Majtényi, Balázs

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Mi 21 Dez2016A Game of Values: Particular National Identities Awaken inEurope verfassungsblog.de /a-game-of-values-particular-national-identities-awaken-in-europe/Balázs Majtényi Mi 21 Dez 2016“Winter is coming”(George R. R. Martin, A Game of Thrones)This article focuses on the relation between constitution and society, namely how the popular perception ofidentity and values can impact on constitutional democracy and its institutions, and how the reformulation ofnational identities can endanger the European project and constitutional democracy itself.When national identities are (re)deﬁned along cultural, ethnic or religious characteristics, there seems to be a“zero-sum game” between the constitutional recognition of these characteristics and liberal values that includeequality and human rights. The dual movement of strengthening cultural, ethnic or religious characteristics and ofweakening liberal values in many countries can be traced back, at least partly, to global phenomena likeeconomic downturn and restructuring, the advance of the far-right and the crisis of the left, the movement offormerly extremist ideas into mainstream discourse, the call for authoritarian leaders.i First, all these showresemblance to the interwar period. And second, because of the interconnectedness of national developments, itis not enough to look at the Hungarian or the Polish democratic backlash, Brexit or other events like theauthoritarian turn in Turkey or the US presidential elections in isolation: I argue that a crucial factor inunderstanding “the zero-sum game” is to unearth the common features, in addition to the national peculiarities.This article raises the questions whether the emergent authoritarianism in the Central and Eastern Europe (CEE)region may contain lessons for what is going on in Western Europe.Transforming National IdentitiesAll constitutional systems require the construction and deﬁnition of a constitutional ‘We’ in the name of whom thesystem talks and works. The national/constitutional identities of states are partly determined by the relation tohistorical, religious, ethnic identities. Identiﬁcation with a constitution and a constituted community is often tooabstract to attract popular loyalty. Recent developments have shown that many people across Europe preferhistorical, religious, ethnic identities and the shared heritage of the local societies in which they live; and deﬁnetheir identity against liberal values.Some of the reasons of recently changing national identities of member states are rooted partly in global societalprocesses, such as economic downturn and restructuring that can result in social conﬂicts, or the return to localcommunities and premodern, nationalistic values, which goes against the traditions of the Enlightenment and theprinciple of equality. We are witnessing changes in the political system, too: the advance of the far-right and thecrisis of the left. Previously extremist ideas are moving into mainstream discourse, the radical right is gainingmore and more inﬂuence in Europe and racism is on the rise.  It is no accident that some authors have raised thequestion whether interwar Europe is comparable with the present situation.ii There are not only diﬀerences (e.g.alterations in the role of media, and in institutions) but also similarities between the debt crisis of 2009, leading toan economic downturn and the great Depression of 1929, and the 1930s’ turn into dictatorship and the spread ofantisemitism are comparable with the recent trends of growing racism (anti-Muslim, anti-immigrant, anti-Romasentiments) and attacks against democratic institutions.iiiIf we will look at the recent authoritarian tendencies in CEE, the goal, in line with the idea of the importantelement of interconnected developments, is to go beyond the common explanations that point out the lack ofdemocratic experience, the weakness of civil society and the public desire for a strong leader. The societaltrends of Member States cannot be examined in isolation: if the processes are interrelated, constants are crucial1/4in understanding the interconnectedness. For instance Brexit and the Hungarian crisis have common features:the fears from losing sovereignty (“taking back control” from the EU), nostalgia for historic grievance (for theBritish Empire and for Hungary before Trianon), the idea of a state with a closed border, arguments againstmigration and multiculturalism.iv Furthermore, this vision of the national identities in the two cases implies notmerely intolerance but also the need for identifying who is “the other” (the EU, ethnic minorities, migrants,refugees). Not in the same way but both of the crises are about the self-identiﬁcation of the people and theseparation from others, and the other is typically foreign, belongs to a minority and European. The British casecombines, similar to the Hungarian case, Euroscepticism with human rights scepticism.v Brexit is sometimesdiscussed not only as an exit from the EU but also as partly an exit from the ECHR.Without implying that recently the Hungarian autocratic regime and the UK constitutional democracy are in anyway similar to each other, it has to be seen that societal processes which are behind the Hungarian constitutionalturn or the Polish democratic backlash appeared in other member states too and they shape their nationalidentities and mean a real danger for old constitutional democracies too. And needless to say, these processeshave an impact outside of the