Elif Tuzlakoglu
Inclusion of The Migrants: Nationalism Versus Constitutional Patriotism
Introduction
“Nation-Building as development means the extension of an active sense of membership to the entire populace, the secure acceptance of state authority, the redistribution of resources to further the equality of members and the extension of effective state operation to the periphery”.
CH. Joppke- Nation Building after World War II
This paper endeavors to discuss the possible methods to provide the inclusion of the migrants and to reinterpret them as a legal category. The analysis starts with the assumption that the nation states are the main reference points in creating the identities. Despite several steps towards supra-nationalization, nation state is still far away from losing its power. Hence the possible methods on including the migrants should be assessed by taking into consideration the notion of nation state.
Second assumption is that the notion of nation state has been constructed by the ideology of nationalism. Hence the hypotheses of modernist authors like Ernest Gellner, Eric J. Hobsbawm and Benedict Anderson, whom specialized on nationalism, are given to predicate our assumption on stronger grounds. The ideology of nationalism oversees the existence of different identities. The research question of this paper has been developed at this point. The paper seeks to find out whether the constitutional patriotism can complete the gap that the nationalism left on the grounds of including the migrants. Nationalist discourse tries to create a unity by abolishing the existence of different identities in a given society, whereas constitutional patriotism seeks to recognize the divergent identities and create the discourse of common values of personhood which are to be protected by a constitution. After the discussion of the constitutional patriotism based upon Habermassian conceptualization, an emphasis on postnational model is made because the constitutional patriotism and the postnational model are interconnected. The hypotheses and assumptions of each ideology are given and it is discussed whether they can present a valid model for the recognition of the migrants as a different category rather than absorbing them in the society. In other words it is tried to find out whether the universalistic- liberal categories, introduced by postnational model and constitutional patriotism, suffice to transcend the protonational links that the nationalist ideology creates. Shortly, the analysis is based upon the controversy between nationalism and constitutional\patriotism or between the protonationalism and postnationalism. The legal steps upon creating a common European identity are also included and discussed in that analysis.
2. Identity Construction within the Framework of Nationalism
2.1 Preliminary Considerations: Theoretical Bases of the Construction of the Identities
In this paper it is presumed that the identities are not the products of the natural processes. On the contrary they are human artifacts produced gradually and influenced by the historical background of the European civilization. In macro level the European identity has been based upon the construction of the European Union.[1] In other words the main reference point for the legitimization of the construction is per se the European Union today. However the modus operandi of this construction derives from the modernization. The modernist philosophers like Ernest Gellner, Eric J. Hobsbawm and Benedict Anderson contend that nationalism creates the nations, so that the notion of nation has merely a fictional meaning rather than being an eternal and a natural formation, contrary to the rhetoric of the ethno- symbolists.[2] In other words nationalism is the main reference point in fabricating the identities.
2.2 Ernest Gellner: Nationalism on the Basis of Industrial Society
Ernest Gellner contends that nationalism does not correspond to the revival of the conscious nations. On the contrary nationalism invents the non- existing nations.[3]It would merely be a legend to classify the nations on the grounds of divine and natural formations. Nationalism sometimes reshapes the existing cultures, sometimes per se creates the nations and often demolishes the existing cultures. [4] Gellner defines nationalism as a principle that presumes the coincidence of the political unit with the cultural unit. [5] Nationalism would not occur in the pre-industrial society because in that sort of a society cultural heterogeneity would have been the main reference point contrary to the homogenous cultural assumptions of both nationalism and the industrial society. In addition to that, in pre- industrial society, the people were conferred an ascribed status, meaning that the people can not alter their status regarding to their merit or social necessities. In other words culture replaces the structuring, rather than supporting it. In modern ages a high culture (Hochkultur) dominates the entire society and defines the society indeed with the support of the political unit.[6]After the increase on horizontal and vertical mobilization as a consequence of modernization, the necessity for homogeneity directly increased. Nationalism could be the mere solution to govern the entire heterogeneous population. A kind of a wrong consciousness is created via nationalism to manipulate the citizens. The power of lords in feudal ages is replaced by the power of nationalism in the modern era.
2.3 Criticisms towards Gellner and his Approach on Nationalism
There are indeed several criticisms towards Gellner’s approach on nationalism and the industrial society. The first criticism towards Gellner’s theory is - I would also mostly share – that his theoretical approach upon nationalism would be too functionalist. Gellner endeavored to define nationalism depended upon its consequences. In other words he favored a linear and retrospective approach and defined nationalism as one step forward to the formation of the industrial society. [7]In the second criticism it is contended that the relationship between nationalism and industrialization in Gellner’s theory would be wrong and there exists several
roots of nationalism in the pre- modern era. For instance Elie Kedourie contends that nationalism germinated in the German- speaking areas in pre-modern ages and Kitching makes similar assumptions for Great Britain. [8] This criticism stresses the retrospective point of view of Gellner. Gellner believes that even the signs of nationalism had not existed in pre-modern era. However the entire modern ideologies are inspired from the ancient régime. The conjuncture in ancient régime reasoned the rise of those modern ideologies.
The third criticism concerns his assumption that nationalism would lose its significance in a modern society. This assumption is the consequence of the linear relationship between nationalism and industrialization. Especially the etno-symbolist author Anthony Smith shows dissent over this approach. According to Smith nations are natural formations and nationalism is merely the product of this natural process. Thus nationalism would always exist to legitimize the national formation, which is called the nation. [9] This is the aspect of ethno-symbolists. Moreover a modernist criticism can also be created concerning this assumption.
