by admin | Feb 19, 2023 | Book Review
Towards a Dignified Discourse on Human Rights?
The universal respect for human rights should be the tie that binds, not divides our societies. Unfortunately, the currently raging conflict in Ukraine, the rising global tensions as well as the increasing shift in how the world views human rights makes this discourse unavoidable. In recent years, we have experienced the expropriation of interpretation in several legal questions. Albeit diversity and freedom of opinion are core values, interpretative tendencies that are locked into certain institutions or dynamics without giving any merit to outside input might lead – in our context – to the weaponization of human rights in various social and political situations instead of protecting individuals on legal grounds – as they should. One-size-fits-all legal interpretation minimizes the need and space for open discourse and exchange of views and, therefore, fastens political and societal polarization as well. This creates divide when it comes to individual needs, worldviews and interpretations not being heard, which contributes to ever-rising tensions. As a result, questions related to human dignity, fundamental rights, and values are becoming wedges rather than essential ties among us, actual tools for social cohesion.
The Authors of ‘Human Dignity and Law: Studies on the Dignity of Human Life’ (Guillermo F. Arquero Caballero, Grzegorz J. Blicharz, Carlos Espaliú Berdud, María Luisa Gómez Jiménez, Franciszek Longchamps de Bérier, Javier Martínez-Torrón, Federico de Montalvo Jääskeläinen, Liviu Olteanu, Maria do Céu Patrão Neves, José María Puyol Montero, Hugo S. Ramírez-García, Francesc Torralba and Luca Valera) recognized that unilateral interpretation in human rights advocacy is a zero-sum game, where no win-win scenario could be achieved. There is a need for competition in the ‘marketplace of ideas’ in order to respect our diversity and preserve alternative and valid legal interpretations in different cases. This book serves as a set of ideas on the various aspects of human dignity.
The Authors’ valuable contribution shows that we need new, renewed, and alternative ways to approach social conflicts to prevent driving society into disintegration. Hyper-judicialization of human rights and applying only one solution for all cases only lead to injustice. Therefore, based on our human dignity, we should rebuild a culture of respect for those who think and live differently. In this process, retrieving and rediscovering the concept and content of human dignity is crucial. The Authors provide an introduction into the ‘know-how’, by discussing the importance of the many aspects of upholding human dignity.
The current trend of monopolization in legal interpretation, where only one viewpoint is accepted, as they argue, leads to the weaponization of human rights and ultimately polarizes society. The Authors propose that there should be competition in the “marketplace of ideas” in order to allow for the respect of diversity and the consideration of alternative (concurrent) legal interpretations. The book draws on the concept of persona in Roman law, which posits that law exists to serve humans rather than the other way around. The authors argue that a return to this principle is necessary in order to rebuild a culture of respect for those who think and live differently.
In our understanding, the erosion of human dignity seems to be a result of intensifying migratory movements, changes in the reasons for migration, and the emergence of new technologies that challenge traditional definitions of humanity. The creation of artificial life and the modification of human bodies raise both social and legal questions about human dignity and the legal status of humanoid robots.
Step by Step
José María Puyol Montero, the author of the first chapter discussing these issues highlights the case of Sophia, a humanoid robot that was granted Saudi citizenship and appointed as an ambassador to the United Nations Development Programme, and discusses the impact on international relations and the consideration of robots as persons or objects under the law. The chapter also discusses the views of moralists in the 16th to 18th centuries on the dignity of Native Americans and enslaved Africans in the Spanish Crown and the efforts to protect their human dignity on moral and religious grounds. The author concludes that human dignity is an inherent aspect of being human that should be exercised as a responsibility for both personal development and the betterment of society.[1] This is why the birth of social rights[2] was such an impactful development, particularly when it came to labor law.
In addition to AI and emerging (disruptive) technologies, the gig (sharing) economy poses challenges to the protection of human dignity and labor rights due to the lack of clear legal categorization and the influence of algorithms and artificial intelligence on the measurement of trust. Grzegorz J. Blicharz argues that universal moral assumptions should be applied in these relationships due to the fact that contractors are human beings with dignity and human rights, regardless of the legal classification. This is where the issue of the wage-gap between men and women also comes up, as a potential threat to the betterment of society.
The next chapter discusses the concept of ecological citizenship, which involves the obligation to protect the environment,[3] and the importance of reshaping the relationship between morality and law in order to address humanity’s vulnerability and ensure the preservation of the planet.[4] Hugo S. Ramírez-García also mentions the need to redefine concepts such as citizenship in the face of technological advances, wars, and pandemics.
The following chapter discusses the impact of COVID-19 on human dignity and the projection of the “Red Queen Effect” (i.e. the constant need to adapt and evolve in order to survive) on public health policies. María Luisa Gómez Jiménez discusses the importance of human dignity in the design and implementation of health policies and the need to consider the long-term effects on the public’s trust and the sustainable development of the health system.
The final chapter discusses the concept of “dignity in the end of life“, including the right to a dignified death, the role of palliative care, and the legal regulation of assisted suicide and euthanasia. Francesc Torralba discusses the need to respect the autonomy and dignity of individuals in end-of-life decisions and the importance of providing appropriate palliative care.
