Linked with Maria Szyszkowska – Poland.
The subject of this short paper will focus on the development towards a new supranational European form of civil society. I seek to shed light on the current rediscovery of the concept of civil society and on that of European constitutionalism. Some general aspects of European supranational order, which is characterized by its capacity to accommodate diversity will be looked into. Then I shall discuss legal aspects of Union citizenship as a principle of supranational civil society, which reflects the multilevel character of governance within Europe in more detail.
The notion of civil society – société civile, società civile, Zivilgesellschaft – is an old one. Not until the last 20 years, however, has it come to play a central role in political and social sciences, but not so much in the language of constitutional law. However, the modern notion of civil society has always been closely related to the ideas of constitutionalism and federalism; ideas which today play an important role in discussions about the transition from a national system to a European supranational form of democratic governance. Derived from the Aristotelian notion of koinonia politike and the Latin notion of societas civilis the modern concept of civil society itself took shape in the European discourse of the 18th century. It was first named and discussed in the Scottish Enlightenment, Adam Ferguson undertook the first theoretical explorations. Since that time the concept of civil society has tried to provide answers for the structure of a modern pluralistic ar¬rangement and how it should generate its own stability and legitimization without tran¬scendental founda¬tion. Its aims were: (I.) to emphasize the separation between govern¬mental, non-governmental and private institutions and activities while (II.) maintaining the neces¬sary role of government in framing political and social life within more open, tolerant polities in which all share the same citizenship, rights and responsi¬bilities. Thus, civil society has pointed out two directions: first, towards private political and social activities, and second, towards a proper role for constitutional government, limited by the rule of law. These two sectors form together the basis of civil society; they are the legs necessary for the stool to stand. But there is also a close connection between federalism and civil society. It is federalism which encourages citizens to recognize different sites of association, and different sites of authority as well. Federal conceptions are supportive of the idea of civil society and federal in¬stitutions are important in making those ideas work, especially in the heterogeneous Euro¬pean polity of today, not only in their support of public non-governmental organizations but in their different governmental and constitutional structures and traditions.
When European integration started with the Schuman Plan, it was very much a political project, bringing former enemies together in a commitment to international cooperation. Starting with the coal and steel sectors, the intention was to establish a de facto transnational solidarity between 6 European states. Meanwhile the European Union has become a pole of attraction for almost all other European states. However, membership to the Union no longer means simply taking part in an economic integration process, but has also become a commitment to establishing political unity in adherence to the principles of safeguarding human rights, fundamental democratic values and conforming to the rule of law. Today the European Union is the deepest form of regional integration in the world, but still a dynamic and an open-ended polity, whose structures created a constitutional body without a constitutional soul. Currently the Union is more than ever in a phase of enlargement and reorganization and especially the constitutional process with the creation of a “European Constitution” has reached a new stage.
What is the reason for the relevance of this constitutional issue at present and the intensity with which the discussion is being conducted? Undoubtedly the European Union at present – also without an approved constitution – has certain characteristics of a federal constitutional order; it is also clear that the emerging European Constitution will not be the same as what we are used to call a constitution of a state. Nevertheless it contains norms of European law of which have direct effect on individual citizens and cooperation’s as well as on the relationship between the Union and Member States. Thus the European Union is a legal order, a “Rechtsgemeinschaft”, of a new and a unique kind of “multilevel constitutionalism” to which the Member States have freely transferred certain of their sovereign rights.
The European Union is not, and is not supposed to become a (super)state or a federal state (Bundesstaat) as for instance Germany, Switzerland or the United States. Its development follows the supranational concept of a new multilevel form of political organization, something more than a confederation but less than a federal state. The European Union is therefore not an agency of the Member States. Community treaties, as much as the emerging Constitution of the Union, are complementary to the national constitutions of the Member States. They do not substitute the national constitutions but rather supplement them at the European level.
European constitutionalism contains normative notions of a transnational civil society such as tolerance and solidarity. The principles of tolerance and solidarity find remarkable expression in the constitutional and political organization of the Union. The supranational order in Europe clearly provides a new, relatively autonomous and distinctly constitutional order, one, which borrows heavily from national traditions of the Member States and reinforces common elements within these national traditions. On the other hand, this new order also affirms the sense of diversity in at least two senses. First, the supranational order in Europe itself is characterized by its capacity to accommodate diversity. Secondly, the supranational order co-exists with national constitutional orders of the Member States.
According to the constitutional lawyer Joseph Weiler, it is this kind of relational link between identity and diversity of the European constitutional order, which unites “its Grundnorm”, the principle of constitutional tolerance and solidarity between the Member States and their citizens. In the European Union we subject the European peoples to constitutional discipline even though the European polity is composed of distinct peoples. It is a remarkable instance of tolerance and solidarity to accept to be bound not only by my people, but by a polity composed of distinct national political communities: a people of others. Put another way, a European demos only exists through its links with various other demoi.
So, the project of “an ever closer Union” (Article 1 TEU) is, in part, about creating a political and constitutional culture, which learns new ways to deal with the “other”. Three decades ago, Raymond Aron could still say “there are no such animals as European citizens” because “there are only French, German, or Italian citizens”. Europe today is about redefining a new kind of multilevel political system in which the “us” may no longer be French, German or Italian and the “them” no longer British, Dutch or Irish. I compromise my self-determination in this fashion as an expression of this kind of internal tolerance – towards myself – and external tolerance and solidarity – towards others. To do so creates in itself a different type of political community, which is rooted in and derives from a political community of others. In terms of identity this relationship has been conceived in the following ways: as an additional and complementary civic identity; as an overarching civic European identity within which ‘others’ – the national and the regional, for instance, are nested. (Read the rest of this long article on lnx.societaeuropeacultura.it).