Jean Monnet Center at NYU School of Law


III. Neither Kelsen nor Schmitt: The Principle of European Constitutional Tolerance - Concept and Praxis

The reason the question of ultimate authority and constitutional Grundnorm seems so important is that we consider the integrity of our national constitutional orders not simply as a matter of legal obedience and political power but of moral commitment and identity. Our national constitutions are perceived by us as doing more than simply structuring the respective powers of government and the relationships between public authority and individuals or between the state and other agents. Our constitutions are said to encapsulate fundamental values of the polity and this, in turn, is said to be a reflection of our collective identity as a people, as a nation, as a state, as a Community, as a Union. When we are proud and attached to our constitutions we are so for these very reasons. They are about restricting power, not enlarging it; they protect fundamental rights of the individual; and they define a collective identity which does not make us feel queasy the way some forms of ethnic identity might. Thus, in the endless and tiresome debates about the European Union constitutional order, national courts have become in the last decade far more aggressive in their constitutional self-understanding. The case law is well known. National courts are no longer at the vanguard of the `new European legal order', bringing the rule of law to transnational relations, and empowering, through EC law, individuals vis-à-vis Member State authority. Instead they stand at the gate and defend national constitutions against illicit encroachment from Brussels. They have received a sympathetic hearing, since they are perceived as protecting fundamental human rights as well as protecting national identity. To protect national sovereignty is passé; to protect national identity by insisting on constitutional specificity is à la mode.

Thus, on this new reading, to submit to the constitutional disciplines of Europe without a proper Kelsenian constitution, which formally vests in Europe Schmittian ultimate authority, is something that not only contradicts an orderly understanding of legal hierarchy but also compromises deep values enshrined in the national constitution as well as a collective identity which is tied up with these values. Indeed, it is to challenge the idea of constitution itself.

Miguel Maduro, one of the most brilliant of the new generation of European constitutional thinkers, gives eloquent expression to this concern:

European integration not only challenges national constitutions . . . it challenges constitutional law itself. It assumes a constitution without a traditional political community defined and proposed by that constitution . . . European integration also challenges the legal monopoly of States and the hierarchical organisation of the law (in which constitutional law is still conceived of as the `higher law').17

Is this challenge so threatening?

In part it is. Modern liberal constitutions are, indeed, about limiting the power of government vis-à-vis the individual; they do, too, articulate fundamental human rights in the best neo-Kantian tradition; and they reflect a notion of collective identity as a community of values which is far less threatening than more organic definitions of collective identity. They are a reflection of our better part.

But, like the moon, like much which is good in life, there is here a dark side too.

It is, first, worth listening carefully to the rhetoric of the constitutional discourse. Even when voiced by the greatest humanists, the military overtones are present. We have been invited to develop a patriotism around our modern, liberal, constitutions. The constitutional patriot is invited to defend the constitution. In some states we have agencies designed to protect the constitution whose very name is similar to our border defences. In other countries, we are invited to swear allegiance to the constitution. In a constitutional democracy we have a doctrine of a fighting democracy, whereby democratic hospitality is not extended to those who would destroy constitutional democracy itself. To be a good constitutional liberal, it would seem from this idiom, is to be a constitutional nationalist and, it turns out, the constitutional stakes are not only about values and limitations of power but also about its opposite: the power which lurks underneath such values.

Very few constitutionalists and practically no modern constitutional court will make an overt appeal to natural law. Thus, unlike the `constitution' in the parable, the formal normative authority of the constitutions around which our patriotism must form and which we must defend is, from a legal point of view, mostly positivist. This means that it is as deep or shallow as the last constitutional amendment: in some countries, like Switzerland or Germany, not a particularly onerous political process. Consequently, vesting so much in the constitutional integrity of the Member State is an astonishing feat of self-celebration and self-aggrandizement, of bestowing on ourselves, in our capacity of constituent power, a breathtaking normative authority. Just think of the near sacred nature we give today to the constitutions adopted by the morally corrupted societies of the World War II generation in, say, Italy and Germany and elsewhere.

