Becoming "europeans": The impact of EU " constitutionalism" on post-communist pre-modernity

Abstract

One of the persistent fears in the European Union is that the accession countries will be unable to catch up with the prevailing practices of constitutionalism and the rule of law that supposedly ground the common tradition of Europe. This fear is rationalized when considering that unbridled nationalism necessarily impacts upon territorial stability. There are other concerns regarding the weakness of democratic tradition especially after the years of totalitarian rule. It is believed that the institutional systems in place for enforcing the rule of law1 merely exist in a formal sense rather than in terms of self-sustaining value commitments. The scope of this chapter does not allow for an analysis into the truth of such assumptions. It is undeniable that extremist nationalism is not absent in the rhetoric, and sometimes actual policies, of Eastern European political elites who in turn find popular endorsement for their nationalistic campaigns. These nationalistic sentiments will be echoed once the population of new member states will be confronted with negative experiences as a result of them being unable to successfully articulate their special interests in a great "empire"; unfavorable comparisons of "Brussels as the new imperial power" with the "yoke of the Soviet empire" has already been made in many former communist countries. One of the striking features of East European nationalism is that it is embedded in a value system that is (at best) indifferent to modernity as it grounds itself in past (ascribed andmystical) national glory. This belief does not generate much interest in the ethics of modernity as put forward in the rule of law (rational accountability for one's acts, transparency, predictability through formalism, etc.). Modernists (modernizers) argue that accession will change attitudes toward modernization among large segments of the population. However, given the process of accession and the way the new Union is shaped, firm, popular commitment to an efficient democracy as well as the belief in popular self-government, such an efficient responsive and responsible modern institutional system has limited opportunities to prevail beyond the institutional fa?cade. Citizens of the new member states might become Zwangsdemokraten (forced democrats). This is problematic because so long as the new European constitutional identity remains an unfinished and uncertain project (an imposed mask) only a limited modernizing identity will be offered. It is also true that the Eastern European political elite seems to have a very instrumentalist disregard for the rule of law even though formal legalism is at least accepted. (Even Meciar accepted unfavorable decisions of the Slovak Constitutional Court.) Instrumentalism and the hidden contempt of the rule of law and constitutional values in general are confronted with a normative commitment to constitutionalism and the rule of law which programmatically exists in the "older" member states. So long as "European solutions" are felt as being imposed and detrimental to local self-interests, "modernity" (i.e. efficiency considerations and pragmatism in decision-making, irrespective of traditional values and communitarian sentiments) will be detested. However it could be that those national institutions beyond national democratic control and interrelated with European institutional networksmay create institutions within the traditional national(istic) states that serve democracy. It is believed, and in many regards rightly so, that accession to the Union will push Eastern Europe towards the values and institutional settings of modernity. Modernity, in allowing for interest group collective action, can be considered a mixed blessing. Interest group politics behind European centralization is neither particularly conducive to a robust republican design of democracy nor does it contribute to fairness with regard to the protection of minority and other vulnerable groups. As a result of these shortcomings relating not only to the process but also the political, historical and cultural consequences of accession, the effect of modernization might, in the short term, be limited and perhaps even quite the opposite. Furthermore, the ambiguities of the European project could reinforce premodern values within acceding states. The current practices of constitutional public politics are limited to electoral participation of limited relevance for decisionmaking. In otherwords, the rational discourse that allows for intellectual formation, the acceptance of governmental decisions and a more engaging decision-making process is absent. In this chapter, I will look at the present impact of "Europeanization" on public understanding of constitutional democracy and the institutional structures put in place within new member states. I will then briefly consider the foreseeable impact of the European Constitution on the constitutional structures (the new checks and balances) of new member states. Due to the scope of this chapter, I will not address the human rights dimension of constitutionalism. I will consider, in particular, the formation, and distortion, of constitutional democratic politics in the accession process particularly with regard to the referenda and the constitutional structures that have emerged thus far in the new member states. The politics of accession and other governmental practices remain highly instrumentalist. Such instrumentalism diminishes the likelihood that the general public will cherish the virtues of deliberative democracy and tempered majoritarianism. Relying primarily on the Hungarian experience I will analyze the potential changes in the democratic and constitutional ethos as a result of the emerging allocation of powers in the new Union. The constitutionalist inspiration that transpires from the debate on the European Constitution as well as the draft itself is highly problematic as a blueprint for "transformative constitutionalism". Myfirst claim is that the accession process aswell as the drafting of the European Constitution has reinforced the irrelevance of constitutional democracy in the eyes of the public who continue to see it as a matter of majoritarianism. It remains to be seen how the emerging European Union model of pluricentric separation of powers ("network constitutionalism") will be understood and used democratically by the citizens of the new member states. Mysecond claim is that, outside of the genuinely free elections firmly entrenched within new member states, certain patterns of state socialism are going to be reinforced through membership to the Union. Democratic politics is understood for many people as a tool of maintaining free public services, irrespective of contribution or need (except the needs of service providers). Such trends might be reinforced whist converting local constitutional politics to the European level. The experiences of the accession process indicate that democratic participation and parliamentarism are often quite formal. Instead of genuine participatory politics and accountability, democracy becomes an opportunity to influence politics in order to maximize welfare services. Union law and policies reinforce the welfare entitlement attitudes of the East European public. The Union has its own social welfarist value system (or routine)which reinforces the inheritedwelfarist expectations in the new member states. In these countries, the use of resources for the maintenance of European Union type welfare systems might be counterproductive and contribute to the difficulty in creating a robust democratic and constitutional culture. © 2006 Springer.