The modern ideologies serve as aims, rather than means. In many circumstances they can play some practical roles. However in their core they are created to influence the society, even manipulating them in many circumstances. That is why there is no ground to contend that nationalism loses its power as soon as the industrialization dominates as the total system.
Additionally the contemporary ethnic- nationalist movements illustrate that nationalism is stil dominant in our society.
2.4 Eric J. Hobsbawm: The Invention of the Tradition and the Protonational Elements
Hobsbawm does not assess nationalism as merely a part of modernization. On the contrary he emphasizes on protonational elements and endeavors to include the traditional origins of nationalism. [10] This approach is the most favored positioning in this paper. I will contend further in the paper that those protonational elements are used to exclude the migrants in the society. The migrants are forced to identify themselves as being a party in the society by integrating themselves to those protonational elements of the majority. Hence some alternative approaches arose to challenge this exclusion. In other words protonationalism is replaced with postnationalism by some authors as an alternative to this exclusion. Hobsbawm stresses that the notion of nation is an historical fact and nationalism is the child of the double evolution- the Industrial Revolution and the French Revolution. [11]
Hobsbawm points out that nationalism activates the pre-existing collective emotions and harmonizes them with the modern state and the nation [12]. Nationalism could really be expanded vertically by the assistance of the protonational elements which binds the societies with their pasts. None of the protonational elements (language, ethnicity, religion, sacred icons, and an emotion of belonging to a political unit) can alone create the nation. In a social context where modern state and nationalism arise, they become the elements of the nation. [13]
Language is one of the most significant protonational elements that Hobsbawm refers to. In nationalist rhetoric national language is identified with the mother tongue. However national language is merely a fiction and in some cases it is de facto invented. It is merely a standardization of the divergent expressions or dialects. Another proto-national element is the ethnicity. This rhetoric presumes that the members of the nation derives from the common race, origin or/and blood. However the emotion of ethnical belonging is cultural rather than biological today. Additionally, the eugenic instances and social Darwinist approaches in post war era showed that the biological approach upon ethnicity is inhuman. Thus the ethnicity undertakes a functionalist role in the nationalist theory by making a distinction between “we” and the others. More concretely it is the distinction between the native and the migrant in this case. The third proto-national element is the religion. Hobsbawm entitled the religion as the paradoxical cement of the modern era. [14] Religion binds the people who have scarce or no common features. In many instances it can even transcend the effect of ethnicity in manipulating the masses.
Nationalism uses sacred icons like symbols and rituals (both in a divine and secular sense) to construct an imagined community. The national flags and the importance granted to them, rituals like adoration ceremonies illustrate the usage of sacred icons in modern nationalism.
The emotion of belonging to a political unit represents the most effective and decisive proto-national element. The reference points represented by this element are the belief of belonging to an historical nation and having a certain state tradition.
According to Hobsbawm, nationalism would have success as far as it activates those proto-national elements. Hobsbawm further stresses the process of the invention of the tradition.
This invention process is the consequence of the social engineering accomplished by the technocratic elites or the bureaucracy. The requirement for the invented traditions can merely be explained by the paradox and the contrast between the dynamic and mobile feature of the modern societies and the effort of rendering some parts of the social life stabile and unchangeable.
2.5 Criticisms towards Eric J. Hobsbawm
The criticisms towards Hobsbawm are substantially addressed by ethno-symbolists. Ethno-symbolists stress that he could not determine the emergence time of the national consciousness. Additionally, he ignores the continuity of the ethnical cultures. He cannot explain the patriotic emotions of the citizens, he can not even unfold why the citizens die and sacrifice themselves for the sake of their nations. Finally he adopted a reductionist approach by giving mono-causal explanations such as granting proto-national elements a functionalist role. Ethno-symbolists assert that the elements like language, rituals, icons, symbols and the religion are the sine qua non for the nations, rather than satisfying a functionalist role. [15]
The criticisms stressed above derive from another school-ethnosymbolism which contradicts with the modernist, constructivist approach. Hence this paper does not support or favor any of the critics emphasized above. The paper submits the fact that the rituals which bind the nationals are consciously invented and this invention is the result of the social engineering process.
2.6 Benedict Anderson: The Imagined Communities
The definition of the notion of nation made by Anderson enjoys the following features:
Nation is an imagined, political community. It is indeed an imagined community which enjoys both sovereignty and limitations. [16] They are imagined because the members of the nation survive within the minds of the other members, even though they do not even know each other. Hence a construction process occurs in this point. [17]Additionally, nation is imagined limitedly because the existence of the members of other nations should be taken into account. It is also imagined as sovereign. [18]Finally nation is imagined as a community in spite of the inequality and exploiting relations existing in the nation, nation is always imagined as deep and horizontal companionship relations. [19] This fact corresponds to the brotherhood (fraternité) principle introduced by the French Revolution .In other words Anderson contends that nation and nationalism are special cultural artifacts. Nationalism is related to the cultural systems born in it. The most significant system in that context would be the religion and the nobility. Those systems evolve and change into another systems and structures. What stabile is as follows: The cultural systems dominate over the political ideologies on the development of nationalism. For instance, nationalism is influenced by the religion but could only arise within the secular systems just after the abolishment of the religious systems.
Inclusion of the Migrants: Nationalism versus Constitutional Patriotism.
