No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 20 October 2020
The European Union is bound to respect the national identities of member states. States might, on occasion, define their national identities in ways that breach inclusive constitutional values (e.g. equality) protected under TEU Article 2. The assumption behind the recognition of diverse constitutional identities is the peaceful coexistence of both, which is challenged by illiberal national developments. We see the relationship between the constitutional recognition of exclusive values (e.g. dominant ethnicity or religion) and inclusive constitutional values as a zero-sum game; every gain by the proponents of emergent authoritarianism translates to a loss for constitutional democracy. While exclusive norms appear in virtually every constitutional system, a critical mass of exclusive values can lead to the hollowing out of a democratic order, both at the national and supranational levels. To try to identify the line where this shift happens, we rely on the limits of toleration and recognition of exclusive norms and identity elements of minority communities in liberal theories of multiculturalism (e.g. Raz, Taylor, Kymlicka). We think that the case of illiberal minorities raises structurally similar theoretical questions, insights and experiences as the dilemma defined above, namely the challenge of illiberal states undermining fundamental EU values.
This article was conducted within the scope of the H2020 project Democratic Efficacy and the Varieties of Populism in Europe (DEMOS) and was funded by the European Commission under the Grant agreement 822590. Any dissemination of results here presented reflects only the authors’ views. The Agency is not responsible for any use that may be made of the information it contains.
The authors would like to thank comments from the reviewers as well as the participants of the Global Constitutionalism Scholars Workshop (‘New Thinking in Global Constitutionalism’) at the WZB Berlin Social Science Center, on July 6, 2019, especially the two commentators, Andreas Føllesdal and Mattias Kumm.
1 This also means that we do not disagree with other labels; we just think ‘anti-constitutionalism’ is particularly useful for the context of this article. We find the descriptions and explanations going back to anti-Enlightenment sentiments and the category of electoral authoritarianism particularly applicable, in a broader sweep. See Z Sternhell, Les anti-Lumières: Une tradition du XVIIe siècle à la guerre froide (Fayard, 2006) (in English: The Anti-Enlightenment Tradition (Oxford University Press, New York, 2009) and Schedler, A, The Politics of Uncertainty: Sustaining and Subverting Electoral Authoritarianism (Oxford University Press, New York, 2013).CrossRefGoogle Scholar
2 J Kis, Alkotmányos demokrácia [Constitutional Democracy] (Kalligram, Budapest, 2019), 14.
3 Ibid.
4 For more details, see Körtvélyesi, Z and Majtényi, B, ‘Game of Values: The Threat of Exclusive Constitutional Identity, the EU and Hungary’ (2017) 18(7) German Law Journal 1721.CrossRefGoogle Scholar
5 ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.’ Article 4(2) TEU.
6 Besselink, LFM, ‘National and Constitutional Identity Before and After Lisbon’ (2010) 6 Utrecht Law Review 43.CrossRefGoogle Scholar
7 Kochenov, D, ‘The Acquis and Its Principles: The Enforcement of the “Law” versus the Enforcement of “Values” in the European Union’ in Jakab, A and Kochenov, D (eds), The Enforcement of EU Law and Values (Oxford University Press, Oxford, 2016), 24–25 Google Scholar and 26 warns against ‘too much’ focus on values – that is, he maintains that an overly demanding value-based scrutiny could undermine the logic of EU law prominently not based on (direct) reciprocity. Article 2 in fact underlines the background assumptions of mutual trust and general reciprocity in that all member states are presumed to share a basic commitment to Article 2 values – the point we are making here.
8 The values listed are also fundamental because, crucially, Article 2 does not refer to the market economy, economic integration, or a common market. Reference to the ‘internal market’ in Article 3(3) comes only after an ‘ever closer union’ in Article 1, the listing of values in Article 2, ‘peace’ in Article 3(1), and the ‘area of freedom, security and justice’ in Article 3(2). This confirms the historical account that the common market should be seen as the economic-practical means toward historical-political goals – a point beyond the scope of the present article. For the (corrective) historical account, see G de Búrca, ‘The Road Not Taken: The European Union as a Global Human Rights Actor’ (2011) 105 American Journal of International Law 649.
9 ‘Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.’ Article 6(3).
10 ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.’ Article 4(3).
11 ‘In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.’ Article 4(1).
12 ‘Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.’ Article 5(2).
