Constitutional Consciousness
In Search of a Remedy for the Crisis of Discourse and Democracy Deficit in the European Union
Summary
Excerpt
Table Of Contents
- Cover
- Title
- Copyright
- About the author
- About the book
- This eBook can be cited
- Contents
- Introduction: A Typically European Approach…?
- Bibliography
- Part I
- The Role of Democratic Thinking in the Shaping of Legal Awareness and Legal Recognition
- Bibliography
- National Identity: Constitutional Patriotism or Dialogue on Values
- Bibliography
- The Margin of Appreciation – a Safety Anchor for Constitutional Identity in Semiotic and Legal Contexts
- Bibliography
- The Political Versus Proportionality – Methods of Justifying Conflicts of Constitutional Values
- Bibliography
- The Indifference of Law to Literature
- Bibliography
- Part II
- The Limits to Constitutional Amendments and the Question of Constitutional Identity and Citizens’ Consciousness (the Polish case)
- Bibliography
- “Tempering Steel” – on Shaping the Standard of Interpretation of the Convention as Exemplified by the Legal Recognition of Same-Sex Relationships
- Bibliography
- Freedom of the Rule of Law-Promoting Expression of Prosecutors under European Law
- Bibliography
- Right of Access to Justice in Environmental Matters as One of the Forms of Public Participation in Governance and an Instrument for Upholding the Values of the European Union
- Bibliography
- Participatory Budgeting as a Tool for Increasing Constitutional Awareness
- Bibliography
- Series index
Karolina M. Cern1
Introduction: A Typically European Approach…?
Perhaps, there is nothing more European than a crisis. It is crisis that animates the Socrates-Gadfly to bite and thus launches practical philosophical reflection. Perhaps crisis might be deemed the driver of Europeanism and also be marketed as a European best-seller. The story of the struggle against the many faces of crisis and the way Europeans responded to them, is the history of our development – but are we aware of the cost we are paying for this development? The papers collected in the volume oscillate reflexively between the identification of the various types of crises currently affecting the European Union, Europe and even the entire world, and the awareness of the ways of formulating legal remedies for them. In particular, constitutional consciousness is considered as a remedy for the crisis in discourse and the democracy deficit in the European Union.
We can perhaps say the same thing about the common European legal culture and union law lawyers as Chris Ballinger said about the Lords and English constitutional law: “The Lords themselves are still in doubt about their origin.”2 And so are we still in doubt about the true origins of our common European legal culture, firstly as a background and a condition for discourse – legal and institutional as well as political and to some extent cultural or economic, but above all also a transnational civic discourse articulated in the name of common values, mutually recognised rights and shared interests. Indeed, for many, perhaps even most of us, discourse seems to be the most typical way for Europeans – post-Socratic beings – to deal with problems of all kinds, including crises.
However, as much as we consider the discourse and the common European legal culture that makes it possible, we probably also harbour some doubts. Should we trace the common European legal culture to “ancient” times, to the days of yore, to protect it from any (legal) questioning? Or should we stick to the turbulence of recent times for discursively setting the common rules right now, and let them be (politically) challenged at any time by any of us? Or should we boldly look forward to where none has looked before to present a big picture of what we might one day (economically) benefit from together?
In other words, when we refer to and look for the common European legal culture as a common European legal resource for discourse, in what terms should we do so? And exactly what kind of resource is it in the first instance? These are important questions that seem to enable us to define the reasonable expectations regarding this concept. So, is it to be a resource for overcoming crisis and reaching an agreement on how we, Europeans, should develop? Actually, agreement is also needed in the face of the physical threat of war that Russia has sparked right now, next door, in Europe. For it is extremely difficult (or perhaps impossible) to conduct a discourse without establishing a common ground; thus common European legal culture would provide a massive context (as a resource) for potential agreement-reaching.
