Constitutional ideals, national identity, and the limits of the law

Abstract

Since the dawn of the age of liberalism, civil liberties have formed a key element in constructing the identities of several Nation'states. As a matter of fact, the civil liberties which have been emphasised consequently by liberal discourse are often considered as the expressions of a particular national aim for individual and collective freedom. Therefore, these liberties are incorporated in constitutional texts, functioning as a fundamental right for the individual as well as an ideal of the Nation. In modernity, nationalism and liberalism go hand in hand. However, the relationship between civil liberties and modern nationalism is not always one of simple mutual reinforcement. Although the symbolic function of these civil liberties is highly important, their expressions sometimes threaten their own legitimity. Therefore, to preserve the cherished national liberal identity, these civil liberties sometimes need to be strategically limited. This is the paradox which will be examined in this chapter: the curious mechanism in which civil liberties, which are key elements of a particular national identity, are limited in order to control this national identity. It is a mutilation of one's own identity to maintain it at the same time. This chapter therefore explores the difficult relationship between the symbolic and the protective function of the law, showing that an instrumental conception of fundamental rights and freedoms tends to erode the guarantees offered by these rights and freedoms. There are numerous ways to illustrate this somewhat paradoxical relationship. Instead of going through different aspects from a bird's eye view, a case study approach will be used. In the following sections, the history of the freedom of the press in 19th century Belgium will be examined. Choosing this particular history is not coincidental. On the one hand, the construction of the Belgian Nation'state since its independence in 1830 is one of the most typical examples of the creation of a national identity based upon civil liberties. On the other hand, the freedom of the press is perhaps the most typical of all classic civil liberties, being a guarantee against any form of governmental abuse of power. Because the liberal press regime of the young Belgian Nation'state was famous all over Europe, the way of dealing with this regime will reveal the complex and paradoxical relationship between constitutional ideals, national identity, and the limits of the rule of law at its best. After examining the history of the Belgian freedom of the press (sections 2 through 5), a brief epilogue will illustrate that the mechanisms discovered in the case study reveal a more general pattern. By quoting briefly the example of the freedom of the press in contemporary Turkey, one can assume this pattern shows up when a Nation'state needs to affirm its identity in front of the world (section 6). © 2009 Springer-Verlag Berlin Heidelberg.