13 We have noted earlier (n 12) that the case law of the clause in question does little to repudiate this reading.
14 On ‘essentially contested concepts’, see WB Gallie, ‘Essentially Contested Concepts’ (1955–56) 56 Proceedings of the Aristotelian Society 167. For a recent account on democracy specifically, see JS Dryzek, ‘Can There Be a Human Right to an Essentially Contested Concept? The Case of Democracy’ (2016) 78(2) Journal of Politics 357.
15 See, for example, Dworkin’s arguments: R Dworkin, Justice for Hedgehogs (Oxford University Press, Oxford, 2011); and earlier, R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford University Press, New York, 1996).
16 C Dupré, ‘Dignity, Democracy, Civilisation’ (2012) 33 Liverpool Law Review 263. For an overview, see A Timmer, B Majtényi, K Häusler and O Salát, ‘EU Human Rights, Democracy and Rule of Law: From Concepts to Practice’ (2014) 3(2) FRAME Deliverable, available at <http://www.fp7-frame.eu/wp-content/uploads/2016/08/10-Deliverable-3.2.pdf>.
17 To cite one such phrase from the literature, ‘the failure to enforce the values of the Union will most likely result in the undermining of the core acquis going to the heart of EU law and is not solely confined to the internal market’. See Kochenov (n 7) 10.
18 JHH Weiler, ‘Prologue: Global and Pluralist Constitutionalism – Some Doubts’ in G de Búrca and JHH Weiler (eds), The Worlds of European Constitutionalism (Cambridge University Press, New York, 2011) 17.
19 Kumm, M, ‘The Moral Point of Constitutional Pluralism Defining the Domain of Legitimate Institutional Civil Disobedience and Conscientious Objection’ in Dickson, J and Eleftheriadis, P (eds), Philosophical Foundations of European Union Law (Oxford University Press, Oxford, 2012) 217.Google Scholar
20 Ibid 238.
21 Ibid 242.
22 The type of pluralism that Kumm puts forward makes it impossible to conceptualize pluralism as encompassing both liberal and non-liberal, constitutionalist and anti-constitutionalist legal systems. See his discussion on the monist features of his pluralism in ibid 244–45: ‘the world of public law is imagined as constituted and held together by a shared commitment to constitutional principles’, so a rejection of these principles pushes one out of this ‘world of public law’.
23 M Avbelj, ‘Pluralism and Systemic Defiance in the EU’ in A Jakab and D Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford University Press, New York, 2017) 57. Also, in the same chapter, ‘pluralism cannot be defied pluralistically. A pluralist European integration assumes that its Member States are well-ordered societies. After all, this is what the entire process of pre-accession conditionality is dedicated to. A pluralist European integration can therefore only exist if its Member States are ab initio committed to pluralism.’ Ibid, 56–57.
24 Article 7(2) TEU.
25 Article 7(3) TEU.
26 ‘However, despite the symbolism of Article 7 TEU, and a number of attempts which have been made by the European Parliament to instigate its application, it seems unlikely to have any significant application in practice’. Craig, and G de Búrca, EU Law: Text, Cases, and Materials, 5th ed. (Oxford University Press, New York, 2011), 390.
27 For an overview of seven key proposals from systemic infringement procedures to reverse Solange, see Kochenov (n 7) 9–27.
28 Kim Lane Scheppele proposed handling the Hungarian and Polish cases jointly, ruling out the other country’s veto in each country’s case. See KL Scheppele, ‘Can Poland be Sanctioned by the EU? Not Unless Hungary is Sanctioned Too’ Verfassungsblog, 24 October 2016, available at <https://verfassungsblog.de/can-poland-be-sanctioned-by-the-eu-not-unless-hungary-is-sanctioned-too>.
29 Albeit not a genuine reform, but an addition on the part of the Commission: the introduction of a ‘pre-Article 7’ procedure, a rule of law mechanism. European Commission, ‘A New EU Framework to Strengthen the Rule of Law,’ Strasbourg, 11 March 2014, COM(2014) 158 final.
30 For reverse Solange, see A von Bogdandy, M Kottmann, C Antpöhler, J Dickschen, S Hentrei and M Smrkolj, ‘Reverse Solange – Protecting the Essence of Fundamental Rights Against EU Member States’(2012) 49 Common Market Law Review 489; for systemic infringement, see KL Scheppele, ‘Enforcing the Basic Principle of EU Law through Systemic Infringement Procedures’ in C Closa and D Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press, Cambridge, 2016).
