Jean Monnet Center at NYU School of Law

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The ECJ's articulation of its vision for the relation of harmonization, subsidiarity and cultural solicitude presents a clear picture of the place within the matrix of these political imperatives where the ECJ would place the relationship between Communities, Member States and sub-national groups. This articulation also serves to highlight the consequences of having chosen this particular place in the matrix. For the moment, and for the purpose of constructing an important unit of government, the Communities have placed great emphasis on harmonization at the highest federal level. National and cultural solicitude have been given short shrift; and of the two, national solicitude is given greater deference than cultural deference to the eccentricities of sub-national groups. Yet this particular place on the matrix is unstable. There is no real guarantee that the structure chosen for the E.U. by the ECJ will endure. I will discuss the reasons for this instability, and my sense of the permanence of the current configuration in this section.

Our birthright as social animals is an unquenchable will to order. (Foucault, 1975). We seek connection with others. From connection comes order and power. It is the way we replicate ourselves in multiple form. (Backer, 1996). Groups, in this sense are very much like the Borg. (Star Trek: First Contact (Paramount Pictures 1996)). For those who are not fans of American science fiction television and motion pictures, the Borg were a race which had attained the highest level of communitarian development on a number of levels. Borg society was composed of humanoid beings who, shortly after birth, were joined with a number of mechanical components. The result was a being part human and part machine, and intimately connected to all other being in the "collective," the community in which all were expected to function. Each being thus created became an undifferentiated but individual part of the Borg community. The Borg believed this to be the perfect social state of being. The Borg were also fairly militant about this belief. The primary mission of this collective was assimilative and expansionist. The Borg felt compelled to share the perfection of their form of social organization with members of other groups. Lamentably, since perfection will not be denied, all other life forms were obliged to assimilate or be destroyed. With the Borg we are presented with an exaggerated version of our own rendering of the nightmare of an imperial conformity: human and machine in near perfect integration within each body, the individual subsumed within the collective, and a "passive-aggressive" defense mechanism for community protection.

The curse of our individuality, disconnected at the most basic level from others, is that we resist connectivity at the level of the individual and that of the group. Connectivity implies subordination of the individualism which is the basis of human life. But individuals come to the text of group normativity individually.

When I claim that gender is inevitably personal as well as cultural, I do not mean only that people create individualized cultural or linguistic versions of meaning by drawing upon cultural or linguistic categories at hand. Rather, perception and meaning are psychologically created. As psychoanalysis documents, people use available cultural meanings and images, but they experience them emotionally and through fantasy, as well as in particular interpersonal contexts. Individuals thereby create new meanings in terms of their own unique biographies and histories of intrapsychic strategies and practices. (Chodorow, 1995, at 517).

This notion has been expressed well in the context of the "culture" of legal education: "Thus no one is ever exposed to the totality of a culture; culture is collectively filtered through the particularities of individual experience. Furthermore, individuals differ in the extent to which they conform to norms, and situations differ in the extent to which they elicit conformity." (Obiora, 1996; Schlag, 1990). The impossibility of uniformity of interpretation, in itself, ensures that normativity can never be uniform or immutable.

The manifestation of that social will to order permeates all human relationships. It is as effective at the level of the personal and familial as at the level of national and global interaction. The resistance to every particular imposed order emanates as well from this will to order. Resistance as an individual or sub-group negates the power to order the larger collective. This resistance is expressed through lived experience, the vagaries of interpretation, or conflict -- a militant politics of difference. Our political systems internalize these tensions without hope of resolution. Harmonization expresses social ordering; culture suggests resistance and subsidiarity evidences mediation among collectives.

Harmonization, subsidiarity and protection of "group" culture represents a political shorthand for a proceduralist understanding of law. (Habermas, 1996). The American parallel here is to the proceduralist jurisprudence of commentators like Herbert Wechsler and Antonin Scalia. (Weschler, 1959; Scalia, 1989). Proceduralism works, but only within the framework established by someone--that is, as meta-process. The contest for the acceptance and construction of meta-process itself reflects the tensions at lower levels. It is only in this sense that Rosenfeld's notion of "comprehensive pluralism" can make sense. This comprehensive pluralism, the shorthand of harmonization-subsidiarity-cultural solicitude, form

a dynamic system that depends on the concurrent work of thrust and counterthrust which is propelled by the permanent tension generated by the friction between its negative and positive work...[it] has an important negative role to play--it can be vital in [the] struggle against the permanent entrenchment of any particular set of first order norms.... [It] can also play a limited, but nonetheless crucial, role on the positive front. By exposing particular inequities through its leveling mechanisms and by revealing concealed inequities through the reversal of perspectives, [it] can channel [the] need for contested first order norms toward more encompassing, widely shared, and less oppressive alternatives. (Rosenfeld, 1996, at 824)

The necessary consequences of the tensions inherent in our late twentieth century federative political enterprise are thus exposed. The most significant of these -- trivialization, the paradox of process, and the preservation of artificial culture -- are discussed below.

