Redefining Europe (At the Interface Probing the Boundaries 25) (At the Interface Probing the Boundaries)

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Contents Introduction

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Federalism in Europe: History and Future Options Maiken Umbach

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From Dialectics to Political Theology: Rethinking Complexity in Federalism Isabel David

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The Democratic Principle as an Organisational Basis of the European Union Xenophon Contiades

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The European Union’s Institutional System as the Basis for a New Form of Democracy Fausto Capelli

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Incorporating the Principle of Co-Equal Branches into the European Constitution: Lessons to be Learned from the United States Mark K. Gyandoh

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Institutional Redress of the Democratic Deficit: Redefinition with a Democracy-Efficiency Continuum Joelle Anne Schmitz

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Constituent Power and Polity Legitimacy in the European Context: A Theoretical Sketch Zoran Oklopþiü

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Circumventing the State? The Demands of Stateless Nations, National Minorities, and the European Constitution David Adam Landau and Lisa Vanhala

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The Catholic Church and Poland’s Accession to the European Union Mirella Eberts

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Inclusive Education as a Human Right and Slovakia’s Accession to the European Union Julia M. White

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The US Must Merge with the EU Tom Hudgens

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Conclusion: Europe on the Road to Redefinition Joseph Drew

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Notes on Contributors

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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 Union’s 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 Union’s 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

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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 Europe’s 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 Church’s 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 Eurosceptics 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 Church’s support for Poland’s 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 don’t 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

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____________________________________________________________ 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

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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 master’s degree means; perhaps the seat occupied by France and the seat occupied by Britain in the Security Council might be redesignated “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

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____________________________________________________________ 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 world’s 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

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____________________________________________________________ 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 can’t 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

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____________________________________________________________ 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 humanity’s eternal quest for improvement while advancing successfully the scholarly redefinition of Europe.

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____________________________________________________________ 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 Burgdörfer, 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

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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 America’s 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, 8th 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,

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____________________________________________________________ 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 Park’s analysis in his introduction to E.V. Stonequist’s The Marginal Man, New York: Charles Scribner’s 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 nationstates. 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 Union’s 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

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___________________________________________________________ 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 d’être. 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 country’s 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 America’s 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 EU’s “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

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___________________________________________________________ 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 newlygained 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 Convention’s 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 nationstate? 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

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___________________________________________________________ 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 nonparticipation 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 cooperation 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 state’s 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. Napoleon’s 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

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___________________________________________________________ shallow historical roots. Paradoxically, this did not necessarily weaken its legitimacy vis-à-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

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___________________________________________________________ people’s 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 Weber’s 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

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___________________________________________________________ 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 people’s 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. America’s 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

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___________________________________________________________ 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 Pütter 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

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___________________________________________________________ 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, Gmünd, 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 Europe’s 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 supranational 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 Europe’s regions, but it

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___________________________________________________________ did not render them superfluous. Regional specialisation and modernisation proved compatible in many ways. Indeed, one might argue that Europe’s 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 Goethe’s Weimar, Beethoven’s Vienna and Wagner’s 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 Ulbricht’s 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 panEuropean movements and institutions of the post-war period, and today plays a similar role in promoting the EU’s enlargement to include Central and Eastern European countries. In both cases, a post-nationalist stance

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___________________________________________________________ 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, Europe’s 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

30

Federalism in Europe: History and Future Options

___________________________________________________________ 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, Scotland’s 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 region’s educational reforms. Yet Mr. Pujol now believes that “the EU is no longer encouraging regionalism.”23 Efforts by Catalonia, Scotland, Flanders and the German Länder 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 AngloAmerican tradition, has great potential to disenchant the nation-state, robbing it not only of its administrative supremacy, but also of the aura

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___________________________________________________________ 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 today’s 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 Union’s 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

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___________________________________________________________ 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 europäischen Geschichte seit dem Mittelalter: Versuch einer Bilanz,” in idem and Georg Schmidt, eds, Föderative 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. Absolutism’s 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, 17931822, (Aldershot, 2000); Alain Pigeard, L’armée de Napoléon, 18001815: 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 Mémoire, 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, 20001); 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: Württemberg, Imperial Germany and National Memory 1871-1918 (Chapel Hill and London 1997); Philipp Ther und Holm Sundhaussen, eds, Regionale Bewegungen und Regionalismen in europäischen Zwischenräumen seit der Mitte des 19. Jahrhunderts (Marburg, 2003); Maiken Umbach, ed., German Federalism, Past, Present, Future, Basingstoke, 2002.

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___________________________________________________________ 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 l’idée fédéraliste (Nice, 1973); J. Touchard, Histoire des idées politiques, especially ii, Du XVIIIe à nos jours, 10th edn (Paris, 1988); Reinhardt Koselleck, “Bund, Bündnis, Föderalismus,” 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 Kramnick’s 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 für das Heilige Römische 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 Schöne Stil, 4 vols (Cologne, 1978). 21 Frantisek Smahel, Zur politischen Präsentation und Allegorie im 14. und 15. Jahrhundert (Munich, 1994); Frantisek Kavka, Am Hofe Karls IV, translated from the Czech by Rosemarie Borán (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

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___________________________________________________________ the pattern of forceful centralisation and centrifugal backlashes in twentieth-century politics, see P. Waldmann et al, eds, Die geheime Dynamik autoritärer Diktaturen (Munich, 1982). 23 Quoted from “Europe’s 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 formació de la ideologia nacionalista catalana. La idea de Volksgeist com a element definidor,” L’Avenç, 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 Schmitt’s 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 one’s 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, sovereignty

dialectics,

federalism,

ideology,

political

theology,

*** 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

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From Dialectics to Political Theology

___________________________________________________________ commitment, sanctioned by oath and mutual trust (fides-foedusfederalism), 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 Adam’s 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 God’s 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

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___________________________________________________________ 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 God’s 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, today’s 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 16th and 17th 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

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From Dialectics to Political Theology

___________________________________________________________ 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 Duchaþek termed as “ethno-ideological states,”15 societies held together by a specific ideology that settled in

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___________________________________________________________ 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 abovementioned 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 Václav 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 “noncentralisation system,”20 or “matrix,” offering an alternative to the centreperiphery model. Power is distributed among many centres, whose

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From Dialectics to Political Theology

___________________________________________________________ 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 crossvalued, 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

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___________________________________________________________ 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 SouthAfrican “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

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From Dialectics to Political Theology

___________________________________________________________ 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 federalism’s 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.

