Europe’s Constitutional Challenges as a Problem of Culture
The Telos-Paul Piccone Institute in collaboration with the ZfL
The challenges faced by the liberal democratic model in the 21st century have made constitutional theory into an urgent topic of global concern. Both the second Iraq War and the revolutions of the Arab Spring frustrated hopes of an easy trajectory toward liberal democratic constitutional orders. If there was the hope that liberation would mean the establishment of liberal democracy, the result has been that emancipation from tyranny does not naturally lead in a particular political direction. Such a conclusion presents fundamental problems for a constitutional theory that is built around a liberal democratic model.
These questions indicate that the constitutional state, as theory and practice in modern Europe, North America, and Japan, while continuing to be the common point of reference, calls for renewed reflections as it faces new challenges both domestic/national and global in nature. The shift of economic and productive centers of gravity from the West to other parts of the world comes not only with a whole range of issues regarding geopolitics, international relations, and security, but also with a new sense of urgency to study different state forms, forms of sovereignty, notions of democracy and freedom, and political legitimacy as they are rooted in and informed by long-standing social and cultural norms. An understanding of these social and cultural norms not as remnants of what has been rendered obsolete and backward by modernity and postmodernity, but as vital processes that foster new ideas and drive change, requires concerted efforts at reading them—as texts, as theory, and as practice—both sympathetically and critically.
In Europe, constitutional structures are being tested by populist movements that have begun to question the liberal consensus upon which the European Union was built. If a constitution should embody the will of the people as that which establishes the over-arching framework for legal order, what happens if this democratic will begins to reject certain liberal principles such as an independent judiciary, freedom of expression, or the rule of law? Such a possibility has manifested itself in places like Turkey and Russia, but it also threatens to undermine Poland and Hungary as well. The conflict for the EU has been most evident in Poland and Hungary, where recent moves to diminish the independence of their judiciary systems have put the EU in the difficult position of having to either intervene in the sovereignty of a member nation or acquiesce to the erosion of the rule of law. If the former option would risk the further loss of EU members, the latter option would threaten its basic principles. Moreover, the underlying problem persists all over Europe, where movements in many countries, including France, Germany, and Italy, are trying to establish an ethno-nationalist understanding of political identity. Such a displacement of an idea of Europe based on liberal principles would transform the political basis of the European project.
These quandaries indicate that the basis of the European Union cannot lie in economic arrangements nor in the gradual expansion of legal norms. Rather, cultural attitudes will be fundamental for determining the European Union’s future because the current problems revolve around the character of the people that make up the popular will. If there was once a time in which one could imagine the continual growth of the EU as a gradual expansion of its unified market as well as of its liberal democratic institutions, it is now facing the necessity of decisions that will set clear limits on who is inside and who is outside of its borders. On the one hand, the accession of new EU members has stopped with the turn of political events in both the Ukraine and in Turkey, and the expansion process is even reversing with Brexit. If Turkey can no longer be considered for EU membership due to its suppression of liberal rights, the corollary is that similar suppression in Poland or Hungary might lead to their expulsion. On the other hand, the general tightening of restrictions on incoming refugees and other migrants indicates a growing desire to protect the ethnic and religious character of Europe, even at the expense of liberal principles. These developments necessitate a debate about both the EU’s internal structures and its mode of interacting with other countries. This debate will center around issues of culture and history, including understandings of what it means to be European. The basic choice between a civic nationalism based in liberal values and an ethno-nationalism will lead to different kinds of structures.
An analysis of these issues will require an interdisciplinary approach, in which not just legal and political questions, but also rhetorical issues of political representation and legitimacy are recognized as essential to the problem. If a constitution presents a people's self-understanding of its political identity, this identity is not a naturally occurring structure, but the result of literary, cultural, and theological processes that follow a representational logic. The rise of populism indicates that the interaction between law and representation is perhaps the key consideration in determining the success and failure of a particular constitutional structure. This conference will thus include scholars in diverse fields, such as law, political science, literature, and philosophy.
The questions to be discussed include the following:
How have conceptions of cultural identity been changing in different European countries, and how have these changes affected political discourse?
What are the main genres in which cultural identity is being forged in Europe – literature, drama, film, music, art? Are there conflicting trends in different genres?
To what extent has the European Union established a common culture for Europe and where do we see expressions of this culture?
What is the structure of the public sphere in Europe? Is there an over-arching European public sphere? Where and how does it manifest itself? How does it relate to individual public spheres within the member states and to constitutional structures?
Are the EU’s constitutional arrangements inadequate to its situation and if so, what are the alternatives, and how do these alternatives relate to popular conceptions of what Europe means?
What are the options for Europe in dealing with the current quandaries in Poland and Hungary, and will this situation lead to the break-up or the solidification of the EU as a political entity?
Would a fundamental commitment to liberal principles require the founding of these principles in some kind of representational (i.e. mythic) schema?
Will the future cohesion of Europe rely, not on liberal ideals, but more fundamentally in a history of shared cultural, religious, and ethnic identity?
Is a constitution necessarily liberal and law-based, or is it ultimately based on a culturally specific conception of collective identity, however that might be defined?
What possible structures are available for determining the sharing of sovereignty between the EU and the individual member states in the future?
What kind of constitutional and political alternatives would be possible for countries like Russia, Belarus, and Ukraine that do not join the EU, or for those, like Poland and Hungary, which could conceivably leave it?
- Russell Berman (Stanford University)
- Eva Geulen (ZfL/Humboldt University)
- Paul Kahn (Yale University)
- Andrej Medushevsky (Higher School of Economics, Moscow)
- Christoph Möllers (Humboldt University)
- David Pan (UC Irvine)
- Bernhard Schlink (Humboldt University)