As it is pointed out above Anderson evaluates nation as a cultural artifact. However this approach is seen as reductionist by same authors and it is asserted that Anderson ignores the role of the political units and developments.
Second criticism points out that Anderson errs by contending that nationalism arose in a society whereas religion loses its value and importance. Critics contend that nationalism can not replace religion; rather they compromise in some cases.[20] They add that religion is indeed a very effective weapon to manipulate the population in a given territory. Religion reinforces the ethnicity weapon where this weapon does not have enough power.
In spite of some differences in their own theories, they mainly belong to the same school –the modernist school- which favors the functionalist /constructivist approach. They point out that nations are invented by nationalism. In other words identities are the fictions which are constructed for the legitimization of the existing systems and the status quo.
3. European Identity and the Alternative Considerations
3.1 European Identity and the Contributions of the Migrants on the European Identity
The European identity constructed itself over the shoulders of modernity. However it gradually eluded itself from some dogmas of modernity like determinism and totality. Ironically this new identity is also immanent to modernity; merely a more hybrid structure is formed in that context. Thus a compromise on “unity in diversity” in European context should be reached. Europe indeed constitutes a very complex identity which comprises conflicts and uncertainties. [21] Hence common values like liberal/representative democracy, rule of law, protection of Human Rights were constructed to reconcile the entire contradictions and ambiguities within Europe. The values like democracy, rule of law and universal human rights have been legitimized by the establishment of Copenhagen Criteria in 1993 within the European Union. Those criteria are formed to harmonize the European precedents and set them as vital criteria for the candidate states.
Despite the fact that so many authors evaluate those criteria as the universal criteria legitimizing diversities, this paper contradicts this point. For instance the notion of democracy implied in those criteria is mainly the liberal/representative democracy. The 2500 years adventure of democracy has always been in accordance with the capitalism. However in 1917 a new concept, namely the socialist democracy arose. Bolsheviks did not adopt the vision of the representative democracy, on the contrary they favored Jean Jacques Rousseau’s concept of general will (la volonté general) meaning that the will of the public is the sum of the will of all people within the state. [22]Here it is not discussed the advantages, disadvantages and the detailed hypotheses of the both democracy visions. This transcends the borders of our analysis. The main point is that the democracy vision exacted from the liberal European Union (EU) states to post-Soviet states is not the unique universal democracy model. In other words the total European Identity pretends to replace universal values and reformulates/assimilates the existing values belonging to others. The most difficult transformation is indeed of the migrants who stems from divergent ethnical background. A construction of an identity requires a sort of an ethnification. [23] In other words demos is constructed on grounds of ethnicity. However during the fabrication of the European identity the migrants are integrated to the new legal order created by the nomenklatura of the Europe via certain legal documents. Those documents are mostly signed during the post war era, which are encouraged by the efforts of the United Nations(UN). UN adopted two main human rights documents, namely the International Covenant on Civil and Political Rights [24] and International Covenant on Economic, Social and Cultural Rights [25]. Additionally United Nations High Commissioner for Refugees was founded to deal with forced migration issues and internal displaced people. The former conventions based upon human beings, not
The first attempt at the European level corresponds to the European Convention on Human Rights[26] adopted by the European Council in 1950. Article 14 of this Convention provides that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority (…). Article 4 of the European Convention on Establishment [27]of the Council of Europe provides that “Nationals of any Contracting Party shall enjoy in the territory of any other party treatment equal to that enjoyed by nationals of the latter party in respect of the possession and exercise of private rights whether personal rights or rights relating to property.” Further, Council of Europe adopted in 1961 the European Social Charter which is later revised in 1996.[28] The aim of this Charter is to safeguard the social rights of the citizens of the signatory states and improve their living standards and social well- being. The provisions introduced mainly are the right to work; just conditions of work; safe and healthy conditions; fair remuneration; organize; bargain collectively; of children and young persons to protection; employed women to protection of maternity; to vocational guidance; vocational training; protection of health; social security; social and medical assistance; benefit from social welfare services; of persons with disabilities to interdependence; social integration and participation in the life of the community; of the family to social, legal and economic protection; children and young persons to social, legal and economic protection; to engage in a gainful occupation on the territory of other parties and of migrant workers and their families to protection and assistance. Article 19 of the European Social Charter granted migrants right of information, medical support, social assistance, safe and just working conditions and remuneration, security, family reunification, speaking in their mother tongue.
The most detailed legal codifications concerning migrants exist in the acquis communautaire of the European Union. Article 2/3 of the Treaty on European Union (Maastricht Treaty)[29] introduces the concept of the European citizenship, meaning that any national possessing the nationality of any Member State automatically holds the nationality of the other states. This conceptualization blurs the stabile linkage between the territoriality and citizenship. Since centuries the citizenship has identified itself within the limits of the given nation. For the first time in history this conceptualization got rid of the frontiers of the nation state. The separation between nationality/territoriality and citizenship invoke to a re-conceptualization of citizenship as extraterritorial. [30]
Similarly and accordingly the status of migrants are reformulated due to the fact that the linkage between ethnicity and citizenship has been undermined. As far as the territorial limits are demolished, the migrants in different nation states launch transnational networks. They accomplish those networks on the grounds of several identity descriptions. These networks lead to the establishment of a transnational community as a new model in Europe. They are constructed upon common identities and common cultural, political, ethnical and geographical references.[31]
In spite of the fact that transnational networks are de jure promoted with the Maastricht Treaty, they de facto do not work properly. Those legal codifications arose from the requirements of a nation state. It merely blurs the frontiers that the nation-state has built, nor did it challenge its supremacy and existence. The modus operandi of this system derives from the nation-state; supranationalism is mainly excluded in this praxis. Hence new models are introduced by some authors. For instance, Habermas invented the concept of constitutional patriotism, while by his follower Marc Jean Ferry conceptualized a postnational citizenship model. Those two terms are terminologically interconnected and not challenge each other.