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___________________________________________________________ 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 Roosevelt’s cooperative federalism and later, by Nixon’s 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

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___________________________________________________________ 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 topdown, 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,

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___________________________________________________________ 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, “isn’t 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 Commission’s

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___________________________________________________________ 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

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___________________________________________________________ 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 government’s authority over its own citizenry within that locality.58 In case of conflict, confederations dissolve, while federations don’t 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 isn’t 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

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___________________________________________________________ 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

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___________________________________________________________ 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

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___________________________________________________________ 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, Théologie Politique. 1922, 1969 (Paris: Éditions 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, 3 Michael Burgess, Federalism and European Union: the Building of Europe, 1950-2000 (London: Routledge, 2000), 13. 4 Chantal Millon-Delsol, L’irrévérence. Essai sur l’esprit européen (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 Elazar’s words. Daniel J. Elazar, “Deuteronomy as Israel’s Ancient Constitution: Some Preliminary Reflections,” The Daniel Elazar On-Line Library, 4 June 2004, . 8 Hannah Arendt, Qu’est-ce que la politique ? (Paris: Seuil, 1995), 79. 9 Dostoyevsky, Fyodor Mikhailovich. The Brothers Karamazov [online book], accessed 13 July, ; Internet.

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___________________________________________________________ 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 OnLine Library, 28 May 2004, . 15 Daniel J. Elazar, Constitutionalizing Globalization. The Postmodern Revival of Confederal Arrangements (Lanham: Rowman & Littlefield, 1998), 21. 16 Schmitt, 69. 17 Václav Havel, Il est permis d’espérer (Calmann-Lévy, 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, L’irrévérence. Essai sur l’esprit européen, 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 subsidiarité (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 Européenne: l’Europe et les expériences fédérales. Towards a European Constitution: Europe and Federal Experiences, ed. Thomas Fleiner and Nicolas Schmitt (Fribourg: Institut du Fédéralisme, 1996), 190. 30 Jenny Robinson, “Federalism and the Transformation of the South African State,” in Federalism. The Multiethnic Challenge, 274-275.

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___________________________________________________________ 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 PostModern Epoch, ed. Daniel J. Elazar (Lanham: University Press of America, 1991), 74. 35 Daniel J. Elazar, “Cursed by Bigness or Toward a PostTechnocratic 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, Théorie 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, ; 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 fédéralisme dans les démocraties contemporaines (Paris: Montchrestien, 1995), 28. 48 Max von Seydel, Der Bundesrat. Staatsrechtliche und politische Abhandlungen (Freiburg im Breisgau: 2 Bde., hg. v. Karl Krazeisen, 18931902), 19, quoted in Carl Schmitt, Théorie 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, L’État-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.

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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, Théologie Politique, 28. 55 Ibid, 15. 56 Ibid, 25. 57 Ibid, 25. 58 King, 60. 59 Gérard Mairet, Le principe de souveraineté. 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, Théorie de la Constitution, 519, 521. 62 Elazar, Exploring Federalism, 108. 63 Ibid, 231. 64 Ibid, 109. 65 Schmitt, Théorie 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, . 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, Théologie Politique, 65. 76 Denis de Rougemont, “Textes sur le fédéralisme,” Cadmos 36 (1986): 14. 77 Mignet, quoted in Schmitt, Théologie Politique, 177. 78 Schmitt, Théologie Politique, 152-153. 79 Mario Albertini, Il federalismo (Bologna: Il Mulino, 1993), 279. 80 Diamond, “The Ends of Federalism”, 129.

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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 ; Internet. 82 Madison, James. The Federalist No. 51. >book on line@; available from the Constitution Society ; Internet. 83 Fabrizio Frigerio et al., “Fédéralisme chez Rougemont,” in Dictionnaire International du Fédéralisme, ed. François Saint-Ouen (Bruxelles: Bruylant, 1994), 203.

Bibliography Agnew, John. “Postscript: Federalism in the Post-Cold War Era.” In Federalism. The Multiethnic Challenge, edited by Graham Smith, 294-301. London: Longman, 1995. Albertini, Mario. Il federalismo. Bologna: Il Mulino, 1993. Arendt, Hannah. Qu’est-ce que la politique ? Paris: Seuil, 1995. Arendt, Hannah. On Revolution. New York: The Viking Press, 1971. 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 Europe, 1950-2000. London: Routledge, 2000. Cairns, Alan C. “States and Nations.” In Federalism and the New World Order, edited by Stephen J. Randall and Roger Gibbins, 71-75. Calgary: University of Calgary Press, 1994. Croisat, Maurice. Le fédéralisme dans les démocraties contemporaines. Paris: Montchrestien, 1995. Diamond, Martin. “The Ends of Federalism.” In The Federal Polity, edited by Daniel J. Elazar, 129-152. New Brunswick: Transaction Books, 1974. Elazar, Daniel J. Constitutionalizing Globalization. The Postmodern Revival of Confederal Arrangements. Lanham: Rowman & Littlefield, 1998. Elazar, Daniel J. “Covenant and Constitutionalism: The Great Frontier and the Matrix of Federal Democracy.” The Daniel Elazar On-Line Library. 28 May 2004. (28 May 2004). Elazar, Daniel J. “Covenant as the Basis of the Jewish Political Tradition.” The Daniel Elazar On-Line Library. 4 June 2004. (4 June 2004).

