Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-26T20:06:54.188Z Has data issue: false hasContentIssue false
  • English
  • Français

The Idea of Thick Constitutional Patriotism and Its Implications for the Role and Structure of European Legal History

Published online by Cambridge University Press:  06 March 2019

Mattias Kumm

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

A sense of cohesion grounded in a common identity is widely believed to be a prerequisite for a functioning democratic European polity. If the European Union is to master successfully the tasks assigned to it in the Constitutional Treaty and, using a non-consensual procedure, decide on policies that concern the security of its citizens or have significant distributive effects, then a sufficiently thick common identity is believed to be necessary both to legitimate and to ensure the functioning of the polity in the long term. There is little doubt that such an identity is currently missing. The question is what such an identity should be and whether the prepolitical pre-requisites for the development of such an identity exist. Are there historical experiences and accomplishments that enable European citizens to understand themselves as having suffered a common past and which animate them to see themselves engaged in the construction of a common political future? What are the appropriate narratives around which a European identity could, over time, develop? What should the focus of a self-conscious politics of memory be? What are the implications for the role and structure of European historiography, in particular for the European legal and political historiography?

Type
Articles: Special Issue: Confronting Memories – Constitutionalization after Bitter Experiences
Information
German Law Journal , Volume 6 , Issue 2: Article: Special Issue - Confronting Memories: European „Bitter Experiences“ and the Constitutionalization Process , 01 February 2005 , pp. 319 - 354
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 I thank Jörg Benedict, Moshe Halbertal, Martti Koskenniemi, and Ruth Rubio-Marin, for helpful comments and suggestions.Google Scholar

2 Most recently, see Jürgen Habermas, Der Gespaltene Westen 68-84 (2004). See, also, Jürgen Habermas, Citizenship and National Identity, Its Achievements and its Limitations. On the Past and Future of Sovereignty and Citizenship, 9 Ratio Iuris 125 (1996).Google Scholar

3 The debate on what European citizenship could mean could be was spurred on by the inclusion of a citizenship clause in the Maastricht Treaty. Helpful contributions include Joseph H.H. Weiler, ToBe a European Citizen: Eros and Civilization, in: The Constitution of Europe 324 (1999); Jessurun d'Oliveira, European Citizenship: Its Meaning, Its Potential, in: Europe After Maastricht: An Ever Closer Union? 126 (Renaud Dehousse, ed., 1994); European Citzenship (Epaminondas. Marias, ed., 1994); Jo Shaw, Citizenship of the Union: Towards Post-National Membership, 6 AEL 237 (1995). See, also, Garcia Soledad, European Identity and the Search for Legitimacy (London 1993).Google Scholar

4 For a sceptical view, see Dieter Grimm, Does Europe Need a Constitution?, 1 ELJ 282 (1995). For a critical response, see Jürgen. Habermas, A Response to Dieter Grimm, 1 ELJ 303 (1995).Google Scholar

5 Habermas (note 2).Google Scholar

6 Art. I-2 of the Constitutional Treaty states: ‘The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights…'Google Scholar

7 An early example of general scepticism about the possibility for any kind of meaningful European identity to develop is Anthony Smith, Nations and Nationalism in a Global Era 126 (1995).Google Scholar

8 Weiler, See Joseph, In Defense of the Status Quo, in: European Constitutionalism Beyond the State 7 (Joseph H.H. Weiler/Marlene Wind, eds., 2003).Google Scholar

9 U. Haltern, in particular, laments the neglect of ‘the political’ by European constitutionalists and thinks the idea of ambitious identity politics to be doomed in a consumerist market culture; see Ulrich Haltern, Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination, 9 ELJ 14 (2003). See, also, Der Europarechtliche Begriff des Politischen (habilitation thesis Humboldt Universität Berlin 2004). The idea of ‘the Political’ as a particular intensity of association and dissociation, is central to the constitutional and political thinking of Carl Schmitt, Der Begriff des Politischen (1932).Google Scholar

10 In his latest book, Habermas takes at least the first steps to spell out what this could mean in the context of a European polity; see Habermas (note 2), especially Part II: Die Stimme Europas in der Vielstimmigkeit seiner Nationen.Google Scholar

11 For an insistence on the importance of boundaries, particularistic identities and irrationality as an constitutive element of ‘the political', see Haltern, (note 7).Google Scholar

