Political Restructuring in Europe

Ethical Perspectives

Chris Brown

• Publisher: Routledge
• Year: 2003
• Print ISBN: 9780415096386
• eBook ISBN: 9781134864324
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

A distinguished selection of contributors provide the theoretical background to the restructuring of Europe that is currently underway. It attempts to situate the ethical debates in a historical, legal and constitutional context, considering important and topical issues such as the rights to seccession and self-determination of minorities in Eastern Europe, and the question of whether national movements are justified in using force to achieve their ends.The authors number legal and constitutional scholars, political philosophers and international relations theorists. There are contributions from Poland and Croatia.

Chapter 1
Introduction

Chris Brown

The political structures of Europe have undergone an extraordinary level of change over the last few years—most obviously in Eastern and Central Europe, where the collapse of the Soviet empire in 1989 was followed by German unity in 1990 and the collapse of the Soviet Union itself in 1991. This has been a sequence of change unmatched by any other two-year period in the peacetime history of Europe. Throughout the region new states are emerging out of the rubble of the old regime, sometimes, as in Poland, Hungary, Bulgaria and Romania, occupying (at least for the time being) the same territory as their predecessors, but in other cases—the majority—within new boundaries. Each of these new political systems must carry out the fundamental economic changes required to replace the discredited communist command economy; almost all are attempting to establish liberal democratic political institutions; and in every case nationalist sentiments threaten these new countries with internal divisions and external conflicts. ‘Eastern Europe’—a term now politically suspect, given its association with the old divisions of Europe, but as yet irreplaceable—is facing a desperate crisis: widespread political unrest, economic hardship, malnutrition, even mass starvation in some areas, are possibilities in the autumn of 1992, perhaps realities by the time these words are read.

The situation in Western Europe is, of course, nowhere near as potentially catastrophic. However, by all usual standards, the changes here are of great significance. In the late 1980s the European Community (EC) launched itself towards a much higher level of economic co-operation than before with its plans for a ‘Single Market’ by 1993—a process which has led to a higher level of regulation and a more active role for the Commission within the Community than was previously the case, stoking fears of excessive bureaucracy. Meanwhile, the emergence of a unified Germany in 1990 reawakened old fears; the reaction to this event in some quarters—including Germany itself, where, amongst the political elite at least, fear of the power of the new state was as great if not greater than elsewhere—was to intensify the scale and speed of steps towards European unity, locking the new power firmly into a safe, European, identity. The combination of these two forces—opposition to bureaucratization and a desire to contain the new Germany—created complex pressures for change, which the Maastricht Treaty of December 1991 was designed to meet.

This treaty embodied the creation of an (ill-defined) European Union and a rough-and-ready timetable for the establishment of a common currency, but also contained a number of provisions designed to restrict the powers of the Commission and to prevent the emergence of supranationalism. This compromise appears to be satisfying no one. A Danish referendum narrowly rejected the treaty in June 1992; in Britain ratification by the House of Commons is uncertain. However, attempts to satisfy these critics by solemn declarations stressing the limits on Union contained in the treaty meet with opposition from the smaller and poorer members of the Community, who regard supranationalism as their best defence against the power of large states such as Germany, France and Britain. Reconciliation of these different interests seems impossible.

It is clear that in the new, post-communist world, the problems of East and West cannot be considered in isolation. Those who used to be ‘East Europeans’ want to become, in a socio-economic and political sense, ‘West Europeans’; they see eventual membership of the European Community as a way of stabilizing their own political systems and promoting economic development. However, the nationalism of these societies seems incompatible with this ambition. Meanwhile, in the West, many EC members give rhetorical support for the extension of the Community to the East (‘widening’ in the jargon of Community discussions), while also supporting extensions of its scope and competence (‘deepening’) that make it implausible that this will happen in the foreseeable future.

These contradictions between policies and rhetoric might suggest that the problems of the regions will remain separate, but the course of events suggests that this is highly implausible. Western Europeans cannot isolate themselves from the dramas of the East. The internal War of the Yugoslav Succession has forced West European countries to engage in mediation and peace-keeping, and some are already experiencing political problems as a result of an influx of refugees generated by the conflict—this latter, perhaps, but a foretaste of the problems which large-scale migration of labour will create if the disparity between basic living standards in East and West Europe remains as high as it currently is. In the medium run, the unpalatable choice may be between extensive aid to encourage Easterners to stay in the East, reluctantly provided and politically unpopular relief programmes for those who come west, or draconian controls on movement to keep out the dispossessed.

