roberts; US
Senator Eugene McCarthy; US Representative Henry Smith; US
Undersecretary of State, Will Clayton, father of the Marshall Plan; Dr.
Edward Teller, father of the H bomb; former US Representative Paul
Findley, former Speaker of the US House of Representatives, Jim Wright;
former Chairman of the Board of the National Can Company, Robert
Stuart; President of the Anglo-American University in Prague, Czech
Republic, Dr. Joseph Drew; Undersecretary General of the United
Tom Hudgens
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205
Nations, Robert Muller; current President and CEO of the Ashburn
Institute, col. Robert Frantz; Dr. Mervin Strickler; and distinguished Law
Books author, Robert Maddex.
The UNION would have one citizenship, one currency, one
foreign policy, one military, and one free market economy
Why should democracies unite? to become the super-super
power that leads the world to world peace. Just as the US evolved from 13
original colonies to 50 states in a span of 200 years in order to obtain more
freedom and security for its citizens with each enlargement, so the UNION
could attain more freedom and security for its citizens with each
enlargement and eventually create a democratised world free of war
between nations.
Cherry Hills Village, Colorado, United States
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CONCLUSION
Europe on the Road to Redefinition
Joseph Drew
Should Europe be redefined? Can Europe be redefined? Is it
being redefined in actuality?
The answers remain open. However, we have shown in these
essays that:
- Because Europe increasingly is more than a concept and more likely
can be viewed as a civilisation, the recent EU expansion enhances the
Europeanisation process now occurring in the accession states as the
civilization unifies;
- Europe today and in the past is built upon regions as much as it is
upon nation states, and pragmatic regionalism can provide the basis
for a successful EU;
- Federalism, a concept with both ancient and theological roots and a
modern format, is certainly one of the most popular aids to reaching
one Europe and is associated generally with a wide variety of
benefits;
- Although democracy was not listed as an essential element of the
European Union early on, it is critical as an underpinning of the
present-day EU and of the member states which comprise it;
- Democracy actually may be appearing in a novel and desirable form
in the EU;
- The EU should examine a failure of the American constitution as it
decides which branch should ultimately have the power to declare
legislation constitutional;
- The idea of the Committee of Parliaments should be recast so as to
give enhanced powers to the European Parliament;
- Constitutional tolerance will be a key to developing a single European
nationhood;
- National minority groups (of two types) increasingly are looking to
the EU as a venue for presenting their grievances;
- The Roman Catholic Church played a major, if not always consistent,
role in Polands accession to the EU and will continue to play a
significant role in that nations approach to Europe;
- Better treatment and education of the Roma, a minority European
population, requires strict adherence to both EU regulations and
contemporary norms in the treatment of individuals with disabilities;
and
- U.S. membership in the EU might be a useful idea to explore.
Europe on the Road to Redefinition
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208
The need for a possible redefinition of Europe certainly pivots on
the May 1, 2004, admission of the ten accession states to the European
Union. No longer is the EU a Western European club. No longer are
states and peoples formerly victimized by Soviet imperialism illegitimate
members of the European community.
We thank the readers of this book for following our discussions,
debates, and analyses of the many issues associated with the enlargement
of the European Union. And we have an invitation for you.
Clearly, now is the best time to take the political temperature of
the new and updated version of the European Union. How has the
accession gone so far? Which states have approached European norms to
a greater degree? Which have lagged in the process? How can we
measure, quantitatively or qualitatively, the EU absorption of the new
member states? Has Europe been redefined successfully? Is the EU
greater or less able to create a sense of nationhood? Will European
identity and the EU increasingly converge, or will the EU move in the
apparent NATO pattern? Is international cooperation on the upswing?
What would an honest report card show?
We invite readers to join in a Prague conference on this set of subjects.
The dialogue is important, to many disciplines and to citizens of many
states. Wont you join us in the scholarly study of Europe as it changes
dramatically?
NOTES ON CONTRIBUTORS
Fausto Capelli
Dr. Fausto Capelli is professor of European Law at the University
of Parma (Italy) and director of the Collegio Europeo di Parma (European
College of Parma, Italy). He is also director of the Italian Review of
European Law Diritto comunitario e degli scambi internazionali and of
the Centro Internazionale di Studi e documentazione sulle Comunit
Europee (Italian Centre for European Studies in Milan, Italy.) He is the
author of several articles and books on topics related to European law,
including: Leuro nellordinamento dellUnione Europea (The Euro in the
European legal Order), Naples, 1999; Le direttive comunitarie (The EEC
Directives), Milan, 1983; Controllo dei prezzi e normativa comunitaria
(Price control and EEC Law), Milan, 1981. He is a lawyer in Milan
specialising in International Law and European Common Market Law.