Where sub-national culture, Member State and Community interests conflict, only one may prevail. But which? The answer tends to be: the supra-national unit! Cases such as Re Cable Television Broadcasts (EC Commission v Belgium (Re Cable Television Broadcasts) Case C-11/95, [1997] 2 CMLR 289) provide a glimpse of the ECJ's understanding of the hierarchy and positioning of harmonization, subsidiarity and culture. In that case, Belgium sought to justify its system of prior authorization for retransmission by cable of television programs from other Member States (in arguable contravention of the relevant Community directive) on the basis of the cultural protections afforded under Art. 128. Indeed, Belgium argued that legislative action by the Community must be construed in the light of Art. 128 of the Treaty, relating to culture, as inserted into the EC Treaty by the Treaty on European Union. The ECJ found that argument unacceptable.

"As is apparent from the seventeenth and eighteenth recitals in the preamble to Directive 89/552, that directive also pursues cultural objectives, in particular by means of the system laid down in Articles 4 and 5. It is true that, under Article 128(1) of the Treaty, the Community is to contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore, and that, under Article 128(4), it is to take cultural aspects into account in its action under other provisions of the Treaty. However, that article does not in any way authorise the receiving State, by way of derogation from the system established by Directive 89/552, to make programmes emanating from another Member State subject to further controls." (Id.; Decision)

Likewise, subsidiarity is a secondary principle, available only in residue form after the Community Institutions decide that Community action is required or not. However, that initial decision to act, or not act, always remains with the "superior" government. As such, the Belgian government's subsidiarity argument was given short shrift by the ECJ.

The Belgian Government maintains that, according to the principle of subsidiarity laid down in the second paragraph of Article 3b EC, it is at liberty to intervene in cultural matters, provided that it does not fail to observe its obligations under Community law. As has already been pointed out in paragraph [34] above, Member States are obliged, an accordance with Article 2(2) of Directive 89/552, to ensure freedom of reception and not to restrict the retransmission on their territory of television broadcasts from other Member States in the fields co-ordinated by that directive. It follows -- as, moreover, the Belgian Government itself concedes -- that a Member State cannot evade that obligation under Directive 89/552 relying on the second paragraph of Article 3b of the Treaty. (Id., Decision).

In the area of fundamental human rights, the supra-national unit has also usurped primacy. But here, the question of primacy remains open, at least in the eyes of the courts of the Member States. For instance, contrast the perspective of the German court with that of the ECJ in their respective powers to determine the scope of and then enforce fundamental social norms. (Internationale Handelsgesellschaft GmbH v. Einfuhr-und Vorratsstelle Für Getreide und Futtermittel, Case 11/70, [1970] ECR 1127, [1972]; Internationale Handelsgesellschaft GmbH v. Einfuhr-und Vorratsstelle Für Getreide und Futtermittel (Solange I), Case 2 BVL 52/71, 37 BVERFGE 271, [1974] CMLR 540 (Federal Constitutional Court (2nd Senate)). The practical effect of these decisions is not limited to areas such as the rights of "marginalized" groups, but affects core economic regulation as well. Though outside the scope of this article, I note, for example, that the fundamental community law principle of privacy underlies the recent push to develop E.U.-wide regulation of data protection. (Wuermeling, 1996, 414-415, 419-420).

Read carefully, these decisions evince the understanding of subsidiarity, and the solicitude for cultural difference, as assuming a decorative function in those areas where the courts and Community Institutions choose to speak. Subsidiarity and cultural solicitude are given voice during periods of norm genesis when a "margin of appreciation" acts to restrain system-wide pronouncements of these norms. Yet even when subsidiarity and cultural solicitude provide a basis for legal expression, such expression remains bounded by supra-national norms. For example, linguistic sensitivity is permitted expression, even under objectively odd circumstances, as long as such expressions do not breach the overriding Community norm of equal treatment. This was the case with the imposition of an Irish language requirement for teachers in Ireland, even where that language would rarely be used either for instruction or in everyday conversation. (Groener v Minister for Education and City of Dublin Vocational Education Committee , Case 379/87, [1989] ECR 3967, [1990] 1 CMLR 401). It applies as a limitation to the protection of the culturally sensitive (at least in France) film industry as well. (Cinéthique S.A. v. Fedération Nationale des Cimémas Français, Cases 60 & 61/84, [1985] ECR 2605).