31 In this article, we take it for granted that Article 2 values have a widely accepted meaning as exemplified by the broad consensus over violations in the cases of Hungary and Poland. We agree, however, that enforcing values (as the Treaty calls them) is of a different nature than the day-to-day examination of acquis compliance: ‘the enforcement of values is a different matter compared with the enforcement of the acquis sensu stricto’: see Kochenov (n 7) on the conflict of values as opposed to conflict of (lower level) norms.
32 For defining values, see D Davis, A Richter and C Saunders, ‘Introduction’ in D Davis, A Richter and C Saunders (eds) An Inquiry into the Existence of Global Values: Through the Lens of Comparative Constitutional Law (Hart, London, 2015); P Schlag, ‘Values’ (1994) 6 Yale Journal of Law & Humanities 219.
33 Schlag, ibid 221.
34 For an account of how exclusive values can ‘disunite a nation’, see GA Tóth (ed) Constitution for a Disunited Nation: Hungary’s New Fundamental Law (CEU Press, Budapest, 2012).
35 Kymlicka, W, Multicultural Citizenship (Clarendon Press, Oxford, 1995) 110.Google Scholar
36 Körtvélyesi and Majtényi (n 4) 1722.
37 Kymlicka (n 35) 108.
38 Kymlicka (n 35) 109.
39 Kymlicka (n 35) 109.
40 Kymlicka (n 35) 75.
41 J Raz, ‘Multiculturalism: A Liberal Perspective’, in J Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford University Press, New York, 1995) 172–73.
42 See typology in S Choudhry and N Hume: ‘Federalism, Devolution and Secession: From Classical to Post-conflict Federalism’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law (Edward Elgar, Cheltenham, 2011).
43 This article does not discuss the literature of federalism, which has otherwise offered important insights into the dilemmas of Article 7, especially regarding the parallels to ‘subnational authoritarianism’. See RD Kelemen, ‘Europe’s Other Democratic Deficit: National Authoritarianism in Europe’s Democratic Union’ (2017) 52(2)Government and Opposition 211.
44 Raz (n 41) 195.
45 We would like to thank our anonymous reviewer for highlighting this aspect.
46 Kymlicka (n 35) 168.
47 Győrfi, T, ‘The Legitimacy of the European Human Rights Regime: A View from the United Kingdom’ (2019) 8(1) Global Constitutionalism 128.CrossRefGoogle Scholar
48 For a concise summary, see his concluding chapter, ‘Against Synthesis’ in JT Levy, Rationalism, Pluralism, and Freedom (Oxford University Press, New York, 2015), 283–95.
49 In any case, the EU is not committed to full tolerance. As we have seen (unless we stick to the extreme relativist view) Article 2 does define certain substantive commonalities behind integration.
50 Raz (n 41) 37, labelling this a ‘non-utopian’ vision of multiculturalism.
51 Levy (n 48) 295.
52 C Taylor, ‘Interculturalism or Multiculturalism?’ (2012) 38(4–5) Philosophy and Social Criticism 415.
53 C Taylor, ‘Living with Difference,’ in Debating Democracy’s Discontent: Essays on American Politics, Law, and Public Philosophy, eds. AL Allen and MC Regan Jr. (Oxford University Press, New York, 1998), 212–26.
54 J Raz, ‘Moral Change and Social Relativism’ in J Raz, Engaging Reason: On the Theory of Value and Action (Oxford University Press, New York, 2002), 181.
55 Raz (n 41) 204.
56 Raz (n 41) 199.
57 Raz (n 41) 190.
58 Raz (n 41) 195.
59 Raz (n 41) 174.
60 Raz (n 41) 191.
61 Raz (n 41) 185, see also 197.
62 Raz (n 41) 183.
63 In Dworkin’s words, ‘Political equality [and democracy] requires that political power be distributed so as to confirm the political community’s equal concern and respect for all its members’ (emphasis added). See Dworkin (n 15) 391.
64 B Majtényi, ‘The Nation’s Will as Trump in the Hungarian Fundamental Law’. In W Benedek et al. (eds), European Yearbook on Human Rights 15 (Intersentia, Antwerp, 2015) 247–60.
65 Majtényi, B, Kopper, Á, and Susánszky, P, ‘Constitutional Othering, Ambiguity and Subjective Risks of Mobilisation in Hungary: Examples from the Migration Crisis’ (2019) 26(2) Democratization 173 CrossRefGoogle Scholar.