EU. The clearest and most recent example is the presidential election campaignand the victory of Donald Trump, who used arguments similar to the ones that appeared under the Hungarianconstitutional turn: removing “criminal” and illegal immigrants, building a wall on the southern border, making theUS “great again”. The ﬁrst comment of the Hungarian prime minister after Trump’s Victory was the following:“Congratulations, this is very good news, the democracy is still alive!”Furthermore, the vision of national identities in the various cases implies not merely intolerance but also the needfor identifying who “the other” is (the EU, ethnic minorities, migrants, refugees). The process of self-identiﬁcationinvolves the separation from others, and the other is typically foreign and belongs to a minority or, for that matter,Europe. The formulation of national identity of the state follows the logic pointed out by Karl Schmitt: it is partlybased on the diﬀerentiation between we/the nation and they/others (European Union, European/humanrights/migrants/minorities).A Need for a New ApproachIt is hard to say whether the recent clash between values and its consequences (e.g. the democratic backlash inCEE countries) were foreseeable or not, the conﬂict certainly didn’t come out of the blue. Before the Easternenlargement, the EU had a fear of a nationalistic backlash in the new democracies. Although former state-socialist countries became constitutional democracies and according to the Commission they fulﬁlled the politicalcriteria of European accession (stability of institutions, democracy, the rule of law, human rights and respect forand protection of minorities), the EU formed a more benign image of certain new member states than the realsituation would have allowed for, because it focused mainly on their legal systems and expected CEE MemberStates to improve within the EU.Some other recent clashes between Member States national identities and the European Union could have beenforeseen, too, such as the EU’s conﬂicts with the UK and Poland. With protocol No. 30 to the Lisbon Treaty,Poland and the United Kingdom wanted to step back from the binding provisions of the Charter on FundamentalRights. According to the Protocol the Charter does not give national or European Courts any new powers to strikedown or reinterpret UK or Polish law including social law or labour law legislation. The European Parliamentpointed out that Protocol No. 30 ‘is not an ‘opt-out’, it does not amend the Charter and it does not alter the legalposition which would prevail if it were not to exist. Thus, the Parliament and other EU institutions considered theProtocol as a factor giving rise to legal uncertainty and thereby endangering the rule of law. The ECJ stated inthe NS judgement that Protocol No. 30 “does not call into question the applicability of the Charter in the UnitedKingdom or in Poland.” The debates around the Protocol in some degree predicted the recent conﬂicts betweenthe EU and UK and the EU and Poland.When analysing the national identity of states, some academic literaturevi focuses on the judicial review of themember states’ Constitutional Courts and the practice of the Court of Justice, and on the issue of who the ﬁnalarbiter is. However, this approach is misleading, because it shows us only the tip of the iceberg. Although someof these cases are very interesting and well researched,vii this approach has a very limited potential to explain2/4the current challenges of the EU and of constitutional democracies. One of the problems with the approach is thatit focuses mainly on judicial review and it does not take into account the diﬀerent constitutional structure of states,for instance the British model which is based on parliamentary supremacy, and where the judicial review has alesser role. But what is a more substantial problem is that it presupposes a “convergence between the principlesof domestic constitutional law enjoying speciﬁc protection and the constitutional principles of the EU.”viii That thismight be misleading is proved by the Hungarian case, where the constitution (’Fundamental Law’) in force since2012 openly rejects European values by listing in its preamble elements necessary to common national identity,such as belonging to the ethnic nation, belonging to Christianity, ﬁdelity, faith, and love. Nowadays, Hungarypresents the most obvious case where all elements of constitutional democracy protected under Article 2 of theTEU are threatened: checks and balances, fundamental rights, the rule of law, etc. What is more, the recentPolish turn of events shows that the Hungarian way might appear a recipe to follow for other East and CentralEuropean Member States and maybe for other member states too.The often used term “multispeed EU” means not only that some countries move faster in the same direction butit could also refer to the fact that some member states are moving in the opposite direction. A clear example forthis is the Hungarian constitutional crisis, where according to many authors the democratic institutions (includingthe Constitutional Court) are sick or not working any more.ixIn such a situation it is a mistake to focus only on what is the national courts’ or the CJEU’s interpretation of theprotection of the national identities of member states because this standpoint presupposes that all memberstates respect the principles of constitutionalism and take part in the same discourse. And it is not enough tofocus on the appearance of national identity in public law and political ethno-nationalism through the lens ofconstitutional law, but the analyses should be extended to the social and political causes of transforming nationalidentities, i.e. the structural causes of the social demand for discourses and values of the nation.