A similar doubt should dampen somewhat any enthusiasm towards the new constitutional posture of national courts, which hold themselves out as defending the core constitutional values of their polity, indeed its very identity. The limitation of power imposed on the political branches of government is, as has been widely noticed, accompanied by a huge dose of judicial self-empowerment and no small measure of sanctimonious moralizing. Human rights often provoke the most strident rhetoric. Yet constitutional texts in our different polities, especially when it comes to human rights, are remarkably similar. Defending the constitutional identity of the state and its core values turns out in many cases to a defence of some hermeneutic foible adopted by five judges voting against four. The banana saga, which has taxed the European Court of Justice, the German Constitutional Court, the Appellate Body of the World Trade Organization, and endless lawyers and academics is the perfect symbol of this farce.

Finally, there is also in an exquisite irony in a constitutional ethos which, while appropriately suspicious of older notions of organic and ethnic identity, at the very same time implicitly celebrates a supposed unique moral identity, wisdom, and, yes, superiority, of the authors of the constitution, the people, the constitutional demos, when it wears the hat of constituent power and, naturally, of those who interpret it.

It was Samuel Johnson, who suggested that patriotism was the last refuge of a scoundrel. Dr. Johnson was, of course, only partly right. Patriotism can also be noble. But it is an aphorism worth remembering when we celebrate constitutional patriotism, national or transnational, and rush to its defence from any challenges to it. How, then, do we both respect and uphold all that is good in our constitutional tradition and yet, at the same time, keep it and ourselves under skeptical check?

The advocacy for a European constitution is not what it purports to be. It is not a call for `a' constitution. It is a call for a different form of European constitution from the constitutional architecture we already have. And yet the current constitutional architecture, which of course can be improved in many of its specifics, encapsulates one of Europe's most important constitutional innovations, the Principle of Constitutional Tolerance.

The Principle of Constitutional Tolerance, which is the normative hallmark of European federalism, must be examined both as a concept and as a praxis. First, then, the concept. European integration has been, historically, one of the principal means with which to consolidate democracy within and among several of the Member States, both old and new, with less than perfect historical democratic credentials. For many, thus, democracy is the objective, the end, of the European construct. This is fallacious. Democracy is not the end. Democracy, too, is a means, even if an indispensable means. The end is to try, and try again, to live a life of decency, to honour our creation in the image of God, or the secular equivalent. A democracy, when all is said and done, is as good or bad as the people who belong to it. The problem of Haider's Austria is not an absence of democracy. The problem is that Austria is a democracy, that Haider was elected democratically, and that even the people who did not vote for him are content to see him and his party share in government. A democracy of vile persons will be vile.

Europe was built on the ashes of World War II, which witnessed the most horrific alienation of those thought of as aliens, an alienation which became annihilation. What we should be thinking about is not simply the prevention of another such carnage: that's the easy part and it is unlikely ever to happen again in Western Europe, though events in the Balkans remind us that those demons are still within the continent. More difficult is dealing at a deeper level with the source of these attitudes. In the realm of the social, in the public square, the relationship to the alien is at the core of such decency. It is difficult to imagine something normatively more important to the human condition and to our multicultural societies.

There are, it seems to me, two basic human strategies of dealing with the alien and these two strategies have played a decisive role in Western civilisation. One strategy is to remove the boundaries. It is the spirit of `come, be one of us'. It is noble since it involves, of course, elimination of prejudice, of the notion that there are boundaries that cannot be eradicated. But the `be one of us', however well intentioned, is often an invitation to the alien to be one of us, by being us. Vis-à-vis the alien, it risks robbing him of his identity. Vis-à-vis oneself, it may be a subtle manifestation of both arrogance and belief in my superiority as well as intolerance. If I cannot tolerate the alien, one way of resolving the dilemma is to make him like me, no longer an alien. This is, of course, infinitely better than the opposite: exclusion, repression, and worse. But it is still a form of dangerous internal and external intolerance.

The alternative strategy of dealing with the alien is to acknowledge the validity of certain forms of non-ethnic bounded identity but simultaneously to reach across boundaries. We acknowledge and respect difference, and what is special and unique about ourselves as individuals and groups; and yet we reach across differences in recognition of our essential humanity. What is significant in this are the two elements I have mentioned. On the one hand, the identity of the alien, as such, is maintained. One is not invited to go out and, say, `save him' by inviting him to be one of you. One is not invited to recast the boundary. On the other hand, despite the boundaries which are maintained, and constitute the I and the Alien, one is commanded to reach over the boundary and accept him, in his alienship, as oneself. The alien is accorded human dignity. The soul of the I is tended to not by eliminating the temptation to oppress but by learning humility and overcoming it.

