2.1 Introduction

How to be ‘independent’, ‘sovereign’ and ‘European’ – all at once? The opening quote of this chapter by one of the defining foreign ministers and European ideologues in Estonia’s post-Soviet journey of ‘becoming European’ illustrates well how any iteration of identity and belonging is always a performative speech act – that is, it aims to bring something about by the act of saying it.Footnote ¹ The musings on the emergence of new Estonia and new Estonian are, hence, a politically self-conscious make-believe rather than an objective observation of an unmediated reality. The following inquiry into the Estonian European constitutional imaginaries proceeds from the very methodological premise. I understand the imaginaries in question as political performatives that have been articulated and enacted in a particular historical and political context with a specific political goal in mind. My argument is that the internal paradox of this goal can be captured by the concept of vicarious sovereignty: the Europeanization of a state as a means to practice sovereign agency.

Estonia’s model of the European Union (EU) membership is notably permissive, considering the country’s constitutionally unequivocal commitment to the conservative notion of sovereignty.Footnote ² Having restored its sovereignty from the embers of the Soviet Union in 1991,Footnote ³ Estonia joined the EU in 2004 along with nine other, mostly Central-Eastern European countries. Striving to be recognized as a ‘good European’, Estonia’s implementation of EU law has been generally without reservations, with primacy granted to EU law over the national constitution.Footnote ⁴

An apparent paradox of Estonia’s constitutionally conservative understanding of sovereignty and its practical sharing with the EU is illustrative of a general aperture between the principle and practice of sovereignty. Classically conceived as indivisible, with the ultimate authority vested in a single sovereign or institution within a political community,Footnote ⁵ sovereignty is ‘eminently divisible’ in practice, and the idea of indivisible sovereignty is thus indeed an idea in the mind rather than an empirical fact.Footnote ⁶ Further, sovereignty in and of itself has no purposive content: it refers, by default, to some higher order value. For the constructivist International Relations (IR) scholarship, the reference point of sovereignty is accordingly provided by socially recognized identity values.Footnote ⁷

The mapping of Estonian European constitutional imaginaries is, hence, also an exercise in defining what makes a state a state; the nature and features of sovereignty in the early twenty-first century and, last but not least, the probing of the meaning of the Estonian ‘social self’ at the time a political window of opportunity opened for its self-(re)enactment as a sovereign state. This chapter explores how political agency has been imagined by a country that has pooled important aspects of its sovereign power with the EU.Footnote ⁸ This question is probed in the context of Estonia’s participation in the discussions of the Convention on the Future of the European Union in the early 2000s – the process which could be legitimately described as the constitutional leg in Estonia’s journey of ‘becoming European’.Footnote ⁹

I explore Estonia’s sovereignty-sharing with the EU through the lens of the vicarious identification concept. Vicarious identification refers to the subject’s attempts to establish and legitimize a vicarious identity – that is, a sense of self-identity, purpose and self-esteem through riding on (and appropriating) the achievements and experiences of others.Footnote ¹⁰ The dictionary references for ‘vicarious’ include ‘substitute’, ‘second-hand’, ‘derivative’, ‘secondary’ and ‘surrogate’ – in short, ‘experienced in the imagination through the feelings or actions of another person’. The other meaning of the word ‘vicarious’ pertains to ‘acting or done for another’. The adjective derives etymologically from the Latin vicarius, meaning ‘substituted, delegated’, and from vicis, denoting ‘a change, exchange, interchange, succession, alternation, substitution’.Footnote ¹¹ As in vicarious relationships, one thing is taken to stand in or substitute for another, there is a ‘second hand’-quality about such liaisons. Vicarious identity is then ‘one that can be delegated, substituted, or understood as interchangeable with the identity of another’.Footnote ¹² Coveting such an identity can be considered as a form of ontological security seeking or the subject’s desire for continuous self-being in the face of potentially destabilizing existential anxieties.Footnote ¹³ It is not uncommon among states to seek a sense of ontological stability, security and self-esteem ‘through locating themselves as members of civilizational communities, seeking to vicariously appropriate elements of a civilizational tradition and its achievements as their own’ for the promise of vicarious identity relationships to ‘establish, preserve, or even enhance a state’s club/positional status’.Footnote ¹⁴

Building on the notion of vicarious identity, I conceptualize vicarious sovereignty, using Estonia’s experience of ‘becoming European’ post-1991. I refer to the politics of becoming European both in the narrow institutionalist sense of Central and East European (CEE) states’ journey from the accession negotiations in 1997 to the EU membership in 2004 and in the deeper identitarian meaning of seeking recognition to Central and East Europeans’ ‘Europeanness’ from the authoritative carriers of contemporary European identity in the western part of the continent.