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___________________________________________________________ Elazar, Daniel J. “Covenant & Polity in Biblical Israel: Biblical Foundations & Jewish Expressions.” The Daniel Elazar On-Line Library. 4 June 2004. (4 June 2004). Elazar, Daniel J. “Cursed by Bigness or Toward a Post-Technocratic Federalism.” In The Federal Polity, edited by Daniel J. Elazar, 239-298. New Brunswick: Transaction Books, 1974. Elazar, Daniel J. “Dealing with Fundamental Regime Change: The biblical Paradigm of the Transition from Tribal federation to Federal Monarchy Under David.” The Daniel Elazar On-Line Library. 4 June 2004. (4 June 2004). Elazar, Daniel J. “Deuteronomy as Israel’s Ancient Constitution: Some Preliminary Reflections.” The Daniel Elazar On-Line Library. 4 June 2004. (4 June 2004). Elazar, Daniel J. Exploring Federalism. Tuscaloosa: University of Alabama Press, 1991. Elazar, Daniel J. “Federal Liberty and the Jewish Political Tradition.” The Daniel Elazar On-Line Library. 4 June 2004. (4 June 2004). Elazar, Daniel J. “Federal Models of (Civil) Authority.” The Daniel Elazar On-Line Library. 4 June 2004. (4 June 2004). Elazar, Daniel J. “Jacob and Esau and the Emergence of the Jewish People.” The Daniel Elazar On-Line Library. 4 June 2004. (4 June 2004). Elazar, Daniel J. “The Book of Joshua as a Political Classic.” The Daniel Elazar On-Line Library. 4 June 2004. (4 June 2004). Elazar, Daniel J. “The Book of Judges: The Israelite Tribal Federation and Its Discontents.” The Daniel Elazar On-Line Library. 4 June 2004. (4 June 2004). Elazar, Daniel J. “The Polity in Biblical Israel.” The Daniel Elazar OnLine Library. 4 June 2004. (4 June 2004). Elazar, Daniel J. “Toward a Civil Constitutionalism.” The Daniel Elazar On-Line Library. 28 May 2004. < http://www.jcpa.org/dje/books/ct-vol4-ch1.htm> (28 May 2004).

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___________________________________________________________ Eulau, Heinz. “Polarity in Representational Federalism: a Neglected Theme of Political Theory.” In The Federal Polity, edited by Daniel J. Elazar, 153-171. New Brunswick: Transaction Books, 1974. Friedrich, Carl. Trends of Federalism in Theory and Practice. London: Pall Mall Press, 1968. Frigerio, Fabrizio et al. “Fédéralisme chez Rougemont.” In Dictionnaire International du Fédéralisme, edited by François Saint-Ouen, 202-204. Bruxelles: Bruylant, 1994. Graglia, Lino A. “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. Hawkings, Jr., Robert B. “Power-Sharing and Municipal Governance.” In Constitutional Design and Power-Sharing in the Post-Modern Epoch, edited by Daniel J. Elazar, 71-83. Lanham: University Press of America, 1991. King, Preston. Federalism and Federation. Baltimore: The Johns Hopkins University Press, 1982. Landau, Martin. “Federalism, Redundancy and System Reliability.” In The Federal Polity, edited by Daniel J. Elazar, 173-196. New Brunswick: Transaction Books, 1974. Leach, Richard H. “Federalism: a Battery of Questions.” In The Federal Polity, edited by Daniel J. Elazar, 11-47. New Brunswick: Transaction Books, 1974. Mairet, Gérard. Le principe de souveraineté. Histoires et fondements du pouvoir moderne. Paris: Gallimard, 1997. Michels, Robert. Political Parties: a Sociological Study of the Oligarchical Tendencies of Modern Democracy. New Brunswick and London: Transaction Publishers, 1999. Millon-Delsol, Chantal. L’irrévérence. Essai sur l’esprit européen. Paris: Mame, 1993. Millon-Delsol, Chantal. Le principe de subsidiarité. Paris: Presses Universitaires de France, 1993. Pranger, Robert J. “The Decline of the American National Government.” In The Federal Polity, edited by Daniel J. Elazar, 97-127. New Brunswick: Transaction Books, 1974. Randall, Stephen J. “Preface.” In Federalism and the New World Order, edited by Stephen J. Randall and Roger Gibbins, xi-xxi. Calgary: University of Calgary Press, 1994.

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___________________________________________________________ Robinson, Jenny. “Federalism and the Transformation of the South African State.” In Federalism. The Multiethnic Challenge, edited by Graham Smith, 255-278. London: Longman, 1995. Rougemont, Denis de. “Textes sur le fédéralisme.” Cadmos 36 (1986): 928. Sabourin, Paul. L’État-nation face aux Europes. Paris: Presses Universitaires de France, 1994. Schmitt, Carl. Théologie Politique. 1922, 1969. Paris: Éditions Gallimard, 1988. Schmitt, Carl. Théorie de la Constitution. Paris: Presses Universitaires de France, 1993. Seydel, Max von. Der Bundesrat. Staatsrechtliche und politische Abhandlungen, 19. Freiburg im Breisgau: 2 Bde., hg. v. Karl Krazeisen, 1893-1902. Quoted in Carl Schmitt, Théorie de la Constitution (Paris: Presses Universitaires de France, 1993), 520. Villiers, Bertus de. “Federalism in South Africa: The Debate Unfolds.” In Vers une Constitution Européenne: l’Europe et les expériences fédérales. Towards a European Constitution: Europe and Federal Experiences, edited by Thomas Fleiner and Nicolas Schmitt, 185222. Fribourg: Institut du Fédéralisme, 1996.

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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

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___________________________________________________________ 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

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___________________________________________________________ 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

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___________________________________________________________ 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.

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___________________________________________________________ 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

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___________________________________________________________ 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.

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___________________________________________________________ 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

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___________________________________________________________ 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

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___________________________________________________________ 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

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___________________________________________________________ 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

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___________________________________________________________ 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

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___________________________________________________________ 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

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___________________________________________________________ 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 Union’s 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

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___________________________________________________________ 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 europäische Unionsgrundordnung,” in same author, Verfassung-Parteien-Europa, 1999, 579. 3 J. Isensee, Vorrang des Europarechts und deutsche Verfassungsvorbehalte – offener Dissens, FS für K. Stern zum 70. Geburtstag, 1997, 1239.

