Jean Monnet Center at NYU School of Law

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5. Towards a pluralistic conception of a European polity

The real defects of constitutional patriotism are not that it requires too much, but rather that it provides too little in terms of viable collective identities. I will sum up my objections in three closely related hypotheses:

(1) Individual rights are insufficient to integrate a political community

Contrary to the communitarian critique of liberalism strong individual rights of citizens do not atomize modern societies by promoting unconstrained egoism, but are a major integrating factor.[21] Free speech, assembly and association are indispensable for the emergence of a civil society where individuals can form voluntary associations, articulate their interests as members of ascriptive groups, and enter public dialogues. However, while such rights and their corresponding duties do integrate civil society, it is not obvious that they are sufficient to integrate a political community. In contrast with an open civil society a democratic polity operates within a given territorial space and a given population to whom its collectively binding decisions apply. The liberal dynamic of expanding and overlapping citizenship modifies the permeability of such boundaries but cannot abolish them. Contractarian liberalism works on the assumption that the rights and duties of citizenship defined by a liberal constitution could have been adopted by a free association of citizens. Yet, paradoxically, the metaphor of the foundational contract is convincing only where it is applied to an already constituted polity whose boundaries have been shaped in a historical process rather than by a single act of aggregating individual consent.[22] It is just this presupposition of already given historical boundaries and identities which does not apply to the European Union. The practice of citizenship alone, even if it included stronger forms of political participation and social welfare rights, cannot determine the spatial and membership boundaries of this new type of political community.

(2) Procedural sovereignty is insufficient to affirm the historical identity of a political community

While political communities are bounded in space and with regard to populations, they are not similarly limited in the time dimension. Polities are generally imagined as intergenerational communities reaching back into the past and stretching into an indefinite future. Habermas's theory of procedural sovereignty (Habermas 1992:600-631) does allow for the articulation of the specific ethical and cultural traditions of an existing polity. Yet, just as contractarianism normally presupposes historically given nations or states, so a procedural understanding of sovereignty seems to presuppose generally accepted answers to the question of who is the sovereign people seen as a historical community. It is difficult to see how the issue of defining an adequate historical identity of a European demos could be settled by specifying only the procedural rules which would have to be respected by all if they think of themselves as being members of a such a community and as participants in an ongoing process of political deliberation. The appeal of proceduralism, as of contractarianism, lies in the promise of neutrality towards different cultural identities or ethical orientations. Certainly, in order to be acceptable to all, a European Union constitution, or a gradual constitutionalization of the Union, would have to be fairly neutral towards the particular historical identities of the member states. It could not, for example, privilege one particular constitutional tradition. In spite of all its shortcomings, the functioning of institutions like the European Court of Justice shows that the commonality of liberal democratic principles and the will to accept the outcome of fair procedures are sufficiently strong to make the project of a common constitution a feasible one in spite of greatly diverging legal traditions. However, precisely because neutrality between national traditions would be essential both with regard to the procedures of elaborating such as constitution and with regard to the adopted rules, it would hardly provide a solid ground for constitutional patriotism. Identification of European citizens with the Union as a project for a historical political community requires more substantial references to shared traditions.

(3) Constitutional patriotism cannot identify the political community which is the appropriate object of loyalty

If I ought to identify with my political community only on the basis of its constitutional principles, because these are nearly just and democratically legitimate, why should I then identify with my own community rather than any other one whose constitution also passes this test? The fact that I have been born into this community and enjoy its citizenship is presumably morally irrelevant and adds nothing to the normative validity of the constitutional principles which are the primary object of my loyalty.

At the national level, this dilemma of identification again does not arise as a practical one, because constitutional patriotism can be understood as a transformation of previously existing national loyalties which rids these of their moral particularism without, however, challenging a given ascriptive relation that connects individuals to the political community. At the European level, this presupposition is a problematic one. The construction of Union citizenship as an automatic consequence of member state nationality underlines this problem rather than pointing towards a resolution.

National identities are attractive even for some liberal theorists (Tamir 1993, Miller 1995) because they fill all three deficits of constitutional patriotism:

(1) National cultures permeate the life worlds of citizens in private as well as public spheres. While citizenship rights enable them to form their own associations or assert their ascriptive memberships in a civil society, a national culture does more than that. It is not only a medium for communication, but provides also the symbols for their collective identity; it interprets the state territory as a national homeland and the population which inhabits it as a people.

(2) National cultures shape a historical consciousness about the particular origins and destinies of a society and underpin thereby the image of the political community as an intergenerational project which outlasts the life of each single member and which can demand sacrifices from each in the name of past or future generations.

(3) Finally, national cultures identify one's community not only as different from all others, but as unique and incomparable to others. A nation is a community of shared values which shapes the moral outlook of its members and is, at the same time, a primary object of their duties. Posing the question of why one should be loyal to one's own nation rather than to others puts a person already outside the ethical boundaries that define her national community.