Conclusions
Seeing how many different threats our society has to face, the motto of the European Union, “Unity in Diversity,” has been called into question in recent years. Are we really ‘united in our diversity’? Or our diversity became a ground for distinguishing and dividing us? We are living in a very controversial world where our personal features and values have become our own enemies and they can be weaponized against us by the click of a button. As a result, societies became very polarized; politics and extreme rhetoric are circulating ideological themes wrapped in trendy new layers of the concepts of ‘human rights’ and ‘dignity’. Human rights are supposed to provide cohesion at the social level due to their universality. However, the interpretation of human rights content and applicability might vary in each state or region, so due respect should be given to particularity. Instead, this trivial truth led to reshaped processes designed to tilt the role of human rights and dignity, transforming then into political weapons to fight ideological battles. A new layer of this is the digitalization and the evolution of certain technological solutions, which all affect human nature, human dignity, and its legal and social evolution.
The book bravely deals with these sensitive issues and express their professional opinion about human dignity and its conceptual elements based on the lessons learned from Roman Law. The fact that most of these chapters deal heavily with Artificial Intelligence and digitalization as part of the broader conversation about human dignity conveys a message about the state of human rights and which direction we should move. If we wish to preserve our environment and maximize our chances of avoiding another pandemic and uphold our rights in the digital age, new perspectives must appear in conversations about the place law holds in today’s society. However, we have to keep an eye on the original concepts and from time to time, we should go back to the roots, reinterpret and rethink those in the light of our present.
‘Human Dignity and Law. Studies on the Dignity of Human Life’ starts an overdue conversation about new aspects of the challenges we are facing and, in our opinion, does a very good job. It is an intriguing work that presents revolutionary ideas grounded in extensive and in-depth research. Its 306 pages and 12 longer chapters contain intriguing data, necessary for the new generation of thinkers to prepare for the unique challenges to come. Since the Authors recognized that unilateral interpretation of human rights is a zero-sum game, where no win-win could be achieved, we applaud that they opened the floor for a fresh and much needed debate on human dignity, human rights, and their protection.
Human rights issues are often complex and multifaceted, requiring a nuanced and respectful approach. Unilateral interpretation and one-size-fits-all solutions can lead to injustice and further polarize society. In order to achieve a win-win solution, it is important to consider multiple perspectives and engage in open and respectful dialogue. Only by approaching human rights issues with an open mind and a willingness to find mutually beneficial solutions can we hope to uphold the universal respect for human rights and prevent societal disintegration.
Lilla Nóra Kiss, PhD, Visiting Scholar and Adjunct Faculty, Antonin Scalia Law School, George Mason University, USA; Founding Member, Freedom and Identity in Central Europe (FICE). Email: lkiss@gmu.edu
Mónika Mercz, JD, specialized in English legal translation, Professional Coordinator at the Public Law Center of Mathias Corvinus Collegium Foundation while completing a PhD in Law and Political Sciences at the Károli Gáspár University of the Reformed Church in Budapest, Hungary. Mónika’s past and present research focuses on constitutional identity in EU member states, data protection aspects of DNA testing, environment protection, children’s rights and Artificial Intelligence. Email: mercz.monika@mcc.hu
[1] L. N. Kiss – O- J- Sziebig, “Defining the Common European Way of Life”, HUNGARIAN YEARBOOK OF INTERNATIONAL LAW AND EUROPEAN LAW 9, 2021, p. 111-131.
[2] W. Rosen, “The Most Powerful Idea in the World: A Story of Steam, Industry and Invention”, University of Chicago Press. 2012. p. 149. ISBN 978-0-226-72634-2.
[3] O. J. Sziebig, “The Implementation of the Aarhus Convention’s Third Pillar in the European Union – a Rocky Road Towards Compliance”, EUROPEAN STUDIES: THE REVIEW OF EUROPEAN LAW ECONOMICS AND POLITICS 6, 2019, p. 205-218.
I. Olajos – M. Mercz, “The use of the precautionary principle and the non-refoulement principle in public law – Or how far the boundaries of constitutional principles extend”, Journal of Agricultural and Environmental Law, Vol. 17 No. 32, 2022, p. 79-97. DOI: https://doi.org/10.21029/JAEL.2022.32.79
M. Mercz, “Constitutional or environmental law?”, Constitutional Discourse, 2022, https://www.constitutionaldiscourse.com/post/monika-mercz-constitutional-or-environmental-law (access 09.01.2023)
[4] The concept of Environment as a Public Concern is underlined by Elliott and Esty’s paper on this issue, “imposition of a credible risk of a risk without someone’s informed consent, not merely provable actual injury, should be cognizable as a harm that environmental law should address to the extent practical”.