So, let us first consider whether the common European legal culture is in some way related to our identity – European and/or national, our inherited and therefore constitutive values, as well as our respect for the past. Would that work? Well, following John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith:
“The reception [of Roman law] produced a common European legal culture, called the ius commune (common law). Thus, both England and Europe experienced what was called a common law. The English common law was national law, rooted in the authority of the king and his courts. The European ius commune was transnational law, rooted in a university-centred intellectual tradition of studying and teaching the medieval Roman law.”3
As we can see, ius commune, from the very outset, might be understood in at least two ways: as a result of the creative and intellectual (elite-driven) reception of something mainly external and, therefore, as a result, as international law; or as a product of the internal (close to the individual) everyday practice, i.e. as a law that is a common national achievement. As one can clearly see, the most sui generis constitutive element of the ius commune is tension. This is the in-built tension between the ruler and subjects; the state power(s); the different power-holders; the authorities and the capital (e.g. of the kings, popes, nobles and the resourceful bourgeoisie, as well as those sin-nobles); interests or values vs. emancipatory movements and rights… And what is intriguing is that the significance of the abovementioned elements, as tension triggers, depends on the time/historical moment and the (non)common consciousness of Europeans as reflexively shaping the resource for discourse. Crucially, all these terms suggest that specific reflexive flexibility is the next core feature (besides the tension) of the common European legal culture.
Coming back to the common European legal culture as the common resource for discourse produced in the medium of law. Perhaps yet another factor is at play here, namely a European achievement of the post-metaphysical morality for which the key question is not what is good for me or for us, but what is the right and just thing to do?4 Especially when dealing with diverse tensions, revealed in different times/historical moments, and the flexibly reflexive mode. Thus, the pressing puzzle to solve would be the following: which moral-democratic principles should be discursively established on a rolling basis and, therefore, constantly modified? More specifically: which or whose principles and how much could they be challenged? This is the question, because the problem – as already rooted in the one indicated above – is that:
“According to Thompson, and contrary to popular myth, the Peace of Westphalia (1648) ‘did not result in external state sovereignty against all other states’. Rather, it ‘legitimized the sovereignty of powerful modern states and the right of those states to impose limits on the statehood of defeated and aspiring states. It defined an external world in which sovereignty depended on power and in which distinctions were made between strong and weak states’ (pp. 25–6). Seen in this light, the policies of contemporary institutions such as the World Bank and the IMF, where tough conditions are imposed on states in the developing world, conditions that increasingly speak to constitutional values such as ‘good governance’, ‘accountability’ and ‘transparency’, are not so much a break from the Westphalia model as its continuation by new means: ‘An international economy in which indebted states find that richer states succeed in controlling their economic decision-making and the parameters of their internal politics is repeating past history’ (p. 36).”5
The above-outlined problem, in which our common European legal culture seems to have been immersed for centuries, is related to the tension between the powers of states and other international institutions and authorities defining who is to be a participant in the discourse, on what basis, and how much they are to be allowed to influence this common (inter)national discourse. Thus: who will be part of the subject reflecting on and at the same time deciding on actions? This discourse, for which our common European legal culture seems to be a resource and, as such, also a condition for the possibility of reaching an agreement, is then translated into already rigid legal regulations dictating the rules of the game played by the European Union and its citizens. Of course, one can think, after Jürgen Habermas, Karl-Otto Appel and Robert Alexy, of a discourse almost doing justice to the ideal conditions of communication – but whether all participants in the discourse want such a discourse is not that obvious. As Jeoffrey T. Checkel highlights, “the new member states have had a different relationship to Europe; they have unique historical memories that will not be Europeanized away.”6 This in-built tension – who is European actually – has always fuelled the various crises swirling through Europe too. And it is particularly important to bear this in mind and not deny it, as the concepts of difference, diversity, as well as inequality, are also products of internal European tensions and the reflexive dealing with them.
Thus, tensions, since the modern era arising predominantly around the category of the state, power and economy, are then translated into rigid rules of the game in discourse, existential aspirations, and the quality of life of ordinary people. They are the foundations of the shared European legal culture, which is a resource and a condition for participating in discourse and reaching a potential and negotiable agreement.
Or is there something else, something more promising, a benefit from having a common resource that will be fully revealed to us in the future one day? But who will decide on this? Who are the gatekeepers of our beneficial future? When a common resource was generated through Roman law and the universities, academics were the gatekeepers; for generating ius commune as a national achievement, the royal centralisation of the common law courts played the paramount role; but who is playing and who will soon play a central role on the stage of the common European legal culture?
Let us listen to Turpin and Tomkins again, to their book issued years before Brexit was “called on” and came into force.
