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Justifying supranational responses to the anti-constitutionalist challenge: Applying liberal multiculturalism as a background theory
Published online by Cambridge University Press: 20 October 2020
Abstract
The European Union is bound to respect the national identities of member states. States might, on occasion, define their national identities in ways that breach inclusive constitutional values (e.g. equality) protected under TEU Article 2. The assumption behind the recognition of diverse constitutional identities is the peaceful coexistence of both, which is challenged by illiberal national developments. We see the relationship between the constitutional recognition of exclusive values (e.g. dominant ethnicity or religion) and inclusive constitutional values as a zero-sum game; every gain by the proponents of emergent authoritarianism translates to a loss for constitutional democracy. While exclusive norms appear in virtually every constitutional system, a critical mass of exclusive values can lead to the hollowing out of a democratic order, both at the national and supranational levels. To try to identify the line where this shift happens, we rely on the limits of toleration and recognition of exclusive norms and identity elements of minority communities in liberal theories of multiculturalism (e.g. Raz, Taylor, Kymlicka). We think that the case of illiberal minorities raises structurally similar theoretical questions, insights and experiences as the dilemma defined above, namely the challenge of illiberal states undermining fundamental EU values.
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- © The Author(s), 2020. Published by Cambridge University Press
Footnotes
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This article was conducted within the scope of the H2020 project Democratic Efficacy and the Varieties of Populism in Europe (DEMOS) and was funded by the European Commission under the Grant agreement 822590. Any dissemination of results here presented reflects only the authors’ views. The Agency is not responsible for any use that may be made of the information it contains.
The authors would like to thank comments from the reviewers as well as the participants of the Global Constitutionalism Scholars Workshop (‘New Thinking in Global Constitutionalism’) at the WZB Berlin Social Science Center, on July 6, 2019, especially the two commentators, Andreas Føllesdal and Mattias Kumm.
References
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23 M Avbelj, ‘Pluralism and Systemic Defiance in the EU’ in A Jakab and D Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford University Press, New York, 2017) 57. Also, in the same chapter, ‘pluralism cannot be defied pluralistically. A pluralist European integration assumes that its Member States are well-ordered societies. After all, this is what the entire process of pre-accession conditionality is dedicated to. A pluralist European integration can therefore only exist if its Member States are ab initio committed to pluralism.’ Ibid, 56–57.
24 Article 7(2) TEU.
25 Article 7(3) TEU.
26 ‘However, despite the symbolism of Article 7 TEU, and a number of attempts which have been made by the European Parliament to instigate its application, it seems unlikely to have any significant application in practice’. Craig, and G de Búrca, EU Law: Text, Cases, and Materials, 5th ed. (Oxford University Press, New York, 2011), 390.
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29 Albeit not a genuine reform, but an addition on the part of the Commission: the introduction of a ‘pre-Article 7’ procedure, a rule of law mechanism. European Commission, ‘A New EU Framework to Strengthen the Rule of Law,’ Strasbourg, 11 March 2014, COM(2014) 158 final.
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31 In this article, we take it for granted that Article 2 values have a widely accepted meaning as exemplified by the broad consensus over violations in the cases of Hungary and Poland. We agree, however, that enforcing values (as the Treaty calls them) is of a different nature than the day-to-day examination of acquis compliance: ‘the enforcement of values is a different matter compared with the enforcement of the acquis sensu stricto’: see Kochenov (n 7) on the conflict of values as opposed to conflict of (lower level) norms.
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34 For an account of how exclusive values can ‘disunite a nation’, see GA Tóth (ed) Constitution for a Disunited Nation: Hungary’s New Fundamental Law (CEU Press, Budapest, 2012).
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45 We would like to thank our anonymous reviewer for highlighting this aspect.
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71 Bill 104 (2002, chapter 28) An Act to amend the Charter of the French language. See <http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2002C28A.PDF>
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76 To illustrate the difference between exclusive elements that can be recognized and those that undermine the core, there is a crucial difference between affirmative measures (like Article 116 of the German Grundgezetz) and a wholesale ethnicization and exclusion (see, for example, the recent ‘National State Law’ of Israel, summary available at <https://www.jpost.com/Israel-News/Read-the-full-Jewish-Nation-State-Law-562923>.
77 On the phenomenon and related choices, see Hirschman, AO, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Harvard University Press, Cambridge, 1970).Google Scholar
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81 ‘There are many ways to strengthen mechanisms for respecting individual rights in a consensual way, without simply imposing liberal values on national minorities.’ Kymlicka (n 35) 169. The fact that the majority group cannot intervene in a coercive manner ‘does not mean that liberals should stand by and do nothing. A national minority which rules in an illiberal way acts unjustly. Liberals have a right, and a responsibility, to speak out against such injustice. Hence liberal reformers inside the culture should seek to promote their liberal principles, through reason or example, and liberals outside should lend their support to any efforts the group makes to liberalize their culture. Since the most enduring forms of liberalization are those that result from internal reform, the primary focus for liberals outside the group should be to provide this sort of support.’ See Kymlicka (n 35) 168. For example, ‘liberals can push for the development and strengthening of international mechanisms for protecting human rights’ See Kymlicka (n 35) 169.
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