by admin | Jan 27, 2022 | Book Review, European Union, USA
In the current “rule of law” climate, a book such as the one reviewed hereunder might provide us with some much needed guidance in our arguments over what the concept of constitutionalism is and what it really means in terms of the rule of law. In his 2019 book titled “Revolutionary Constitutions: Charismatic Leadership and the Rule of Law”, Bruce Ackerman ambitiously addressed the topic of constitutionalism by using a unique comparative approach. His comparison focuses on three ideal types (revolutionary outsiders, responsible insiders, elite construction), in which he elaborates in each of them the four developmental phases (from Time One to Time Four) of constitutional development. The scientific uniqueness of the Author’s approach is the applied categorization of constitutional changes and the stages of operation of the post-change systems. Constitutionalism – as the Author defines it – “is part of a larger dynamic”; it should always be discussed. It means different ways of legitimizing power, its “rise reshaped modern notions of authority”. Ackerman asserts that considering the constitutionalism “as a one-size-fits-all ideal” is a mistake. This is one of the most valuable statements of the book in my view, as it turns into relative (or correlative) all values that are supposed to be objective and clear, transparent and without any doubt. If the reader presumed that constitutionalism is a universal value-system, the Author provides convincing arguments to the opposite. Even if the Readers might have some common idea about the fundamentals of constitutionalism, it evolved via very diverse ways under altering conditions all around the world. Literature on constitutionalism generally treats this as an optimal status consisting of democratic values in a rule of law state functioning within a framework having guarantees.
Ackerman treats constitutionalism as a process of change and the post-change-development of the society from a legal and political perspective.
Ackerman explains that the different cultural and historical heritage of states led them to multiple levels and forms of constitutionalism. All constitutions were transformed by social, cultural, and historical dynamics. Different movements (such as revolutions) strengthened the transformation into “powerful engines of legitimation” in the last century. Even if the Author analyzes social, legal, and political changes that arose in the twentieth century, he raises concerns and draws consequences that could be interpreted and monitored today.
The book reveals the Author’s individual vision of historical events determined by the types of constitutional movements and development, by which he established a new categorization system.
The comparative work often refers to the Weberian system (and highlighting the differences of the new approach). The fundamentals that are defined by Max Weber and his anti-positivist followers may still serve as points of reference in putting the social sciences on a rational footing. Ackerman considers his own approach positivist in only one sense: when it comes to defining the nature of a constitutional revolution. The positivist approach distinguishes law from non-law but does not question how a system legitimates itself. This leads to both over- and under-inclusive definitions according to Ackerman. Therefore, the Author also deters from the leading legal positivist perspective besides focusing on past events from a new approach.
I find the book particularly valuable in re-evaluating events that have now become historic in the light of past, recent, and present events. The Author’s assertions have a common ground within each type: these events impact on constitutionalism, its establishment or disestablishment, and its role as a source of authenticity. The interpretation is vital as our past often determines our future, and this also is true for the states. The durability and further development opportunities of mature democracies are results of the constitutional development of states. If the states evolve in terms of their constitutionalism in different ways, their conditions for the rule of law will not be the same either.
Finally, the Author is deviating from the conventional bipolar division of the legal world (common law, continental law) and applies a four-stage dynamic of constitutionalism(Time One: mobilized insurgency, Time Two: constitutional founding, Time Three: succession crisis, Time Four: consolidation). He attempts to rethink comparative law by distinguishing his theory from former and contemporary theoretical viewpoints. His comparison is based on a chronological order of development stages of revolutionary, establishmentarian, and elitist models of constitutionalism, and, on the other hand, on different countries’ case studies. Ackerman uses evaluative, analytical, and comparative methods by which he presents the constitutional development from the early stages of the regime changes until the afterlife of the established legal orders. He does this by guiding the readers to India, South Africa, France, Italy, Poland, Iran, Burma, and Israel. Ackerman finishes his book by a chapter about American exceptionalism.
Lessons for future ‘,influencers’,: pathways for legitimizing and elaborating power (the ,revolutionist,, the ,establishmentarian,, the ,elitist,)
Ackerman distinguishes three types of constitutionalizing processes and examines their development within their respective pathways. By using the model-system, the Author presents in the first part some constitutional revolutions in six chapters, and further elaborations in seven chapters in the second part. The last chapter is an outlook on the US constitutional system.
The first scenario is the revolutionary movement transformation which mobilized masses of outsiders to change the system controlled by the insiders. The Author points out some success stories of this type, such as India, South Africa, France, Italy, Poland, Israel, and Iran. (Even if the Author does not name the country here, I would add Hungary to this list as the development is very similar to the Polish example.) However, these constitutionalizing revolutions are not uniform. According to Ackerman, modern revolutions have two main types: the totalizing variant and the evolutionist. The latter is described as an approach to “propose pragmatic alternations in the status quo”, while the totalizing one intends to reach changes in multiple spheres of life. For revolutions to be successful, he asserts, must meet some conditions under certain circumstances. One of these is self-consciousness (which means that revolutionaries have a common ideology or combine elements of ideological themes: liberal, neoliberal, social democratic, imperial grandeur, egalitarian, etc.). Another inevitable element of a successful revolution is an active movement party. After the successful revolution, the previous and the new regimes are connected by a transition. The new system needs democratic reorganization which requires electoral victories. The new era or regime tends to keep older traditions that recognize the legitimacy of the revolutionary; therefore, the adaptation is unconventional. Revolutionary movements also have a central player: charisma. Ackerman distinguishes between organizational charisma and leadership charisma. The relationship of these types of charisma is complex, sometimes leaders rely on their organizations while in other cases they destroy their movement organizations to build their cults of personality.
