Jean Monnet Center at NYU School of Law

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III The Hidden Ethnos?

A Homogeneity and Political Communication

Let me begin with the school of thought according to which any attempt to strengthen the democratic dimension of the European Union is either illusory or likely to jeopardise the roots of democracy where they are at their deepest and firmest - the nation state. Although traces of this opinion can be detected within various legal and political cultures,[25] Germany is its native land and the decision delivered by the German Constitutional Court on the compatibility of the Maastricht Treaty with German Basic Law[26] is its best-known, if not subtlest, expression. The section of this judgment relevant to our discussion can be easily summarised: the principle of democracy, as enshrined in Article 20 of the Basic Law, requires that each and every execution of sovereign rights derive directly from the `people of the State' (Staatsvolk), the framing of whose political will postulates the existence of a form of public opinion which can only be created through the free exchange of ideas and an ongoing process of interaction between social forces and interests. Today, such conditions exist only within the nation state where the people may express and have an influence on what concerns them `on a relatively homogeneous basis, spiritually, socially and politically.'

In Europe - here I shall draw less upon the judgment and more upon the many comments, some by Justices of the German Court, which it has stimulated - the `thickening economic and social intercourse'[27] brought about by forty years of integration has certainly yielded a limited harvest in terms of social cohesion; but the discrepancy between this intercourse and the degree of communication which is required for an authentic democratic discourse is still large. As Justice Grimm points out, neither a European public nor a European political debate are detectable;[28] and the biggest obstacle to their development, the factor which dooms to failure any attempt to Europeanise the social substructure on which the functioning of a political system and the performance of a parliament are contingent, is the absence of a common language. Certainly, multilingual states - Belgium, Switzerland, Finland - do exist; but they have five to ten million inhabitants and two or three languages, while the figures in the European Union are 370 million and eleven, respectively. Europe's democratic deficit - as we somewhat piously call the inability of the Union to ferry itself beyond the rites and the catchwords of democracy - is therefore inborn and cannot realistically be removed within a timeframe which is other than geological or, at the very least, epochal.[29]

Reforms which aim to stop the `formidable gaps' which still exist in the legislative powers of the Parliament[30] or seeking to require its assent to Treaty amendments, would therefore have little impact on the democracy deficit. In fact, as is often the way with institutional shortcuts, they might even be fraught with risks. Since there is now - and this is the gist of the argument - no European people, the assembly in Strasbourg is by definition not a popular representative body. Accordingly, promoting it to a fully-fledged legislature would not be an adequate balance for the loosening of the ties between the citizens of the fifteen states and their parliaments which such an enterprise would necessarily entail.[31] The upshot of these remarks is plain and Justice Grimm states it with remarkable candour: democracy in its plenitude can only be achieved within a national framework and, if this be the case, `converting the European Union into a federal state is not a desirable goal.'[32]

The authors of the Maastricht judgment and their fellow-travellers in German constitutional law certainly do not lack sagacity. They are aware that the Staatsvolk, which they regard as the only basis for democratic authority and legitimate law-making, might be understood in the light of the elements used to define the notion of Volk by the Romantic movement dominant at the beginning of the last century (a `natural whole' having an origin and a destiny of its own) and they consequently spare no efforts in trying to avoid this risk. The emphasis which they place on the indispensable nature of a political discourse and the conditions that make it possible - that is to say a widespread and elaborate communications system or the existence of `mediatory ` agencies (political parties, institutes of learning, interest groups of all sorts) -[33] clearly reflects their intention to strip the Staatsvolk of any organic connotation and present it as a demos, a mundane community of political animals endowed with interests as often divergent as convergent.

Yet, as a host of scholars with Weiler in the vanguard[34] have seen, this endeavour fails. The most eloquent evidence of such failure is provided by the academic works of the selfsame jurist who wrote the German constitutional decision, Justice Kirchhof.[35] It is not necessary, however, to scrutinise these works in detail. A crucial passage of the decision itself - the `spiritual, social and political homogeneity' which must characterise the people of the state - and the inordinate importance which a scholar as accomplished and level-headed as Justice Grimm attaches to the necessity of a common language (wasn't language the `primeval social link' according to the greatest German Romanticist, Johann Gottfried von Herder?) prove that hiding behind the demos lies, irreducibly, the metaphysical Volk enjoying an `eternal existence' that Savigny theorised in 1840 and Carl Schmitt revamped in 1927.[36] Democracy is possible in the Member States because an organic, ethnically homogeneous construction renders them socially coherent; it is not possible in Europe, with the consequence of making its conversion into a state inadvisable, because Europe lacks ethnic uniformity and is therefore denied cohesion. When dealing with some of the premises of German public law, one is at times reminded of the Cheshire cat: the body, beginning with the end of the tail, has vanished, but the grin remains.

