Comparative Constitutional Law, Rights, and Belonging in Europe
Andrea Pin 5 June 2020

Seligman and Montgomery’s diagnosis is of great assistance in understanding the pan-European malaise.  Various tensions are shaking the Old Continent, questioning some of its most outstanding legal achievements, and challenging its political culture.  After the decades of the successful post-World War II European reconstruction, the integration of post-Fascist Spain, Portugal, and Greece and later of the post-Communist Eastern Europe, the Council of Europe and the European Union[1] are confronted with a mixture of potentially explosive issues.  The global economic crisis has hit many European Countries hard. Austerity measures and the refugee crisis have aggravated the position of Southern European Countries.  Populism has taken hold of several European States, and now threatens the historical European supranational legal orders.  If anyone doubts that European integration could ever reach a breaking point and dissolve, Brexit will suffice as a reminder.

Seligman and Montgomery point fingers at the pervasive role of human rights in these crises. In their words, the “idea of human rights as the primary vehicle through which we articulate our shared moral vision … has had (perhaps) inadvertent but nevertheless serious and deleterious effects world-wide,” prompting an authoritarian, xenophobic, and antiliberal backlash.  The authors also believe that the ubiquitous narrative centered on human rights has pushed other key features of legal and political orders, such as constitutional rights, into the background.  They finally suggest a sound policy of difference to revitalize the political tissue of contemporary legal and political orders.  Legitimizing difference would serve as an antidote to the narrative of human rights.  It would balance the emphasis on human rights with a more holistic, community-centered perspective.

When it comes to European legal culture and its institutions, Seligman and Montgomery are both right and wrong at the same time, in ways that this short article will illustrate.  It will first sketch out the institutional components of the human rights narrative in Europe. Then it will quickly address the debate around the ineffectiveness of human rights’ discourses in securing social and legal development and the alternatives to overcome it. Finally, it will discuss the role of public institutions in nurturing a sense of belonging.

 

Claims, rights, and fora

None would reasonably give away the legal and political culture that developed in Europe after the two World Wars. Such culture has certainly found its lingua franca in human rights. Human rights have become the background against which political societies are built and against which states’ reputations are measured.  Putting human rights at the heart of a society has its own costs, however. The price that Europe has paid is substantial, and some have started to believe that it may not be worth it.

Supranational European orders incorporate human rights’ agencies among their core institutions.  The European Convention of Human Rights distilled a comprehensive list of rights in the aftermath of World War II.  After achieving a unified market economy and the free movement of goods and people, the European Union tried to revitalize itself in the 1990s and 2000s through a human rights-centered discourse, giving birth to the European Charter of Human Rights.

Placing rights at the core of European legal culture has made courts the ideal forum to address legal and political issues. Rights generate legal claims, which courts adjudicate. The Continental constitutional tradition, the Court of Justice of the European Union, and the European Court of Human Rights have all embraced this vision. The emphasis on the judiciary is now a staple of European legal tradition at the state level as well as the supranational level. Practically only the Anglophone legal culture remains somehow skeptical of the judiciary. While UK courts lack most of the powers to strike down legislation, the majority of European countries are content to have courts reviewing legislation. At the supranational level, the suppression of the European Commission on Human Rights, alongside some political maneuvering in the late 1990s, completed the judicialization of disputes based on the European Convention.  Within the European Union, there is no question that the main driver of legal integration among the Member States has been the Court of Justice since the early 1960s.

The judicialization of legal disputes affects the logic, the language, and the shape of social conflicts.  As to the logic, lawsuits end with somebody winning while somebody else loses, dividing societies between winners and losers. As to the language, courts are not like market squares. Everybody benefits from the fact that courts are extremely disciplined environments, within which lawyers make reasoned arguments.  But such benefits do not come free of charge. Judicial arguments are very specific. As Jeremy Waldron has noted, lawyers deploy arguments that are more likely to win.[2]  Their phrasing is centered on legal provisions and precedents. Similarly, judges process facts and rules in ways that are barely comprehensible to the many. The language of human rights may help deliberation, as Michael Ignatieff asserts,[3] but they still help judicial deliberation.  Finally, constitutional litigation and human rights disputes often pit the individual against the collectivity.[4] When domestic judges review legislation, they normally hear claimants complaining about parliamentary acts that the majority enacted. The European Court of Human Rights’ cases are always X v. The State: wherein an individual or a group claims that a State – most commonly, their State – failed to respect or protect a Conventional right. The Court of Justice of the European Union’s most advantageous tool has been the “preliminary ruling procedure.” Through this procedure, individuals or groups can complain that domestic laws do not comply with European Union laws in the Court of Justice of the European Union. They do so by starting a lawsuit in front of a domestic judge, who pauses the proceeding and requests a preliminary ruling from the Court of Justice.  Once the Court has delivered its judgment, the domestic judge resumes the proceeding and adjudicates in light of it.  This scheme also pits individuals against their political communities. Seligman and Montgomery are correct. Human rights have the potential to exacerbate social rifts. They divide people: between losers and winners; between ordinary people and experts; between individuals and collectivities.