“Ours has traditionally been a political constitution, in which change is directed and conflicts are largely resolved through the political process (see Griffith, The Political Constitution, 1979, MLR, vol. 42, no. 1). When a written constitution is in place, arguments about its effect are conducted in legal terms, as an exercise in interpretation, and are displaced from the political forum into the courts. As Ian Holliday remarks (in G. Parry and M. Moran (eds.), Democracy and Democratization, 1994, p. 253), ‘juridification of politics is one of the major problems created by a written constitution’: much power, and much trust, are given to judges. The role which they may assume is exemplified by the history of the United States Supreme Court.”7
Actually, this comment on the constitution poses a question: who would we like to be? How would we like to communicate with one another? In other words, why would the man on the Clapham omnibus, that is, an ordinary and reasonable person, want to be ruled by legal elites, rather than by a political process? By legal elites without very compelling democratic legitimisation (bearing in mind that this is precisely what the EU judiciary lacks)? Brexit showed that the man on Clapham omnibus did not want them. Why should other ordinary and reasonable persons, from other Member States, want these elites to make decisions apart from them? In other words, the time has come for citizens to be taken seriously, for them to be shown respect and paid heed; time for citizens across the EU to engage in respectful discourse – instead of them being subject to paternalization and written about by the formidable elites who know best how to Europeanise the Continent by means of law, and for economic reasons.
Now, the pivotal question is, therefore: what and how is the discourse to be conducted in the face of the plethora of crises battering the European Union? Whose resource is the discourse of the common European legal culture? Exactly what kind of resource is it? What kind of discourse should it be: Academic? Legal? Political? Or perhaps civic (but again: civic-national or civic-pan-European)? Should each of these discourses play the same or a similar role in the debate on the current crises and how to overcome them, or is any one of them distinguished, for example, from the perspective of the legitimisation of democratic law? This is, in fact, one of the main questions posed by Dimitry V. Kochenov and Graham Butler,8 although unfortunately it is not asked anywhere there… The question of the difference between legality and legitimisation, which Kochenov and Butler do not pose when discussing, with remarkable vigour, the issue of the termination of the mandate of the UK Advocate General as a “sitting member of the Court of Justice.”9
Here, the fundamental point is to rethink how the EU can be made a union of citizens for citizens, not of distant elites, one that is capable of responding to the concerns of ordinary citizens. How to strengthen the transnational channels of communication between different groups of citizens speaking different languages but perhaps facing and struggling with quite similar problems, how to involve these citizens in various initiatives of participation and deliberation about themselves in their EU, whose future is theirs.
Thus, the most important thing that emerges from the above is that the three options identified provide differing definitions of the participants in the discourse, and of the tasks they can and should perform. Again, who are the gatekeepers of our future? If this role is no longer to be played by academics, then is it to be taken up by judges and Justices or politicians? Is there any place assigned to citizens? And finally, how do we understand democracy, with what terms do we conceptualise it?10 Let us look a little bit more closely at this point, namely, by looking at some of the issues vividly pointed out in the ELJ article cited above.
Well, paradoxically, the tension inherent in the concept of a common European legal culture is also created by the notions underlying the principle of the Rule of Law and Rechtsstaat. Currently “A globally accessible mode of communication – a kind of lingua franca – has emerged in international development cooperation under the banner of the rule of law to describe the ‘correct’ way to structure societies and governance.”11 The Rule of Law, this legal yardstick – a kind of legal “lingua franca” on an international level – grew out of the English political and ethical philosophy, culture, history and tradition (naturally, it has also been developed in many other countries that remain under the British influence). As we can recall, Brexit came into life on 31 January 2020. The rival concept to the Rule of Law, coined in the 19th century, was Rechtsstaat, which grew out of the Continental political and ethical philosophy, culture, history and tradition.12 (Here “Continental” can mean German and/or French and/or Italian and so on – depending on how detailed the discussion is). The problem is that comparatively little has been written on this profound issue, namely the philosophical provenance and the basic net of philosophical concepts operating behind the Rule of Law and Rechtsstaat. The well-known exception is, of course, the philosophical reflection on the concept of the government/sovereign.13 This diagnosis applies to both the historical and contemporary perspectives.
This is actually surprising, because the philosophical concepts people are taught at schools, or just become socialised to, deeply structure their minds,14 in the sense of creating their capabilities, resources and competencies for creating, building and maintaining relations with others, as well as those relations that are institutionally mediated. Further, the assumptions, images and design of public institutions are based upon a fundamental philosophical understanding of elementary ethical, social and political issues,15 such as, for example, reason and emotions/ affects/ sentiments, individual freedom and liberties, the role of political authority, the function of law (and its sources), or the idea of justice in relationship to the previously listed ideas.