The argument is structured in three parts. In Section 2.2, the concept of vicarious sovereignty is outlined against the backdrop of the idea of sovereignty as a symbolic form, a highly ambiguous and contested social structure of international politics. Section 2.3 zooms in on the context of the Estonian European constitutional imaginaries to set the historical background for this chapter’s empirical research question, namely: how were the conditions for sovereignty and the boundaries of the European constitution imagined by the Estonian state-appointed visionaries and spokespeople during the Convention on the Future of Europe? Such a focus is by default limited and, some might argue, rather outdated, since the Europe and Estonia envisioned twenty years ago are another country compared to today. My claim is not that zooming in on the bygone political discourse on the future of Europe and Estonia’s way of blending in with it would point at some deeper continuities in the contemporary Estonian constitutional thought either domestically or at the European level. Nor do I suggest that the originally provided rationale for vicarious practicing of sovereignty through the EU membership remains intact anno 2025. The national conservatives of contemporary Estonia, along with considerable segments of the public, would not necessarily subscribe today to the idea that substituting national sovereignty unquestioningly with the European authority is in the interests of Estonia’s security. Rather, I propose that the temporal window in the focus of this chapter marks an important (if ultimately not realized) constitutional moment in the European integration process, crystallizing Estonia’s political discussions back in the day about its sovereign agency in the European polity (of which it was yet to become a formal part then). This moment thus allowed Estonia to tap into the political reconciliation attempts of becoming a state while – and arguably via – becoming an EU member state. Consequently, in Section 2.4, I offer a discursive breakdown of a set of notable visions of Europe, as articulated by the defining Estonian constitutional ‘map-makers’ at the time of the Convention (2001/2002–2003), to wit: Lennart Meri and Toomas Hendrik Ilves.Footnote ¹⁵ While hardly representative of the broader constitutional debate back at the time, such a sample is still evocative of the political discourse in Estonia’s run-up to the EU accession. The limited handful of the highlighted political visions is, alas, also indicative of the slender original contributions by the Estonian political elite to ‘thinking Europe’ in the first place. The chapter concludes with brief reflections on the broader applicability of the vicarious sovereignty concept beyond the (historical) Estonian case.

2.2 The ‘Necessary Fiction’ of Sovereignty

Sovereignty is one of the ‘necessary fictions’ international relations (are) run by: it is the foundational concept for international law and IR theory, providing both disciplines with an original raison d’être. As ‘the paradigmatic symbolic structure of the international system’,Footnote ¹⁶ the ‘highly ambiguous’ concept of sovereignty has many allusions.Footnote ¹⁷ Besides being referred to as the constitutive norm of the modern institution of statehood or ‘a foundational habit of the modern state system’,Footnote ¹⁸ sovereignty has been denoted as a legal status, an institution, (a bundle of) rights, a bridge between inside/outside of the state and, hence, a constitutive link between the (international) society and states and the list goes on.Footnote ¹⁹ Jens Bartelson has made a compelling case for sovereignty to be understood as a symbolic form ‘by means of which we have come to perceive the political world, but as such it does not stand in any determinate relationship to the world thus perceived’.Footnote ²⁰ A symbolic form ‘represents a perspective taken of an object rather than a representation of its essence’.Footnote ²¹ The objectivity of symbolic forms consequently stems from their virtue of organizing words and things into meaningful wholes (and rendering the latter accessible to knowledge).Footnote ²² Adopting a narrow sense of the concept of symbolic form, sovereignty can be understood as structuring the production of both meaning and experience. According to this line of thinking, drawing on Ernst Cassirer’s earlier work on symbolic forms, ‘sovereignty is real only by virtue of having been constructed’.Footnote ²³ Hence, the meaningful question is not to contemplate over the realness or constructed-ness of sovereignty but to probe ‘how this symbolic form has been used as a template for organizing political life, and by what means it has been allowed to structure the political world’.Footnote ²⁴ Put differently, sovereignty is not either present or absent: rather, sovereignty ‘unfolds in legal and political games as meaning production and praxis’ in particular ways.Footnote ²⁵

