Yeaer XXXIX, 1997, Number 2, Page 57
European Constitutional Heritage:
a Condition for European Constitutional Law
The constitutional heritage of Europe, given that it does not fall directly within any pre-established category of law, gives rise to the same questions as those raised by the Declaration of the Rights of Man of 1789. Is it to be considered a moral guide to govern the political conduct of states, a philosophical treatise on what constitutes a good political system, a text laying down legal obligations with penalties imposable upon those who fail to fulfil them, or a constitutional (or better still, supra-constitutional) charter? Too often, legal experts tend to think in terms of absolutes, with the choice of one answer necessarily ruling out the possibility of considering the others to be equally valid. We need, perhaps, to learn to appreciate the complexity of questions, including those of a legal nature, and to view their inherent contradictions as evidence not of a structural fault, but of their essential nature. This is true of the constitutional heritage of Europe which can be viewed from both a philosophical and a legal standpoint, in the first instance because it defines a democratic culture within which a sense of European identity is constructed, and in the second because it favours the emergence of a European system of constitutional law, two aspects which are jointly present and interdependent.
The Constitutional Heritage of Europe,
the Melting-pot of European Identity
Societies, peoples and individuals need a form of self-representation, an identity. But identity is not naturally conferred; rather, it is built up from the play of social interaction in which individuals or groups find themselves involved. While the need for identity is ever-present, the form of self-representation adopted by individuals or groups is bound to vary as times and circumstances change. This is what we see happening now as national identities are undermined by the process of globalisation. But the wheels of history roll on, and the constitutional heritage of Europe, “functioning” as a political culture which is shared by the peoples of Europe, is playing its part in redefining their identity.
1. The Disintegration of National Identity.
It would of course be foolhardy, here and now, to declare that the nation-state is dead and buried. While it is not to be considered the political organisation of society in its natural form, or in a Hegelian sense to mark the end of history, it must be remembered that the nation-state has a long history, starting way back in the XIII and XIV centuries, and growing and developing through the Renaissance period and the French Revolution to reach its peak at the end of the First World War, when American president Wilson put forward, as a policy of peace, the principle that all nations have the right to form a state. Thus, given that it is a product of history, the nation-state may disappear.
In the current climate, however, this looks unlikely to occur with peoples throughout Europe appearing keen to express their support for this kind of political organisation: the disintegration of the Soviet Union has generated an upsurge in national feelings and triggered, in the Caucasus as well as in the Balkans, innumerable armed conflicts as efforts are made to redraw the map of the states on the basis of nationalities. In Western Europe the popularity of nationalist parties continues to grow among the electorate while, independently of this, both the “Eurosceptics” and the anti-European factions base their arguments mainly on the need to defend the nation-state and national identity.
And yet, the nation-state is undergoing a crisis. In her most recent novel, L’Horreur économique, Viviane Forrester paints an effective picture of the emergence of a new social order — one in which real power is in the hands of “private transnational economic networks which are progressively gaining control of state powers and, outside the bounds of territory or of governmental institutions, forming a sort of nation which has an increasingly powerful influence over the institutions and policies of countries”. Thus, all the prerogatives of the nation-state disintegrate. Sovereignty (the independence of a nation, its non-submission to any external authority, a people’s capacity to shape its own destiny) is undermined when economic (and also cultural) transnational networks force their own laws and image on states which are not in a position to oppose them. Likewise, territoriality (state monopoly of a geographic area defined by frontiers) becomes meaningless when the economy develops according to a spatial logic which surpasses or disregards the territory of the nation-state. In the same way, the legitimacy of national public powers (the people’s recognition of the need for an institutionalisation of power in order to guarantee the social contract) is weakened when the people perceive the inability of the state to enforce its own order in its own territory.
In short, the political, material and organic elements (respectively, sovereignty, territoriality and the institutionalisation of power) which traditionally had a role to play in defining the state, are falling apart and, as a result of this, the personal element, the nation, is crumbling too. Individuals, in fact, find it hard to identify with a community which, having lost its territory and political authority, lacks the elements needed to consider itself a national community. The sense of nationality, of belonging to a nation, develops gradually as, through reason or force, individuals become convinced of the need (for their own safety and wellbeing) for the sense of nationality to prevail over their sense of belonging to other groups — family, regional, social, religious, and so on. When individuals no longer see any sense or advantage in their membership of a national group, this is when the link with the nation starts to weaken, as we see nowadays with the re-emergence of the existential question: what does being French, Belgian, Spanish, German, Italian really mean? Moreover, the sense of national belonging depends on a spatial concept according to which the state of being inside the area is in direct opposition with the state of being outside it: being part of a nation means being inside a unit which is sealed off from other national entities. Now, with frontiers coming down, this concept is no longer valid and the crisis of the nation state is deepened still further.