3.2Jürgen Habermas: The Constitutional Patriotism-Cosmopolitanism
Habermas redefined the European nation-state, sovereignty, the past and the future of the state nationality due to his conceptualization of the constitutional patriotism.[32]The achievements of the nation state is indisputable, the sovereign states system established in Westphalia Treaty in 1648 developed itself on the shoulders of territoriality and sovereignty. However today's status quo has undermined this system. Habermas has announced the establishment of the democratic ideals for the entire Europe, but those ideals can merely be achieved by a new democracy model, namely the cosmopolitan democracy. Cosmopolitan ideals could replace the ideals of nationalism because it respects the cultural, ethnic and political differences and includes them as a legal category. He adopts a Kantian approach by contending that the citizens of a particular nation-state should see themselves as the citizens of the world. [33] Janus paradigm [34] can be used to explain the challenge between nationalism and cosmopolitanism. Nationalism justifies itself on the grounds of ethnic nationality, where as cosmopolitanism favors liberal and civic values. The existing system comprises the both features of those ideologies just like the Janus-the Roman god of doorways and passages with its two faces looking at the opposite directions.
Habermas endeavors to neutralize the ethnic nationals not only by means of law, but also by means of solidarity. [35]Referring to George Konrad; “Solidarity is a reference to society's spontaneous cohesion, independent of the state, organizing from below and easily driven underground”. [36]In other words solidarity, which is independent from the state, can readily transcend the frontiers of the nation-state and contribute to the constitutional patriotism project. Beside the consensus between legality and solidarity, Habermas refers to the significance of the democratic political culture. The democratic political culture can merely be achieved by acculturation and this correspondingly leads to the achievements of the principles of constitutional democracy which are the democratic principles of inclusive collective self-determination and human rights. Accordingly the protonational elements referred by Eric Hobsbawm are replaced by the Habermassian liberal democratic norms and the ethnic link is replaced by the civic binding. [37]Habermas does not overlook the role of ethnical elements for the conduct of the political and social relations in a society. However the role he granted to ethno-cultural norms in a pluralistic society is not very appreciable. He merely contends that the liberal-civic principles should be interpreted by the society; the ethos created in that society and the raison d'etre of that society mainly influences the way the liberal norms are interpreted. Thus constitutional patriotism was granted a particularistic dimension which is rather recessive, compared to its universalistic dimension.[38]
Every theory constructs itself on the shoulders of one or more theories. As pointed out above the “other” of the constitutional patriotism is the nationalism. However Habermas adopted the Reductionist approach by equating nationalism with ethno-nationalism. There exists a clear distinction between ethnos (the ethnicity) and demos (the public, das Volk). However ethnic- nationalism demolishes this distinction. This concept on the one hand refers to inter-ethnical relations or pre-politic strain communities and on the other hand to nations. Thus it is emphasized that the ethnical communities are more natural and evolutionary older in comparison to the nations. This creates the core of the ethnical based socialization which is depended upon cultural identity. The members of this community see themselves as a fully extended family. [39] Habermas evaluates nationalism solely with this dimension and neglects the role of nationalism in the construction of the democratic society. The appreciable efforts of Habermas on the formulation of the constitutional patriotism afterwards have led to a division into two variants, namely the thin constitutional patriotism and thick constitutional patriotism. The former introduces the system favored by Habermas , which evaluates the constitutional patriotism as an attachment to universal liberal norms which is contained in the national constitutions. Those values are filtered by the cultural values of the nation. Thus it is to a certain extent reflected from the peculiarities of a particular nation. [40] Thick constitutional patriotism has stuck to liberal universal principles, overlooking the peculiarities of different identities. In other words the universal principles of the liberal democracy, human rights and the rule of law should be sufficiently thick to function as the cement of the entire communities and nations. Contrary to thin constitutional patriotism, thick constitutional patriotism has created on historical narrative a myth to justify the existence of those common European values.[41]
The narratives are rooted upon the moral principles of Enlightenment and inspired by Kant due to his idea of the totality of the world history. Shortly, similar to nationalism thick constitutional patriotism has created its own myths. The main difference is that constitutional patriotism constructed itself upon rational myths stemming from Enlightenment, whereas the nationalist discourse stems from primitive, pre-political myths. The entire modernity Project serves as a political discourse and a national myth for the thick constitutional patriotism.
Those rational myths are inspired by the medieval divine institutions of Europe which constructed the political culture of the entire Europe. Every innovation derives from old values, meaning that the innovations possess the signs of the old values. Denying this reality would correspond to a retrospective point of view, which it is intended to refrain from in this paper. Enlightenment comprises the medieval values like human dignity, secularized the existing values of Christianity or reformed them. However the thick constitutional patriotism built a linkage between the entire European civilization and the Christianity. The Christian heritage would be the basis for achieving the political ideal of equal citizens conceded with civil-liberal rights.[42] Thus the divine European History is transformed to European legal history.