The preceding threads imply, by default, a non-fixed meaning of the sovereignty concept through time. It is precisely the shifting meanings of sovereignty, Cynthia Weber argues, that ought to be studied for ‘what counts and/or functions as sovereign is not the same in all times and places’.Footnote ²⁶ Taking a cue from her exploration of how the meaning of sovereignty has become stabilized historically, the study of Estonian imaginaries of Europe and the constitution thereof is concurrently an inquiry into how the Estonian state has been written with particular capacities and legitimacies within the bounds of the EU as a postmodern or late sovereign in and of itself.Footnote ²⁷ Notably, Estonia had just about restored its state sovereignty when it felt compelled to share it with the EU – a post-Westphalian polity in the latter’s self-mythology, increasingly focussed on individual sovereignty via the emphasis on fundamental rights already at the time of the enlargement.Footnote ²⁸ As an instance of exercising authority functionally, not territorially, the EU has emerged as ‘a late-sovereign complex of overlapping claims to sovereignty’,Footnote ²⁹ de-centring the familiar sovereign state imaginary with its distinctive mix of integrated and differentiated authority.Footnote ³⁰

As Bartelson notes, the concept of sovereignty concurrently functions as a source of self-identity and a principle of self-recognition.Footnote ³¹ The recognition granted by international society can be legal-political, pertaining to equal rights and obligations therein, or moral, going ‘beyond the mere recognition of rights, and into the thick recognition of social and cultural identities’.Footnote ³² Ayse Zarakol has proposed to call the two different IR understandings of the concept of recognition ‘legal’ and ‘existential’ recognition, respectively.Footnote ³³ Whereas the first, legal (or thinly understood) recognition concerns seeking statehood, thick (or existential) understanding of recognition does not see the innate recognition aspiration solved by legal recognition only. Rather, legal recognition can provide a prerequisite for agency, whereas the desire to be recognized as a certain sort of being still persists. Pinning down sovereignty gets further complicated with the modern concept of ‘independence’ added in the mix. The latter is closely linked to popular or national sovereignty, at the core of which is ‘the idea of the self-determining community that constitutes the rules by which a people will be governed’.Footnote ³⁴

Estonian political scientists Eiki Berg and Ene Kuusk have distinguished (and even sought to empirically measure) internal and external aspects of sovereignty on the reasoning that ‘entities’ internal legitimacy and external recognition issues matter most in the praxis to relatively locate them within international society’.Footnote ³⁵ Consequently, internal sovereignty is understood in terms of symbolic attributes (such as flag, national holidays), governance (constitution, autonomous government, head of state), monetary system, territorial integrity and permanent population. External sovereignty, in turn, pertains to ‘the extent of actorness, the existence of security structures, diplomatic relations with other countries and membership in international organisations’.Footnote ³⁶ According to this view, most attributes of statehood and sovereignty are related to symbols, constitutional arrangements and world standing. Estonia’s early permissivenessFootnote ³⁷ in granting the EU supremacy above its own constitution might appear striking for the temporal proximity of the restoration of the country’s long-coveted sovereign agency as a legal subject and the politically articulated vision of the substantiation and execution of that agency emphatically through the membership in the EU. Such politics was underpinned by the general perception of Russia as an existential threat, against which membership in the EU was supposed to provide a political remedy. Having entrusted some of its sovereignty features to the EU’s competence, the absolute sovereignty of Estonia (and any other member state, for that matter) is naturally reduced to a degree; yet the benefits from international cooperation were considered to be higher, for instance through enhanced security provisions, than the losses accompanying the waiver of some sovereignty attributes.Footnote ³⁸ Whether or not such sovereignty attributes are those ‘mainly with symbolic meaning’, as Berg and Kuusk maintain,Footnote ³⁹ is yet an open question, however.

2.3 The Constitutional Process of Becoming European

Estonia was the first of the former USSR republics to start the accession negotiations with the EU in 1998, becoming a member of the Union on 1 May 2004. To enable the accession, the Accession to the EU and the Supplementary Act to the Constitution was passed, following the referendum of 14 September 2003. However, while carefully navigating the formal amendment, supplementation by an independent constitutional act de facto still changed, not just supplemented the constitution of the republic.Footnote ⁵⁸ The Act’s provision that the Constitution ‘is applied without prejudice to the rights and obligations arising from the Accession Treaty’ has been interpreted in the judgments of the Supreme Court in a way that grants EU law primacy.Footnote ⁵⁹ Due to the intense securitization of the country’s belonging to Europe via the coveted EU membership,Footnote ⁶⁰ the issue of shared sovereignty created domestic tensions but remained largely depoliticized top-down in Estonia during the accession period.Footnote ⁶¹