I do not want to repeat here the objections against the moral soundness and the political consequences of these justifications for nationalism. However, it may be important to emphasize that what is morally and politically objectionable is not a strong sense of particular commitments towards ethnic, linguistic or religious communities, but rather the idea that the collective identity of a democratic polity and the expectation of political loyalty among its citizens should be grounded in such particular affiliations.

Let me conclude by sketching a pluralistic conception which could be better suited to support the dynamic and inclusive conception of Union citizenship. This conception shares the normative impetus of constitutional patriotism but takes into account the critique of its deficiencies. It recognizes the pluralistic character of modern society and disputes that the state can be fully neutral towards collective identities in society.

The identities of citizens in modern democratic polities are shaped by their multiple, overlapping and changing affiliations to different kinds of social groups and associations. Among the most relevant social differences are those of gender, sexual orientation, political and ideological orientation, economic class, language, ethnic culture and religious conviction. Collective identities are not only articulated in civil society but manifest themselves also in the political sphere as demands for autonomy and partial self-determination, for collective representation and as claims for special exemptions or for public resources. A system of democratic representation and citizenship which deserves the consent of all has to combine the strict individual equality of basic liberties and rights with a strong sensitivity for these collective identities. The strongest claims can be raised by groups whose members are structurally disadvantaged in their power as citizens because they are a numerical minority, because they lack material resources for a full exercise of their rights, or because the public culture of the society excludes their particular ways of life.

The modern democratic state has far outgrown the task of maintaining order and security by monopolizing legitimate violence. Among its chief tasks is the maintenance of the institutional bases for a shared public culture of the society. This includes an education system ranging from elementary school to universities and academies. A common public culture supported by the state is essential for a modern industrial economy, for the state's own tasks of public administration, and also for a democratic community in which citizens can exercise their right to vote in a meaningful way and share in political deliberation. No modern nation-state is therefore neutral towards the particular cultural identities in society. By shaping a hegemonic public culture it inevitably privileges certain cultural traditions over others. Members of cultural minorities are structurally disadvantaged when a national majority culture is supported and reproduced by the state as a public good for all citizens (Kymlicka 1989:182-205). They have a basic claim to at least partial compensation. Such compensation involves, on the one hand, symbolic recognition of their culture as an integral part of a the nation's past or - in the case of immigrant communities - of it's future. On the other hand, it also validates claims to the allocation of resources which enable minorities to shape themselves the development of their particular culture free from coercive assimilation but also from enforced segregation.

What would this suggest for building an appropriate collective identity for a European Union of citizens? Both a quasi-national approach, which constructs a single European cultural tradition, and a plurinational one, which only adds the dominant national identities of member states, would reproduce and reinforce the various national forms of discrimination and exclusion at the level of the Union. An identity only grounded in constitutionally embedded individual rights of Union citizenship would remain too thin to support a process of further political integration and expansion of these rights. All three projects would construct a European identity which disregards the internally pluralistic character of European societies. The task is then to extend pluralism in the Union beyond the mere acknowledgement of the different national identities represented by member states. This means recognizing rather than ignoring the particular collective identities of the many subnational and transnational minorities and uncovering their histories submerged by segregationist and assimilationist nationalisms. By remembering this diversity which cuts across the borders of nation-states the project of the Union can be linked to a shared European past which is more than the history of its various nation-states. A pluralistic conception will also find it easier to keep the Union open for territorial enlargement and for the integration of immigrants coming from outside. It should make it possible to imagine a shared future for this new type of political community without conjuring up the totally inadequate fiction of a closed society with fixed territorial borders and self-reproducing populations.

One may ask whether elaborating such a pluralistic conception is not only an interpretative exercise without any practical implication for the political decisions and legal structures of the Union. However, it would, for example, support Union policies of going beyond non-discrimination by directly allocating material resources and political powers to specifically disadvantaged groups, adding thereby group-differentiated rights[23] to equal individual ones. The geometry of European citizenship would then depart even more from the ideal of simplicity derived from traditional notions of state sovereignty, of homogeneity of populations and of societal closure. No such simplicity is possible if Union citizenship is to become more substantial in terms of rights and duties and more inclusive with regard to populations who are presently excluded from membership.

[21]. In this respect communitarianism repeats over and over again the accusations raised by Karl Marx against the French Declarations of the Rights of Man and the Citizen (Marx 1974:363-70.

[22]. John Rawls frankly admits this by postulating that his contractarian theory of justice works with a model of a closed society (Rawls 1993:12, 40-1, 136).

[23].For theories of group-differentiated citizenship see Young (1990) and Kymlicka (1995).

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