12 See Jürgen Habermas and Jacques Derrida's essay published contemporaneously in various major European newspapers: The 15th of February or: What Unites Europeans, reprinted in: Habermas (note 2), 43-51.Google Scholar

13 Neither is it is helpful to think of current European identity defined by differences to the US (e.g.,with regard to the role of markets and of state intervention, the respective enthusiasm or scepticism about the role of technology, or the use of force in foreign affairs). See Jürgen Habermas’ careful negotiation of this issue id., 52, 53.Google Scholar

14 See Art. 1 II of the Treaty Establishing a Constitution for Europe.Google Scholar

15 For the relevance of Christianity as a focal point of a European identity, see below.Google Scholar

16 Elsewhere I have argued that the structure of the European political process as it currently exists and as it will continue to exist under the Constitutional Treaty undermines rather than fosters the development of a meaningful European identity see Mattias Kumm, To Be a European Citizen: Constitutional Patriotism and the Treaty Establishing a Constitution for Europe, in: Assessing the Constitutional Treaty (Erik O. Eriksen/John E. Fossum/Mattias Kumm/ Augustín Menendez, Eds., forthcoming 2005).Google Scholar

17 Immanuel Kant, Gesammelte Werke, Vol. 6, 33-50 (Wilhelm Weischedel, ed., 1986).Google Scholar

18 See, for example, Michael Salewski, Geschichte Europas (2000). A remarkable European history is also Norman Davies, Europe: A History (1996).Google Scholar

19 See Gordon Craig, Geschichte Europas von 1815-1980: Vom Wiener Kongress bis zur Gegenwart (1989).Google Scholar

20 For an excellent European history focused on of the role of the state and nation, see Hagen Schulze, Staat und Nation in Europe (1994).Google Scholar

21 For a recent argument that Christianity should be recognized and welcomed as a central element in the evolution of European civilization, see Joseph H.H. Weiler, Un'Europa Christiana (2003).Google Scholar

22 See Karl Heussi, Kompendium der Kirchengeschichte (8TH Ed., 1988), particularly concerning the period between 1878 and 1914, 448–454. For comparable developments in the Protestant tradition, see Perez Zagorin, How the Idea of Religious Toleration Came to the West (2003).Google Scholar

23 In the U.S., this would hardly seem worth mentioning. Most Americans are both religious and constitutional patriots. Many are constitutional patriots and not religious and some are illiberal religious zealots. For the claim that the necessary theological resources also exist within the Muslim tradition, see the discussion in Noah Feldman, After Jihad: America and the Struggle for Islamic Democracy (2003).Google Scholar

24 See Ernst Haas, Nationalism, Liberalism, Progress (1997); Yael Tamir, Liberal Nationalism (1993).Google Scholar

25 For a remarkable example of anti-universalist ethnic historiography that was apparently mainstream in Germany at the time, cf., the following excerpt from the introduction to a history book used in German “Gymnasien“ (higher than high schools) just before WWI: The author underlines that his book is not political in the ordinary sense of party politics and that it instead reflects commitments that no reasonable person would interpret as biased: “Stolz auf unser deutsches Volkstum und die zahlreichen Űbermenschen, die es hervorgebracht hat, die Űberzeugung von der Notwendigkeit einer starken Staatsgewalt, die Űberzeugung, dass wir nur dann gross und stark bleiben, wenn wir unsere deutschnationale Eigenart erhalten und pflegen, die Erkenntnis, dass es nichts Ungleicheres gibt gibt als die Menschen, dass nichts mehr zu bekaempfen ist als die Nivellierungssucht underer Zeit, welche alle Unterschiede zwischen den menschen, Nationene und Rassen beseitigen möchte. Die Plutokratie, die zumehmende Demokratisierung und der Universalismus bilden die grössten Gefahren der Gegenwart.” Heinrich Wolf, Angewandte Geschichte: Eine Erziehung zum Politischen Denken und Wollen VI (1913). We refrain from a literal translation and have instead italicised some notions which have become world famous. The problem with translating this type of text is that the language used is, fortunately enough, no longer existent. And there are no real equivalents for sunk ugliness in German or English. So let us just restate the message, which is very clear: universalism, democracy and equality are cast as the great moral enemy of the strong German Volk.Google Scholar