In order to explore how and why this became possible, ideas and their authors in Estonian European constitutional thought need to be taken seriously, no matter how sparse the respective record.Footnote ⁶² To map the constitutive ideas about the EU’s constitution and for the Union’s constitutionalism and, more generally, for the European integration, sovereignty and statehood, as articulated from Estonia, I will turn to the two outstanding political figures among the constitutional ‘map-makers’ at the time of the Convention on the Future of Europe (February 2002–June 2003): namely, Lennart Meri (as the representative of the government to the Convention) and Toomas Hendrik Ilves (as Estonia’s foreign minister in 1999–2002 and a prominent voice in the debates on Europe).Footnote ⁶³ This is, by default, a delimited sample, as it represents only a small political fraction of what could be described as the Estonian European constitutional thought, leaving aside the oft-heated juridical debates over the European constitution and its hierarchical relationship to the Estonian constitution among the community of Estonian constitutional lawyers (e.g., Anneli Albi, Madis Ernits, Carri Ginter, Hent Kalmo and Julia Laffranque).Footnote ⁶⁴

The Convention on the Future of the European Union (aka the European Convention) was a body established by the European Council in 2001, tasked with the purpose to re-order the existing treaty base to sustain the Union’s functionality in light of the pending enlargement. The main issues discussed at the Convention concerned the ways of making the Union more democratic and transparent; modes of streamlining the decision-making processes; the division of competencies between the EU institutions, member states and pertinent regional organizations; the inclusion of national parliaments at the EU level, and the ways of making the EU’s Common Foreign and Security Policy (CFSP) more effective. The membership of the Convention consisted of the representatives of the European Commission, European Parliament, the delegates of the member and candidate states’ governments and national parliaments, each of whom had the right to send one governmental and two parliamentarian representatives to the Convention. In all, 28 states and 217 representatives participated in the work of the Convention, led by the former French president Valéry Giscard d’Estaing. The government of Estonia was represented at the Convention by the former president Lennart Meri, with Henrik Hololei serving as a deputy. The Estonian parliament’s representatives were Tunne Kelam and Rein Lang for the latter parliament formation and Tunne Kelam and Peeter Kreitzberg for the former.

For Estonia, as then still a candidate country of the EU, participation in the discussions over the future shape and face of the Union on par with the established member statesFootnote ⁶⁵ was a valued opportunity. The Convention enabled Estonia to speak along in imagining the future of the European institutions and member states’ division of labour in governance in spe. It was an opportunity to practice hands-on ‘the politics of becoming European’Footnote ⁶⁶ or ‘that paradoxical politics by which new cultural identities are formed out of old energies, injuries, and differences’.Footnote ⁶⁷ For Lennart Meri, the Convention must have felt like a symbolic homecoming – if one thinks of his old adages, according to which ‘[w]hen creating a new Europe we have to at the same time create a new European’;Footnote ⁶⁸ or that ‘[o]ne is not born European. One becomes European. And no one has a monopoly on Europe’.Footnote ⁶⁹ The Convention on the Future of the European Union provided an opportunity to practically enact Meri’s belief that ‘Europe is not a continent, but a … philosophical, ethical, cultural, political and economic programme, of which Estonia … used to be an indivisible part and will be so again in the future’.Footnote ⁷⁰ For the EU, the Convention was an instance of ‘taking a deep breath’ and discussing ‘for the first time in history … how to maintain itself so that everything changes, and changes for the better’.Footnote ⁷¹

The Convention’s discussions around the division of competencies between the EU institutions and the member states polarized between the larger and smaller member states, with Estonia joining the initiative of sixteen small states against the creation of the European president’s position and for sustaining the balance between the EU institutions and member states as provided by the EU foundational treaties. For Estonia’s positions in the Convention, the bottom line was an emphasis on the effective and transparent functioning of the Union, along with the principle of equality between the EU’s member states, including the rotation of the EU commissioners and the presidency of the Council of the EU.Footnote ⁷² Estonian representatives in the Convention were broadly in favour of the subsidiarity principle;Footnote ⁷³ yet argued for the leanness and uncomplicatedness of the decision-making processes of the Union, for instance opposing the enlargement of the competencies of national parliaments, regions or regional committees to turn to the European Court in fear of potentially allowing for the transfer of domestic political issues to the EU level.Footnote ⁷⁴ Estonia also emphatically opposed the qualified majority voting in the realm of taxation policy, along with the EU competencies expansion in this sphere.Footnote ⁷⁵ As Tunne Kelam stressed, the competencies given to the EU institutions were effectively to be understood as delegated or ‘on loan’ by the member states,Footnote ⁷⁶ arguing against the European super-state and for Estonia’s continuation as a ‘dignified nation state’ in a union of nation-states.Footnote ⁷⁷