B Democracy and Multicultural Societies

Disproving these propositions or, one might say, exorcising the grin, is not a daunting task; provided, of course, that one resists the temptation to appeal to half-truths such as the existence of a common European culture dating back to the Middle Ages and recently given new life by the Erasmus student exchange programme and the postgraduate institutes in Florence and Bruges. True enough, `large numbers of young people across Europe treat their Continent, rather than their country, as the space within which they expect to move' (and, why not, to find a partner); no less true, `a certain diffusion of loyalties, a certain expansion of horizons from the national to the European... are evident both among élites and, more faintly, among mass publics.'[37] However, to draw from these developments the conclusion that Europe has already acquired `a sense of shared identity and collective self' is an exercise in self-deception.[38] On this score, Kirchhof and Grimm are right. They are wrong, however, in not seeing that a European state composed of a plurality of nations and yet founded on a demos, deriving its legitimacy from consent rather than descent and its chances of survival from civic rather than primordial loyalties is indeed conceivable. They are wrong in rejecting such a prospect for a simple, empirical reason: the existence and survival of several polities corresponding to the model which I have outlined. I would like to add that ignoring this fundamental objection or cursorily ridding oneself of it is, for German scholarship, an alarming signal of parochialism.

Let us pass over the United States and Australia whose multiethnic characters are (as yet) not reflected at the level of language and are anyhow strongly tempered by the cultural hegemony of one group, the descendants of the first colonists. Let us dwell instead on Belgium and Canada. As a consequence of the ethnic revival which torments our age and has grating overtones in their case, both federations are wobbly, though not necessarily doomed to dismemberment. In any event, both are democracies as impeccable as can be in this imperfect world. Their communications systems, however, are no longer common and their `mediatory' agencies - parties, trade unions, universities - have split, fully in Belgium, partly in Canada, along language lines. Indeed, it might be argued that the linguistic provisions applying to large areas of either country have one basic object: precluding the ethnic group for the benefit of whom they have been enacted from using or even learning the language of the other. Thus the Charter of the French language in Québec and various decrees of the Flemish Community impose deterring penalties, the former on the employers who fire, downgrade and transfer their employees for speaking only French, the latter on those who do not confine themselves to Dutch when offering jobs.[39]

The history of my own country provides us with a more positive example, although from a different angle. The unification of Italy between 1859 and 1861 was the result of the work of thin political and intellectual élites aided and abetted by two powerful nation states, France and Britain. The claim, sometimes to be found in our primary-school textbooks, that the Risorgimento sprang from popular demand and involved popular participation is a pious untruth. In any case, at a time when tens if not hundreds of mutually unintelligible vernaculars peppered the Italian countryside, it was not possible to speak of a collective `Italian self.' Indeed, so distinct were the dialects used in the peninsula that when, on what would today be regarded as a fact-finding mission, two eminent Piedmontese intellectuals, Emilio and Giovanni Visconti Venosta, visited the Mezzogiorno on horseback, they were thought by passing peasants to be Englishmen on their grand tour simply because the language tripping from their tongues was the cultivated Italian which the ruling classes learnt in their homes and exclusive schools.[40] Nonetheless, while it never acquired a more than wavering national identity, Italy consolidated and has lived on as a State for over one hundred and thirty years, the last fifty of which were under a fully democratic form of government.

But the most spectacular among the cases which might have prompted German constitutional lawyers to engage in some hard thinking if they had been less inward-looking are undoubtedly those of South Africa since 1994 and India since 1947. The South African population is composed of eight black ethnic groups, a large number of `coloureds, ` two Asian communities and two white `tribes, ` as they are sometimes called, while the official languages of the Republic are eleven. In India, which has 2.5 times more inhabitants than the European Union, the ethnic groups are countless, the religions with more than three million followers are six, the regional languages are fifteen, while the official language of the State, Hindi, is spoken by 38 % of the population and only four persons in every hundred can read English, the language of the influential newspapers.