The European current constitutional architecture represents this alternative, civilizing strategy of dealing with the `other'. Constitutional Tolerance is encapsulated in that most basic articulation of its meta-political objective in the preamble to the EC Treaty mentioned earlier in this chapter:

Determined to lay the foundations of an ever closer union among the peoples of Europe.

No matter how close the Union, it is to remain a union among distinct peoples, distinct political identities, distinct political communities. An ever closer union could be achieved by an amalgam of distinct peoples into one which is both the ideal and/or the de facto experience of most federal and non-federal states. The rejection by Europe of that One Nation ideal or destiny is, as indicated above, usually understood as intended to preserve the rich diversity, cultural and other, of the distinct European peoples as well as to respect their political self-determination. But the European choice has an even deeper spiritual meaning.

An ever closer union is altogether more easy if differences among the components are eliminated, if they come to resemble each other, if they aspire to become one. The more identical the `Other's' identity is to my own, the easier it is for me to identify with him and accept him. It demands less of me to accept another if he is very much like me. It is altogether more difficult to attain an ever closer Union if the components of that Union preserve their distinct identities, if they retain their `otherness' vis-à-vis each other, if they do not become one flesh, politically speaking. Herein resides the Principle of Tolerance. Inevitably I define my distinct identity by a boundary which differentiates me from those who are unlike me. My continued existence as a distinct identity depends, ontologically, on that boundary and, psychologically and sociologically, on preserving that sentiment of otherness. The call to bond with those very others in an ever closer union demands an internalization-individual and societal-of a very high degree of tolerance. Living the Kantian categorical imperative is most meaningful when it is extended to those who are unlike me.

In political terms, this Principle of Tolerance finds a remarkable expression in the political organization of the Community, which defies the normal premise of constitutionalism. Normally in a democracy, we demand democratic discipline, that is, accepting the authority of the majority over the minority only within a polity which understands itself as being constituted of one people, however defined. A majority demanding obedience from a minority, which does not regard itself as belonging to the same people, is usually regarded as subjugation. This is even more so in relation to constitutional discipline. And yet, in the Community, we subject the European peoples to constitutional discipline even though the European polity is composed of distinct peoples. It is a remarkable instance of civic tolerance to accept to be bound by precepts articulated not by `my people' but by a community composed of distinct political communities: a people, if you wish, of others. I compromise my self-determination in this fashion as an expression of this kind of internal-towards myself-and external-towards others-tolerance.

Constitutionally, the Principle of Tolerance finds its expression in the very arrangement which has now come under discussion: a federal constitutional discipline which, however, is not rooted in a statist-type constitution.

This is where the first and third lessons of the parable come into play. Constitutional actors in the Member State accept the European constitutional discipline not because as a matter of legal doctrine, as is the case in the federal state, they are subordinate to a higher sovereignty and authority attaching to norms validated by the federal people, the constitutional demos. They accept it as an autonomous voluntary act, endlessly renewed on each occasion, of subordination, in the discrete areas governed by Europe to a norm which is the aggregate expression of other wills, other political identities, other political communities. Of course, to do so creates in itself a different type of political community one unique feature of which is that very willingness to accept a binding discipline which is rooted in and derives from a community of others. The Quebecois are told: in the name of the people of Canada, you are obliged to obey. The French or the Italians or the Germans are told: in the name of the peoples of Europe, you are invited to obey. In both, constitutional obedience is demanded. When acceptance and subordination is voluntary, and repeatedly so, it constitutes an act of true liberty and emancipation from collective self-arrogance and constitutional fetishism: a high expression of Constitutional Tolerance.

The Principle of Constitutional Tolerance is not a one way concept: it applies to constitutional actors and constitutional transactions at the Member State level, at the Union level and among the Member States too. This dimension may be clarified by moving from concept to praxis, to an examination of Constitutional Tolerance as a political and social reality.

It is, in my view, most present in the sphere of public administration, in the habits and practices it instills in the purveyors of public power in European polities, from the most mundane to the most august. At the most mundane administrative level, imagine immigration officials overturning practices of decades and centuries and learning to examine the passport of Community nationals in the same form, the same line, with the same scrutiny of their own nationals. And a similar discipline will be practised by customs officials, Housing Officers, educational officials, and many more subject to the disciplines of the European constitutional order.

