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Harmonization, subsidiarity as nationalist affectation, and cultural solicitude are the "communities" of basic socio-political forces which continue to shape the character of the emerging European Union. Harmonization embodies the centralizing impulse of conformity with norms imposed usually at the level of greatest governmental generality in a federal system. Subsidiarity, understood as a form of national solicitude, and cultural solicitude each embody the impulse of resistance to any greater norm-making authority than the "nation" or the "volk." Where federation, nation and volk occupy the same political and geographical space, conflict on a number of levels is constant and inevitable.
The purpose of this paper is to explore the complex, contradictory and fluid ways in which these "communities" of aspirations function to define and redefine the relationship between a federal Europe, its constituent nation-states, and the hodgepodge of peoples which seem little inclined to meld overmuch. E.U. constitutionalism can be most usefully thought of as shorthand for the way Community Institutions, Member States and sub-national peoples struggle to reach some sort of equilibrium between these three forces, each of which embodies such distinct visions of the meaning and limitations of union within Europe. "To the outside world, Europe may appear unified, but inside, the voices of dissent and discord are becoming louder." (Laitinen-Rawana, 1994, 975).
This struggle is neither unique to the European Union, nor to this century. Yet, especially since the nineteenth century, Europe has provided the world with a wonderfully frightening example of the socio-political dementia which results form this struggle, and which is characterized by the following symptoms of a multiple personality disorder:
First, Europe has subjected itself to a fifteen hundred year search to recreate the Imperium Romanum. The essence of these repeated efforts has been to draw Europeans together under one uniform "law" of varying intrusiveness. After the disintegration of the Roman Empire, and until the twentieth century, the Roman Catholic Church had been the institution which had come closest to achieving a unification of Europe. Prior to the Protestant Reformation and the rise of modernity, the Church imposed a uniform system of norms, backed by its legal system, across most of Europe. But the Church was not the sole entity seeking to unify and dominate Europe. The period of European history through this century has witnessed countless political and military attempts to unify Europe. Harmonization is what I call the craving for normative enforceable uniformity within Europe, whether this urge to uniformity is expressed in political, legal, or moral terms. "When I speak of uniformity I have generally in mind not only the situation of identical norms, but also a situation in which norms are diverse but lead to essentially identical results." (Stein, 1986, at 1082). The impulse to harmonize tends to seek the political and geographic space of greatest generality. The power to harmonize the underlying norms which guide and limit the possibilities of law making is the ultimate power of modern government. Russian socialism and German national-socialism certainly proved these points in extremis. The way in which this power is shared among the levels of government in a federal system will determine the relative authority of each level.
Second, during this fifteen hundred year period, Europeans also have sought to preserve the independence of their particular, and by their accounts diverse, ways of life. They have resisted all but the most general and theoretical understanding of themselves as Europeans. Instead, Europeans prefer to identify themselves as German, French, Swedish, and the like. An acceptance of this basis for political identification leads oftentimes to the conclusion that the harmonizing power of law and politics cannot be asserted within the category "Europe" but must instead devolve Europe's political component parts. As such, the uniformity of harmonization is possible only within the confines of nation-states in which the vast majority of the people indulge the belief that they share strong group feelings based on language, custom, history and the like. Each nation-state retains for itself the ultimate power to impose norms and implement law within their respective territories. There can be no higher sovereign authority than the nation-state. The creation of the legal category "international law" serves to emphasize this point. This category provides a space in legal theory within which nation-states can differentiate quantitatively and qualitatively the instruments and effects of their governance from those of other "arrangements." Treated as a different and subordinate "species" within the family "law," regimes established through interstate arrangements, including those which together comprise the E.U., can be treated as never rising to the dignity of "government." Supra-national entities can then be dismissed as creatures of this law between nations, from which the law of nations is relatively insulated. As a consequence, even supra-national entities like the European Union can be marginalized and contained as something less than a "nation" or "federation," and the constituent nation-states of this "union" can remain the center of the political universe. The European Union's notion of subsidiarity is sometimes used to express this idea. Bound up in subsidiarity or national solicitude is the suggestion that supra-national entities are little more than well organized repositories of webs of legal obligations between sovereign states; it ultimately rejects the independent power of these embodied webs of obligations to impose normative limits on the power of the nation.