3.3 Criticisms towards Habermas and Constitutional Patriotism
Constitutional patriotism favors the application of liberal, modernist values to the entire society in order to integrate the different identities or include the others to the society. It is pretended that there exists an absolute consensus on what the universal values correspond to .
However he is trapped into reductivism by contending that liberal democracy, rule of law and universal norms of human rights can be applied in every single society. This is indeed the determinist point of view of modernism which is criticized by contemporary thinkers. In other words the application of those values to every single society would not always bring good circumstances to the society.
The followers of the modernist school (also known as the school of political development) in 1960s like Karl Deutsch, Pye, Lerner, Apter stressed that those liberal/modernist values should be transferred to the third world countries in order to democratize them. In other words a modernist revolution stemming from top to bottom is modelized by those modernist authors for the third world countries. Habermas applies the similar model to the core of Europe to include the others to the society. He ignores the sui generis characters of the others. It should be admitted that he adopts a softer model compared with thick constitutional patriotists. In his model the universalistic values should be interpreted by the values of the entire society. However he does not find a reply to the following question: Whose values should be interpreted as the universal values; the values of the majority in the society or the values of the divergent groups are also included? If the values of the divergent groups are also taken into account, what sort of a compromise is going to be reached in the society?
Unfortunately Habermas leaves these questions unanswered. Some assumptions can be extracted from this writings concerning public sphere. I will not comprehensively explain the Habermassian public sphere; it is not included in this paper. Shortly, according to him public sphere is the center area where the public opinion is based upon. In this conceptualization he refers ratio and popular consent based self-government principle, so that the relationship between democracy and legal state is radicalized. He stresses that the divergent wills of the different groups are negotiated at the public sphere. [43] Habermas merely points out the negotiation process of the divergent general wills but he leaves questionable by which means to achieve it. This gap on this theory can lead to the oppression of the majority over minority.
Contrary to Rousseau; Habermas contends that the general will can only be constructed as a result of the bargains of the divergent wills. Rousseau contends that the general will is the sum of the wills of the divergent wills. The gap on Habermas' theory leads to the application of the Rousseau's theory on the public sphere, so that there is no sufficient protection upon the migrants to represent themselves in the society.
Second, constitutional patriotism justifies itself upon its other-the nationalism. Habermas ignores the significance of nationalist imaginaries for the evolution concluding with the establishment of a democratic society. [44]The ideology of nationalism is the child of modernization. Like the other ideologies born in nineteenth century nationalism contributed to the formation of a modern nation state. The challenge between protonational elements and the democratic liberal values is the modus operandi of the formation of a modern nation-state.
Solely the ideology of nationalism could trigger this challenge. Besides, we can not overlook the continuing power of nationalism. In many circumstances nationalist solidarities replace constitutional solidarities. [45]
Habermas equates nationalism with ethnic- nationalism by ignoring other features of nationalistic identity. This is the other reductivist approach that Habermas adopts.
Nationalism harmonizes the entire religious, linguistic, ethnical, political elements while creating its own myth. The severe instances of ethnical nationalism in the history like in the Third Reich do not reason the abolishment of the other nationalist elements. In other words political discourse of nationalism is not merely ethnical; it is supported by a collective formation of culture. [46] For instance nationalist discourse is constructed upon collective-action, such as the rituals like the taking of the Bastille as the symbol of French Revolution; this date is celebrated as “Féte Nationale” (National Day) of the Fifth Republic of France. [47]
Constitutional patriotist approach needs a strong positioning to social solidarity. However his tendency on relying on solidarity is problematic. He treats cultural similarity as a basis for solidarity which functions as to motivate the nationals. Referring to Craig Colhoun's criticisms and regarding to Habermassian solidarity approach; cultural solidarity as the sole basis for solidarity would be rather a mono-dimensional positioning. Functional integration, social networks and mutual engagements are also necessary besides cultural similarity to create a notion of solidarity in a given society. Besides, the Habermassian culture rhetoric is questionable. Habermas treats the culture as the pre-historical, pre-political and stabile myth created by the ethnic nationalists and which is dominant in the minds of the national.
However culture indicates a dynamic, continuing, developing re-formation process; it is subject to continuing reproduction. [48] Hence the Habermassian conceptualization of solidarity is not only insufficient but also in its core misleading.
Thick constitutional patriotism pictures a sharper and total European identity compared with the model introduced by Habermas. Thick constitutional system endeavors to establish a uniform, total and homogenous European identity, other than harmonizing the diversities. The paper endeavors to find a cogent reply to the following question: Can the migrants be included in a given society without being assimilated with the framework drawn by constitutional patriotism? However the thick constitutional patriotism absorbs those diversities. The migrants coming to Europe do not always stem from Central Europe; they frequently originate form the so-called Third World Countries, who share totally different values. Constitutional patriotism endeavors to frame its ideology on the grounds of legality.
Nevertheless a myth is created by thick national patriotism, which is totally unfamiliar to most of the migrants coming to Europe. Moreover, legal values should not be depended upon myths. Legality is favored by constitutional patriotism because of its assumption of nationality. Hence there exists a dilemma in the formulation of that ideology. An emphasis on Christianity is the most salient myth created by the thick constitutional patriotism. In that sense there have been several debates whether to refer to Christianity in the European Constitution. In the existing version of the draft constitution there has been no direct reference to Christianity. On the Contrary, a thinner approach is adopted by referring to the common values which is found more preferable in this paper. Religious myths would destroy the universal and cosmopolitan ideals favored my cosmopolitan patriotism. This is the main dilemma that the thick cosmopolitan patriotism gets through.