Is European culture aware of such a dynamic? There is reason to doubt it. The Court of Justice of the European Union has been increasingly posing as a court of rights since the Charter of Fundamental Rights of the European Union entered into effect in 2009.  It has even displayed an intrusive approach toward the inner life of religious groups and institutions. Rather than preserving their autonomy, it has been keen to adjudicate disputes that are potentially disruptive of their inner cohesion.

Contrary to what Seligman and Montgomery argue, however, human rights have not pushed constitutional law aside – quite the opposite. Human rights have permeated constitutional law with their logic, contents, and values. Constitutional law is now replete with rights-based discourses. David Law coined the concept of “generic constitutional law” to describe the transnational phenomenon of national and supranational courts exchanging each other concepts, ideas, and values.[5]  Judges have been borrowing from each other to secure comparable levels of protection of rights.  This phenomenon ultimately pursues the goal of making “everything justiciable,” as Aharon Barak has it. But human rights discourse, judicial litigation, and inter-judicial dialogue run the risk of hollowing out the public sphere. Human rights discourses tend to replace other types of narratives because that discourse is the most likely to win in courts.

Seligman and Montgomery pit confidence and trust against each other, as they were two alternative models of political coexistence.  They emphasize that rights permeate a realm based on confidence, while communities need trust. Pan-European legal culture challenges their view. Supranationalism and human rights in Europe are based on confidence as well as on trust. The European Court of Human Rights relies on the States’ voluntary compliance with its rulings. There is no effective remedy in case of State noncompliance with the Court’s judgments. Even the Court of Justice of the European Union’s success is an offspring of this culture of trust. The Court of Justice has largely relied on domestic judges’ willingness to refer cases to it through the preliminary ruling procedure. Domestic judges have been eager to decide their cases in the light of European Law, triggering the Court of Justice’s pivotal role in securing legal integration within the European Union.

For decades, European States have sincerely embraced supranationalism, human rights, and globalization. They have participated in building a culture of trust that has been necessary for the survival and the flourishing of pan-European legal orders. In this respect, the individualistic culture of rights has not replaced a mutual sense of trust; actually, it has exploited it.

Even today, the European Union survives on a certain culture of trust.  A sense of shared belonging among public officials of its Member States is necessary, at least insofar as the legal and political mechanisms according to which the European Union functions.[6]  Paradoxical as it might seem, pan-European institutions depend on trust although they have been undermining it through a culture of rights based on confidence.

The pan-European legal and political culture suffers from what John Tasioulas has termed human rights’ “overreach.”[7]  Such insistence on human rights has spilled into European and domestic constitutional law as well as into the institutional dynamics of modern states and supranational institutions, threatening the very culture of trust that made it possible. Rights, courts, and transnational elites have almost monopolized the legal field, shrinking the role of parliaments, public debates, and narratives that are not centered on rights. The political backlash against this phenomenon can be seen in the widespread distrust in courts and rights, nationalism’s comeback, and anti-elite rhetoric. The political platforms that have arisen from such backlash have developed two alternative agendas: one focuses on the sense of belonging, the other fights economic inequalities and values the welfare state.

 

The search for roots and the curse of time

Seligman and Montgomery suggest that human beings have the primordial need to feel attached to something, and that contemporary political culture should take due note of that. They are hardly incorrect. The rise of ideals of nationalism and the resurrection of identitarian politics channeled through the notion of constitutional identity can be explained by the insufficiency of abstract, universal rights.

Such need for collective self-identification is at the same time both material and spiritual. Emphases on race, language, culture, religion, or birthplace differ widely, but they all point to very tangible aspects of human life. At the same time, however, they transcend the individual in two ways. Since they embrace groups, they express a sense of horizontal commonality; since they connect present generations with previous ones they also express a sense of vertical commonality.