In effect, cultural currency is allowed its freedom only at the margin--as something picturesque because of its difference. When cultural difference becomes serious and violates fundamental Anglo-European norms, for example notions of fundamental human and sexual rights, solicitude for difference ends. Such conduct is not picturesque or tourist worthy. At this point, the requisites of harmonization will take precedence. Even subsidiarity has been said to presuppose "a background of shared objectives or values [necessary] in order to determine what can be regarded as a 'failure' of the lower level entities." (Bernard, 1996, at 635). The Working Time Directive case is instructive in this regard. The British attempt to invoke, the "spirit of subsidiarity" to challenge the Working Time Directive was rejected by the ECJ. Advocate General Philippe Leger dismissed the contention in a passage worth noting:

By relying on the principle of subsidiarity, therefore, the applicant is disputing as a matter of principle the possibility of the Council taking action in the area covered by the contested directive, and not the extent of that power which, for its part, is conditional on compliance with the principle of proportionality. (¶ 127). . . . Thus, in view of the fact that the objective provided for in Article 118a is harmonisation, there is no doubt that the aim of the contested directive can be better achieved by action at Community level than by action at national level. (¶ 131). . . . The argument alleging failure to comply with the principle of subsidiarity must therefore be rejected. (¶ 132)" (United Kingdom v EU Council (Re Working Time Directive), Case C-84/94, [1996] All ER (EC) 877, [1996] 3 CMLR 671).

But why must assignment to the supra-national unit necessarily follow in a regime now obeisant to the principle of subsidiarity? The answer, I think, is historical as well as political. Europe continues to suffer from the consequences of its collective conduct during the 1933-45 period. Cultural solicitude on a national scale has had a nasty habit of racializing national and religious minorities. Difference has a way of becoming hubris. Part of Europe's healing process necessarily has had to involve the construction of the belief that difference is basically cosmetic and that general principles of conduct and outlook unite all peoples of Europe. Curran's description of the basis for the emigré construction of essentialism and universalism in comparative law provides a compelling rationale for the same tendencies in the construction of base-line general principles of Community law:

The emigré comparatists intended the denial of difference to be the theoretical underpinning of societal and legal tolerance of difference. The émigrés' personal experiences led to their faith in the fundamental similarity of all humans, and to their belief in the perniciousness of according legal recognition to differences in religious or ethnic origin. Their commitment to a theory of inclusion did not, however, extend to an inclusion of others' differentiating attributes, but to a leveling absorption, a homogeneity to be born of erasure of difference rather than a homogeneity of common genetic background. The émigrés' approach is reminiscent of Montaigne's, whose legendary humanism of inclusion did not necessarily signify a tolerance of difference so much as an erasure of it through assimilation." (Curran, 1996, at 48).

Difference must necessarily be trivialized. Cultural solicitude must appear little more than appreciation of cinema production. (Cinéthique S.A. v. Fedération Nationale des Cimémas Français, Cases 60 & 61/84, [1985] ECR 2605 ("It must be conceded that a national system which, in order to encourage the creation of cinematographic works irrespective of their origin, gives priority, for a limited initial period, to the distribution of such work through the cinema, is so justified." Id., at ¶ 23.)). I suspect that this is a healthy course.

Privileging the harmonization of norms at the supra-national level, and especially human rights, in a system which requires comity for the advancement of the principles of subsidiarity and cultural solicitude can weaken the supra-national system. Privileging assimilative supra-national systems of normative (and particularly human) rights is important where the object of the system is the maintenance of a process which must always, in order to succeed, produce some sort of agreement. This underlies some of the current thinking of European commentators. Some speak of the need of a duty to shoulder the "European, and uniquely European, heritage of an idea of democracy" which carries with it a number of choices and limits on the forms of acceptable cultural norms within political expression. (Derrida, 1992, 78-79). Others have argued that the universalism of Enlightenment ideas ought to be embraced as "pragmatic social constructions." (Laclau, 1996, at 103-104).