The second and third scenarios are soft versions compared to the (sometimes bloody) revolutionary solution for changing the reigning system. In the second (establishmentarian) type, the new legal and political order are built by pragmatic insiders who tend to reach compromise. The insiders invite pacific groups of outsiders into a common brainstorming and by involving some of them, the common sense of the different opposing groups could be reached without a revolution. This solution could be defined as a soft strategic transition. The classic example for this solution is the United Kingdom. The UK had an influence on Australia, Canada, New Zealand.
The third type is very similar to the second, but the change here lacks the “popular uprising” that could be found in the first two models. Ackerman called this type an “elite construction”. In this case, the old system begins to unravel while the society is “relatively passive”. In this situation, a power vacuum emerges that is occupied by the political and social elites who become the engines of the new constitutional order. The Spanish regime-change serves as an example for this type.
The main difference between the first and the latter two scenarios is that the first requires a very active outsider (out of the reigning system) movement, while the others are changing from the inside. The distinguishing feature of type two and three is that in the second case, there is an outsider movement with soft and radical elements (and the model uses the consolidated groups of outsiders to dilute the system), while the third model lacks social movements. The change comes from the top, from the wealthy and educated political and social elite. In the Weberian system, the first scenario could be the root of the charismatic legitimacy, while the second and the third could probably have rational legitimacy. Ackerman’s scheme is lacking the transcendent and the traditional models of legitimacy, but the former is not conceivable in the twentieth century, while the latter usually pertains to kingdoms which became rather formal or ceremonial in the mentioned period. The previous century put an end to several charismatic (often dictatorial) leaders whose ‘systems’ became replaced by well-estimated rational and legitimate regimes.
The Author summarizes that all types face different problems arising from the “constitutionalization of charisma” and the “bureaucratization of charisma” over time that is emphasizing the legal and political dynamics. For example, the revolutionary legitimacy fades over time as the revolutionary generation dies off. Their heritage is fading and will not sustain the system forever. In all types, the political authority moves toward “the normalization of revolutionary politics”. A significant part of this normalization process in the first type is the judiciary, which first develops the new system’s “early constitutional doctrines in less provocative settings”. Later, the “jurists are aware of the fragility” of the doctrines. Lastly, jurists are “using the early judgements with growing self-confidence as authoritative precedents to resolve hot-button disputes between rival politicians”. As the second and third types lack revolutionary movements, the maintenance of the new order is relying on the elections. The party that triumphs in the elections is entitled to enact legislation and the judiciary cannot strike it down by referring to its noncompliance with the former systems’ norms. The judiciary therefore plays a significant but secondary role compared to the first type. According to the Author, the “judges may play a constructive role in type two by returning problematic statutes for reconsideration”. Ackerman also expresses that while the judges may play a constructive role, they “must recognize the parliament’s democratic authority to demand that the courts faithfully implement the new legislation”. This is an interesting perspective if we consider that judicial decisions shall be reasoned, objective and defendable. In type two, Ackerman defines the establishment / disestablishment as a problem. In this system, the lack of establishment is often replaced by referendums that are – as Ackerman writes – a “far deeper threat to the establishment of tradition”.
The Author critically points out that “the referenda open a way for demagogic appeals to ordinary citizens (who lack the resources of time and knowledge for fateful choices)”. He mentioned the Brexit as an example for this. The elite construction model faces challenges of authenticity. The obvious question is raised by the Author: how do the elitists generate support from the general population? The Spanish constitution provoked crisis in Catalonia and in the Basque Country for decades. The Germans created their post-war constitution (the Basic Law) in 1949 under military conditions. The naming refers to the Germans belief that their Charter did not deserve the status of a constitution. Therefore, they asserted a Final Article that expresses that a “truly authentic constitution could only be achieved when East Germans could free themselves from Soviet control” and when Germany is reunified. The authenticity problems arose in 1989 again when the Berlin Wall fell. The German Reunification Treaty enabled the German Democratic Republic (GDR) to become part of the Federal Republic of Germany (FRG) by signing the agreement. The authenticity aspect of the Treaty is that it extinguished the existence of “East Germany” by the signature of that agreement. Due to the active role of the German Federal Constitutional Court, the Basic Law became a central engine for the German constitutional and political identity. The Author demonstrates the role of the judiciary and the constitutional courts in the constitutionalizing process in which their decisions support the new system’s establishment.
Case studies: different countries, similar challenges?
Ackerman starts to present the first type of constitutionalizing programs by guiding the readers to India. The country (which is considered to be the largest constitutional democracy in the world) faces poverty, illiteracy, and a caste system. (The latter – from an egalitarian perspective – cannot be considered as democratic. However, “being democratic” from a Western perspective would presume a one-size-fits-all kind of solution for constitutionalism that cannot be achieved on such a diverse globe as ours.) India must handle several other challenges arising from its various ethnic and linguistic diversity. Ackerman raised the question of how India could sustain its constitutional order under these circumstances. The answer is the Indian Supreme Court and its role in defending the nation’s constitutional legacy and identity. The activity of the courts – which operate on a common law basis – became significant in the country’s succession crises of the 1970s.
