Constitutionalism and identity in Eastern Europe: Uncovering philosophical fragments

The author would like to gratefully acknowledge the comments of Karen Dawisha and Venelin Ganev. An earlier version of this paper was presented as part of the Project on Minorities and Tolerance in Central and Eastern Europe and the NIS (Newly Independant States) at the Woodrow Wilson International Center for Scholars.

Notes

The author would like to gratefully acknowledge the comments of Karen Dawisha and Venelin Ganev. An earlier version of this paper was presented as part of the Project on Minorities and Tolerance in Central and Eastern Europe and the NIS (Newly Independant States) at the Woodrow Wilson International Center for Scholars.

1. For two examples concerning inter-ethnic relations, see Bunce (1999) and Gorenburg (2003).

2. Of course, even this papers over problematic questions about Britain and Norway. For a broader perspective on this process of relocating sovereignty, see Kommers and Thompson (1995).

3. All constitutional quotes are from the University of Bern website on international constitutional law <http://www.oefre.unibe.ch/law/icl/>.

4. In a sharp contrast, the preamble to the 1948 constitution of Czechoslovakia is filled with pan-Slavic sentiment, which implicitly helps legitimize the Czechs and the Slovaks inhabiting a single state, the growing ties with the Soviet Union, and the mass expulsion of Germans and Hungarians. See Triska (1968).

5. Most of the discussion on what is now the Republic of Serbia and Montenegro will focus on the Yugoslav Constitution of 1992. The reason is that it was the constitution for most of the period under discussion.

6. Hayden (1992) defines constitutional nationalism as “a constitutional and legal structure that privileges the members of one ethnically defined nation over other residents” (p. 655). It is important to stress that this is still not the complete exclusionist democracy of, for example, Carl Schmitt. For a discussion on Schmitt's views of the ethnos and democracy, see Preuss (1994).

7. Ostiatynski (1997) contends that this formulation was an attempt to satisfy both the liberals, who wanted a civic definition of the state, and the rightists, who wanted a more national definition. In fact, there are several other examples of such comprises, including its affirming the values of “Both those who believe in God … As well as those not sharing such faith,” giving the preamble an almost schizophrenic quality.

8. See Articles 2 and 4 in the Romanian constitution and the preamble and Article 3 of the Slovenian constitution.

9. The following statement by the Slovak National Party clearly illustrates these ideas: “The language is the basic communication and identification vehicle of each nation. The language along with its written form are both an unseen uniqueness, which is different from nation to nation. This uniqueness can be considered as human wealth or as the wealth of civilization, whereby its loss mean the extinction of a nation and its bloom signals stableness and good prospects … For a long time, history has not only slowed down the full-value development of our tongue and culture, but has for quite some time also denied us the right to occupy our proper space to live it—our state and its territorial integrity. The notion of integrity represents for us the symbolic envelope of our identity, the space indispensable for its bloom and growth” (Slovak National Party, 1998, pp. 8–9).

10. Schildkraut (2004) believes those in the latter category are rooted in ideas of republicanism.

11. Schlink (1994) argues institutional guarantees did not become a prominent feature of German constitutionalism until the 1950s. In either case, they were an important feature when the Central Europeans were examining models to copy.

12. For example, Bulgaria, Denmark, Finland, Greece, and Norway privilege a single religious denomination in their constitutions.

13. Armenia, Austria, Croatia, Cyprus, Denmark Finland, Germany, Hungary, Liechtenstein, The Netherlands, Norway, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom have ratified the Charter as of 1 June 2005.

14. France's declaration that accompanied its signing the Charter is instructive. It begins, “In so far as the aim of the Charter is not to recognize or protect minorities but to promote the European language heritage, and as the use of the term ‘groups’ of speakers does not grant collective rights to speakers of regional or minority languages, the French Government interprets this instrument in a manner compatible with the Preamble to the Constitution, which ensures the equality of all citizens before the law and recognizes only the French people, composed of all citizens, without distinction as to origin, race or religion.” Council of Europe, List of Declarations Made with Respect to Treaty No. 48, <http://conventions.coe.int/treaty/EN/cadreprincipal.htm>.

15. Hungary added these provisions in 1972 (Tesser, 2003).

16. This Executive Order was subsequently reinforced by a law. In April 2001 the Constitutional Court refused to hear the request of several nationalist parties who wanted to overturn the law on the grounds that it violates the constitutional provision declaring Romanian the official language.

17. Levy (1997) defines assistance rights as those which are “claimed to help in overcoming obstacles to engaging in common practices” (p. 29).

18. While it disappeared in subsequent constitutions, the 1947 Bulgarian constitution included a similar provision in Article 79.

19. See Article 8 of the European Charter for Regional or Minority Languages. Even most minorities accept this. A survey conducted by Rose (1997) showed that approximately 90% of Russians living in the Baltic states agreed they had an obligation to learn the state language.

20. The basic options are complete bilingual education, having most classes in the majority language and learning the minority language as a foreign language, and having most classes in the minority language and learning the majority language as a foreign language.

21. C. Cahn, Research Director, European Roma Rights Center, interview with author, Budapest, 21 February 2000.

22. While the Foundation on Inter-Ethnic Relations has developed norms on this issue, so far it has not convinced the OSCE to adopt its recommendations. See “The Hague Recommendations” (1996/1997).

23. A. Horvath, Assistant Director, Research Center for Inter-Ethnic Relations, interview with author, Cluj, Romania, 2 October 2000.

24. S. Pufflerova, Director, Foundation Citizen and Minority/Minority Rights Group—Slovakia, interview with author, Bratislava, 26 March 2000.

25. If there are multiple minority councils in a district, a citizen can only vote in the election of one.

26. For a discussion of the Polish law, see Tesser (2003, pp. 502–505). Germany also exempts minorities from the 5% threshold in national elections. The provision was originally part of the 1955 agreement with Denmark on treatment of Danes in Germany.

27. J. Kaltenbach, Ombudsman of the Rights of National and Ethnic Minorities, interview with author, Budapest, 13 September 2000.