In the following chapter postnationalism will be discussed. Postnationalism is the sine qua non of the entire constitutional patriotism project. It goes one step forward in its assumptions and refers to the creation of the universal personhood. However each complete and justify each other’s ideological rhetoric.
3.4 Postnationalism: One Step Forward in the Cosmopolitanist Project
Postnationalism, the sine qua non of the constitutional patriotism, constructs a framework in examining the interaction between national identity and the European identity. It conceives of an identity in which the notion of identity fleeds from the burden of the national references. It depends upon undermining the existence of the nation states. It stresses that the nation states are no more the sole reference point for the existence of democratic systems and practices.
The implementation of democratic practices could merely be possible by means of supranationalism. In that supranational system the main values of European identity are the following: Cosmopolitanism, supranational democracy, European legitimacy and the accountability. [49] The postnationalist rhetoric can be pictured as follows:
Nazis were bloody ethnical nationalists, they went on Holocaust, Milosevic's war policy depended upon ethnical cleansing, there was a mass extermination of Tutsis by Hutu inRwanda. Why should we base our future upon this bloody ethnical rhetoric? Can't we transcend the borders of the nation state?
Referring to this rhetoric some academics in and outside Europe imagined a post national citizenship model. The contributions of a French academic Jean-Marc Ferry are indeed very considerable. His starting point on formulizing his theory was to base upon Habermassian European constitutionalism. According to him, the sole way to get rid of the ethnical-cultural burdens of the nation state was to rely on a European constitution which is defined upon civic terms. Ferry adds that the modus operandi of the postnationalist imaginary is to overcome the nationalist rhetoric so that political unity and cultural diversity would harmonize as in the European space. [50]
I would like notibly to refer Yasemin Soysal -a Turkish originated American sociologist- for her appreciable emphasis on migrants in a so-called postnational system. European Union has created a new legal order, where the states and nationals can invoke the EU law for the national court judgments which are not compatible with EU law. This system can be entitled as multilevel constitutionalism. Soysal applies the similar legal system for the citizenship issues and introduces a new model of citizenship where the citizenship rights are not formed upon the basis of nationality. This formation leads to a formation of a universal personhood, where the use of citizenship rights is not limited to a certain nation state. [51]
The notion of citizenship has experienced an evolutionary period and its meaning has extended over time. Citizenship corresponds to a right to contribution to the political discourse and action in a given society. Terminologically the word politics stems from the ancient Greek word polites which mean citizen. Till the abolishment of the feudal system, citizens were the noble men. Gradually all men acquired the right of citizenship. It was not till the twentieth century that the women were included to the definition of being a citizen. The most difficult step towards extending the meaning of citizenship is to include the others –the migrants- without assimilating them. The ancient Greek's metoikos (foreigners) are shifted into migrants today. Even in Athen's democracy metoikos was deprived of the political rights.Thus Soysal introduces a postnational system where the political contributions of the migrants are safeguarded.
According to Soysal the domination of the postnational system derives from the changes occured in international system. The sovereign states system established by the Westphalia Treaty is undermined when the interdependence and connectedness of the states increased.
Such of a status quo reasoned the emergence of the transnational political structure. Nation state remains to enjoy the monopoly of conducting political actions, however the parameters of those actions are now determined at the global level. [52] This evolution leads to the construction of the postnational model, where the nation state totally loses its monopoly over public functions. Soysal assumes that postnational citizenship model oversees the migrants as a legal category. The migrants claim their own specific rights stemming from the universal human rights. The most significant step towards that project is the establishment of the European Court of Human Rights by the signatory states of the European Convention of Human Rights. Not only the States but also individuals directly appeal to the Court. This is the unique system, in which the individuals directly invoke the international human rights law. By that means decisions on immigration and family reunification were frequently given by the Court as a result of the applications from the migrant families. European Court of Justice (ECJ) also introduces a similar system. The main difference is that the individuals can not directly appeal to the ECJ, they can merely apply to the national court to invoke the EU Law. However ECJ judgments on human rights issues are very noteworthy, European Convention on Human Rights has been quoted several times not only on ECJ Judgments, but also on constructing the general principles of the EU Law. [53]
Moreover, according to Soysal at the international level there exists a consensus on rendering the rights of migrants an inalienability status. Thus a right of personhood is achieved via the exception of migrant rights as an inalienable part of human rights. Soysal bases this argument upon the human rights discourse. The human rights discourse comprises the entire cultural rights and this leads to the introduction of the multicultural project. Multiculturalism represents a particularistic characteristic but those particularistic rights are ironically preserved at the international level for the accomplishment of the postnational project. [54]
To sum up, the legal regulations at the international level replaces the nationalist myths for the construction of a universal personhood. Nationalism equips the nationals with the same identity, value, language and identity. As a contrast postnationalism creates a universal identity comprising multicultural characteristics.
3.5 Postnationalism: The Solution for the Inclusion of the Migrants?
The approach of the postnationalists for the inclusion of the other identities is rather optimistic. This paper agrees on many of the assumptions of the postnationalist project such as on the increasing role of the International Community and Human Rights Conventions. However this paper dissents on the assumption that those regulations are sufficient toundermine the protonational references. In spite of the supranational steps of the European Union, the main sovereign power is still the nation state. We can not ignore the increasing role of nationalism for the construction of unity at the nation state level. Nationalist discourse have not lost its importance, rather it has increased it.