In this climate of change and uncertainty, other ideas of identity, put forward as alternatives to a sense of national identity, obviously flourish. Some maintain that a link with society can only be forged by revitalising those areas of life which can generate a sense of basic solidarity, such as the family or the city or region in which one lives while others, in order to re-establish a sense of collective and individual identity, place a higher value on membership of a religion (seeing themselves as members of the Catholic, Protestant or Orthodox community) or on membership of groups defined by language or sex. There are even those who still hold on to the belief that the nation-state may once more become operational, provided old frontiers are re-established and all ideas of an integrated or federally organised Europe are abandoned.
Thus, as is occurring throughout our planet, European states find themselves pulled between, on the one hand, a process of globalisation which is weakening their legitimacy and, on the other, a spate of particularist feelings of identity which destroy the sense of national belonging.
However, the eradication of democratic values is not necessarily to be seen as the logical or inevitable outcome of these two opposing but similarly destructive movements. In this crisis situation it may be possible, taking the constitutional heritage of Europe as a starting point, to rebuild the identity of the peoples of Europe.
2. Building a European Identity.
There are those who are quick to point out, and not without a degree of malice, that proposing the constitutional heritage of Europe as a means through which to construct a new sense of identity amounts to nothing more than adding yet another new idea of identity to those which already exist. To a certain extent, this is true. However, the real problem does not concern the substitution of one identity principle with another: while the need for identity is one shared by all individuals and all groups, the form which this need takes will vary, evolve and change over time and reflect the experiences of different social units. In other words, the citizens of Europe will not forever be obliged to identify with the national unit. Nowadays, what is the principle on which to base our concept of identity? This is the real and the most interesting question. There are three peculiar features which allow a distinction to be made between the principle of the constitutional heritage of Europe and the principles previously illustrated.
First and foremost, it is a modern principle — unlike the others which are associated with phases now surpassed. The nation itself represents, in fact, a sphere of identity which replaced, or gained sway over, the other spheres (family, regional, religious) within which the individual’s way of thinking and behaving traditionally evolved. And this link with the nation was forged simply because, at a given moment in time, the nation could be seen as the space within which economic growth could be achieved. In this era of globalisation, there is no longer any point in seeking either to re-establish the social groups with which, prior to the nation, individuals could identify or to force the issue of national belonging. Precisely because it is in harmony with this process of globalisation, the principle of the constitutional heritage of Europe offers a valid framework of reference which, as well as allowing the principle itself to develop and gain control, also renders it comprehensible. Moreover, not being based fundamentally on a set territory, the heritage principle represents a proposal for the building of a new identity which fits in with the current eradication of frontiers. In spatial terms, this principle is without doubt limited to Europe where, instead of a territory providing the basis of a sense of identity, it is identification with the heritage which establishes the European area (whose borders shift according to the degree to which the peoples of Europe support, reject or renege on the heritage principle). Finally, the sense of identity it creates is potentially universal, which does not mean that it will be without substance or divorced from the lives, traditions and histories of the peoples of Europe. Rather, the heritage is imbued with these lives, traditions and histories which, in a certain sense, it brings together to form the story of the birth of a sense of European identity. But because, while reflecting this history, the heritage is under constant construction, the sense of identity which it produces is shaped according to the critical nature of its content, thus remaining in a state of constant suspension, constantly open to others.
Thus, the feelings of identity which are rooted in blood, soil, ethnic affinities, traditions or territory are superseded by a sense of identity based on support of, and belief in a set of common principles with which the peoples of Europe feel able to identify. In short, we might say that community-based concepts of identity are replaced by a constitutional identity. The valuable and one might say superior feature of the constitutional identity is its ability both to surpass and embrace the various concepts of identity established in the past. The constitutional heritage of Europe can indeed be viewed as a “mid-way concept”, a principle which lies somewhere between concrete forms of particularism and the universal abstract. Far from representing a collection of cold rational assertions which are harmful to the sense of solidarity which develops in the very heart of a community, it is instead made up of principles which not only derive from recognised European values but also reflect them. In other words, these values are transformed, generalised and handed back to the states from which they originated. Thus, unlike national belonging, a sense of identity is built up as a result of the destruction or submission of particularist loyalisms; the constitutional identity, based on cultural principles which are, or may become universal, reflects the different ways in which the various individuals or groups see themselves, and also leaves room for the peaceful development of alternative feelings of identity.