Xenophon Contiades
Prof. Dr. Xenophon Contiades is Professor at the University of
Peloponnese and Scientific Director of the Centre for European
Constitutional Law Themistocles & Dimitris Tsatsos Foundation, a
public benefit research institution in Athens, Greece. He has published
several monographies in the field of public law and social law as well as
several articles in the field of European law. His latest publications
include: Constitutional guarantees and institutional organization of the
Social Security System (567 p., 2004), New constitutionalism and
fundamental rights after the constitutional revision of 2001 (702 p., 2002),
Transformations of the social state in the era of globalisation, the
institutional dimension (385 p., 2001), The review of the Constitution, .
Methodological principles, contribution in the constitutional theory of
pluralistic democracy (462 p., 2000).
Isabel David
Ms. David has a degree in International Relations from the
Faculty of Social and Political Sciences, Technical University of Lisbon,
Portugal. She is currently teaching at the Faculty of Social and Political
Sciences and working as a researcher at the Centre for the Study of
Political Thinking. Her primary research interests include Political
Science, Portuguese Governments, and Central and Eastern Europe. She is
presently writing her Masters Thesis on Issues of Federalism.
Notes on Contributors
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210
Joseph Drew
After serving as President of the Anglo-American University
(Vysoka Skola) of Prague for three years, Dr. Drew returned to the United
States in 2004 upon his appointment as President of the Virginia Campus
of the University of Northern Virginia. In 1999 Sen. Jim Jeffords (I-
Vermont) selected him to be Executive Director for the Potomac Regional
Education Partnership, an organization of prominent Greater Washington
education, political, and civic leaders. In the 1960s, Dr. Drew was
Assistant Director of the Education Commission of the States, Editor of
the Compact Review of Education, and an Education Policy Fellow in
Washington, D.C., working with two Members of Congress who chaired
committees on education appropriations and education legislation. In 1968
he became Director of Grants and Research at Brooklyn College of the
City University of New York. As a Professor, Dr. Drew taught Political
Science and Sociology at the University of the District of Columbia for
two decades. He was subsequently Vice-President at Southeastern
University in Washington, D.C. and Dean of the Division of Business and
Social Science at Shepherd University in Shepherdstown, West Virginia.
Dr. Drew has a B.A. in Sociology from Columbia College, an M.S.J. from
the Columbia University Graduate School of Journalism, and a M.A. and a
Ph. D. in Sociology and Political Science from The New School for Social
Research. For the past six years, he has been Editor-in-Chief of the
Comparative Civilizations Review and serves on the board of the
International Society for the Comparative Study of Civilizations.
Mirella Eberts
Ms. Eberts received her BA in Political Studies with High
Honours from the University of Saskatchewan and her MA in Russian and
East European Studies from the University of Toronto, Canada. She is
currently an instructor and a PhD Candidate (ABD) in the Political
Science Department at the University of Toronto and a Research Fellow at
the Centre for Post-Communist Studies at St. Francis Xavier University,
Canada. She is the author of several publications and conference papers on
Church-state relations, democracy, and transitional justice in post-
communist Central Europe.
Mark Gyandoh
Mark K. Gyandoh graduated from Temple University Law
School located in Philadelphia, Pennsylvania in 2001. At Temple he was
Notes on Contributors
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211
co-president of the International Law Society and Editor of the groups
monthly newsletter. He also served as Research Editor for The Temple
International and Comparative Law Journal in 2000-2001. Mr. Gyandoh
currently practices law for a Philadelphia law firm. He is author of a law
review article, Foreign Evidence Gathering: What Obstacles Stand in the
Way of Justice?
Tom Hudgens
Captain Hudgens served as President and Chairman of the Board
of the Association to Unite the Democracies, the Ashburn Institutes
predecessor, for many years. Today, he is Chairman Emeritus of the Board
of the Ashburn Institute. Capt. Hudgens is also currently the Honorary
Vice-President of the Campaign for UN Reform and a Certified Lay
Speaker of the United Methodist Church. He previously served as Vice-
President of the World Federalist Association, President of the World
Citizens Assembly, and President of the Denver Executives Club. He is
the author of several books including Lets Abolish War, which has sold
over 110,000 copies. During WWII, Captain Hudgens was a flight
instructor and Chief Pilot at an Army Air Corps Flight Training School at
Cimarron Field, Oklahoma. After the war he served United Airlines as
Captain and Flight Manager for 36 years.