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___________________________________________________________ 4

K. Doehring, Demokratiedefizit in der Europäischen Union? (DVBl. 1997), p. 1133 ff. (1137), where it is noted that “es wäre also eine Frage der Quantität der übertragenen Hoheitsrechte, von wann an man von einem Demokratiedefizit in Europa sprechen könnte.” See also the critical remarks of M. Zürn, Regieren jenseits des Nationalstaats, 1998, 249. 5 W. Hertel, Supranationalität als Verfassungsprinzip, 1999, T. Bruha/J.J. Hesse/C. Nowak (Hrsg.), Welche Verfassung für Europa? 2001. 6 D. Tsatsos, op. cit. 7 Häberle, Textstufen als Entwicklungswege des Vervassungsstaates, FS für 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 europäischen Entscheidungssystems,” PVS 1998, 80 ff.; A. Duff, “Building a Parliamentary Europe,” in M. Telà (Ed.), Démocratie et la construction européenne, 1995, 251; R. Hrbek, “Der Vertrag von Maastricht und das Demokratiedefizit der Europäischen Union,” in A. Randelzhofer/R. Scholz/S. Wilke (Hrsg.), Gedächtnisschrift für E. Grabitz, 1995, 171; H. Klager/I.P. Karolewski/M. Munke, “Europäische Verfassung,” 2002, 163; P.G. Kielmansegg, “Integration und Demokratie,” in M. Jachtenfuchs/B. Kohler-Koch (Hrsg.), Europäische 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, “Europäische Verfassung,” op. cit., 168; P. Huber, “Demokratie ohne Volk oder Demokratie der Völker?” in I. Drexl/K.F. Kreuzer/D.H. Schening/U. Sieber (Hrsg.), Europäische Demokratie, 1999, 27 & 37; H.H. Rupp, Anmerkungen zu einer Europäischen Verfassung, JZ 2003, 18.; M. Zürn, Über den Staat und die Demokratie im europäischen Mehrebenensystem, PVS 1996, 27. 11 A. v. Bogdandy, “Supranationaler Föderalismus 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 Staatsbürgerschaft: Zur Arbeit an einem europäischen Bürgerstatus”, in R. Erne/A. Groß/B. Kaufmann/H. Kleger (Hrsg.), Transnationale Demokratie, 1995, 34. (56): “symptomatisch für die Diskrepanz zwischen Wunsch nach wirklicher europäischer Politik und der Wirklichkeit der Nichtexistenz überstaatlicher politischer Programme ist die Tatsache, dass sich noch keine wirklich transnationalen

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___________________________________________________________ Parteien gebildet haben. Ihnen käme die Aufgabe der Bildung einer europäischen Öffentlichkeit zu.” T. Papadopoulou, Politische Parteien auf europäischer 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 Europäischen Gemeinschaft”, in P. Hommelhoff/P. Kirchhof (Hrsg.), Der Staatenverbund der Eurpäischen Union, 1994, 39. 15 K. Doehring, “Demokratiedefizit,” op. cit., 1137, as well as the critical remarks of M. Zürn, “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 europäischer 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, Europäische 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 zunächst einmal darauf an, dieses Soll zu ermitteln, d.h. den demokratischen Standard für 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. Böckenförde, “Demokratische Willensbildung und Repräsentation,” in: HdbStR II, § 30, p. 29 ff., D. Grimm, “Der Staat in der kontinentaleuropäischen Tradition,” in same author, Recht und Staat der bürgerlichen Gesellschaft, 1987, 53; F. Vilmar, “Strategien der Demokratisierung,” Bd. I, Theorie der Praxis, 1973, 21; H. Quaritsch, Souveränität, 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, ȉhe law of Peoples, 1999, 187.

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___________________________________________________________ 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 Union’s 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 Plato’s 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 Community’s institutional structure, namely, the rightly focused democratic deficit, which is determined to undermine solid democratic foundations In reference to the Community’s 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 consequences 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

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___________________________________________________________ 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 Parliaments, 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-à-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 Amsterdam7 – had the effect of involving the European Parliament in the Community’s 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 d’Estaing is approved, the powers of the European Parliament will

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_________________________________________________ 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 dualchamber), directly representing the citizenry, while, in the European Union’s 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-electors of the said States. The existence of this difference alone is sufficient to fuel scholarly distrust, which continues to criticise the existence of a democratic 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 Union’s 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

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___________________________________________________________ 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-à-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 majority’s 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 Union’s current institutional system, supplemented 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.

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_________________________________________________ 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 selfevident. 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 latter’s 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

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___________________________________________________________ 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 Plato’s 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, Plato’s 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 Union’s 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 Plato’s 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

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_________________________________________________ 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 participation of the European Commission) to exercise legislative power without holding direct political power. Such is the surprising solution to the problem posed by Plato’s 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.

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___________________________________________________________ 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 libertà (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 é 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 società 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

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_________________________________________________ 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 società (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 Plato’s 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 l’esprit 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

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___________________________________________________________ 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 Comunità, 1999), 62, may be called reasonable dissent. 22 Cf. F. Capelli “La partecipazione della società civile alla costruzione dell’unione politica dell’Europa,” 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

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_________________________________________________ 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 società civile alla costruzione dell’unione politica dell’Europa.” 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 società. 1989. Montesquieu. De l’esprit des lois. Paris: Garnier, 1875. Petrucciani, S. Modelli di filosofia politica. Torino: Einaudi, 2003. Plato. The Republic. Opere, Bari: Laterza, 1966

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___________________________________________________________ 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 Constitution’s 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, government, United States

European

Union,

federalism,

*** 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 Constitution’s 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

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____________________________________________________________ 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

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____________________________________________________________ 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 Union’s 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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____________________________________________________________ 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 I14 calls for a legislative branch;

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____________________________________________________________ article II15 provides for an executive branch and article III16 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 Marshall’s opinion in the justly celebrated Marbury v. Madison20 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 State’s 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 State’s 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 Jefferson’s 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 Jefferson’s 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 Marshall27 delivered the opinion of the Supreme Court. First, Marshall concluded that once Adams had signed Marbury’s 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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____________________________________________________________ D. Varying viewpoints. 1) Support for Marshall. Hamilton’s viewpoints were in agreement with Marshall’s 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 Hamilton’s 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 Hamilton’s 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 Marshall’s pronouncement of judicial review. We know of Thomas Jefferson’s 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 Marshall’s 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 Jefferson’s wish to avoid a constitutional battle with Marshall, not to mention the fact that, in the result, Marshall had ruled in the Jefferson administration’s 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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____________________________________________________________ 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 Marshall’s 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 Jackson’s comment showed his ready disposition to openly reject a Supreme Court decision. Similarly, in the twentieth century President Franklin Delano Roosevelt48 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 administration’s favour and his speech was never delivered.50 E. Analysis of Marbury – Implication for the European Union