But can this fantastic idea, doubtless some legal theorist’s dream, truly be transformed into reality? In actual fact, the reasoning behind it is very simple. In a Europe made up of societies with different political, cultural, linguistic and religious backgrounds, what brings them together, their common heritage, must necessarily be based on principles — principles which are shared by these societies and at the same time, take into account the differences between them. Unlike the sense of national belonging, the feeling of identity born of this common European heritage does not produce unity or uniformity but harmony as, “working” like a common constitutional culture, it promotes a level of social interaction among citizens sufficient to allow them to continue to live together their own separate lives and to transform them, lived as they are alongside and in relation to one another. But can the common European heritage go even further than this? Can it result in the establishment of a European system of constitutional law?
European Constitutional Heritage,
the Melting-pot of European Constitutional Law?
Although it may seem pedantic to draw a distinction between European constitutional heritage and European constitutional law, this is not in fact the case: doing so merely provides a means of identifying different legal times and places. However, these different concepts are also to be considered interdependent as the former favours the development if not of a European system of constitutional law as such, at least of common principles of European constitutional law.
1. The Distinction between European Constitutional Heritage and European Constitutional Law.
There are at least two different ways of interpreting the expression “European constitutional law”. It may refer either to the collection of regulations, principles and institutions established by European treaties (both of the European Union and/or the Council of Europe) or to the national regulations, principles and institutions shared by the different European states. In both cases, the value of these interpretations is only metaphorical: the European treaties can in no way hope to be considered to form a “European Constitution” as they have not been submitted for public approval, they present no clear separation of legislative and executive powers, they are not gathered in a single text which is immediately recognisable to the people and, furthermore, do not provide for any means of controlling the conformity of the decisions of European public powers with fundamental rights. Certainly, some treaties contain elements which to a greater or lesser degree reflect the idea of a European constitution and there is indeed no reason to think that a proper European constitution might not one day be drawn up to replace all the texts, agreements and protocols currently in place at the European level. However, the declaration (as made by the Court of Strasbourg) that the European Convention of Human Rights represents “the constitutional instrument of European public order in the sphere of human rights”, or the assertion (as made by the Court of Luxembourg) that the European community treaties “despite being stipulated in the form of international treaties represent nothing other than the constitutional charter of a community of law” seem to be the expression of a political and strategic voluntarism rather than a description of the way the European institutional system is really organised.
The second interpretation of the expression “European constitutional law” appears on the other hand more difficult to refute given its strong resemblance to the definition of European constitutional heritage contained herein. The relationship between the two concepts, which is actually very simple, needs to be clarified: while the word “heritage” refers to a collection of principles, the word ”law” refers to the application of these principles within the context of specific legal systems. The principle of free and periodic elections is one common to the various national constitutions and, for this reason, represents one of the elements of the European constitutional heritage; however, the application of this principle varies from state to state with some calling elections every four years, and others every five. In some countries, parliaments are elected under a system of proportional representation, in others under a majority system; in some countries only the distribution of legislative power is decided by universal suffrage, while in others the people also elect the holder of executive power.
Likewise, being universally shared, the principle of control of the constitutionality of laws also represents part of the European constitutional heritage, even though its manner of application also varies from country to country (diffuse or concentrated, a posteriori or only a priori...), and this is true of all the principles of which the heritage is comprised.
While the idea of convergence inheres in the notion of heritage, European constitutional law is characterised by divergence. Actually, used in its singular form, the word law is inappropriate; it would be more correct to talk in terms of European constitutional laws. Since legal experts love to play games with categories, some will probably be tempted to quibble over this distinction, even though this does not alter the basic problem, in other words, what some call European constitutional heritage, others term European constitutional law. Although it would thus appear to be sufficient to agree on the meaning of the words, to do this implies that the words are in no way interchangeable and that each is used to identify a specific situation. In our case, to group all the constitutional principles shared by the different states under the heading “heritage” rather than under the heading “law” is justified by the desire to avoid confusion and misunderstandings in the complex process that is the building of Europe. The word “law” is associated with the idea of precise rules governing social organisation; as such, it cannot be used to refer to the constitutional principles shared by the different states without running the risk of inferring that these principles are organised in the same way within each of them.