To summarize the implications of this thumbnail sketch of Europe in the early 1990s, it seems likely that the countries of Eastern and Western Europe are on the verge of achieving the impossible—a situation in which large numbers of Europeans will yearn for the ‘good old days’ of the Cold War, with even many Eastern Europeans, who had to suffer the hardships of communism directly, looking back with some nostalgia to the relative political and economic stability of the old regime. The political restructuring of Europe remains unavoidable—however, the kind of restructured Europe that will emerge at the end of the process is still, just, open to debate. The danger is that without a change in thinking it will be a Europe in which the West will be in the midst of economic depression, politically divided, and united only in its determination to exclude from its borders the millions who will be fleeing from political, social and economic collapse in the East. That this nightmare scenario could come to pass is a measure of just how serious the situation is—and just how important it is to understand the deeper forces and issues brought to the surface by the processes of political restructuring currently under way in Europe.

This volume is composed of essays which address this agenda, and in particular the moral and ethical forces which are shaping the new Europe. As will become apparent, its authors disagree on many counts, but one point of agreement is that the ethical dimension of change in Europe has not received the attention that it deserves. It is clear to us that ethical considerations have been major sources of change, in particular in Eastern Europe, where the moral bankruptcy of the old order was as apparent as its economic and political failures. Equally, the policies which will be, and are being, adopted in East and West to cope with change will not succeed in avoiding catastrophe unless they respond to this ethical dimension. Policies guided only by considerations of Realpolitik will not succeed in establishing a legitimate order in Europe. New structures will neither merit nor receive public acceptance unless they are seen as ethically defensible. That this is so is tacitly acknowledged by the attempts of the governments of Europe to provide moral justifications of their policies before their own, and European, public opinion.

However, it is clear that thinking about moral and ethical matters is often confused and unfocused. Many of the categories conventionally employed in moral discourse about the new political structures of Europe seem, in practice, to be singularly unhelpful. Neither the right to national self-determination, nor the concept of sovereignty, for example, seems to provide satisfactory guidelines in specific cases—where what needs to be decided is usually, say, not so much the existence of a right to self-determination as which of several competing groups should exercise it. Should any minority have a right to secede irrespective of the consequences? This seems impracticable, but if not, which minorities ought to have such a right? Under what circumstances is outside intervention in the affairs of a sovereign state legitimate? For that matter, how does a state achieve legitimacy in Europe today? How are just boundaries established?

The broad-brush ideas characteristically employed in public discourse to provide answers to these questions are insufficiently refined to perform the task. General principles need to be embedded in a wider set of ideas which would help us to give specific answers to the all-important ‘who’, ‘where’ and ‘when’ questions. However, it is unlikely that there will be simply one wider set of ideas that could provide these answers. Instead, it is clear that there are radically different perspectives on these problems, with different starting points and different kinds of reasoning, even if—as will become apparent later in this volume—these perspectives sometimes generate similar conclusions. There is an apparent paradox here. It might have been thought that the end of communism as an effective political force would lead to some kind of moral consensus, but, in fact, exactly the opposite has occurred. Moral arguments that were damped down under communism now take on a significance not seen since the late 1940s.

At the heart of this collection are a series of essays which address this debate, seen here in terms of a clash between ‘cosmopolitan’ and ‘communitarian’ views of the world. These perspectives offer competing views of the sources of value in social life, and the proper relationship that ought to exist between the individual and the polity. On the one hand, there are those who approach contemporary problems by assigning primary significance to the interests and values of individuals: on the other hand, there are those who see communities as the prime source of value. This is a very broad distinction—each perspective encompasses a range of views almost as different from one another as the difference between the two root positions—but, nonetheless, as we hope to demonstrate, it makes sense to organize consideration of contemporary moral debates in Europe in these terms.

It is not simply moral considerations that are a source of confusion in contemporary debate—it is also the case that constitutional matters do not receive the sort of attention they deserve. The legal implications of the act of secession are often taken for granted by both moral philosophers and current affairs commentators when discussing self-determination, while the language of federalism and confederalism is freely employed in both Western and Eastern Europe. In both cases, as contributors to this volume argue, a more sophisticated analysis would aid understanding. Moreover, it is too often taken for granted that nationalism—the single most important political force in Europe today—is a phenomenon whose origins and prospects are well understood. Again contributors argue that a more nuanced approach brings dividends.

The structure of this volume is shaped by the desire to place the moral and ethical debates generated by political restructuring in Europe within the framework of these other political and legal considerations. Part I examines the legal and constitutional aspects of restructuring. The American constitutional lawyer Cass Sunstein, drawing on both past American and current European experience, examines the legal side of secession and self-determination, arguing strongly against the superficially attractive idea of recognizing a right to secession in the new constitutions of Europe. In a companion chapter, Murray Forsyth explores the language and grammar of federalism in the new Europe, again examining current practice in the light of past experience elsewhere. A theme of both chapters is the unwisdom of imagining that there are legal or constitutional solutions to political and moral problems.

In Part II, at the heart of this volume, five authors offer contrasting views on the central debate between cosmopolitanism and communitarianism. Onora O’Neill opens this section with a cosmopolitan challenge to the absence of political writings on justice and boundaries, while Thomas Pogge and Charles Beitz continue the cosmopolitan theme in a wider context— demonstrating in the process that cosmopolitans can differ on quite central issues such as the moral basis of self-determination. David Miller and Chris Brown complete this section with studies from a communitarian perspective, again demonstrating that this broad approach covers a wide range of views.