David Adam Landau
David Adam Landau is a student at the University of Oxford (St.
Antonys College) pursuing the degree of Master of Philosophy in
European Politics and Society. He recently conducted summer research at
the Center for Strategic and International Studies in Washington, DC.
Other works include articles on Romanian corruption and the role of
minority rights in reshaping the Romanian Constitution. His masters
thesis explores the impact of EU membership conditionality on promoting
minority rights change in Central and Eastern Europe.
Zoran Oklopcic
Zoran Oklopcic, LL.B (Zagreb), M.A. (Amsterdam), LL.M.
(CEU Budapest) is a doctoral student at the Faculty of Law, University of
Toronto, Canada. Before coming to Toronto he worked as a junior lecturer
at the Department of Constitutional Law of the Faculty of Law in Zagreb,
Croatia. His interests lie at the intersection of constitutional and
international law and political theory.
Notes on Contributors
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212
Joelle Anne Schmitz
Joelle Anne Schmitz is a multiple award winner Master of Public
Policy with expertise in globalisation and international trade. She is
currently a Fulbright Scholar hosted in Canada by McGill University and
working with the Canadian government toward enhanced economic
integration, inter-provincially and multilaterally. She holds many years of
independent consulting experience with an impressive list of former
clients including the lead US negotiator for the 1996 US/EU trade
negotiations. Joelle was awarded an MPP from Harvard Universitys
Kennedy School of Government on top-tier academic grant and has
completed coursework at exceptional institutions in four countries,
including LEcole Nationale dAdministration, the Harvard Law School,
the Harvard Business School and the Fletcher School of Law and
Diplomacy. She also holds to her credit a fellowship from Johns Hopkins
Paul H. Nitze School of Advanced International Studies in Bologna, Italy
and maintains Phi Beta Kappa and Pi Sigma Alpha honours. In 2004 she
was awarded a Frank Fund Fellowship from the Ashburn Institute and
received an essay award to the Prague conference.
Maiken Umbach
Maiken Umbach teaches modern European history at the
University of Manchester (UK), and holds honorary appointments at
University College London and the Universidad Pompeu Fabra in Spain.
Dr. Umbach specialises in the role of federalist movements and regional
identities in early modern and modern Europe. Her award-winning
Cambridge thesis (1996), which formed the basis of her first book,
Federalism and Enlightenment in Germany, 1740-1806 (London and
Ohio, 2000), examined the cultural politics of the smaller German
territories of the Holy Roman Empire. She is also the editor of German
Federalism: Past, Present, Future (Basingstoke, 2002). Her more recent
work focuses on the late nineteenth and twentieth centuries and includes
her forthcoming monograph on The German City as Political Artefact,
1890-1930, numerous articles comparing different European second
cities, and a co-edited volume with Bernd Huppauf entitled Vernacular
Modernism: Heimat, Globalisation and the Built Environment (Palo Alto,
2005).
Lisa Vanhala
Lisa Vanhala is a student at the University of Oxford (Hertford
College) completing the degree of Master of Philosophy in European
Notes on Contributors
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213
Politics and Society. Her main research interests include modern
manifestations and explanations of nationalism, multiculturalism and post-
national citizenship and the way in which legal systems promote or
restrain these phenomena in multinational polities. She completed her
undergraduate education at McGill University, Montreal and Sciences Po,
Paris.
Julia White
Julia White is a doctoral candidate in Special Education and
Disability Studies at Syracuse University. Her research interests include
inclusive education for social justice, especially for students of ethnic
minorities, comparative analyses of special education law, educational
issues in the European Union, and representations of disability in popular
culture. Her publications include Krazy Kripples: Using South Park to
talk about disability, in Building Pedagogical Curb Cuts: Incorporating
Disability in the University Classroom and Curriculum (edited by L. Ben-
Moshe, R. Cory, M. Feldbaum and K. Sagendorf, 2004) and The Iceman
Cometh as an infertility myth in The Eugene ONeill Review (2002).