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____________________________________________________________ Was Marshall correct in his analysis in Marbury when he finds that the Supreme Court ought to be the final arbiter on constitutional matters? Marshall’s 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 branch’s 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 Lincoln’s First Inaugural Address where he acknowledges that the people’s 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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____________________________________________________________ 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 Jefferson’s 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 people’s 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 law’s 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, Madison’s 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 Madison’s 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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____________________________________________________________ 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 2 The European Constitution may be viewed at . 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. Parliament’s 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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Ibid. 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 Jefferson’s 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. 6

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Simon, 174. 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 California’s 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 Washington’s 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 24

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____________________________________________________________ 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. Hamilton’s 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 Washington’s 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 Jackson’s 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 32nd 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 Brittan’s 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 intergovernmentalism 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.

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____________________________________________________________ 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

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____________________________________________________________ explained the effective nature of the European Union’s 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

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____________________________________________________________ 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 Parliament’s budgetary powers (often the most significant indication of comparative influence), merely refer to noncompulsory 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.

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____________________________________________________________ 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 Union’s 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 Brittan’s 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 Brittan’s 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

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____________________________________________________________ to explore both the positive and negative aspects of Sir Brittan’s 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 Brittan’s 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 today’s Union. As such, they must be better co-opted into the “project” of European integration. To

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____________________________________________________________ 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

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____________________________________________________________ The substance of Brittan’s 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

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____________________________________________________________ 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 Brittan’s 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,

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____________________________________________________________ the larger organizational problems incumbent upon Sir Brittan’s “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 EU’s 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 Brittan’s 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. Wilson’s 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 Brittan’s 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 Wilson’s “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 entity’s turf battle success), as a

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____________________________________________________________ “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 Wanat’s 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 agency’s 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 Möller, 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 Parliament’s 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?

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____________________________________________________________ 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 subhierarchy 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 Wilson’s 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 Wilson’s 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 Parliament’s 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 Brittan’s 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 subhierarchy 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

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____________________________________________________________ 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 Brittan’s 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 Parliament’s popular characterization as a collection of dilettante and second-class politicians. In fact, the body does attract a unique mélange 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 Parliament’s failure to “[attract] few well-known national politicians” to the fact that “[the European Parliament’s] powers have been so limited and its coverage so

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____________________________________________________________ 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.

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____________________________________________________________ 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 Community’s 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 Union’s continued expansion is allowed to proceed upon its current path toward more intergovernmentalism, 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 enlarge27 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 d’Estaing 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

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____________________________________________________________ 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 Brittan’s goals and the recommendations from Wilson’s, Kingdon’s, and Wanat’s analysis of organizational behaviour, one can easily understand why Brittan’s 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 Union’s 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,

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____________________________________________________________ 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 agency’s 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 EU’s 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 Parliament’s 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

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____________________________________________________________ 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 Parliament’s newfound influence over the Commission, claims that, …it’s [the European Parliament’s] powers of control that have been strengthened, which should allow it to make its influence felt in a more constant way on dayto-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 Parliament’s 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 parttime 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,

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____________________________________________________________ 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 didn’t 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 body’s 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 ‘people’s Europe’. As an early newsletter once stated, “We will not win people’s hearts and minds through debates on Constitutional reforms, nor in trying to find out if recourse to a hard

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____________________________________________________________ core will result in the fusion or division of Europe. We can win people’s 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 O’Neachtain 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 divert38 its attention to the temptation of increased intergovernmentalism.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

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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 Möller, 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

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____________________________________________________________ 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 Gaulle’s construction of “Europe des Patries” (Europe of the states) 40 Sir Leon Brittan quoted in The Economist, 1 May, 1994

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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 Oklopþiü Abstract Can constitutions establish states or only governments? Or, in Arendt’s 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 today’s 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

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___________________________________________________________ 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 StatistConfederalist 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 Stråth, “humanistic ideals such as equality, freedom and pluralism have come into conflict with the need to exclude.”3

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___________________________________________________________ One seeming way out of this chicken-egg dilemma is to follow Michael Zürn’s 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 politybuilding. 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 polity’s 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

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___________________________________________________________ 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 Castiglione’s 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

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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 selfdetermination 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 Arendt’s 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 “>b@efore 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,

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___________________________________________________________ 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 fellowinhabitants 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 contract>s 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 Elazar’s 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, aren’t 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,

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___________________________________________________________ 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 Arendt’s 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 today’s 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

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___________________________________________________________ states being “masters of treaties” would thus go against the idea of the precommitment, 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 nation’s 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 selfdetermination. 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.

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___________________________________________________________ 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 “>t@erritorial 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 selfdetermination 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: >i@n many instances, constitutional doctrine presupposes the existence of that which it creates: the demos which is

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___________________________________________________________ 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 Calhoun’s 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

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___________________________________________________________ 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 Stråth, “A European Identity To the Historical Limits of a Concept,” European Journal of Social Theory 5:4 (2002): 387–401, 399. 4 Michael Zürn, “Democratic Governance Beyond the Nation-State: The EU and Other International Institutions,” European Jounal of International Relations, 6:2 (2000): 183–221, 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).

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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 Engström, Multi-ethnicity or Bi-nationalism? The Framework Agreement and the Future of the Macedonian State, Journal on Ethnopolitics and Minority Issues in Europe, ; >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. Ž. Puhovski (Zagreb: Antibarbarus, 1995), 82. 13 Arendt, “What is Freedom,” 61. 14 Ibid., 65. 15 Ibid., 66. 16 Hanna Arendt, O Revolucij, (Beograd: Filip Višnjiü, 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.