Likewise, a similar discipline will become routine in policy-setting forums. In myriad areas-whether a local council or a parliament itself-every norm will be subject to an unofficial European impact study. So many policies in the public realm can no longer be adopted without examining their consonance with the interest of others, the interest of Europe.

Think, too, of the judicial function, ranging from the neighbourhood giudice conciliatore to the highest jurisdictions: willy-nilly, European law, the interest of others, is part of the judicial normative matrix.

I have deliberately chosen examples which are both daily and commonplace but which also overturn what until recently would have been considered important constitutional distinctions. This process operates also at Community level. Think of the European judge or the European public official, who must understand that, in the peculiar constitutional compact of Europe, his decision will take effect only if obeyed by national courts, if executed faithfully by a national public official both of whom belong to a national administration which claims from them a particularly strong form of loyalty and habit. This, too, will instill a measure of caution and tolerance.

It is at this level of praxis that the second and third lessons of the parable come into play. What defines the European constitutional architecture is not the exception, the extreme case which definitively will situate the Grundnorm here or there. It is the quotidian, the daily practices, even if done unthinkingly, even if executed because the new staff regulations require that it be done in such a new way. This praxis habituates its myriad practitioners at all levels of public administration to their concealed virtues.

What, then, of the non-Europeans? What of the inevitable boundary created by those within and those without? Does not Constitutional Tolerance implode as an ethos of public mores if it is restricted only to those chosen people with the violet passports? Let us return to the examples mentioned above such as the new immigration procedures which group all Community nationals together. What characterizes this situation is that though national and Community citizens will be grouped together, they will still have distinct passports, with independent national identities, and still speak in their distinct tongues, or in that peculiar Eurospeak that sometimes passes itself off as English. This is critical, because in the daily practices which I am extolling, the public official is invited and habituated to deal with a very distinct `other' but to treat him or her as if he was his own. One should not be starry-eyed or overly naïve; but the hope and expectation is that there will be a spill-over effect: a gradual habituation to various forms of tolerance and with it a gradual change in the ethos of public administration which can be extended to Europeans and non-Europeans alike. The boundary between European and `non-European' is inevitable, dictated if by nothing else by the discipline of numbers. In too large a polity the specific gravity of the individual is so diminished that democracy except in its most formal sense becomes impossible. But just as at the level of high politics, the Community experience has conditioned a different ethos of intergovernmental interaction, so it can condition a different ethos of public interaction with all aliens.

To extol the extant constitutional arrangement of Europe is not to suggest that many of its specifics cannot be vastly improved. The Treaty can be paired down considerably, competences can be better protected,18and vast changes can be introduced into its institutional arrangements. But when it is objected that there is nothing to prevent a European constitution from being drafted in a way which would fully recognize the very concepts and principles I have articulated, my answer is simple: Europe has now such a constitution. Europe has charted its own brand of constitutional federalism. It works. Why fix it?

17 M. Maduro, We, The Court... (Oxford, Hart Publishing, 1998) at 175. Maduro himself does not advocate a European constitution. I cite him simply for his striking diagnosis of the issue. It is superior to my own clumsy attempt to formulate the dilemma as a `Constitution without Constitutionalism', as `doing before hearkening'. J. Weiler, `We Will Do, and Hearken' -- Reflections on a Common Constitutional Law for the European Union in Roland Bieber & Pierre Widmer (eds.) The European Constitutional Area (1995, Zurich, Schulthess).

18 The issue of competences is particularly acute since there has been a considerable weakening of constitutional guarantees to the limits of Community competences, undermining Constitutional Tolerance itself. See B.Simma, J.H.H. Weiler, M. Zoeckler, Kompetenzen und Grundrechte -- Beschränkungen der Tabakwerbung aus der Sicht des Europarechts (Duncker & Humblot, Berlin, 1999). History teaches that formal constitutions tend to strengthen the center, whatever the good intentions of their authors. Any formulation designed to restore constitutional discipline on this issue can be part of a Treaty revision and would not require a constitution for it. For pragmatic proposals on this issue see J.H.H. Weiler, A. Ballmann, U. Haltern, H. Hofmann, F. Mayer, S. Schreiner-Linford, Certain Rectangular Problems of European Integration ("") (1996).



This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and
of the Academy of European Law at the European University Institute.
Questions or comments about this site?