*Not only new and old constitutional democracies but the EU also found itself in a diﬃcult situation. If the EU doesnot apply eﬀective sanctions against Hungary, it will compromise its core values. However, one can also arguethat more eﬀective measures against a Member State will strengthen "exit-minded" Eurosceptics. This might bethe reason why the EU stood by idly and watched the demolition of constitutional democracy in Hungarypassively. The EU’s legitimacy is thin and this weakness is reﬂected in its impotence in the face of the drifttowards authoritarianism in CEEs. It remains to be seen whether such an authoritarian turn as the Hungarian canhappen in old democracies and if their institutions are strong enough to limit the eﬀects of global processeswhich are shaping the national identities of societies and the impact of Member States on the shared EUframework.As Michael Keating states „There is a real prospect here for an English populist right movement of the sort wesee in other European countries, with their mix of ethnic nationalism, nativism, Europhobia, protectionism andwelfare chauvinism. The extreme right has never been a serious force in British politics but there have beenbursts of support in the 1930s, the 1970s and the 1990s. There is no reason to think that the British are naturallyimmune to it.”This article wants to underline that it is very dangerous for the institutions of constitutional democracy if themajority of the people does not share the constitutional values. It could mean a real danger for old memberstates too, which predicted by Eastern and Central European political turns. Hungary and Poland show that EUMember States can deﬁne their national identity in ways that breach the values of constitutionalism (e.g. equality,protection of human rights) yet this deﬁnition is supported by the majorities of people. The question ariseswhether the institutions of Western democracies are enough strong to ensure popular loyalty for values ofconstitutionalism.i Margit Feischmidt, Balázs Majtényi, ’Introduction’ in: Feischmidt Margit, Majtényi Balázs (ed.) The HungarianFundamental Law and the Origins of New Nationalism (manuscript) ii Aristotle Kallis, ‘Far-Right “Contagion” or a Failing “Mainstream”? How Dangerous Ideas Cross Borders and3/4Blur Boundaries’ Democracy and Security 2013/9, 235.iii Ibid.iv See to the topic of Brexit: Ralf Michaels, ’Does Brexit Spell the Death of Transnational Law’ German LawJournal (Brexit Suppl), 17, 51., and Neil Walker, ’The European Fallout’ German Law Journal  (Brexit Suppl), 17,125.v Katja S. Ziegler, Elisabeth Wicks and Loveday Hodson, ’The UK and Human Rights: Some reﬂections’ In: KatjaS. Ziegler and Elisabeth Wicks and Loveday Hodson (ed.), The UK and European Human rights (A Strainedrelationship) Hart, Oxford and Portland, 2015, 504-506.vi See e.g. Alejandro Sariz Arnaiz and Carina Alcoberto Llivina (ed.), National Constitutional Identity andEuropean Integration, Cambridge, Intersentia, 2013. or Armin von Bogdandy and Stephan Schill, ‘OvercomingAbsolute Primacy: Respect for National Identity under the Lisbon Treaty’, (2011) 48 Common Market LawReview 1417.vii For instance the Sayn-Witgenstein case (C-208/09) is relevant and edifying. The plaintiﬀ with Austriannationality adopted German nationality whose surname contained a nobility title of “Fürst” (Prince) and theAustrian authorities modiﬁed her name by removing the title. According to the Court it should be taken intoaccount that the Law on the abolition of the nobility is an element of Austrian national identity. See to this Arminvon Bogdandy and Stephan Schill, Overcoming Absolute Primacy: Respect for National Identity under the LisbonTreaty, (2011) 48 Common Market Law Review 1423-1425.viii Armin von Bogdandy and Stephan Schill, Overcoming Absolute Primacy: Respect for National Identity underthe Lisbon Treaty, (2011) 48 Common Market Law Review 1433.ix See e.g. Miklós Bánkuti – Gábor Halmai – Kim Lane Scheppele: From Separation of Powers to a Governmentwithout Checks: Hungary’s Old amd New Constitutions, in Constitution for a Disunited Nation Hungary’s NewFundamental Law, ed. Gábor Attila Tóth, Budapest, CEU Press 2012, 268., Kim Lane Scheppele:Understanding Hungary’s Constitutional Revolution in Constitutional Crisis in the European Constitutional Area:Theory, Law and Politics in Hungary and Romania, eds. Armin von Bogdandy – Pál Sonnevend,  Oxford-Portland, Hart, 2015., Opinion on Hungary’s New Constitutional Order: Amicus Brief to the Venice Commissionon the Transitional Provisions of the Fundamental Law and the Key Cardinal Laws, eds. Gábor Halmai and KimLane Scheppele (eds.), with Miklós Bánkuti, Tamás Dombos, Zoltán Fleck, Gábor Halmai, Krisztina Rozgonyi,Balázs Majtényi, László Majtényi, Eszter Polgári, Kim Lane Scheppele, Bernadette Somody, Renáta Uitz.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Majtényi, Balázs: A Game of Values: Particular National Identities Awaken in Europe,VerfBlog, 2016/12/21, http://verfassungsblog.de/a-game-of-values-particular-national-identities-awaken-in-europe/.4/4

A Game of Values:: Particular National Identities Awaken in Europe

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A Game of Values:: Particular National Identities Awaken in Europe

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