South Africa has several parallels to India in the way of forging revolutionary charisma into constitutional authority. However, India applied a “declining empire scenario” while South Africa used a “revolutionary bargaining scenario”. South Africa struggles now with its succession crises according to the Author.
France and Italy are similar in the sense of their constitution building efforts after the Second World War. Both countries faced resistance movements of Communist, Socialist, and Christian democratic ideologies. The French Commander (later President), Charles de Gaulle allowed himself to challenge the resistance by the power of the military. He became the nation’s first President, and to date, the semi-presidential system is considered to be a relative success-story – according to the Author – as thirty-five countries already have adopted the Gaullist model.
In Italy, the Constitutional Court emerged from the succession crisis to gain political recognition as the guardian of the nation’s legal principles defined during the revolution. In Poland, the movement behind the regime change was the largest Solidarity agitation that led to the adoption of a semi-presidential design. This was evaluated as “less successful” by Ackerman. The reason behind the failure of the semi-presidential system in Poland was the competitive approach of Solidarity group leaders (in favor of a parliamentary and of a presidential system) instead of cooperation. This led to a post-Soviet leadership that was consolidated enough to reach consensus and adopt the new (elitist and not real revolutionary) constitution for Poland. The failure of the semi-presidential system therefore triggered the constitutionalizing of the charisma (both leadership and organizational).
The governments of Iran and Israel were both results of revolutions. The Zionist government was committed by the Israeli Declaration of Independence to promulgate the constitution, the liberal social democratic leaders (such as Ben-Gurion) passed this obligation to the movement party (Mapai) which became the constituent assembly. In Iran, the Supreme Religious Leader took advantage of the moment to establish the constitution on the basis of popular sovereignty. The adoption of the French style semi-presidential system (that did not bring luck to the Polish) was a successful attempt in Iran. Hassan Habibi drafted the constitution and used the French system as a source of inspiration. In Burma, military brutality followed the call for the new beginning in 1989. Aung San Suu Kyi was arrested until the movement forced the military to give her a seat in the government.
Finally, the Author dedicated a chapter to examine American Exceptionalism in order to enlighten the country’s constitutional crisis in the age of President Trump. To guide the reader in American constitutionalism, Ackerman starts by introducing Exceptionalism in the understanding of Justices Scalia and Thomas, and the cosmopolitanism represented by Justices Breyer and Kennedy among others. Ackerman calls for a rooted cosmopolitanism – “an approach that recognizes America’s exceptional constitutional culture” – that generates new insights. The Author analyzes US constitutional development with continuous comparison between the formerly presented countries’ revolutionary changes and establishments. In the end, Ackerman talks about the consequences of Roosevelt’s repudiation to constitutionalizing the charisma in the 1930s on the recent events of the Trump presidency.
Concluding remarks
In “Revolutionary Constitutions”, Ackerman approaches constitutionalism and several historical events that formed the current systems from a unique, 21st century direction. Helping readers understand the different movements and the succession of the regime-changes in various countries, Ackerman enables the comparison of today’s systems with the former ones.
. In doing so, he leads the readers into today’s America and attempts (in my view successfully) to interpret current processes on the basis of past events. According to John Bernall, “a nation who do not know its own history deserve to live it again“. I believe that knowing a bit about other nations’ struggles for their values also is important. Ackerman’s book helped me understand that even if we lived on different continents and used different legal systems, we probably would face similar challenges. A good example for this is our health crises arising from the COVID-19. Our countries treat the pandemic in various ways, but we still have mutual points and opportunities to cooperate. The health crisis caused constitutional turbulences within the EU as it has no competence in health matters, but the pandemic – of course – did not stop at the borders of the states. The Member States locked down their borders, introduced extraordinary rules for daily operations in several institutions, restricted the free movement of people and goods in the Internal Market which caused several economic and human rights issues. Several (rather liberal) Member States used the COVID-crisis to raise and force the idea of a European Health Union complemented by a Social Europe, while other (rather conservative) Member States denied deepening the integration in that way. COVID-19 affected the constitutional dialogue related to the future of the European Union and the level of cooperation among the Member States as well. Even if the EU is not a state, it struggles with relevant issues of constitutional identity, and so do the Member States – sometimes on a collision course. Ackerman’s comparison of certain European states was informative for me as a European citizen. Probably, in the next edition, the Author could present more countries. The analysis of Scandinavian and Baltic states could add a great value to this comparative approach in any upcoming work.
I particularly appreciated the short outlook to the brief cultural diagnosis of the European Union (EU). Even if the EU is not a state, it faces constitutional challenges. On the one hand, the EU has its own elite constitutional legitimacy, while, on the other hand, its Member States emerge from different legitimation pathways that cause collision when it comes to crisis management or decision-making affecting sovereignty. The Author points out that the leading European nations – in which group he considers including the Member States with the largest populations (Germany, Spain, France, Italy, Poland and [at the time of the publishing of the book Great Britain]) – came along in different constitutional ways, therefore they have trouble in finding common grounds for a more perfect Union. I guess, this book could serve as a guide for mutual understanding of the Member States on matters of constitutionalism.