Given such circumstances - and indeed a number of other divisive or debilitating factors might be added to them (the memories of apartheid, the still vital caste system, the sharp antagonism between Zulus and Xhosas or Hindus, Sikhs and Muslims, illiteracy rates ranging from 39 to 49 %) - how do Kirchhof and Grimm explain the form of political governance adopted and kept alive - in India for as long as the Bundesrepublik - by the two countries? Where is the spiritual and social homogeneity which should make it possible? Where are the preconditions of a rich exchange of ideas supposedly vital for the birth and prospering of full-blown public opinion? Yet, however huge the obstacles put in their way may be and however weak the values and the understanding of rights and duties shared by the citizens are, the democracies of South Africa and India have survived all manner of challenges and seem ready to enter the coming millennium with a not unreasonable degree of self-assurance.[41]

[25]Cf, in Italy, Rusconi, `La cittadinanza europea non crea il `popolo europeo'' Il Mulino 5/96, at 831 et seq.

[26]Judgment of October 12, 1993, Entscheidungen des Bundesverfassungsgericht (BVerfG) Vol.89 155-213. For an English version of this judgment cf, [1994] Common Market Law Reports 57.

[27]J.H.H. Weiler, `Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision' (1995) 1 European Law Journal 219, at 229.

[28]Grimm, `Does Europe Need a Constitution?' (1995) 1 European Law Journal 282, at 295

[29]These adjectives have been used, ironically but quite correctly in my opinion, by Weiler, `Does Europe Need a Constitution? ... ` loc cit, n 27 at 227. More warily, Justice Grimm uses expressions such as `as yet, ` `for the time being' etc.

[30]See Weiler et al., `Certain Rectangular Problems of European Integration, ` op cit, n 17 at 6. As Corbett has pointed out, `Representing the People' in A. Duff, et al.(eds.), Maastricht and Beyond. Building the European Union, (Routledge 1994), 207, at 223, even in the areas of Community law-making where the codecision procedure applies, the onus in adopting a measure will normally be in obtaining a qualified majority (and sometimes unanimity) in Council rather than a simple majority in Parliament.

[31]Cf, Grimm, loc cit, at 296.

[32]Ibid, at 297.

[33]Cf, primarily Grimm, loc cit, n 28 at 294 et seq., and the authors he quotes in notes 33 and 39.

[34] Cf, Bryde, `Die bundesrepublikanische Volksdemokratie als Irrweg der Demokratietheorie' (1994) 5 Staatswissenschaften und Staatspraxis 305, at 309; C. Joerges, `Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration' (1996) 2 European Law Journal 105, at 115 et seq.; M. Zuleeg, `The European Constitution under Constitutional Constraints: the German Scenario' (1997) 22 European Law Review 19, at 28 et seq. Most of the criticisms made by these and other commentators are taken up by a Resolution adopted in plenary session by the European Parliament with an overwhelming majority on 2 October 1997. The Resolution incorporates a report drafted by Deputy Siegbert Alber, who has since become an Advocate General at the European Court of Justice, on the relationships between international law, Community law and the constitutional law of the Member States.

[35]Cf, in particular, his Handbuch des Staatsrechts der Bundesrepublik Deutschland, op cit, VII, para. VII. Weiler quotes abundantly from this and other writings of Justice Kirchof.

[36]Cf, Dubber, `The German Jury and the Metaphysical Volk: From Romantic Idealism to Nazi Ideology' (1995) 43 American Journal of Comparative Law 227, at 248, 259. The author notes that this concept retains, sometimes with overtones reminiscent of its Nazi version, a considerable pull in several areas of contemporary German law and jurisprudence, at 267-271.

[37]Wallace, loc cit, at 55 and 59.

[38]Weiler, `Does Europe Need a Constitution? ... ` loc cit, n 27 at 239. Cf, also Newman, op cit, n 9 at 151: `It seems probable that the majority of the population in the majority of Member States retain a far stronger sense of common citizenship within the `nation-state' than with the EU as a whole. If this is so, it is hardly surprising since states have far greater power over people's lives than the EU.'

[39]Mancini, S., Minoranze autoctone e stato tra composizione dei conflitti e secessione, (Giuffrè, 1996), 97 and 135.

[40]Cf, T. De Mauro, Storia linguistica dell'Italia unita, 3rd ed., (Laterza 1995), 43. The author has calculated that in the years following the unification of Italy, outside of Tuscany and Rome where Italian was spoken, as it were, by definition, only 160,000 in over 20 million individuals could be defined as Italophones. For further information cf, chapter 2 of De Mauro's remarkable book, 15 et seq.

[41]On the tremendous economic and social progress made by India in the last few years (India is now the sixth largest world economy) cf, the dossier `L'Inde aussi s'est éveillée, ` Le Monde-Economie, 17 June 1997.

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