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___________________________________________________________ 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): 421–445, 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, “Europe’s constitutional passion play,” European Law Review 28 (2003): 905-908, 907. 33 J.H.H. Weiler, “Federalism Without Constitutionalism: Europe’s 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 Étienne 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): 295–326, 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: Europe’s 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.

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For the parallels between US and EU in the context of MaastrichtUrteil 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, , 32 >accessed on March 15 2004@. 40 [1998] 2 S.C.R. 217; . 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.

Bibliography Arendt Hannah. O Revoluciji. Beograd: Filip Višnjiü, 1991. Arendt, Hannah. “On Violence” In Eseji o politici >Political Essays@ edited by Žarko Puhovski. Zagreb: Antibarbarus, 1995. Arendt, Hannah. “What is Freedom?” In Eseji o politici >Political Essays@ edited by Žarko Puhovski. Zagreb: Antibarbarus, 1995. Balibar, Étienne. We, the People of Europe?Reflections on Transnational Citizenship. Princeton and Oxford: Princeton University Press, 2004. Bartelson, Jens. “Second Natures: Is the State Identical with Itself?” European Journal of International Relations 4:3: 295–326. Bellamy, Richard and Dario Castigilone. “Building the Union: The Nature of Sovereignty in the Political Architecture of Europe.” Law and Philosophy 16 (1997): 421–445. Bellamy, Richard and Dario Castigilone. “Normative Theory and the European Union: Legitimizing the Euro-Polity and its Regime.” European Journal of Political Theory 2:1 (2003): 7-34. Boom, Steven. “The European Union after the Maastricht Decision: Will Germany be the `Virginia of Europe’?’” American Journal of Comparative Law 43 (1995). Canovan Margaret. Nationhood and Political Theory. Cheltenham, Brookfield: Edward Elgar, 1996. Choudry, Sujit and Robert Howse. “Constitutional Theory and the Quebec Secession Reference.” Canadian Journal of Law and Jurisprudence 13 (1999): 143-169.

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___________________________________________________________ Dorau Christoph and Jacobi Philipp. “The Debate over a ‘European Constitution’: Is it Solely a German Concern?” European Public Law 6:3: 413- 428. Elazar, Daniel. “Contrasting Unitary and Federal Sytems.” International Political Science Review 18:3 (1997: 237-51. Elazar, Daniel. “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, edited by Nicolaidis Kalypso and Robert Howse. Oxford and New York: Oxford University Press, 2001. Engström Jenny. “Multi-ethnicity or Bi-nationalism? The Framework Agreement and the Future of the Macedonian State.” Journal on Ethnopolitics and Minority Issues in Europe. . accessed on 22 July 2004. Friel, Raymond J. “Providing a Constitutional Framework for Withdrawal from the EU: Article 59 of the Draft European Constitution.” International and Comparative Law Quaterly 53 (2004): 407428. Gross, Leo. “States as Organs of International Law and the Problem of Autointerpretation.” In Essays on International Law and Organization 167 (1993): 182-96. Quoted in 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. Hampton, Jean. Hobbes and Social Contract Tradition. Cambridge: Cambridge University Press, 1986. Hooker, Richard. Of the Laws of Ecclesiastical Polity >1593@. London: Everyman, 1969, bk. 1, chap. 10, sec. 8. Quoted in Holmes Stephen. Passions and Constraint: On the Theory of Liberal Democracy. Chicago: The University of Chicago Press, 1996, 194-95. Keenan, Alan. “Promises, Promises. The Abyss of Freedom and the Loss of Political in the Work of Hannah Arendt.” Political Theory 22:2 (May 1994): 297-322. Mapel, David R. “Civil Association and the Idea of Contingency.” Political Theory 18: 3 (August 1990): 392-410. McAdam, Doug et al. The Dynamics of Contention. Cambridge: Cambridge University Press, 2001. McAdam, Doug et al. The Politics of Collective Violence. Cambridge: Cambridge University Press, 2003.

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___________________________________________________________ Oakeshott, Michael Joseph. “On the Character of a Modern European State.” In On Human Conduct. Oxford and New York: Oxford University Press, 1996. Sieyès, Emmanuel Joseph. Political Writings: including the debate between Sieyes and Tom Paine in 1791, edited by Michael Sonencher. Indianapolis: Hackets Publishing, 2003. Smith, Rogers M. Stories of Peoplehood: The Politics and Morals of Political Membership Cambridge: Cambridge University Press, 2003. Stråth, Bo. “A European Identity To the Historical Limits of a Concept.” European Journal of Social Theory 5(4): 387–401. Sunstein, Cass R. Designing Democracy: What Constitutions Do, Oxford: Oxford University Press, 2001. Sunstein, Cass. “Constitutionalism and Secession.” University of Chicago Law Review 58 (1991): 633- 635. Supreme Court of Canada. Reference re Secession of Quebec, [1998] 2S.C.R.,217;. Tully, James. “Introduction.” In Multinational Democracies, edited by Alain G. Gagnon and James Tully, 1-35. Cambridge: Cambridge University Press, 2001. Walker, Neil. “The Idea of Constitutional Pluralism.” EUI working Papers. LAW. 2002/1. . last accessed on March 5th 2004@. Walker, Neil. “Europe’s Constitutional Passion Play.” European Law Review 28 (2003): 905-908. Weiler, J.H.H. “Federalism Without Constitutionalism: Europe’s Sonderweg.” In The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union, edited by Kalypso Nicolaidis and Robert Howse, 54-73. Oxford and New York: Oxford University Press, 2001. Zürn, Michael. “Democratic Governance Beyond the Nation-State: The EU and Other International Institutions.” European Journal of International Relations 6:2 (2000): 183-221.

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 stateminority 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.

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____________________________________________________________ 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 state’s 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

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____________________________________________________________ When constitutions include specific rights or guarantees for minority groups, they effectively restrict the state-minority relationship vis-à-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 Convention’s 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. Spain’s 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 Hungary’s dialogue with the EU and other member states to further their goals.

