Jean Monnet Center at NYU School of Law

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The previous discussion should make plain that the notion of contained conflict is built into all federal systems faced with the irreconcilable goals of harmonization, subsidiarity and protection of insular cultures. The power to harmonize at the Community level necessarily is opposed to that of the nation-state seeking to preserve deeply held incompatible norms. The power of Community and nation are opposed to that of sub-national groups attempting to free themselves of the constraints of ever larger bands of assimilation. The Community system is built to contain, not eliminate, the conflict inherent in the crisscrossing imperatives of harmonization, national and sub-national solicitude. This is a containment of conscious design--a metaphorical caging of the dragon that ought not be killed or freed. To kill the dragon is to reimpose Imperial Rome. To free the dragon is to accept the model of Austria-Hungary, and with it the inevitability of the breakup of Empires or Communities and the shattering of Europe into a thousand warring camps. Containment, then, reflects both the mistrust of harmonization, subsidiarity and insularity, as well as the mistrust of the absence of any of them. While it is important to prevent the severe reconstitution of choking centralizing hegemony, it is also important to avoid the multiplication of impermeable borders.

This dragon of contained conflict inherent in a system of overlapping power carries negative and positive potentialities. The negatives include subordination as an independent concept. Subordination is a negative value in itself; it has come to be thought of in the West as invariably "bad." Yet subordination is a necessary component of human social organization; it may therefore also be "good," and if not good, at least acceptable given the evils of the alternatives. The necessity for disagreement always leaves the door open to subordination. Someone's norms will always have to be the basis for determining what is acceptable and what is not, and domination is born with the making of that choice. The "bad" then, perhaps is in the abuse of necessary subordination. Yet, as we have seen, in a system in which harmonization is always opposed by national and sub-national solicitude, abuse itself can be policed. Thus containment, rather than freedom or death for the dragon, increases the likelihood of benign subordination, even as it makes subordination on some levels inevitable.

Indeed, there seems to be a level of subordination which most Western thinkers are not only willing to accept, but insist on imposing on all cultures. These are what are called basic, or human, rights.

The universalistic content of basic rights is not restricted by the ethical permeation of the legal order; rather, it thoroughly penetrates nationally specific contexts. It is for this reason that the legal neutralization of value conflicts, which would otherwise fragment the political community, requires that the justice aspect have a privileged position. . . . In Germany, for example, the rights of young Turkish women must, if necessary, be enforced against the will of fathers who appeal to the prerogatives of their culture of origin. (Habermas, 1996b, at 1498)

We have come to believe that there is some sort of trans-cultural truth in human rights which exceeds any damage from the imposition of our interpretation of those rights on the unenlightened. (Blumenson, 1996; McDougal, 1980). We tend to argue in favor of the imperialism and the necessity of a colonizing spirit built on human rights as "one of the essential elements of democracy precisely because [it is] grounded on the idea of the abstract individual." (Salecl, 1994, 119).

The problem is that even basic or human rights pose severe problems of identification and interpretation. The Irish abortion cases provide a rich example of the tensions arising from identification and enforcement of European rights in the face of strongly held dissenting views. (E.g., Society for the Protection of Unborn Children (Ireland) Ltd. V. Grogan, 159/90, [1991] 3 CMLR 849). The answer for the Irish, of course, was a political settlement, an agreement that within the federation, Europe would agree to disagree with Ireland with respect to the normative approach to fetuses. This is a worldwide problem for federalism Consider the views of Islamic thinkers on this point. David Westbrook has provided a thoughtful review of the relationship of Islam and the enterprise of the global (Western-origin) human rights enterprise. He argues, in part, that Islam views public international law as a foreign law to which it must react, and that Islam has set for itself the task of constructing an alternative (and competitive) vision. (Westbrook, 1993). Of course, this is closely tied to the danger of trivialization of difference, or of the creation of limited spheres of acceptable difference. In our headlong plunge into a harmonizing series of supra-national norms, it is dangerous to forget that such norms are crafted at the expense of what may well be significant differences of interpretation or even of acceptable norms. If the norm building project of the supra-national entity proceeds in the absence of consensus, then it must be prepared to enforce its norms -- one way or another. But, then, we will have killed the dragon. If the supra-national entity is willing to permit variance with respect to the norm, it runs the risk of reducing the norm to a rhetorical flourish, substantially unenforceable. To reach this pass, of course, is to free the dragon.