Third, Europeans also have a long history of elevating linguistic, religious, and ethnic similarities into something approaching a nationhood imperative. Membership in ethnic nations are a function of birth or sometimes personal choice, for example when the acolyte is accepted into the community. This cultural separateness transcends national borders. As a consequence, multiple ethnic "nations" may inhabit one political nation-state. This sub-national (or non-national) identity survives the political, dynastic, ideological and military unions which have been cobbled together over the course of that same fifteen hundred year period. Thus a "Hungarian" citizen of Slovakia carries a Slovak passport but somehow remains "Hungarian." To a Catalan or Basque "nationalist" the entity "Spain" may be as empty as the entity "Europe." The modern anthem of this notion is "national self-determination," though the process substantially predates the label. With good reason, Europe has demonstrated a love-hate relationship with this sort of tribal culturalism. Unchecked, cultural differences acquire political dimension. The recent tribal struggles in Jugoslavia serve to remind us of the power of cultural difference. The old division between Catholic and Jewish Poland after Casimir the Great, which took the form of separate law courts, laws, norms, etc., provides a more ancient and equally tragic example. The greater the deference to cultural/ethnic divisions, the greater the power of such groups to resist supra-national and even national harmonization, and the weaker the multi-cultural government. Perversely, the less the deference to such ethnic realities, the greater the potential instability of nations with multiple ethnic divisions. Today, Europe keeps potentially incompatible systems of culture norms firmly in check. The non-political and non-normative expression of culture is protected. Everything else is suppressed. Cultural Solicitude is what I call this guarded acknowledgment of the power of volksgeist.
The multi-leveled tensions between locality, nationality and generality provide a superior framework for understanding the character and future troubles of the union which Europeans are attempting to build, "the mysteries of [which] . . . are at least as difficult to understand as those of the Trinity." (Musil, 1930, at 199). These tensions are at the core of an unchanging and fundamental post-Roman European Gemeinschaft. I will suggest in this essay that the "new legal order" emerging with the European Communities is informed and shaped by these forces to the same extent as those forces inform and shape all other nation-states and federations in the West. As such, the tensions and oppositions of harmonization, subsidiarity and cultural solicitude provide an important source for the understanding both of how constitutionalism works in the Community "system," and how that system will respond to socio-political "stimuli" in the coming years.
Sections II and III examine harmonization, subsidiarity and cultural solicitude as three variables of a matrix within the context of a European federalism which bounces between the universalizing totalitarianism of Imperial Rome and the anarchy of Austria-Hungary's version of federalism. Section IV suggests some consequences of pan-European federal constitutionalism in the context of these basic communities of forces. European federalism provides an arena, in the form of proceduralism, in which the opposing imperatives of harmonization, national and cultural solicitude are constantly adjusted as against each other. Yet European constitutional proceduralism as currently practiced carries with it the dangers of cultural trivialization and the tendency to elevate and preserve artificial cultural expression for the amusement of dominant groups. Lastly, a proceduralism that appears to permanently situate a normative power at one level of a federal system can delegitimize the federal enterprise when shifting values would reorder the power relations between federal, national and local levels. Section V examines the ramifications of the normative instability which follows from the need to constantly juggle harmonization, subsidiarity and cultural solicitude. European federalism achieves stability by providing a vehicle for the expression of shifting values given to harmonization, national and cultural solicitude. It also provides a means for shifting centers of power between supra-national, national and local governments. European federalism is stable only when it allows for changes to the federal system. Such contained instability holds the promise for a stable European federation if Europeans can assert the political will to maintain the system.