Thus, process is the key to the management of the multiple and discordant voices which make up European federalism. It follows that a process based system is considerably destabilized whenever one voice is treated as primus inter pares. First, process can appear to be uncontrolled. It can appear as little more than an exercise of ad hoc politics. Little, other than judicial restraint, stands between the ECJ's process of declaring norms and the judgment that such a process is no more than an arbitrary exercise of process. Tradition is the usual answer given to arguments of arbitrariness or ultra vires. In considering whether it was possible or advisable to create a "national culture" exception to the art. 30 prohibition on the imposition of quantitative restrictions on trade, Advocate General Gerven noted that:

Nevertheless, here too, in order to prevent an undesirable proliferation of grounds of justification, I consider that as close a connection as possible must be sought with the grounds provided for in Article 36 EEC, the objectives of Community law recognised in the European Treaties and the fundamental rights which form part of the Community legal order, in the light of which those grounds and objectives must be construed. (Stoke-on-Trent City Council and Norwich City Council v B & Q PLC, Case C-169/91, [1993] 1 CMLR 426, per Advocate General Walter van Gerven at ¶ 24).

The ECJ, like other Community Institutions, is constrained by the general language and design of the Treaties, the legal and constitutional traditions of the Member States, and evolving notions of right. Well and good -- yet the ECJ, in particular, retains the power of interpretation, substantially unchecked. Can the notion of ECJ "infallibility" in matters of Community "faith" lag far behind? Certainly, applying the traditional values of much of Europe by analogy would normalize this quasi-religious notion as a tool of government. That Europe could accept the notion of governmental infallibility in matters of "principles" is not far fetched. The notion of subsidiarity itself is religiously derived.

If, indeed, this power may be exercised arbitrarily, by whom is that arbitrariness to be controlled? Ultimately, it can be controlled only by the constituent parts of the unity asserting their own political power within the supra-national system. A hint of this control can be observed in the process leading to the draft Treaty of Amsterdam. But such control is both difficult and extraordinary. Moreover, the price of such control can well be instability and the breakup of the supra-national entity itself. Arbitrariness can thus serve not only as the locus of hegemony, but also as a point of instability in system building.

Instability can also follow from the process of unmasking power and the development of resistance to it. The ECJ's "general principles" jurisprudence unequivocally delineates the real locus of power within the E.U. system. The blandishments of subsidiarity and cultural solicitude are window dressing when the supra-national institutions confront issues of importance to them. The power of ECJ interpretation is the power to normalize and to colonize. Its pronouncements become the standard of behavior throughout the Union. As the expected basis of behavior, as the background norm, such conduct standards replace those which might have otherwise existed in the Member States. This is a power that means to exclude those who will not play by the "rules." For those who do not wish to "play" the only choice is exit. Here Weiler's use of Hirshman's three variable model of corporate governance -- voice, exit and loyalty -- within federations proves useful. (Weiler; 1991, at 2410-12; Hirshman, 1970). In my analysis, "loyalty" is evidenced only by acceptance of the norms within which all governments must function within the European "federation." The Catholic analogue, of course, is bound up in the notion "obedience." "Voice," the power to participate in the creation or modulation of those norms, is available only to those who demonstrate obedience to the norms as well as the norm-declaring institutions. "Exit" is an option that exists in theory; the threat of exit should (but need not) act as a means of limiting the tyranny of "obedience."

Federations facing critical "exit" problems are unstable indeed. The United States taught us that in the period leading to the American Civil War. The Jugoslavians, now citizens of more cleansed nations, proved the effectiveness of instability in demolishing a multi-cultural empire at the beginning of the twentieth century, and then demolishing a smaller version of that political empire at the close of the century. Stability depends, as the German and Italian courts remind us, on the continued congruence of developing Community norms with those of the nations and sub-national groups subjected to such norms. (In re Application of Wünsche Handelsgesellschaft (Solange II), Case 2 BvR 197/83, 73 BverfGE 339, [1987] CMLR 225 (1986) (Federal Constitutional Court (2nd Senate); Frontini v. Ministero delle Finanze, Case 183, [1974] Il Foro It. 314, [1974] 2 CMLR 372 (1973)). As deviation widens, the possibilities of conflict, and perhaps readjustment of the relationship between harmonization, subsidiarity and cultural solicitude increases as well. Instability is always "just around the corner" from every norm creating decision of the ECJ.