But a negative flows from the rejection of the implications of subordination within systems seeking to assimilate different people -- instability and violence. This is the dragon unleashed, power uncontrolled. This is the classic paradoxical dilemma of the extent to which a tolerant society can tolerate intolerance. At some point, harmonization and cultural solicitude can reach a point of irreconcilability. The answer provided by Europe is to cultivate sensitivity, even if it is only at the margin. Harmonization can be tempered by margins of appreciation which are flexible. Consider the possibilities of something as basic as the exceptionalism of Art. 36, the workings of which are reproduced in the interpretive jurisprudence of the ECJ in other provisions of the Community Treaties. Thus, for example, national rules regarding the permissible hours of operations of business establishments may well "reflect certain political and economic choices in so far as their purpose is to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics, and that, in the present state of Community law, is a matter for the Member States." (Torfaen Borough Council v. B & Q PLC, Case C-145/88, [1989] ECR 3851 at ¶ 14 (emphasis added). Consider also the acceptance by the Community of the power of the Member States to opt-out of approximation requirements, at least on a limited basis. Either of these approaches, taken to an extreme, can destroy the federation. Ironically the refusal to follow either course can destroy the federation just as effectively.

It follows that only a shifting moderation is available to avoid the danger arising from the perceived ineffectiveness of exceptionalism or the basic assault on core principles of conduct on which the union is based. Principles of deference may not be able to trump the general principle of equal treatment. While in "principle, it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality within its territory" (Regina v. Henn & Darby, Case 34/79, [1979] ECR 3795 at ¶ 15), the state may give effect to that morality only to the extent that the Community principle of equal treatment is not violated. (Congate Limited v. H.M. Customs, Case 121/85, [1986] ECR 1007 (with respect to inflatable erotic "dolls")). Similarly, with respect to protections of French cinematic efforts, "cultural aims may justify certain restrictions on the free movement of goods provided that those restrictions apply to national and imported products without distinction, that they are appropriate to the cultural aim which is being pursued and that they constitute the means of achieving them which affects intra-Community trade the least." (Cinéthique S.A. v. Fedération Nationale des Cimémas Français, Cases 60 & 61/84, [1985] ECR 2605).

Where deference or accommodation is not possible, either the dominated culture will change, or it will go underground, or a new relationship between harmonization and deference will be negotiated. In the limiting case, sub-cultural groups can attempt to exit the union--if they can! And yet even exit merely reconfigures the problem rather than eliminate it. As the "ethnic" nations of Eastern Europe discovered to their dismay after 1918, their success in escaping the yoke of Austria-Hungary (or Russia or Germany) merely created the means by which the new Czech, Polish, Slovak, Hungarian or "Jugoslav" masters could in turn impose norms on their own sub-national ethnic "minorities." It is hard to contain the conflict, but it may well be impossible to escape it.

Therefore, containment is not merely positive, but it is also ultimately inescapable. The conflict between harmonization, national solicitude and sub-national solicitude exists at every conceivable level of political organization. As such, the positives to a consciously crafted systems of domesticated oppositions, like the federal system of the European Communities are magnified. A significant positive value to contained conflict is that it permits modulation between the relative importance of each of the values. The Community approach to harmonization, subsidiarity and cultural solicitude is not static. It has evolved over the course of a mere thirty years into something far more "top heavy" than when it began, It will continue to evolve. The evolution will be evidenced by changes in the relative value of harmonization at the Community level versus national or sub-national solicitude. Indeed, the system of containment encourages this sort of modulation. Modulation implies ever shifting patterns of dominance and subordination. It also implies ever shifting patterns of acceptable assimilation, and the nature of at least a minimum criteria for group definition. In effect the system provides not only for the containment of subordination and dominance, it also provides for shifting the nature and effect of that containment. The U.S. achieves the same result through the patterns of politics inherent in a fluid federal system. (Berman, 1994).