Morever, the existing regulations at the international level do not suffice to create a universal personhood. Human rights discourse comprises the recognition of cultural rights which is the sine qua non of the migrant rights. However this discourse is neither de facto nor de jure justified at the international level. It is not de facto justified because even the judgments of the International Courts do not represent a coherent trend and their applications are left to the signatory states. In other words it is within the discretionary power of the signatory states to grant the migrants rights compatible with the Human Rights Conventions. Moreover, solely the migrant populations living in the territory of the signatory states could claim rights. The migrants residing in a non- signatory state of a particular human rights or migrant rights convention can not enjoy any of the rights granted to them at the international level. So that the protection of the migrant rights at the international level are not as exclusive as it is assumed by postnationalists.
It is not also de jure sufficiently justified at the international level. The codification of the human rights at the international level is indeed in a very advanced level. However there is no specific convention on migrant rights. There exists some provisions in many conventions or corpus of human rights is referred to render migrant rights an inalienable human rights status. However those developments are not sufficient in this status quo.
The mere specific legal document concerning migrants in the European space is the European Convention on the Legal Status of Migrant Workers. [55]This Convention is one of the most important documents for the Council of Europe where it directly refers to the treatment of aliens in a territory of a Member State of the Council of Europe. [56] The aim of this Treaty is to grant the migrant workers right to education, employment and access to various social facilities demolish the disparities and provide an equal access to all those social benefits.
Additionally, the accomplishment of non-discrimination on the basis of nationality is also aimed by this Convention. [57] The convention consists of six chapters, namely the definition of a worker; recruitment; social and economic rights including family reunification; return home; relationship with bilateral and multilateral agreements and housekeeping. The adoption of this Convention is indeed a very important step forward to create migrant rights as a legal category. However it is limited to migrant workers rather than addressing the entire migrant population. Besides, the rights conferred here are very far away from achieving the protection of migrant rights at the international level. In other words recognition of the diversities and conferring the migrant’s universal rights can not be achieved in such an international system. The legal framework created at the international level should be more vigorous and effective to achieve the universal personhood.
4. Conclusion
This research paper endeavored to find a reply to the following questions: How can we achieve the inclusion of the migrants to the given societies, especially to the construction process of the European identity? Are constitutional patriotism and the postnational model the valid solutions for the achievement of the inclusion project? With this framework, it is endeavored to adopt a critical approach upon those models. The main assumption of this paper was that the entire identities have been constructed, every single group in a given society create their own myths. Thus a reference was made on the authors who referred this assumption as a starting point. Those authors wrote on nationalism, which is “the other” of the constitutional patriotism.
Ernest Gellner, Eric J. Hobsbawm and Benedict Anderson contend that the nations and nationalism are the products of social engineering. They are the consequences of the human artifact and acquire their legitimacy from the protonational elements such as language, religion, sacred icons, a feeling of belonging to a certain political unit. In order to transcend the limits of those elements and create a total, legal based European identity to include the others; so many legal regulations were made. Consequently, the migrants living in the European countries created transnational networks which are rather weak. It is tried to find out whether constitutional patriotism can further this weak step and constitute a universal personhood model. Constitutional patriotism has two variants, namely the thick constitutional patriotism and the thin constitutional patriotism. Thick constitutional patriotism replaces nationalist myths with European myths and creates a total European identity. Thin constitutional patriotism is the model that Habermas adopted which presumes that the universal values should be filtered by the peculiar characters of the communities. However there is a gap upon how to filter those values. Accordingly an emphasis on postnationalism was made. The aim of this theory is to create post-national personhood. The ideology of constitutional patriotism and postnationalism are interconnected. They both endeavor to create a universal personhood depended upon legal framework, especially upon the constitutionalisation of Europe within the framework of the liberal and universal values.
However this legal framework establishment does not introduce a sufficient protection for the recognition of migrant rights. The reason is that the nation state still enjoys discretionary power over the recognition of the entire human rights conventions. The postnational theory can merely succeed when the nation-state loses its supremacy. However in this status quo this does not seem to be a very realistic assumption.
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on Europe” in http://www.tamilnation.org/oneworld/post _nationalism_rambour.pdf, pp. 1-4 (date of accession: 01.03.2007)
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The Citizenship Debates, Minneapolis/ London, University of Minnesota Press
****
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International Covenant on Economic, Social and Cultural Rights: UN Document General
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1.VII.1999
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[1] Dirk Jacobs, Robert Maier, “European Identity: construct, fact and fiction”, in
http://users.belgacom.net/jacobs/europa.pdf, pp.1, (date of accession: 01.03.2007) , also published in: Gastelaars M, de Ruijter (eds), A United Europe. The Quest for a Multifaceted Identity, Maastricht, Shaker
[2] Ethnosymbolism: they see today’s nation states as the continuation of the former ethnical communities. Accordingly nations represent the sum of the experiences of the historical members and ancestors. The well-known representatives of this approach are Anthony Smith, John Armstrong and John Hutchinson.