66 Győrfi (n 47) 140.
67 ‘Nearly half (49 per cent) of leave voters said the biggest single reason for wanting to leave the European Union was ‘the principle that decisions about the UK should be taken in the UK’. One third (33 per cent) said the main reason was that leaving ‘offered the best chance for the UK to regain control over immigration and its own borders’. Lord Ashcroft, ‘A Reminder of How Britain Voted in the EU Referendum – and Why’, Lord Ashcroft Polls, 15 March 2019, available at <https://lordashcroftpolls.com/2019/03/a-reminder-of-how-britain-voted-in-the-eu-referendum-and-why>.
68 Charter of the French Language, R.S.Q. ch. C-I l (1977).
69 See further in C Savren, ‘Language Rights and Quebec Bill 101’ (1978) 10(2) Case Western Reserve Journal of International Law 543; W Green, ‘Language Regimes, Minority Language Rights, and International Legal Issues: The Case of Quebec Anglophones’ (1999) 26(2) Syracuse Journal of International Law and Commerce 267; RH, ‘Canadian Language Wars (Yet Again)’, I·CONnect – Blog of the International Journal of Constitutional Law, 23 October 2009, available at <http://www.iconnectblog.com/2009/10/canadian-language-wars-yet-again>.
70 Attorney Gen. Quebec v. Quebec Ass’n of Protestant Sch. Bds. [1984] 2 S.C.R. 66.
71 Bill 104 (2002, chapter 28) An Act to amend the Charter of the French language. See <http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2002C28A.PDF>
72 Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 S.C.R. 208.
73 For an overview of the dilemma, see T Zick, ‘Are the States Sovereign?’ (2005) 83(1) Washington University Law Review 229.
74 Z Körtvélyesi, Illiberal Challenge in the EU: Exploring the Parallel with Illiberal Minorities through the Case of Hungary’ under review at the European Constitutional Law Review.
75 Kymlicka (n 35) 169–70, emphasis added.
76 To illustrate the difference between exclusive elements that can be recognized and those that undermine the core, there is a crucial difference between affirmative measures (like Article 116 of the German Grundgezetz) and a wholesale ethnicization and exclusion (see, for example, the recent ‘National State Law’ of Israel, summary available at <https://www.jpost.com/Israel-News/Read-the-full-Jewish-Nation-State-Law-562923>.
77 On the phenomenon and related choices, see Hirschman, AO, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Harvard University Press, Cambridge, 1970).Google Scholar
78 ‘Existence in a multicultural society often makes cultural groups more repressive than they would be were they to exist in relative isolation.’ Raz (n 41) 185.
79 I Gödri, Nemzetközi vándorlás [International migration], in J Monostori, P Őri and Z Spéder (eds), Demográfiai portré 2015 [Demographic Portrait 2015] (Budapest: KSH [Central Statistics Office], 2015) 187–211 at 188.
80 ‘Cases involving newly arriving immigrant groups are very different.’ Kymlicka (n 35) 170. Cf. ‘A more complicated case involves long-standing ethnic groups or religious sects who have been allowed to maintain certain illiberal institutions for many years, even many generations … For various reasons, when these immigrant groups arrived, they were given exemptions from the usual requirements regarding integration, and were allowed to maintain certain internal restrictions.’ Kymlicka (n 35) 170.
81 ‘There are many ways to strengthen mechanisms for respecting individual rights in a consensual way, without simply imposing liberal values on national minorities.’ Kymlicka (n 35) 169. The fact that the majority group cannot intervene in a coercive manner ‘does not mean that liberals should stand by and do nothing. A national minority which rules in an illiberal way acts unjustly. Liberals have a right, and a responsibility, to speak out against such injustice. Hence liberal reformers inside the culture should seek to promote their liberal principles, through reason or example, and liberals outside should lend their support to any efforts the group makes to liberalize their culture. Since the most enduring forms of liberalization are those that result from internal reform, the primary focus for liberals outside the group should be to provide this sort of support.’ See Kymlicka (n 35) 168. For example, ‘liberals can push for the development and strengthening of international mechanisms for protecting human rights’ See Kymlicka (n 35) 169.
82 Choudhry, S, ‘National Minorities and Ethnic Immigrants: Liberalism’s Political Sociology’ (2002) 10 Journal of Political Philosophy 54.CrossRefGoogle Scholar