Ethno-nationalized states of Eastern Europe: Is there a constitutional alternative?

Studies in East European Thought

Volumn 54, Issue 4, 2002, Pages 245-269

  Dimitrijvić, Nenad ^a  

^a CENTRAL EUROPEAN UNIVERSITY   (Hungary)

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EID: 0141627606     PISSN: 09259392     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1019704812057     Document Type: Review

References (37)

1. Hereafter I will use the term 'plural societies' when referring to nationally heterogeneous states. The term is supposed to point merely to the 'pluralism in fact', and should not be read as a normative preference for the so-called pluralist theories.
2. This analysis will consider only the post-communist states of the region: Albania, Bulgaria, Romania, and countries of former Yugoslavia.
3. A. Arato, "Forms of Constitution Making and Theories of Democracy," Cardozo Law Review 2 (1995), p. 219, fn. 57.
4. I am aware that countries of the region differ one from another to the extent that demands: 1) a clear justification of the very possibility of common approach to them; 2) a carefully constructed and balanced comparative method to be used for the analysis of their ethnic relations. Serious analysis of such kind is missing from this paper. However, I hold that the common (or at least comparable) features of these countries' pre-communist and communist past, as well as comparable challenges of democratic transition and consolidation, allow for a comparative glance at the constitutional definitions of the state identities and minority rights, and for a modest set of normative conclusions.
5. Ž Puhovski, Socijalistička konstrukcija zbilje [Socialist Construction of Reality] Školska knjiga, Zagreb, 1993, pp. 55-56. It should be noted, however, that in the Soviet Union and Yugoslavia minorities (or at least some of them) were sometimes granted privileges in the form of federal, regional or local quasi-autonomies, which included language use provisions.
6. K.L. Scheppele, 'Rethinking Group Rights' (manuscript, 1994, in file with the author), p. 7.
7. Here I follow A. Sajo and V. Losonci, "Rule by Law in East Central Europe: Is the Emperor's New Suit a Straitjacket?," in D. Greenberg et al. (eds.) Constitutionalism and Democracy, Oxford University Press, Oxford, 1993, p. 327.
8. M. Rosenfeld, "Modern Constitutionalism...," op. cit., p. 6.
9. See also R. Hayden, "Constitutional Nationalism and the Logic of the Wars in Yugoslavia," in S. Bianchini and D. Janjic (eds.) Ethnicity in Post-Communism, Institute of Social Sciences, Belgrade, 1996, p. 82.
10. N. Papanikolatos, "Minorities and Minority Rights in the Balkans," Workshop Paper, Montpellier, 1998, p. 3 (http://www.greekhelsinki.gr/english/articles/montpellier-papan.html).
11. A. Eide, "Minorities in a Decentralized Environment," Background Paper, Yalta, 1998, p. 10 (http://www.riga.lv/minelres/publicat/Eide-Yalta.98).
12. St. J. Roth, "The Effect of Ethno-Nationalism on Citizens' Rights in the Former Communist Regimes," in A. Sajo (ed.) Western Rights? Post-Communist Application, Kluwer, The Hague, 1996, p. 287.
13. F. Michelman, "Constitutional Authorship," in L. Alexander (ed.) Constitutionalism. Philosophical Foundations, Cambridge University Press, Cambridge, 1998, p. 82.
14. For a powerful argument against reduction of the notion of constitutionalism to its negative aspect, see S. Holmes, Passions and Constraint, Chicago University Press, Chicago, 1995, p. 7.
15. M. Rosenfeld, "Modern Constitutionalism as Interplay Between Identity and Diversity," in M. Rosenfeld (ed.) Constitutionalism, Identity, Difference and Legitimacy, Duke University Press, Durham and London, 1994, pp. 5-6. Of course, it could easily be remarked that in this interpretation the leading principles of 'negative' and of 'integrative' constitutionalism are actually the same. This would be an accurate insight: constitutional principles are here understood as values accounting for both difference and identity.
16. A. Sajo, "Rights in Post-Communism," in A. Sajo (ed.) Western Rights..., op. cit., pp. 139-140.
17. A. Bragyova, "Are There Any Minority Rights," Archiv für Rechts- und sozial Philosophie 4 (1994), pp. 491-495.
18. J. Habermas, "Struggles for Recognition in the Democratic Constitutional State," in A. Gutmann (ed.) Multiculturalism. Examining the Politics of Recognition, Princeton University Press, Princeton, 1994, p. 107.