In short, the notions of European constitutional heritage and European constitutional law are located in different spheres of reference — the first, in a semi-national sphere, is the expression of the constitutional culture shared by the states of Europe, while the second, located in a national sphere, is the expression of the way in which each state interprets, translates and moulds these (constitutional) principles to its own particular political background. Obviously, these two spheres are not totally divorced from one another and in order to appreciate the relationship between them, and the possible influence of the heritage on the construction of a European system of constitutional law, it is important first to identify clearly what each sphere represents.
2. The Relationship between European Constitutional Heritage and European Constitutional Law.
The relationship between European constitutional heritage and European constitutional law needs to be understood in dialectic terms. It is in fact European constitutional laws which feed the notion of heritage: following an intellectual process of comparison and synthesis which highlights the general or universal elements of common provisions, variously drafted in the different countries, the principles on which the notion of heritage is based are indeed drawn from the various national constitutions. This process is of course far more than a mere re-writing exercise; more to the point, given the abstraction work involved in transforming various national constitutional provisions into a unified principle, the latter will necessarily develop its own relatively autonomous content. It is still true however that the principles of the heritage spring from the constitutions of the European states. Moreover, this relationship between heritage and the various European constitutional systems is sanctioned both by the European Convention of Human Rights, and by the Maastricht Treaty which, in art. F, states that “The Union respects fundamental rights originating from the constitutional traditions shared by the member states as general principles of community law”.
In turn, the principles of the heritage act upon European constitutional laws and can bring transformations which favour a convergence of the two, a process which reflects the movement towards the development of a constitutional culture. The heritage, indeed, operates as a common constitutional culture which favours social interaction among the citizens of Europe. As a result, European citizens are drawn progressively not only to share and assimilate common principles, but also to share and assimilate a common form of their legal application. In other words, the differences in the interpretation of these principles from country to country may become less marked as a result of the effect of the constitutional socialisation which they generate. The principles of respect for privacy, the right of asylum, the right to a fair trial, have already produced constitutional and/or legislative changes in various European states leading to convergence of their application in practice. In the same way, the principle of the supremacy of the constitution not only prompts traditionally recalcitrant countries to accept the idea of a control of the constitutionality of laws, but also, by allowing a comparison of the different systems, favours a progressive harmonisation of the ways in which constitutional justice is organised. Thus the extension to the parties of the right to appeal to the Constitutional Council is seen by its former president, Robert Badinter, as inevitable in so far as this type of recourse is the rule “in every great democracy which has a constitutional jurisdiction”.
Thus, gradually (too gradually for some and not gradually enough for those who would like to slow down, or even reverse the process) the European constitutional heritage is bringing about a convergence of the various European systems of constitutional law. This process is not uniform, however, but possesses a momentum and an intensity which vary depending on the constitutional area and themes in question. Indeed, all the national constitutions are nowadays made up of two major areas of provisions: the first provide for the separation of powers, dividing competencies among the institutions and regulating the relations between them (that which Maurice Hauriou called the political constitution), and the second relate to fundamental rights and the defence of the same against the actions of public powers or against physical or moral attacks brought by private individuals — defined, once again by Maurice Hauriou, as the social constitution. Thus, the trend towards the convergence of principles of constitutional law varies according to the type of constitution. If we are talking about the “political constitution” it is clear that, despite in some instances a certain coming together, the divergence between legal systems continues to be marked: some states are monarchies, others republics; in some, the president of the republic is elected directly by the people, in others by parliament; some states have two chambers, others just one; some have a federal structure which permits legislative authority to exist at a “regional” level, others have a unitary system in which legislative power is held exclusively by central government; some have an organically independent legal power, others simply a judicial authority with certain members, the public prosecutors, bound to the hierarchical power of the Minister of Justice and so on. As far as institutions are concerned, there thus remain considerable obstacles in the way of the formation of a European system of constitutional law, a situation which is bound to continue for a long time to come, given that it is the institutions, the structures of the state, which represent the expression of the traditions and specific histories of nations.