Part III consists of two essays on contemporary European politics which establish different positions on the origins and prospects of nationalism. Michael Walzer’s 1991 account of the ‘new tribalism’ is essentially—albeit guardedly—optimistic that the new tribes will eventually re-establish civilized relations, while Zarko Puhovski, writing from Croatia, is less optimistic, tracing the force of nationalism to the communist past and arguing the necessity for democratic self-restraint in the new states of the East.

In Part IV, two scholars present overall assessments of the debates. Ryszard Legutko concentrates on the cosmopolitan/ communitarian divide, arguing that both parties fail to live up to the Aristotelean conception of politics, while, in a conclusion to the volume, Hidemi Suganami surveys the collection as a whole, bringing out agreements and disagreements and common themes.

The chapters that make up this volume come from scholars with different intellectual and national backgrounds, and reflect a number of different genres. In Part I the necessary detail that accompanies Sunstein’s legal reasoning contrasts with Forsyth’s panoramic overview of contemporary federalism. There is an obvious contrast in style between the chapters in Part II, which were for the most part written for the scholarly conference at which the idea for this volume originated, and the essays of Part III, produced for a different audience or under different conditions. This eclecticism is not a source of weakness: it is highly unlikely that the project of understanding our troubled times can be forwarded by work produced within one academic format, or by the methods of one discipline or by scholars from one part of the world and one intellectual tradition. What is needed is an exchange of ideas, a (friendly) confrontation of perspectives, philosophies, disciplinary skills and national viewpoints—and it is in this spirit that we offer this volume to the contemporary debate.

Part I
Constitutionalism, federalism and
confederalism

Chapter 2
Approaching democracy: a new legal
order for Eastern Europe
Constitutionalism and secession

Cass R.Sunstein

The Soviet Constitution guaranteed a right to secede,¹ The American Constitution does not. Although some secessionists in the American South, invoking state sovereignty, claimed to find an implicit right to secede in the founding document, it was more common to invoke an extratextual and non-justiciable ‘right to secede’ said to be enshrined in the Declaration of Independence.² In any case, no serious scholar or politician now argues that a right to secede exists under American constitutional law.³ It is generally agreed that such a right would undermine the Madisonian spirit of the original document, one that encourages the development of constitutional provisions that prevent the defeat of the basic enterprise.⁴

Eastern European countries are now deciding about the contents of proposed constitutions. They are often doing so in the context of profound cultural and ethnic divisions, both often defined at least roughly in territorial terms. These divisions have propelled claims for local self-determination that could readily be transformed into attempts to guarantee a right to secede or even into secession itself. In Eastern Europe in particular, debates over the right to secede have already played an extraordinarily important role in discussions of new institutional arrangements.⁵ Active secession movements have played a central role in current efforts to establish democratic governance. Such movements have led to claims for a constitutional right to secede, paralleling the Soviet right but to be respected in practice. A draft of the Slovak constitution, for example, creates a right to secede.⁶

It is likely that these claims will be asserted all the more vigorously in the future. The claims for secession, or for a right to secede, raise exceptionally large questions about the theory and practice of constitutionalism. It is therefore an especially important time to explore the relationship between secession claims and constitutionalism in general.

My principal claim in this chapter is that whether or not secession might be justified as a matter of politics or morality, constitutions ought not to include a right to secede.⁷ To place such a right in a founding document would increase the risks of ethnic and factional struggle; reduce the prospects for compromise and deliberation in government; raise dramatically the stakes of day-today political decisions; introduce irrelevant and illegitimate considerations into those decisions; create dangers of blackmail, strategic behaviour, and exploitation; and, most generally, endanger the prospects for long-term self-governance.⁸ Constitutionalism, embodying as it does a set of pre-commitment strategies, is frequently directed against risks of precisely this sort. Political or moral claims for secession are frequently powerful, but they do not justify constitutional recognition of a secession right.

The principal argument for recognition of a right to secede is that it would operate as a powerful deterrent to oppressive and discriminatory practices, and also serve as an effective remedy for these practices. Usually, however, these goals can be promoted through other, more direct means. If they cannot be, a negotiated agreement embodying seces...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• NOTES ON CONTRIBUTORS
• ACKNOWLEGEMENTS
• CHAPTER 1: INTRODUCTION
• PART I: CONSTITUTIONALISM, FEDERALISM AND CONFEDERALISM
• PART II: COSMOPOLITAN AND COMMUNITARIAN PERSPECTIVES
• PART: III EUROPE TODAY: NATIONALISM AND POST-COMMUNISM
• PART: IV CONCLUSIONS
• SELECT BIBLIOGRAPHY AND GUIDE TO FURTHER READING