To sum up, I conclude that the book has provided insight to the past through a lens of pathways to create a better understanding in a unique and useful way. Even if the content goes back to historical ages, the effects of those revolutionary events and constitutional transformations can still be felt today. Therefore, we should always draw on the past to have better conclusions for the future.
Lilla Nóra KISS is a postdoctoral visiting scholar at Antonin Scalia Law School, George Mason University, Virginia. Lilla participates in the Hungary Foundation’s Liberty Bridge Program and conducts research in social media regulation and regulatory approaches. Formerly, Lilla was a senior counselor on EU legal affairs at the Ministry of Justice and she has been a researcher and lecturer at the University of Miskolc (Hungary), Institute of European and International Law for five years, where she taught European Union law. Lilla obtained her Ph.D. degree in 2019. The topic of the dissertation is the legal issues of the withdrawal of a Member State from the EU.
Her current research interests cover the legal dimensions of Brexit, the interpretation of the European Way of Life, and the perspectives towards social media regulation in the USA and in Europe.
by admin | Nov 19, 2021 | Book Review, European Union, Rule of Law
Charting and Testing the National Constitutional Limits to EU Fiscal Integration
I am honored to have been invited to introduce my 2021 PhD-thesis titled “A Ministry of Finance? Charting and Testing the National Constitutional Limits to EU Fiscal Integration”, published in the series of the Meijers Research Institute and Graduate School of Leiden Law School (Leiden University) on the pages of Constitutional Discourse.
The EU financial and sovereign debt crisis – better known as the Eurocrisis – erupted in late 2009 with destructive force. It threatened the survival of the EU’s single currency and thereby endangered the entire European integration process. The crisis revealed that the Euro suffers from major structural deficiencies, formally embedded into the Economic and Monetary Union’s (EMU) legal framework. And despite initial emergency fixes undertaken during the peak of the crisis, it is accepted that more comprehensive reforms are necessary to remedy this deficient EMU structure. The remaining flaws are currently in the spotlight again due to the economic consequences of COVID-19. It is by now widely acknowledged that some form of EU fiscal integration is necessary to remedy these structural flaws and achieve a stable euro in the long run. To clarify, the research employs the concept of EU fiscal integration as a broad, open-ended umbrella-term that encompasses all decisions on public expenditure and revenue, including on taxation and debt-issuing. Subsequently, this open-ended term is rendered more specific based on concrete EU fiscal integration proposals. Despite the apparent necessity of EU fiscal integration, the room for such integration steps seems strictly delimited by national constitutional concerns, as was only recently illustrated by the German PSPP-judgment and the reluctant stance of the Finnish Constitutional Law Committee in relation to Next Generation EU. Metaphorically speaking, these two constitutional decisions are only the tip of a much larger iceberg of critical national constitutional views formulated against the conferral of core state powers to the supranational level – including in particular national budgetary and fiscal prerogatives that would ultimately be altered by the proposed EU fiscal integration steps. National constitutional law therefore formulates hard limits against the surrender of fiscal, budgetary or economic powers to the EU. The result is a fundamental dilemma: on the one hand, effective EU fiscal integration seems necessary to stabilize the common currency and avoid an even more costly crisis. On the other hand, fiscal integration in the EU appears to be legally impossible, given the limits imposed by national constitutional systems and the need to respect national democracy and sovereignty.
Faced with this apparent dilemma, my research conducts a comparative assessment of a selection of national constitutional limits that are applicable to EU fiscal integration in order to investigate the dilemma’s legal-constitutional parameter. The research thereby determines how similarly – or differently – national constitutional systems address the very same EU integration ambition in order to determine what EU integration steps are compatible with national constitutional law. The research is hence divided into two different conceptual parts. In the first part, the available national constitutional space for EU fiscal integration is charted and dismantled. The chosen comparative setting allows to focus on a selection of representative national constitutional approaches and to identify national constitutional best practices. These best practices could be potentially employed in other Member States to locate additional constitutional space for EU fiscal integration whilst maintaining – or even increasing – the effective protection of core constitutional concerns. In the second part of the research, the previously charted national constitutional space is tested against the most authoritative fiscal integration reform proposals debated within the EU in order to evaluate and determine their national constitutional attainability.
More specifically, as previously indicated, Part I compares a selection of national constitutional constraints that set limits to EU fiscal integration ambitions. Confronted with 27 national constitutional strategies to manage EU integration, the research is delimited to a representative sample of national constitutional approaches and limitations imposed against these integration ambitions. It identifies two principal archetypes of how constitutional systems approach EU integration. On the one hand, a range of national constitutional systems developed more rigid constitutional approaches to EU integration that formulate strict substantive limits – or as Mattias Wendel calls them “red-lines” – for EU integration, traditionally determined by strong and independent constitutional actors. As a conceptual opposite to constitutional rigidity, some Member States have adopted more flexible constitutional approaches, where the main constitutional hurdle for EU integration is political-procedural in nature. Given that EU fiscal integration proposals will have to fit the constitutional space available under rigid as well as flexible constitutional approaches, the research conducts a wide charting and dismantling of national constitutional limits in the respective systems taking Germany as study case for rigid and Finland as study case for more flexible constitutional approaches. This assessment reveals that constitutional identity limits are seemingly the most serious legal-constitutional hurdle for EU fiscal integration ambitions. Therefore, the subsequent comparative assessment focused on the French, German, Polish and Spanish constitutional identity limit to determine their possible limiting effect for EU fiscal integration. Taken together, Part I thus establishes what the current legal space for EU fiscal integration is, and to what extent more space can be created by applying the outlined constitutional best practices.