Looking at the “social constitution” meanwhile, it emerges equally clearly that convergence far outweighs divergence — a phenomenon which cannot be explained merely by the fact that the European constitutions contain the same fundamental laws. It is due, rather, to the fact that the judges in each of the nations, particularly the constitutional judges, interpret these laws in a convergent manner and draw similar legal conclusions. A comparison of the decisions of national constitutional courts in fact reveals a double convergence. First, the courts use the same methods to carry out their role as protectors of constitutional rights: they assess to what degree restrictions of one freedom or another are reasonable and logical, or excessive and disproportionate. Then, with reference to the main liberties, they more often than not produce similar interpretations and propose the same basic solutions.
In a ruling passed on December 21st, 1990, for example, the Belgian Cour d’arbitrage recognised (adopting the same terms as the French constitutional council in its ruling of January 11th, 1990) the constitutionality of the law relating to the limitation and control of electoral spending and the public funding of political parties: “The law does not interfere with the principle of equality” ran the Belgian ruling, “as long as the funding operations are destined to ensure the correct functioning of the democratic institutions, with due respect for the plurality of opinions, and the balance between the political forces resulting from the vote is taken into account, which is to say that it must not have the effect of strengthening large parties or weakening small ones”.
Meanwhile, the constitutional court of Spain passed a ruling, similar to the one passed by the French council, on teachers in private institutions: while it was recognised that, out of respect for the specific nature of these establishments, teachers may be obliged to behave with a certain degree of reserve, they nevertheless retain their right to freedom of thought, and in response to an appeal d’amparo ruled against a decision to dismiss a teacher taken merely as a result of his admission that he did not practise the faith of the Catholic institute in which he taught.
The principle of equality, certainly the one most frequently evoked as the motive for appeals to constitutional courts, is treated in a similar fashion irrespective of whether the case is brought a posteriori or a priori. Constitutional judges maintain, in both these instances, that the principle of equality should be evaluated in a practical manner, by examining it in context, and that the principle is in no way violated by the fact that legislators may deal with it differently in different situations.
The doctrine of the Belgian Cour d’arbitrage was defined in its rulings of July 13th, September 28th and October 13th, 1989: “The constitutional laws on the equality of Belgian citizens and on non-discrimination do not exclude that there may be differences in the treatment of certain categories of people, provided the criterion according to which such categories are differentiated can reasonably and objectively be justified; the existence of a justification of this sort must be evaluated in relation to the aim and effects of the law in question; the principle of equality is considered violated when it is found that the means are out of reasonable proportion with the objective pursued”. The same line of reasoning has been followed by the Spanish constitutional court: departures from the principle of equality are permissible constitutionally only if they are supported by “an objective and reasonable justification which complies with generally accepted criteria and values” and, as in Belgium, provided the justification given is proportional to the aims and effects of the law in question and provided there exists “a reasonable and balanced relationship between the means adopted and the objectives pursued”.
Thus, through the work of the constitutional courts, we see the empirical construction of a European system of constitutional law, this time in the sense of a “common system based on fundamental rights”. As well as being highly original, this system is fascinating from a theoretical and historical point of view as it reveals a European system of constitutional law which, unlike the various national systems of constitutional law, is created without reference to some sovereign power (the nation or the people), without the intervention of a constituent assembly and even, formally speaking, without a constitution. In this form, it is, more than anything, a system of constitutional law forged by constitutional judges. There is no doubt, therefore, that it reflects the trends currently seen in national constitutional systems of law which are, likewise, profoundly transformed by the increase in the power of constitutional jurisdiction. There is also no doubt that a system of law such as this, re-evoking the spirit of article 16 of the 1789 Declaration of the Rights of Man, represents an effective form of protection of the rights of individuals and groups in all European societies. Nevertheless, without underestimating the importance of the work of the judges, it must be assumed that a European system of constitutional law cannot exist, or take on a truly democratic significance until the peoples of Europe have expressed, by accepting a solemn text, their desire to be brought under a common political authority and to live and realise together a common social plan. This solemn text would be the European constitution. While the constitutional heritage of Europe cannot replace such a constitution, it does represent its melting-pot or, in other words, the common ground on which the members of the European family may progressively come together and live under the same roof.
Viviane Forrester, L’horreur économique, Fayard, 1996.
European Human Rights Commission, March 4,1995, R.D.D.H., 1991, p.20l.
Advice 1/91, R.D.D.H., 1991, p.9l.
Maurice Hauriou, Précis de droit constitutionnel, Sirey, 1929.