Additionally, the different philosophical backgrounds of the citizenry may give rise to different expectations with regard to public institutions and, on the other hand, a different functioning of public institutions may be perceived and regarded as trustworthy by citizens. Paul Tiedemann, for example, argues that respect for the formal principle of Rechtsstaat can be sustained and maintained only “where an appropriate culture of legality is firmly established.”16 Neil MacCormick, agreeing on the role of habits for the effective sustaining of law, stresses, however, the role of affective human nature: “the critical rational discussion depends on an understanding of real people as they have really acted in the past and go on acting now. […] Without empathy there is no understanding of (other) people as people. Without understanding of other people, there is no self-understanding.”17 Thus, how shall we understand the addressees of Rechtsstaat and the Rule of Law? Are they the same addressees, or are the addressees very similar?
In other words, the way people – meaning ordinary citizens, office holders, lawyers, including judges and Justices, and also politicians – understand the Rule of Law and Rechtssaat, and whether they do so in similar or different ways, depends, to a certain extent, on the philosophical assumptions and conceptual nets operating behind the two concepts. And the question is: which – and precisely what – concept is used by prominent legal experts in widely read legal journals, when they write (to whom?) about the Rule of Law? And how is this concept democratically legitimised?
What is particularly significant in this collected volume is the genuine interest in European citizens, their communities and nationalities, as well as the values they adhere to and simultaneously contest (Paulius Griciūnas, National Identity: Constitutional Patriotism or Dialogue on Values; Anna Kalisz, The Margin of Appreciation – a Safety Anchor for Constitutional Identity in Semiotic and Legal Contexts; Martin Škop, The Indifference of Law to Literature) – versus the common European consciousness, rights and identity, in short, common European legal culture (Milena Korycka-Zirk, The Political versus Proportionality – Methods of Justifying Conflicts of Constitutional Values). Although the questions about citizens and their concerns are posed from the perspective of both national and European institutions, most of all by Justices and/or professors in law, they genuinely express interest in and concern for citizens, the democratic principles that enable them to exercise democratic power (Bartosz Wojciechowski, Skirgailė Žalimienė, The Role of Democratic Thinking in the Shaping of Legal Awareness and Legal Recognition), their rights as individuals also vis-à-vis the state (Marcin Górski, ”Tempering Steel” – on Shaping the Standard of Interpretation of the Convention as Exemplified by the Legal Recognition of Same-Sex Relationships). This volume is, therefore, unique in that it deals with how to enable citizens to participate in discussions and decisions on issues as urgent and important as the participatory budget and the citizen (Jarosław Sułkowski, Participatory Budgeting as a Tool for Increasing Constitutional Awareness), environmental sustainability (Rasa Ragulskytė-Markovienė, Jurgita Paužaitė-Kulvinskienė, The Right of Access to Justice in Environmental Matters as One of the Forms of Public Participation in Governance and an Instrument for Upholding the Values of the European Union), and their national, constitutional and European identity (Anna Chmielarz-Grochal, The Limits to Constitutional Amendments and the Question of Constitutional Identity and Citizens’ Consciousness (the Polish case); Vygantė Milašiūtė, Freedom of the Rule of Law-Promoting Expression of Prosecutors under European Law).
1 Karolina M. Cern – philosopher of law specialising in processes of Europeanisation, constitutionalisation and public law. Author of several articles in law and ethics, author and co-author of three books (Conception of Time by Early Heidegger, 2004; The Counterfactual Yardstick: Normativity, Self-Constitutionalisation and the Public Sphere; 2014; with Ewa Nowak Ethos in Public Life, 2011); editor and co-editor of a dozen of collected volumes. Cern is currently working on a deliberative philosophy of law, particularly administrative law and the relationship between the ideas, concepts and conceptions of the Rule of Law and Rechtsstaat. She is a professor at the Faculty of Philosophy, Adam Mickiewicz University in Poznań, Poland.
Details
- Pages
- 316
- Year
- 2023
- ISBN (PDF)
- 9783631905210
- ISBN (ePUB)
- 9783631905227
- ISBN (Hardcover)
- 9783631895566
- DOI
- 10.3726/b21009
- Language
- English
- Publication date
- 2023 (August)
- Keywords
- European integration European values and standards democratic thinking human rights fundamental rights
- Published
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2023. 316 pp.