Having unmasked the instability of power at the center, it is also easy to see the way in which the solicitude of such a centralizing force for the cultural differences of its constituent parts will destroy the essence of those cultures. See the solicitude of cultural difference for what it is -- a zookeeper's approach to culture. This approach to culture contains within it the possibility of what Jurgen Habermas describes as "administrative preservation" of cultures like forms of endangered species. (Habermas, 1993, at 142) That, certainly is the implication of a cynical reading of Derrida's definition of the European democratic hegemonic norm as including "respecting differences, idioms, minorities, singularities, but also the universality of formal law, the desire for translation, agreement and univocity, the law of the majority, opposition to racism, nationalism and xenophobia." (Derrida, 1992, at 78-79). In effect we see difference within a cage. It can be given effect only within the strong containing walls of a hegemonic foundationalism which prevents much freedom for cultures to be as they may have to be. Where stability and the expression of minority norms is important, this is a desirable outcome. Yet this outcome is hardly what could have been envisioned by the leftist or radical politics under which these notions are hawked. What we approach here are the notions of toleration espoused by John Locke read somewhat more generously than in the past. And yet, harmony, and preservation of the whole, may well require some sort of basic assimilation on the part of all peoples sharing a common geographic space.

Even so, this approach can be criticized on two grounds. First, the very act by a dominant group of using dominant norms to preserve the cultures of others is an effective means of subordinating the very group which the dominant group means to preserve. This is the exercise of raw power--the power to define and the power to regulate. The purpose of such preservation is not so much solicitude for the culture preserved as it is for the benefit of the culture preserving. Some American critical race theorists suggest this without understanding the irony of their suggestion. Thus, preserving "older" cultures is "vitally need[ed] -- not just to pique a jaded taste -- but for [the] very survival" of the harmonizing culture. (Delgado; 1996, at 141).

Second, the resulting culture will inevitably be an artificial construct of a second order. The artificiality results from the maintenance of cultural norms from without rather than from the exercise of free cultural practice from within. Understood properly the temporal expression of culture at any one time, is what I call popular culture. Popular culture represents merely an implementation of the possibilities inherent within culture, not the impossibility of a totality of the possibilities of culture itself. Anglo-Europeans necessarily practice culture through an endless attempt at replication. In this sense, popular culture can be understood as the "prejudices" (what I would characterize as value choices) of the extant communal tradition. This is the fundamental nature of our interpretive community. (Backer, 1998; Gadamer, 1989, at 302, 306; Fish, 180 at 303-304). "[W]e constantly constitute and reconstitute our tradition, our culture, and our community as we engage in hermeneutic actions. Most important, this constant reconstitution is always simultaneously constructive and destructive." (Feldman, 1996 at 188). Solicitude for culture ought necessarily to permit cultures to change and to disappear, without interference. "All the constitutional state can do is make possible this hermeneutic accomplishment of the cultural reproduction of lifeworlds. A guarantee of survival would necessarily rob members of the very freedom to say yes or no that is required today to make cultural heritage one's own and to preserve it." (Habermas, 1993, at 142).

Thus, the construction and maintenance of a politics of culture solicitude is an inherently dangerous and unstable exercise. That exercise requires the balancing of the imperatives of the mongrelization of culture implicit in the approximation of basic conduct norms at the Community level with the union-shattering potential of cultural expression through law and politics. Such balancing will always be unsatisfactory; it can never be adequately or permanently achieved within a Europe of developing cultures of unequal political or numerical strength. Minority communities now resist approximation more vociferously. This resistance has been gathering momentum since the 19th century in Europe, and has become a worldwide phenomenon since 1945.

Developing societies, like minority groups in the U.S., need protection first, and the opportunity to assimilate -- mongrelize, as Salman Rushdie puts it -- later. If the world community does not afford them a chance to do this, cosmopolitanism will injure them, set back their development, while it aids the cause of the most privileged. (Delgado, 1996 at 145)

Europe today is prepared to accept the inevitability and consequences of cultural dominance. Yet the constituent parts of Europe also must accept that the basis of this dominant European culture will shift, as it has shifted in the past, as the institutions of the Community attempt to discern those norms which ought to be common to all of the Member States. At the same time, this emerging European political culture must accept that the nature of its dominance, that is the socio-political sphere within which it cannot tolerate deviance, will change as commonly held views about the acceptable extent of assimilation and difference change with each political generation. In other words, today's optimum normative framework for European federation cannot be expected to supply even the basis for tomorrow's optimum relationship between federal, state and local power.

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