The Jurisprudence of Particularism

Is there space for particularism which would limit the implementation of European Union law in a constitutional democracy? This is the question the recently published book edited by Kriszta Kovács seeks to answer. The open-access volume examines courtroom national identity claims in Central Europe and examines these claims through the lens of particularism. By taking particularism as the prism, the volume offers a new analytical scheme to evaluate the judicial invocation of identity.

Particularism is typically contrasted with universalism. However, particularism does not necessarily have to be exclusionist. It can be understood as particularistic manifestations and reflections of universal constitutional principles such as freedom or equality. When the constitution is concise, uses broad concepts and states the universal constitutional principles somewhat abstractly, the instantiations of these principles as particulars may appear in domestic legislative and judicial arguments. Domestic institutions, especially constitutional courts, may play an essential role in applying universal principles in the given cultural and historical context. Take the example of free speech. The German doctrine of militant democracy introduced after World War II aims to protect the democratic character of the state through a variety of laws and ultimately leads to a specific understanding of free speech limits. By contrast, in the early 1990s, Hungary, newly freed from Soviet-type censorship, embraced the idea of content neutrality and did not restrict hate speech in the vaguely defined interests of social peace or the name of national historical sensibilities. These exemplify two particular approaches to free speech and various levels of protection. Still, both may conform to universal human rights principles because the starting point for these interpretations is the understanding that each person is a human being whose dignity matters. Using the language of constitutional theory, one can say that the German doctrine is not very far from what Jeremy Waldron describes in his book, and the early Hungarian jurisprudence was close to Ronald Dworkins approach of free speech protection.

Particularism, however, can also mean a non-inclusive attachment to ones own group, in our case, the nation. This arises when the constitution is substantially informed by ethnocultural considerations and historical myths. If such exclusionist concerns permeate the whole constitution, it reflects a highly parochial interpretation of universal principles and may even violate them. For instance, the Orbán regimes Hungarian constitution, officially called the Fundamental Law, projects a mental image of an indivisible and homogeneous ethnic, linguistic, religious and cultural community consisting exclusively of ethnic Hungarians worldwide. It privileges those who identify with the prescribed Christian culture’ and who accept historical myths that refer to Hungarys past greatness in the same breath as its victimisation. At the same time, the Fundamental Law excludes ethnic and sexual minorities, refugees and others’ considered not to belong to the nation because they differ in some key respects. The ethnoculturally informed particularism allows only some, but certainly not all, people to believe that they are part of the same political community. This form of particularism contradicts the egalitarian claim that forms the basis of constitutional democracy: the protection of the human dignity of free and equal individuals.

The book analyses the jurisprudence of particularism in the Visegrád 4 countries — that is, Czechia, Hungary, Poland, and Slovakia because these are the countries that have exhibited, to varying degrees, the most visible signs of exclusionary nationalism in the European Union. Certainly, exclusionary nationalism is not new. What is novel is that the V4 countries have cited Article 4(2) of the Treaty on European Union (TEU), which requires EU law to respect national identities inherent in their fundamental structures, political and constitutionalas grounds for limiting the authority of EU law. Their claim has been that these countries are different because they reject migration, multiculturalism and foreign culture; hence, the EU should accommodate their distinctive national identities. What is also unique in the case of the V4 is that, recently, constitutional judiciaries have played a determining role in invoking the concept of constitutional or national identity.

The V4 constitutional courts, ostensibly following the German Federal Constitutional Courts example, have drawn on the identity discourse and tended to protect the nations’ distinctive identities. The Hungarian Constitutional Court and the Polish Constitutional Tribunal have even provided an ethnocultural justification for the legal concept of identity. When defining the meaning of identity, they have tended to rely on distinctive historical narratives and selectively chosen historical events from the glorious’ past of the respective countries to provide a linchpin for future constitutional interpretations. Following their governments, they often treat their countries as victims of foreign aggression’ with the greatness to overcome suppression, which becomes an essential component of national identity. Moreover, these constitutional courts invoke identity in areas outside the traditional field of constitutionalism, that is, in policy questions such as migration or family law issues.

The book offers an analytical review of these judicial invocations of constitutional or national identity and searches for a principle-based tool for a constitutional challenge to the judicial invocation of national identity that has come to be associated with democratic backsliding.

Part I of the book presents a defence of the concept of constitutional identity and constructively interprets it as narrowly as possible rather than rejecting the concept altogether. Gary J Jacobsohn proposes that the best articulation of the concept of constitutional identity, as exemplified by the German Federal Constitutional Court, does not necessarily correspond to its most problematic applications, as evident in the Hungarian jurisprudence. Monika Polzin describes the development of German identity jurisprudence and argues that the concept of constitutional identity as elaborated by the German Constitutional Court – even though it can be criticised on many levels – is a perfectly legitimate constitutional doctrine.

Based on the German articulation of the concept of constitutional identity outlined in Part I of the book, Part II focuses on how the German Constitutional Court has served as a frame of reference for the V4 constitutional courts as they have sought to empower themselves to exercise identity review. Part II reveals that V4 constitutional courts have applied the concept of constitutional – or, in effect, national – identity quite differently from their German counterpart. The chapters analyse the relevant constitutional case law and demonstrate that a problematic jurisprudence of particularism is present in every V4 jurisdiction. It exists, albeit in rudimentary form, in the Slovak case (see the chapter of Katarína Šipulová and Max Steuer), and it is a bit more mature in the Czech jurisprudence (see the chapter of Miluše Kindlová). The Polish jurisprudence of particularism has already included (ethno)cultural considerations and exploited the concept of constitutional identity to benefit the ruling PiS party (see the chapter of Michał Ziółkowski). However, it is only in the Hungarian case that particularism centred on ethnocultural national identity is in full bloom (see the chapter of Kriszta Kovács).

Part III discusses the consequences of the tension between the jurisprudence of particularism and universal constitutional principles. In his chapter, Mattias Kumm provides a general theoretical framework for thinking about questions of constitutional identity that are relevant for employing Article 4(2) TEU. The chapter distinguishes between two conceptions of constitutional identity: the Schmittian (formal) conception and the Constitutionalist (substantive) conception and finds the latter more convincing. The chapter argues that the EU commits Members States to constitutional identities that are not in conflict with constitutionalist principles, which are presumed to be shared in Europe. Hence, un-European national identity claims, that is, identities at odds with these principles, cannot plausibly made under Article 4(2) to justify the nonapplication of EU law.

Finally, the last chapter, written with an eye to the future, explores the supranational mechanisms available to defend constitutionalism. Susanne Baer, Kriszta Kovács and Maya Vogel revisit the meaning of constitutionalism based on the rule of law and backed up by courts. They first analyse the role of courts within a democratic political system and then revisit what constitutional erosion looks like in some EU Member States. The Hungarian and Polish governments have been the most prominent actors to seek to undermine the very foundations of the EU community itself. In response to this, the EU launched its rule of law mechanism, which has not been very effective to date. Thus, the chapter poses the question of whether the European constitutional community is capable of dealing with the challenges to transnational democracy and concludes that mechanisms of European constitutionalism should include various measures to ensure that it is upheld – from different forms of litigation before the ECJ to the conditioning of certain subsidies on compliance – with the core constitutional principles of the EU.

The Jurisprudence of Particularism: National Identity Claims in Central Europe
ed. by Kriszta Kovács
Hart | Oxford, 2023. 256pp.

Written by

Kriszta Kovács is a Research Fellow of the Research Professorship "Global Constitutionalism" at the WZB and a Senior Research Fellow at the Cluster of Excellence "Contestations of the Liberal Script (SCRIPTS)".
Website at the WZB

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