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____________________________________________________________ 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 treated…and those with explicit territorial implications.6 While we agree with Mikesell and Murphy’s 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 one’s own minority-group. We therefore posit that recognition, access, and participation are constitutionaffirming 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 state’s 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-à-vis their host states. In his discussion of poly-ethnic rights, Kylmicka asserts that

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____________________________________________________________ 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-government…reflect 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. Constitutionchallenging 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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____________________________________________________________ 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 nación (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

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____________________________________________________________ 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 Spain’s 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 regions11 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 percent14 and 6.61 percent15 of the Slovak and Romanian populations respectively. Potential constitution-challenging demands against both states by the Hungarian minority, however, have been largely delegitimised 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,

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____________________________________________________________ responding directly to the constitutional structures that define stateminority 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 selfadministration 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 groups…have, 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 Slovakia’s constitutional provisions to determine actual minority language policy – as opposed to broad protections – through subsequent laws. Even though Romania’s 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

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____________________________________________________________ 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 Romania’s 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 newlyformed Transylvanian Hungarian National Council hopes to adopt a European-style model of autonomy,18 the Council’s 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’ constitutionaffirming 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.

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____________________________________________________________ A. Stateless Nations and the Shaping of the EU Constitution Through the European Parliament’s 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 selfdetermination 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 group’s 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 constitutionchallenging 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

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____________________________________________________________ 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 Europe’s 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: If…the protection of minority rights will not be included in the EU constitution, … it would indicate that

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____________________________________________________________ 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 government’s proposal presents a new and rare opportunity to constitutionally legitimise their demands, even if this opportunity is created outside of the state’s 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 Hungary’s proposal for an amendment believing that the antidiscrimination 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 supranationalminority 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. Plurinational 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.

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____________________________________________________________ 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-à-vis particular states by failing to reconcile their constitutionaffirming and constitution-challenging demands. Instead the proposed Constitution leaves open the debate regarding the nature of supranationalstate-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 Constitution’s 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 state’s 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 minority’s 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 Hungary’s efforts to amend the current draft because supranational minority rights protections will help legitimise their constitution-affirming demands at home.

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____________________________________________________________ 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. Hayden’s 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 stateminority 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

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____________________________________________________________ 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,” Sþítanie Obyvatel’ov, Domov A Bytov 2001, Slovak Census May 2001, (14 January 2003). 15 See (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,” (4 February 2003) and “Law on the Use of Minority Languages” (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

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____________________________________________________________ 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 Poland’s 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 country’s 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 Poland’s 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 Church’s place in the debate on Poland’s 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 Poland’s 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 country’s rural population.

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___________________________________________________________ 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 JudeoChristian heritage and the Christian beliefs of its founding fathers, specifically Konrad Adenaur (1876-1967), Alcide de Gasperi (18811954), 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 Européenne (COMECE). Other Catholic organisations are also present in Brussels. In fact, there is a diverse set of Catholic interests operating vis-à-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 Church’s 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 Church’s 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 Poland’s 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 Church’s 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-à-vis John Paul II and the Holy See; (2) the Church visà-vis the Polish government and domestic politics; and (3) the Church visà-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

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___________________________________________________________ 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 Poland’s entry into the EU is a direct reflection of this complexity. Although the Church’s conditional support for Poland’s EU membership has aided the government in drawing support for the country’s 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 Church’s 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:

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___________________________________________________________ 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 Poland’s 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:

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___________________________________________________________ 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,

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___________________________________________________________ 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 Church’s 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 Poland’s membership in the EU. The common word of Polish and German bishops issued in December 1995 was the first sign of the Polish Church’s 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 Church’s 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

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___________________________________________________________ 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 MuszyĔski 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 Pieronek’s 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 one’s 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 Church’s 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 “doesn’t 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 Pieronek’s 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 Fischler’s appeal, as they expressed different individual concerns over the accession process. Thus, for example, Bishop Edward Janiak questioned the fairness of any

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___________________________________________________________ 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 community’s 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 Christ’s 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

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___________________________________________________________ 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 Europe’s 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 Worker’s 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 Church’s support for Poland’s 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

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___________________________________________________________ Whether an actual deal between the government and the Church hierarchy was struck, the government’s 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 Church’s 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 WyszyĔski, 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 Church’s 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 Church’s 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 Church’s 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 Poland’s EU membership. One week prior to the referendum, the priests across the country read the Episcopate’s appeal to Poles to embrace the words of John Paul II that the “quest for Poland’s 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

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___________________________________________________________ opposed to 14% in large cities) clearly indicated that not all Poles were ready to listen to the Pope’s 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 ToruĔ 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 Poland’s 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 Poland’s 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 Poland’s place in the EU. Despite the Episcopate’s open condemnations of the extremist messages blasted by the RM, especially towards political and socioeconomic 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 CzĊstochowa 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.

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___________________________________________________________ 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 party’s programme is the only one with Poland’s 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 Church’s position on Poland’s EU membership, have to be understood in terms of 3 dimensions: (1) the Church vis-à-vis John Paul II and the Holy See; (2) the Church vis-à-vis the Polish government and domestic politics; and (3) the Church vis-à-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 Pontiff’s 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 government’s 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

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___________________________________________________________ Church’s 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 Europhobes. 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 CzĊstochowa). 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 Church’s 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 Church’s 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 Episcopate’s 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 Church’s support for Poland’s 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 Poland’s 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 country’s

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___________________________________________________________ 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 KoĞcioáach (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 WyszyĔski 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 Poland’s entry into the EU see Maciej Drzonek, “Entuzjazm czy sceptycyzm? KoĞcioá katolicki i integracja europejska,” in Bogumiáa Grotta, ed., Religia i polityka (Cracow: Jagellonian University Press, 2000), 323-328.