26 Joseph H.H. Weiler, To Be a European Citizen: Eros and Civilization, in: The Constitution of Europe (1999).Google Scholar

27 Kant's proposed account of world history may in fact be prone to such charge. Unlike the proposal here, he suggested reading history as if the purpose of world history were to bring to fruition globally human capacities and liberal ideals. In this sense his account of history was pre-committed to a progress narrative. The kind of historical writing suggested here would not be grounded in such a premise. The very idea of constitutional patriotism, is however, under girded by the hope and desire for of an ever-more perfect understanding of the basic principles of justice and their ever more perfect realization in the polity. But this is a political hope. The rhetorical invocation of such a hope is an integral part, for example, in American political rhetoric at Party Conventions or Presidential Inaugural Addresses – in the idea of a more perfect and inclusive Union.Google Scholar

28 A stellar example for this is Eric Hobsbawm, whose major work includes, The Age of Revolution (1962), The Age of Capital (1975) and The Age of Empire (1987) which became a defining work of his chosen period, the “long 19th century”, from 1789 to 1914. See, also, The Age of Extremes (1994) extending his coverage to the ‘short 20th century'.Google Scholar

29 The approach to legal history described here has much in common with the approach to Comparative Law developed by William Ewald, Comparative Jurisprudence (1): What was it like to Try a Rat?, 143 Pennsylvania Law Review 1889 (1995). In important respects it merely defines the object of study (Law) in terms of a non-positivist account of law along the lines of those developed by Ronald Dworkin, Law's Empire (1986).Google Scholar

30 See, for example, Raoul C. van Caenegem, European Law in the Past and Future (2002), which, contrary to what the title suggests, focuses exclusively on private law, with the exception of references to the American constitution as a holy book of law, comparable to the Corpus Iuris and the Code Civil as understood by the School of Exegesis. This is all the more surprising given that the author has also written a book a Historical introduction to western constitutional law (1995); see hereto the insightful comments by Morag Goodwin, in 1:2003 Annual of German & European Law 593 (Russell Miller/Peer Zumbansen eds. 2004).Google Scholar

31 See, for example, O. Robinson/T. Fergus/William Gordon, European Legal History (3rd ed., 2000).Google Scholar

32 See, for example, Raoul C. van Caenegem's history of western constitutional law (note 30).Google Scholar

33 There are some exceptions, of course. One remarkable exception is Harold Berman's, Law and Revolution (1983), which establishes the common roots of ‘western’ legalism in the Gregorian revolution of the 11th century and the ‘legal science’ taught in Bologna and other early universities. Other examples include Hans Hattenhauer, Europäische Rechtsgeschichte (1999).Google Scholar

34 Harold Berman, Law and Revolution (1983). See, also, Maurizio Lupoi, The Origins of the European Legal Order (1999).Google Scholar

35 Id., 8, 9.Google Scholar

36 Id, 10.Google Scholar

37 It has to be noted, however, that the focus of Immanuel Kant's practical philosophy has generally been neglected among legal and political thinkers. Until the 20th century the reception of Kant's practical philosophy had been focused on his moral philosophy (the “Grundlegung der Metaphysik der Sitten“ in particular) and not his legal and political philosophy. The golden age of the productive reception of kantian legal and political philosophy were the last 30 years of the 20th century.Google Scholar

38 The best known account of Political Liberalism as a focal point of an overlapping consensus between reasonable comprehensive doctrines is presented in John Rawls, Political Liberalism (1993). John Locke's and Immanuel Kant's account of Political Liberalism are both anchored in a comprehensive philosophy. For a recent study on Locke in this regard see Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke's Political Thought (2003). An influential contemporary account grounds rights in the transcendental presuppositions of speech, see Jürgen Habermas, Moral Consciousness and Communicative Action (1990) and Robert Alexy, Diskurstheorie und Menschenrechte, in: Recht, Vernunft, Diskurs 127 (1995).Google Scholar

39 Cass R. Sunstein, Legal Reasoning and Political Conflict (1996).Google Scholar

40 For a different periodization focused on transformations of law and legal thought see Duncan Kennedy, Two Globalizations of Law & Legal Thought: 1850-1968, 36 Suffolk University Law Review 632 (2003).Google Scholar