Human rights heed the call for horizontal commonality, but fail to nurture a sense of vertical belonging. The Lautsi affaire best exemplifies such dynamic. The case revolved around the longstanding presence of the crucifix in Italian public schools. A parent of a young student in an Italian school claimed that the crucifix violated her child’s religious freedom, as enshrined in the European Convention of Human Rights.  In 2011, the European Court of Human Rights responded in the negative.  Interestingly, the request that the crucifix be removed met with fierce resistance among believers and nonbelievers alike. The cultural salience of the case explained the mobilization of non-Christians in favor of the crucifix. The issue did not consist merely in the display of the crucifix. The question was not whether it was just or appropriate to hang it in classrooms; it was about its removal. Religious and nonreligious people alike who wanted the crucifix to remain in classrooms felt that their ties with their past were at stake. The Maltese Judge sitting in the European Court at the time, Giovanni Bonello, captured the deep meaning of the controversy with his opinion, when he warned that removing the crucifix would have amounted to a form of “historical Alzheimer,” a lack of remembrance of the past.

It is no surprise that those who criticize globalism, supranationalism, and narratives based on human rights believe that the prevailing European legal culture has unfairly neglected the importance of the past.  The culture of supranationalism, globalization, and human rights hardly understands the importance of the past. The two pan-European Courts, as well as many domestic judges, interpret laws incrementally.  They read legal texts in a progressive way, under the belief that time translates in more rights’ protection.[8] On the opposite side, vindications of the past go hand in hand with strong skepticism toward courts. The judiciary has thus become the battlefield of opposite readings of the past and the future, as well as a common target of populist political platforms.

 

A matter of economy?

After the global economic crisis and the austerity measures that ensued, Europe has seen the rise of political movements that call for a stronger welfare state, broader redistributive policies, and more economic and social equality. Such movements do not merely advocate for the implementation of more robust welfare policies at the national and supranational levels. They even challenge the long-term agendas of supranational institutions and their understanding of freedom. In their view, the European Convention of Human Rights and the European Union have given market freedom the lion’s share. Human rights, they maintain, have not put checks on the market; on the contrary, they have protected capitalism by vesting it in human rights’ robes.[9]

Populism has thus been very active in promoting economic and social rights. It challenges the idea that personal freedom and economic success go hand in hand and that political institutions are merely or mainly under the obligation of not interfering with individuals. On the contrary, populist parties often encourage political institutions to undertake strong economic measures and address social inequalities.  Behind the rise and success of populist forces stand not just those who are dissatisfied with individualism and long for a renewed sense of collective identities.  Seligman and Montgomery’s diagnosis seems to overlook that the contemporary discontent with human rights, globalism, and supranationalism does not depend on the rhetoric of rights, but also on the type of rights that such rhetoric encompasses.

 

The Institutions of Trust

Recently, after decades of globalization, transnational dialogue, interinstitutional cooperation, and supranationalism, states have regained the center stage of politics and law. Brexit is just the tip of the iceberg.  European integration has also revitalized negotiations among Member States rather than Euro-centric approaches. Given the options available, States are the most likely candidates to fulfil the human desire of belonging and self-identification. Yet, they are unlikely to meet expectations.

It is little or no surprise that states look appealing to populists and, more generally, to those who have grown skeptical of the potential of human rights. States are still the backbone of social rights. They coordinate, subsidize, or even run healthcare, pension and social assistance services. Theoretically, they are in charge of borders and customs, through which they can control immigration and transnational economic competition – although the European Union has stripped away much of their powers in the field.

States can play a role also as identity-markers. Their laws draw the line between citizens and noncitizens. In Europe, State borders often are also linguistic borders.  Many European Countries have developed their identity in connection with a certain religion, and several constitutional texts have made such connection official.

Generally, states still own powers that are unknown to supranational organizations.  Through their police and military forces, they enjoy what used to go under the name of “monopoly of violence.” They do not rely on the voluntary compliance of domestic agencies to succeed. It is no coincidence, then, that somebody still praises “the virtue of nationalism.”[10]

Despite their potent comeback into the political and cultural sphere, States can hardly satisfy those who look for institutions capable of hosting a sense of belonging while protecting differences. National communities have undergone a process of deep structural and sociological transformation through the decades, which has made their identity claims largely futile.