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John Paul II in Poland (Cracow: ZNAK, 1997),78. John Paul II, quoted in Janusz Poniewierski, Pielgrzymka 1999: DzieĔ po dniu (Cracow: ZNAK, 1999), 36-37. 18 Poniewierski, 36-37. 19 Jarosáaw Gowin raises this argument in his KoĞcióá w Czasach WolnoĞci, 1989-1999 (Cracow: ZNAK, 1999), 225-226. 20 Gowin, 226. 21 Ibid., 227. 22 Ibid. 23 J. àukaszewski quoted in Aniela Dylus, Globalny rynek i jego granice (Warsaw: Fundacja ATK, 2001), 266. 24 Gowin, 233. 25 Tadeusz Pieronek, quoted in “àapcie Pana Boga za poáy,” Gazeta Wyborcza, 7 November 1997, 13. 26 Henryk Muszynski, quoted in “Unia KoĞcioáa z Europą,” Gazeta Wyborcza, 8-9 November 1997, 1. 27 See “Do Europy bez lĊku,” Gazeta Wyborcza, 6 November, 1997, 3. 28 See Tadeusz Pieronek, KoĞcióá nie boi sie wolnoĞci (Cracow: ZNAK, 1998), 133. 29 Ibid. 30 Ibid., 134. 31 Ibid., 139. 32 JĊdrzej Bielecki, “Komisja Europejska liczy na pomoc biskupów,” Rzeczpospolita, 5 February 2002 (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 àazarz-Górska. 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. 17

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___________________________________________________________ 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 wziĊáo udziaá 59% uprawnionych. 77% gáosowaáo TAK”, Gazeta Wyborcza, 8 June 2003, (13 June 2003). 45 Konferencja Episkopatu Polski, Sááowo Biskupów Polskich w sprawie wejĞcia Polski do Unii Europejskiej, 2 May 2003. (25 July 2004). 46 Jagienka Wilczak, “Okopy ojca Rydzyka,” Polityka, 4 November 1995, 17. 47 Ibid., 17.

Inclusive Education as a Human Right and Slovakia’s 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 region’s 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 Radko’s situation is a common one for Roma students in the Slovak Republic (and throughout Eastern and Central Europe). Nongovernmental 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-

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____________________________________________________________ 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,

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___________________________________________________________ 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

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____________________________________________________________ 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:

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___________________________________________________________ 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.

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____________________________________________________________ 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 child’s 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 Europe’s 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 Foundation’s “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

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___________________________________________________________ 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 anyone’s 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

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____________________________________________________________ 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 Education35 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

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___________________________________________________________ ensure a child’s 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

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____________________________________________________________ ethics, aesthetics, work, health, physical education and environmental education to pupils45 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,

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___________________________________________________________ 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 child’s 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

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____________________________________________________________ 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 can’t do your work if you don’t 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

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___________________________________________________________ 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 pupil’s 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 specialpedagogical 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. IDEA’s 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

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____________________________________________________________ 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).

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___________________________________________________________ 10

Alfredo Artiles, “Special Education’s 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).

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____________________________________________________________ 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 Charlton’s 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, (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 Republic’s Progress in It’s 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 author’s. 43 Act. No. 29/1984, except for pupils with mental disabilities. §33(2): “Education acquired in special school, except education acquired in

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___________________________________________________________ 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, (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. Hrabinská, 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.

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20 U.S.C. §1400.614(d)(3)(A)(i). 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). 66

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____________________________________________________________ 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). 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). International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (1969). Kliewer, Christopher. Schooling Children with Down Syndrome: Toward an Understanding of Possibility. New York: Teachers College Press, 1998. Linton, Simi. Claiming Disability: Knowledge and Identity. New York: New York University Press, 1998. Lynch, James. Inclusion in Education: The Participation of Disabled Learners. Paris: UNESCO, 2001. Mills v. the Board of Education of Washington, D.C. 348 F. Supp.866 (D.C. 1972). Ministry of Education of the Slovak Republic. Education System in Slovakia. Bratislava: Government Printing Office, 2002. 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) Pennsylvania Association for Retarded Citizens v. Commonwealth of Pennsylvania 343 F. Supp. 1257 (E.D. Pa. 1971). Plessy v. Ferguson 163 U.S. 537 (1896). Recommendation 4 on the Education of Roma/Gypsy Children in Europe (2000). Ringold, Dina. Mitchell Orenstein, and Erika Wilkins. Roma in an Expanding Europe: Breaking the Poverty Cycle. Washington, DC: World Bank, 2003. Simacova, Ludmila. Education for All in the Slovak Republic. Bratislava: Institute of Information and Prognoses of Education, 1999. The Slovak Government. Basic Positions of the Slovak Government’s Roma Communities Integration Policy. Bratislava: Government Printing Office, 2003. Slovak Republic Government Office. Monitoring Report on the Slovak Republic’s Progress in It’s Preparation for the EU Membership, September 2002 – May 2003. Bratislava: Government Printing Office, 2003. Sobotka, Eva. “Slovakia,” in Denied a future? The Right to Education of Roma/Gypsy & Traveler Children in Europe, vol. 3, edited by K. Pinnock, 170-204. Plymouth, UK: Save the Children, 2001.

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___________________________________________________________ Standard Rules on the Equalization of Opportunities for Persons with Disabilities, A/RES/48/96 (1993). United States Constitution, Amendment XIV. Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc. A/810 at 71 (1948).

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Editor’s 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.

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____________________________________________________________ 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

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____________________________________________________________ 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 Poland’s accession to the EU and will continue to play a significant role in that nation’s 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.

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____________________________________________________________ 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. Won’t 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 Comunità 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: L’euro nell’ordinamento dell’Unione 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, ǿ. 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 Master’s Thesis on Issues of Federalism.

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____________________________________________________________ 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 (IVermont) 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 1960’s, 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 postcommunist Central Europe. Mark Gyandoh Mark K. Gyandoh graduated from Temple University Law School located in Philadelphia, Pennsylvania in 2001. At Temple he was

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____________________________________________________________ co-president of the International Law Society and Editor of the group’s 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 Institute’s 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 VicePresident 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 Let’s 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. Antony’s 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 master’s 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.

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____________________________________________________________ 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 University’s Kennedy School of Government on top-tier academic grant and has completed coursework at exceptional institutions in four countries, including L’Ecole Nationale d’Administration, 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

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____________________________________________________________ Politics and Society. Her main research interests include modern manifestations and explanations of nationalism, multiculturalism and postnational 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. BenMoshe, R. Cory, M. Feldbaum and K. Sagendorf, 2004) and “The Iceman Cometh as an infertility myth” in The Eugene O’Neill Review (2002).