Part II then examines whether the most authoritative reform proposals for EU fiscal integration are feasible within the available constitutional space. In other words, are the proposals currently on the table legally feasible? And conversely, what form of fiscal integration is maximally achievable within the available national constitutional space? This entails first the identification of the most relevant and authoritative EU fiscal integration proposals. These proposals are subsequently broken down into core components following a two-fold functional approach, which organizes the proposed fiscal integration steps first based on substantive elements (such as the creation of a fiscal capacity or the creation of new institutional-administrative structures) and second based on the envisaged degree of EU control. Subsequently, the deconstructed EU fiscal integration steps are tested against the previously charted national constitutional space to determine their attainability. The resulting overview outlines possible constitutional conflicts and remedies to address such conflicts both at the national constitutional level as well as when devising these EMU reform plans.
Based on this analysis, the research shows that there are important and far-reaching national constitutional limitations to EU fiscal integration. At the same time, even in the most rigid national constitutional systems, legal space can be found and created for some degree of EU fiscal integration, provided it is well designed.
In order to further reduce the tension between fiscal integration ambitions and national constitutional law, without renouncing national constitutional core values, the dissertation introduces two concrete proposals:
Firstly, the research proposes to integrate the explicit and implicit benefits resulting from EU fiscal integration into the national constitutional assessment of integration. This would modernize the prevailing state-centric or competence-centric interpretation of national sovereignty and democracy, so that it better matches the actual interests of Member States and their citizens. National constitutional actors can achieve this modernized understanding by following two strategies developed within the research: On the one hand, the research identified a constitutional double standard in the interpretation and application of national constitutional law – particularly in Germany – to the disadvantage of EU integration. Hence, by applying a consistent interpretation of national constitutional law, additional constitutional space can be located for EU fiscal integration. And, on the other hand, constitutional actors can draw inspiration from constitutional best practices identified, for example, in the Finnish constitutional order.
Secondly, the thesis proposes to better adapt the current proposals for EU fiscal integration to the limits that inherently result from the nature and content of the various national constitutions and the well-founded concerns of several constitutional actors that oversee these constitutions. These adjustments can constructively take into account the identified national constitutional constraints and shape fiscal integration in such a way as to go along with and leave room for national constitutional debate. One concrete possibility for institutional amendment at the EU level to address these national concerns is the establishment of a Eurozone Forum of National Parliamentary Delegates. This Forum would be exclusively composed of national parliamentary delegates and thus integrate the national parliamentary level better into EMU decision-making, which could address the identified concerns of national constitutional authorities regarding EU fiscal integration and the required degree of national parliamentary control over budgetary and fiscal decision-making. The proposed Forum would complement the existing informal general dialogue of COSAC and could guarantee that the fiscal decision-making process at EU level is in sync with the national processes.
Ultimately, these two proposals could help to break the apparent dilemma between the need for EU fiscal integration and respect for national constitutional boundaries. Overall, EU integration is a process of continuous amendments, challenges and transformation. Increasingly, this process conflicts with traditional characteristics of the national constitutional space, which can explain the emergence of national constitutional identity limits as a new type of constitutional defense mechanism. Through these limits, national constitutional authorities attempt to contain EU integration and preserve national constitutional structures in light of an ever-deepening integration. Although the research illustrates that national constitutional systems can be receptive towards the various benefits that stem from supranational cooperation, this receptiveness is increasingly limited as EU integration advances towards the core of national systems: their constitutional identity. EU fiscal integration ambitions squarely fit into this general trend, as they propose a shift of core constitutional and political competences from the national to the supranational level. Naturally, this proposed shift is met with national constitutional resistance displayed in the various constitutional proceedings in the Member States assessed within the research. The PhD-manuscript argues that overcoming these national constitutional challenges against EU fiscal integration – but also against EU cooperation in core state areas generally – might require initiating a new chapter in national and supranational constitutionalism. After all, EU integration and national constitutional law are not opponents but can and should be mutually reinforcing allies in a globalized world.
Frederik BEHRE is a postdoctoral researcher at the Europa Institute (Leiden University). He completed his PhD-degree in October 2021, focusing in his research on a comparative assessment of the national constitutional limits to EU fiscal integration. Frederik graduated from the European Law LL.M. programme at Leiden University. Previously, he studied German Law and completed the LL.B. programme on Information Technology and Intellectual Property Law at Leibniz University (Hannover, Germany). In addition, Frederik completed the Europaeum Scholars Programme (first cohort), a PhD-programme organized by Oxford University and the Europaeum network.