[3] Ernest Gellner, Thought and Change, London, Weidenfeld and Nicolson, 1964, pp.160
[4] ibid, pp. 168
[5] İnci Özkan Kerestecioğlu, Söylem ve Olgu Olarak Ulusçuluk (Nationalism as a Discourse and Fact) unpublished phd Thesis, University of Istanbul ,the Institut of Social Sciences, 1998)
[7] ibid, pp.159-160
[8] ibid, pp. 161-162, also see Elie Kedourie, Nationalism, Oxford, Blackwell, 1994, IV.Addition
[9] seeAnthony Smith, Ulusların Etnik Kökeni(Ethnic Origins of Nations) , translated by Sonay Bayramoğlu -
Hülya Kendir,Ankara, Dost,2002 the original version: Anthony Smith, The Ethnic Origins of Nations,
Oxford,Blackwell,1988
[10] İnci Özkan Kerestecioğlu, op.cit, pp.37
[11] Eric Hobsbawm, Devrim Çağı(The Age of Revolution), translated by Bahadır Sina Şener, Ankara, Dost yayınları, 1998, pp. 264) the original version: Eric J.Hobsbawm, The Age of Revolution, Vintage, 1996
[12] Eric Hobsbawm, 1780den Bugüne Milletler ve Milliyetçilik(Nations and Nationalsm since1780), translated by Osman Akınhay, İstanbul, Ayrıntı, 1990, pp. 65 the original version: Eric J. Hobsbawm, Nations and Nationalism since 1780, Cambridge, Cambridge University Pres, 1990
[13] İnci Özkan Kerestecioğlu,op.cit,pp.39
[14] Eric J. Hobsbawm, op.cit,pp.86-87
[15] Umut Özkırımlı,op.cit, pp 141-146
[16] Benedict Anderson, Hayali Cemaatler, Milliyetçiliğin Kökenleri ve Yayılması,(I magined Communities Reflections on the Origin and Spread of Nationalism) translated by İskender Savaş, İstanbul, Metis, 1993, pp.20. the original version: Benedict Anderson, I magined Communities Reflections on the Origin and Spread of Nationalism,London,Verso, 1991 (revised addition)
[17] ibid, pp.20
[18] ibid, pp.21
[19] ibid, pp.22
[20] Umut Özkırımlı, op.cit, pp.177-178
[21] Dirk Jacobs, Robert Maier, op.cit, pp.1-4
[22] Leslie Lipson, Demokratik Uygarlık (Democratic Civilization), translated by H. Gülalp, T. Alkan,Ankara, Türkiye İş Bankası,1984, pp. 9-2 original version: Leslie Lipson, Democratic Civilization, Oxford U.P, 1969
[23] Dirk Jacobs, Robert Maier, op.cit, pp.3
[24] UN Document General Assembly Resolution 2200A (XXI) A/63/6(1966), 999U.N.T.S 171, entered into force 23.III.197611
[25] UN Document General Assembly Resolution 2200A (XXI) A/63/6(1966), 993U.N.T.S 3, entered into force 3.I.1976
[26] also known as Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocol no:11), ETS No:005, Rome, 4.XI.1950, entered into force in 3.IX.1953
[27] ETS no: 019,Paris, 13.XII.1955, entered into force 23.II.1965
[28] ETS no 163, Strasbourg, 3.V.1996, entered into force 1.VII.1999
[29] Consolidated Version Official Journal: C-325 of 24.12.2002
[30] Riva Kastoryano, “Transnational Participation- Immigrants in the European Union”, in http://www.transcomm.ox.ac.uk/working%20papers/riva.pdf ,pp.1 (date of accession: 01.03.2007)
[31] ibid,pp.3-7
[32] seeJürgen Habermas, Öteki Olmak, Ötekiyle Yaşamak- Siyaset Kuramı Yazıları (The Inclusion of The Other-Studies in Political Theory ), translated by İlknur Aka, İstanbul, YKY, 2002 English version:Jürgen Habermas,
The Inclusion of the Other: Studies in Political Theory,Cambridge,MA:MİT Press,2000 (reprint edition)
[33] Craig Calhoun, “Constitutional Patriotism and the Public Sphere:Interests, Identity and Solidarity in the Integration of Europe”, forthcoming in: Pablo De Greiff, Ciaran Cronin (eds), Transnational Politics,Cambridge, MA: MIT Press
[34] for the original usage of Janus Paradigm see Tom Nairn,Faces of Nationalism: Janus Revisited,London,Verso, 1997 he uses this paradigm in order to point out the two faces of nationalism: one looking to the past and referring to the old values and the other looking to the future, seeking for the continuity of the nation. I tried toadapt this paradigm to the controversy between nationalism and cosmopolitanism.
[35] Craig Calhoun, op.cit,pp.3-7
[36] George Konrad, “Anti- Politics”, John Allen, Paul Lewis, Peter Braham (eds.), Political and Economic Formations of Modernity,Open University Blackwell, Polity Press, 1992, pp. 56-58(Reading B)
[37] Clarissa Rile Hayward, “Constitutional Patriotism and its Others”, in:
http://psweb.sbs.ohio-state.edu/intranet/poltheory/ Constitutional_Patriotism.pdf (date of accession:01.03.2007)
[38] Jürgen Habermas, op.cit,pp. 111-113
[39] ibid, pp.38
[40] Mattias Kumm, “Thick Constitutional Patriotism and Political Liberalism: On the Role and Structure of European Legal History”, German Law Journal, Vol:6, No:2, 1 February 2005, pp.319-321
[41] ibid, pp.324-325
[42] ibid, pp.326-329
[43] Meral Özbek, Kamusal Alan( Public Sphere),Istanbul, Hil, 2005, pp. 39-
[44] Craig Calhoun, op.cit,pp.6
[45] ibid,pp.5
[46] ibid, pp.7
[47] ibid, pp.28