41 For an illuminating analysis of the range and structure of these attacks see Stephen Holmes, The Anatomy of Antiliberalism (1993).Google Scholar

42 Albert V. Dicey, The Law of the Constitution (1885).Google Scholar

43 Ronald Dworkin, Taking Rights Seriously (1977), Law's Empire (1986).Google Scholar

44 Robert Alexy, Theorie der Juristischen Argumentation (1978) (engl. Theory of Legal Argumentation [1989]), Theorie der Grundrechte (1986) (english: A Theory of Constitutional Rights [2002]).Google Scholar

45 Lon Fuller, The Morality of Law (1963).Google Scholar

46 Gustav Radbruch, Gesetzliches Unrecht und Űbergesetzliches Recht (1945).Google Scholar

47 Hans Kelsen, Reine Rechtslehre (2nd ed., 1960, 1st ed., 1928).Google Scholar

48 Herbert L.A. Hart, The Concept of Law (1960).Google Scholar

49 See the useful compilation of materials contained in: Weimar: A Jurisprudence of Crisis (Arthur Jacobsen / Bernard Schlink, eds., 2000).Google Scholar

50 See, for example, Alf Ross, Towards a Realistic Jurisprudence in Law (1946).Google Scholar

51 See Darker Legacies of Law in Europe (Christian Joerges / Navraj S. Ghaleigh, eds., 2003).Google Scholar

52 The normative turn in jurisprudence was supported by the rehabilitation of practical reason and political philosophy following the hugely influential publishing of John Rawls, A Theory of Justice in 1971 and a slew of major monographs on political philosophy ranging from Robert Nozick, Anarchy State and Utopia (1974) to Jürgen Habermas, Faktizitaet und Geltung (1992). The dominant strand of this philosophizing, perhaps exemplified by Rawls and Habermas, is strongly influenced by Kant.Google Scholar

53 See hereto Stephen Gardbaum, The “Horizontal Effect” of Constitutional Rights, 102 Mich. L. Rev. 387 (2003); for an account of the different state/society and public/private narratives that inform the evolving doctrines of horizontal effect: see hereto Peer Zumbansen, The Law of Contracts, in: Introduction to German Law Ch. 6 (Mathias Reimann/Joachim Zekoll eds. 2005); ibid., Quod omnes tangit: Globalization, Welfare Regimes and Entitlements, in: The Welfare State in an Era of Globalization 135-173 (Eyal Benvenisti and Georg Nolte eds. New York 2003).Google Scholar

54 Characteristically neither in the general jurisprudendial account provided by Ronald Dworkin or Robert Alexy addresses International law, unlike their positivist predecessors Hans Kelsen and Herbert L.A. Hart, that devote special chapters to International Law. Notably both Kelsen and Hart's jurisprudence are not especially grounded in constitutional law – they were writing before the adjudication of rights had become an important phenomenon in Europe. In addition Kelsen, at least, formed his major ideas during the inter-war period, in which International Law flourished. Not surprisingly his account of International Law is the least sceptical.Google Scholar

55 See David Kennedy, Tom Franck and the Manhattan School, 35 N.Y.U. J. Int'l L. & Pol. 397 (2002)Google Scholar

56 The authoritative account of this process remains Joseph H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991).Google Scholar

57 Ulrich Haltern, Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination, 9 European law Journal 14 (2003).CrossRefGoogle Scholar

58 See Handyside v. U.K., 7 December 1976, 1 E.H.R.R. 737.Google Scholar

59 For example, would the ERT line of jurisprudence still be law of the land after the ratification of the Constitutional Charter, Art. II-51 notwithstanding?Google Scholar

60 The Constitutional Treaty mentions the Charter of Fundamental Rights as well as the traditional formula first used by the ECJ “Fundamental rights as guaranteed by the ECHR, and as they result from the constitutional traditions common to the Member States as general principles of the Union's law”, while opening up the prospect accession to the ECHR in addition to all of this, see Art. II-7.Google Scholar

61 Art. II-52.3 prescribes that rights corresponding to rights in the ECHR shall have the same meaning as scope as defined therein, and Art. II-52.4 states that ‘insofar as this Charter recognizes fundamental rights as they result from the constitutional tradition common to the Member States, those rights shall be interpreted in harmony with those traditions.'Google Scholar