In his research, Frederik is particularly interested in the interaction between national constitutional law and EU law, including a focus on comparative constitutional research. He explores the challenges and opportunities of this interaction through substantive areas of the law, such as the Economic and Monetary Union and most recently EU climate change and environmental regulation. Frederik is also interested in comparative regional integration law and the potential to exchange legal experiences across different regional integration projects globally.
by admin | Feb 27, 2021 | Book Review, European Union
Edited by László Trócsányi and Gábor László Lovászy. The original book is in Hungarian, titled “Európai Körkép”, Budapest, Ludovika Egyetemi Kiadó, 2020
A handbook titled ‘European Review’ is a recent publication containing more than 800 pages. It was published (in Hungarian) by Ludovika University Publishing House in Budapest, edited by László Trócsányi and László Gábor Lovászy. The genre of the book can best be defined as a handbook, as it cannot be considered a monograph or a comparative work anchored in international law. It is a body of work containing complex, modern, easily transparent and quickly accessible data not older than five years. In addition, it is suitable to illustrate and explain broader international processes, different human rights issues and interdependent areas of EU law and policies encompassing Member States’ practices. The aim of this work is to examine the 26 current Member States of the European Union (excluding the editors’ home state, Hungary and the United Kingdom) in terms of their integration processes, and to show how they interpret and apply European values in response to the challenges of globalization.
Each country report contains four subchapters and begins with a brief overview of a country’s geopolitical determination. Subchapter 1 is titled “Respect for Identity, Culture and Traditions”, which is followed by the “Practice of the right to liberty and security” (Subchapter 2). Subchapter 3 is called “On certain aspects of the fight against discrimination” and the handbook is concluded by “The promotion of well-being” (Subchapter 4).
In the first subchapter the authors examine certain aspects and determinants of national identity. This pillar includes the specificities of the majority national consciousness, the situation of indigenous and autochthonous minorities, as well as constitutional identity. The first subchapter in this topic examines elements that can be considered as ‘other’ identity-forming factors in addition to the national and constitutional identity, such as the interpretation of religious freedom. For example, it is stated that one of the cornerstones of France’s constitutional and national identity is the rigid separation of State and Church, the laity (or laïcité), while in the case of Ireland or Malta, the Christian faith and its corresponding conservative values can be seen as elements of identity. The other topic discussed besides this subchapter are family policies’ main measures and philosophy, complete with answers to the geopolitical and identity questions as to why such reactions have occurred in each Member State in the face of the challenges presented. The stance on migration is also explored.
Subchapter 2 examines issues such as the specificities of the political system and the rule of law in each country, the status quo of the administration of justice, the security of citizens, and freedom of expression and conscience. Issues of public security such as terrorism or climbing crime rates and prison overcrowding, where relevant, are also presented as important matters of social concern. Reading the European Review opens up the readers’ eyes to the uniqueness of the Member States, the constitutional and political cultures that correspond to the identity of each nation, and the institutional and legal solutions that come with and from it.
The third subchapter deals with how the EU fights discrimination. After mentioning whether a country’s constitution contains regulations concerning gender equality, the rights of minorities or other norms promoting equal rights, five further subsections can be found. The first subsection is about the application of the principle of equal treatment between persons regardless of their racial or ethnic background. The second subsection breaches the topic of the fight against antisemitism, showing how prevalent it is in certain areas. Positive increments processed by the Review include an Action Plan developed in France, which aims to combat antisemitism and racism on the Internet, and to encourage inter-ethnic dialogue and diversity both in culture and in the media. Thirdly, the protection of the rights of children, women and persons with disabilities is mentioned. The fourth subsection is about equality in the workforce, so in terms of employment and occupation. This topic consists not only of the disadvantages women and people of color so often face in the labor market, but also of exclusion based on someone’s religion. The last facet of the topic is the abuse of personal freedom. The prison system of EU Member States being overcrowded is a significant problem, but physical abuse, diminishing services and opportunities in prisons across Europe, as well as homelessness are all deemed noteworthy to mention.
The fourth aspect from which the countries are examined is promotion of well-being. This encompasses the betterment of living standards, economic growth and other parts making up the general wellbeing of a country’s citizens. This subsection is divided into four subsections. The first of these deals with unemployment and poverty, but since the gathering of this information Covid-19 has taken a significant toll on the entire world’s economy, rendering some of the statistics processed and presented only orientative in nature. The second subsection is about economic policy, containing the topic of the role of the state in supporting the economy and the question of corruption, with an emphasis on its relation to immunity. The third facet of this discussion is the environmental policy of each country, and the conclusions drawn from the current trends. The last part of this section is about education and science. The existence of scientific councils and their independence, governmental bodies dealing with education and other related facts are mentioned.
The work put into creating this volume is undoubtedly gigantic, which shows itself through the amount of statistics, surveys and other resources used and through the sheer scientific value it managed to produce. Personally, we think that the ‘European Review’ fills a niche in the market and is an exceedingly unique handbook. It is a standalone publication in the world of reviews, one that can compile huge amounts of data in an intriguing and thought-provoking manner. This book is useful not only for experts of law, but also for students, teachers and anyone who is willing to broaden their worldview through the lens of a fact-based, balanced and truly singular work. Overall, we have been convinced, both as reviewers and readers, that the ‘European Review’ will be suitable for the purpose originally conceived by the editors.
Norbert TRIBL – Mónika MERCZ (Editors)