19. Ibid., pp. 126, 107. It deserves to be noted that in Habermas' reading reference to the formative capacity of rights does not point to their normative primacy: he claims that functional explanation suffices, because in complex societies there is no functional equivalent to the integrative capacity of positive law. - J. Habermas, "Zur Legitimation durch Menschenrechte," in Die postnationale Konstellation, Surkhamp, Frankfurt/Main, 1998, pp. 182-183.
20. Ibid., pp. 126, 107. It deserves to be noted that in Habermas' reading reference to the formative capacity of rights does not point to their normative primacy: he claims that functional explanation suffices, because in complex societies there is no functional equivalent to the integrative capacity of positive law. - J. Habermas, "Zur Legitimation durch Menschenrechte," in Die postnationale Konstellation, Surkhamp, Frankfurt/Main, 1998, pp. 182-183.
21. See e.g.U. Preuβ, "Democracy and Constitutionalism," in I. Grudzinska Gross (ed.) Constitutionalism and Politics, Slovak Committee of the European Cultural Foundation, Bratislava, 1993, p. 76.
22. J. Kis, "Beyond the Nation State," Social Research, Spring (1995), p. 202.
23. "Liberal nationalists did not take seriously enough the fact that what is true for a member of their own nations is also true for the members of the other ethnolinguistic communities. The minority ethnic group is just as much 'us' for those who speak its own language, who have grown up in its customs, as the majority is 'us' for its members. The minority citizen is not an isolated being," J. Kis, op. cit., p. 209.
24. S. Lukes, "Five Fables About Human Rights," in S. Shute and S. Hurley (eds.) On Human Rights, BasicBooks, New York, 1993, p. 37.
25. M. Rosenfeld, "Comment: Human Rights, Nationalism and Multiculturalism in Rhetoric, Ethics and Politics. A Pluralist Critique," Cardozo Law Review 1 (2000), p. 1235.
26. M. Rosenfeld, "Modern Constitutionalism...," op. cit., pp. 5-7.
27. For the purpose of this text, minority is understood as a group of citizens within a community who dispose of certain properties that distinguish them from other members of the community, those properties being perceived by them as vital for their individual identities. Although national minorities are in plural societies in numerical minority, the criterion here is neither exclusively nor primarily that of lesser number. Relevant is also socially disadvantageous, or factually inferior position of minority members, seen in terms of their capacity to freely develop their identities. This 'badge of inferiority' (Rosenfeld), presented above as the difference in rights-conditions, should be - together with the nature of identity - seen as the primary criterion of identification, because on its account only can we understand the structural character of these minorities' position. See e.g. A. Bragyova, op. cit., p. 501.
28. A. Bragyova, op. cit., p. 506.
29. W. Kymlicka, Multicultural Citizenship, Clarendon Press, Oxford, 1995, p. 75.
30. J. Kis, op. cit., pp. 229-230.
31. I b i d.
32. "Collective rights are distinguished from the joint rights of associated individuals by two criteria. First, their subjects do not come into being by way of association but are simply given, and, second, in order for them to be capable of bearing rights, they need to be officially recognized by the state... [These rights are] enjoyed by given ethno-linguistic communities on the basis that the state recognizes them as the collective bearers of the privileges in question," J. Kis, op. cit., pp. 221, 223.
33. For a critical analysis of the formative political decision at the constitution-making stage, see U. Preuβ, "Constitutional Power-Making of the New Polity: Some Deliberations on the Relations Between Constituent Power and Constitution," in M. Rosenfeld (ed.), op. cit., p. 147 et passim.
34. For a more detailed exploration of the way the nation state deals with motivational and justificational questions, see J. Kis, op. cit., p. 202.
35. J. Kis, op. cit., pp. 236-237.
36. J. Habermas, "The Nation, the Rule of Law, and Democracy," in The Inclusion of the Other, Polity Press, Cambridge, 1998, p. 145.
37. Here I come close to Habermas' concept of Verfassungspatriotismus. The scope of this paper does not allow me to further elaborate on the meaning of constitutional patriotism. I tried to deal with this concept in a previous text: "In Praise of Utopian Thinking: Civil Society and Constitutional Patriotism for Serbia," in N. Skenderović-Ćuk and M. Podunavac (eds.) Civil Society in Countries in Transition, Open University, Subotica, 1999.