Popular and cultural migrations have made contemporary European states very different from what populists would like them to be. Different faiths and cultural identities coexist in territories that once were much less diverse. This is true not just for countries of immigration, but also for those that experienced massive emigrations.  Turkey and Poland can be more culturally or religiously homogeneous today than the U.K. or Germany. But there are so many Turks or Poles living abroad, that Turkey and Poland can hardly claim to protect Turkish or Polish identity. Which agency is able to protect the Turks living in Germany, or the Poles who reside in the UK? The narratives that call States to actively protect their own identity overlook the fact that identities are now spread across national borders. The sense of belonging may be very lively; but there are no institutional infrastructures to embody and operationalize it effectively. No political or legal institution seems to be able to fulfill that need for belonging in today’s Europe.

 

Conclusion

Pan-European institutions have developed largely thanks to an implicit sense of trust among European peoples. Both the European Court of Human Rights and the Court of Justice of the European Union have played a pivotal role in integrating domestic legislations thanks to the willingness of State officials and judges to cooperate. The constitutional infrastructure, the emphasis on human rights, and the very idea of integration through law in Europe, however, have conspired to replace this sense of trust and cooperation with individual rights. Such a paradox became apparent during the constitutional debate that took place in the early 2000s, when the European Union tried to revitalize a sense of trust. The importance that opinion makers gave to the Preamble of the later aborted European Constitution implicitly acknowledged that narratives on human rights were not enough to cement the Europeans’ attachment to pan-Continental institutions – that the European Union needed a sense of belonging.

The chances that the European Union could instill a sense of community and belonging after undermining it were probably doomed to fail. The same debate on the Preamble appeared artificial; most of the public discussion focused on the symbolic components rather than to the substance of belonging, as the thick layer of human rights that the European Union law had developed until then was considered intangible. But the States’ chances to revitalize a sense of trust are also low. Despite all the praise that States are now receiving for their deep cultural roots and national identity, they are still agonizing under the pressure of social and economic rights.  They are expected to provide services rather than identity and bonds, and seem to be reaching out to identitarian rhetoric, particularly when they are economically exhausted and in need of legitimation. They embrace narratives of trust mainly because they cannot win their citizens’ confidence.

Which institutions can revitalize a shared sense of community nowadays? Seligman and Montgomery voice very reasonable concerns, but no political institution seems to be able to heed their call. Only civil societies look able to play this part, as long as political institutions let them do it. Maybe liberalism here just requires that political and legal institutions let citizens sort things out for themselves. Letting civil societies develop their own sense of belonging does not replicate the old laissez faire philosophy. The realm of law has changed so much in the twentieth century’s West that a change in the legal mindset is now also required. Lord Sumption has noted that in recent decades the law has flooded society, replacing social customs and personal initiatives with legal provisions.[11] A sense of belonging cannot properly develop unless political and legal institutions reconsider their role.

 

 

References

[1] For the sake of simplicity, this article uses “European Union” also to indicate the European Communities that preceded it.

[2] Jeremy Waldron, The Core of the Case against Judicial Review, 115 Yale L. J. 1346, 1383-1384 (2006).

[3] Michael Ignatieff, Human Rights as Politics and Idolatry 95 (2001)

[4] Joseph H.H. Weiler, Deciphering the Political and Legal DNA of European Integration: An Exploratory Essay, in Philosophical Foundations of European Union Law 155 (J. Dickson, P. Eleftheriadis 2012).

[5] David S. Law, Generic Constitutional Law, 89 Minn. L. Rev. 652 (2005).

[6] Valsamis Mitsilegas, Trust, 21 German L. J. 69, 69 (2020).

[7] John Tasioulas, Are Human Rights Taking Over the Space once Occupied by Polities, August 26, 2019, available at:  https://www.newstatesman.com/2019/08/are-human-rights-taking-over-space-once-occupied-politics (last visited: February 1, 2020).

[8] Andrea Pin, The Transnational Drivers of Populist Backlash in Europe: The Role of Courts, 20 German L. J., 225, 243 (2019).

[9] Samuel Moyne, Not Enough. Human Rights in an Unequal World 216 (2018).

[10] Yoram Hazony, The Virtue of Nationalism (2019).

[11] Jonathan Sumption, Trials of the State 11 (2019).

 

Andrea Pin is Associate Professor of Comparative Public Law, University of Padua.

Cover Photo: F. Florin / AFP


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