Moreover, there is the possibility of shifting centers of power within the federal system from the top to the bottom, and then back. The brilliance of the intergovernmental conference system, which resulted most recently in the Maastricht Treaty and now in the proposed Amsterdam Treaty, is precisely that it incorporates the possibility for change into the core of the normative structure of the federation. Thus, the E.U. system permits, at fairly frequent intervals, for the constituent parts of Europe to meet and attempt political renegotiation of the power of the different levels of governmental power within the federation, as well as the nature of the normative "first principles" which should guide all Community action. This system, of course, is superimposed on a system in which the ECJ and the Community Institutions are constantly interpreting and deriving general normative principles as well. The instability of modulating power through multiple process systems can actually lead to stability if the modulations can be contained. "Practical rationality in the face of diversity is as much a matter of recognizing, respecting, and accommodating differences as one of transcending them. Arrangements shaped by the former concern are no less practically rational than those shaped by the latter, and just political arrangements will normally be shaped by both, as well as by negotiation and compromise." (McCarthy, 1994, at 1124). There is some truth to the notion that solicitude for minority culture can occur only within the framework of a traditional territorially based nation state of the Western European model. Any other model, that is, any model built on closure, poses severe problems for democratic notions and perhaps even for fundamental rights. (Laclau at 28-29).

The danger of contained conflict is its inherent instability. Contained conflict is possible only where there exists the quite conscious political will to condone as well as to police, and perhaps suppress, conflict. "The idea of the state as a multicommunal civil society is thus challenged from below by schismatic movements. Meanwhile, a parallel phenomenon of growing interdependence is also challenging the state as insufficient to meet the needs of the third millennium. In response, states are moving into closer association, delegating parts of their sovereignty to supra-national authorities dealing with environmental issues." (Franck, 1996 at 360). Subsidiarity is itself a malleable concept, as easy to use against the Member State by its constituent parts as it is to use against the federation by the Member States. (Marquardt, 1994, at 635-639). We have begun to see the effects of this process in Europe. The remnants of yesterday's empires are beginning to feel pressures to dissolve, or at least to reconstitute themselves into smaller scale models of the federation Europe is crafting within the "borders" of the Communities. For example, authority in Spain and England has begun devolving down to its more ancient constituent parts.

I have suggested that the inevitability of dissent is regulated in two ways within the normative framework of the principles of harmonization, subsidiarity and cultural solicitude: when dissent is characterized as benign (not contradicting the core norm) it may be permitted; where dissent expresses fundamental disagreement with the normative structure, it will be suppressed, unless the normative structure is itself changed. We suppress unequal treatment of women within Europe and the United States. Yet, Saudi Arabians might suggest that unequal treatment of women works to the benefit of women by providing them a space within which they can reach their full potential free of the harassing possibilities of contact with men. (Bielefeldt, 1995). Inevitably, it is easiest to kill or free the dragon. At least we in the West have come to understand that contained subordination in an unstable state is the "freest" we can hope to be. Yet we have also demonstrated that this is likely an impossible state to maintain for long. Rome or Austria-Hungary constantly beckon Western intellectuals, politicians and demagogues.

As a Biblical people, our theology is based on notions of equilibrium and stasis. Our Biblical foundations presents a series of endless and unchanging covenants. In this cultural ambit, instability is a punishment for "sin," that is for failing to properly implement or maintain the covenant. To deliberately support a system based on controlled instability is a culturally tense affair at best; it may even be well beyond us. Most supra-national federative institutions have not deliberately confronted both the dangers and the possibilities inherent in the creation and maintenance of complex political systems. Yet, to order complex inter-individual and intergroup relationships under the rubric of multi-group representative democracy will require a strong willed determination to embrace and control instability. Subsidiarity and cultural solicitude contribute to that necessary instability. To that extent, systems without these opposing forces sink into routinized mindless traditionalism and a barbarism with which Europe is all to well acquainted. To avoid the ruin of Austria-Hungary or the tyranny or Rome, Europeans will have to become used to a constitutionalism whose parameters will never be set. While this may be a perilous enterprise, the rewards of which may well be worth the risks.

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