In the meantime, Toomas Hendrik Ilves, in his capacity of the Estonian Minister for Foreign Affairs, maintained his belief that full participation in the Union’s Common Foreign and Security Policy (CFSP) would make Estonia’s ‘national foreign policy stronger’, as ‘[w]ith the weight of the EU behind us, we will be able to do more to pursue issues of vital importance to Estonia’.Footnote ⁷⁸ As he averred,

In this quintessential case for vicarious sovereignty, Estonia is deemed to be bound to practice its sovereignty by moving it up to the playing field of the EU – arguably in order ‘to be’ in the first place.Footnote ⁸⁰ An implicit tension between a ‘nation-states-Europe’ and a more congealed post-sovereign structure visible from the indicated positions of Kelam and Ilves was characteristic to Estonia’s practical sovereignty-dilemmas at the cusp of the EU membership more generally.

In Section 2.4, I will delve in further detail into two exemplary speeches which present distinct political visions for the future of Europe: Lennart Meri’s speech at the University of Turku on the role of small nations in the European Union (25 May 2000) and Toomas Hendrik Ilves’s lecture on constructing a new Europe at the Humboldt University in Berlin (5 February 2001). Such a choice is motivated by three reasons: first, the two highlighted interventions are among the most systematic and visionary political engagements with the European constitutional future debates in Estonia. Secondly, both engage directly with an earlier speech which marked the launch of the political debate over the future constitution of Europe – namely, the German Foreign Minister Joschka Fischer’s ‘From Confederation to Federation – Thoughts on the Finality of European Integration’ at the Humboldt University in Berlin (12 May 2000).Footnote ⁸¹ Last but not least, both Meri’s and Ilves’ interventions were delivered at universities, enabling them to appeal on academic freedom as a cloak for speaking more openly in personal, rather than official, capacity.Footnote ⁸² While these speeches come from a different era compared to today, they illuminate a critical juncture in Estonia’s political journey of ‘becoming European’.

2.4 European Future through the Estonian Looking-Glass

Lennart Meri’s speech ‘The Role of Small Nations in the European Community’, held at the University of Turku on 25 May 2000, makes a strong case for the democracy of Europe and the development potential of the European Community depending on the sustained diversity on the continent. Accordingly, keeping an optimal balance between large and small states appears as the key task for the demiurges of the European future as:

In this lecture, Meri focuses on the intensity of cultural and political transfers in the historical European space in order to shed light on this ‘little peninsula of the Eurasian continent’ having ‘managed to become the development engine of the entire world’. Through his trademark cornucopia of metaphoric and allegoric language, Meri’s Turku lecture is a powerful hymn to Europe’s cultural multitude and diversity, for the potency of Europe is deemed to lie precisely in being ‘different next to each other’.Footnote ⁸³ The performative power of the Turku speech act reaches a climax in Meri’s strong (if implicitly made) riposte to the then mulling ideas about a ‘multi-speed’ Europe led by a ‘core engine’ of France and Germany as an answer to the efficiency problem of the institutionalized Europe:

Accordingly, Meri maintains that Joschka Fischer’s eurofederalism should remain an ‘academic excurse’ rather than ‘find application in the real world’Footnote ⁸⁵ for, ultimately, ‘the ethical imperative of the European Union is in the fact that the common denominator on its diverse cultural palette consists of common values of democracy, one common goal, but every state will find its own way to achieve these goals and principles’ (emphasis added). Hence, small states should not be ‘run over’ in the debates over the future constitution and set-up of Europe, nor should the internal reforms of the EU take place on account of the expansion of the Union. Meri’s ode to state sovereigntyFootnote ⁸⁶ is tempered with a reminder of a special political mission of the small states, to make the voice of this ‘silent majority … heard loud and clear in the world and especially in Europe’. This mission has gained renewed significance with the expansion of the EU, for at the end of the day:

The Turku lecture is, therefore, an important prompt in the debate over the future political design of the EU, in characteristic defiance of what Meri had previously described as the feudal eurocentrism of European enlargement debates.Footnote ⁸⁸ Just as the issue of NATO and the EU enlargement per se, Meri’s intervention on the role of small states in the EU was to serve as a reminder that ‘Estonia is not a geographical object, but a constitutional subject’; nor is Europe (or should be) the court of Louis XIV where only the specially selected are invited.Footnote ⁸⁹

A much more federalism–sympathetic vision for Europe’s political future was put forth by the then foreign minister of Estonia, Toomas Hendrik Ilves, in his lecture ‘Constructing a new Europe’ at the Humboldt University in Berlin, on 5 February 2001. This intervention has remained perhaps the best elaborated Estonian political contribution to the discussion on the European constitutionalism – if emphatically delivered in personal, rather than state representative’s capacity.Footnote ⁹⁰ It is also the one most directly engaging in dialogue with Joschka Fischer’s inaugural intervention of the high-level political debate on the future of the European constitutionalism. In his Humboldt lecture, Ilves called for building on the eighteenth-century early American federalism as ‘the intellectual source … for the future of EU integration’, since:

Consequently, the lecture took a stab at ‘three issues of a fundamental nature’: namely, (1) the cultural and psychological adjustment of the old members with the new members, arguably ‘differ[ing] fundamentally from those in the present EU Member States as regards their national emotional traditions, experiences, interests and value judgments’;Footnote ⁹² (2) small vs. large members; and last not least; and (3) democratic legitimacy vs. effective decision-making. Instead of the deepening vs. widening dilemma of the Union, Europe’s future functioning, per Ilves, was solving the ‘core issue’ of keeping the EU legitimate, yet effective among subjects ‘of greatly differing size and economic power’. Ilves’s case is for the reconsideration of a federalist approach, to clarify ‘a fundamental misunderstanding about the meaning of Federalism and Constitutionalism’, on the one hand, and acknowledging that ‘the solutions offered by a federalist approach resolve rather than create the problems we fear’, on the other.

According to Ilves, then, if the EU had taken up issues that once were the sole prerogative of the nation-state by the agreement of all the member states, the citizen-to-state relationship emerged in the focus of the Union as a result. Thus, a move from the Union’s ‘sole reliance on the community method’ was deemed necessary, in order to ‘take into account the established norms of democratic decision-making that lie at the core of each democratic nation-state’s legitimacy’. To beat the Euroscepticism for the perceived lack of transparency, legal understandability and clarity of decision-making, Ilves made a case for a federalist approach – not in the last order to ease the structural tension between small and large constituent members. For Ilves, ‘the crux of the dilemma facing the finalité of Europe’ was in maintaining a similar sense of democratic legitimacy and transparency in EU decision-making that people were accustomed to within their own countries.

The model according to which to mould the enlarged EU parliament was accordingly to be sought from the first 150 years of the American federalism (or the federalism of John Jay, Alexander Hamilton and James Madison) rather than the contemporary American prototype. Hence, Ilves’s case for a two-chamber European Parliament, ‘to balance the legitimate democratic concerns of the Large (through a proportionally elected lower chamber) with the justified fears of the Small (by way of equal representation in an upper chamber of the legislature)’. For Ilves, a strong bicameral European parliament was the key to EU’s democratic legitimacy – yet remained unachievable as long as the single chamber model with semi-proportional representation was to be maintained.

Ilves further took an issue with subsidiarity (aptly described by Joschka Fischer in his own 2000 Humboldt lecture as ‘a subject that is … discussed by everyone and understood by virtually no one’). Bothered by the principle’s divine allusions to authority ‘from above’ due to the idea of subsidiarity originating from the Catholic Church, Ilves recalls the EU’s ultimate authority coming from the citizen – and, hence, the Union’s ability to appeal to the will of the electorate – and nothing but. A ‘Lockean-Rousseauan vision of bottom-up legitimacy’ was accordingly called for to replace the ‘Hegelian, trickle-down theory of government in which the higher body pushes decision-making downwards’ in order to ‘achieve that noble goal of a Europe of Citizens’. Subsequently, not just nation states, but really the citizens were to accede some decision-making upward to the Union.

In sum, besides engaging with ‘the dreaded “F-word”, that is to say, “Federalism”,’ Ilves called for a no-frills approach to the EU constitution:

An EU constitution, codifying the Union decision-making process according to a federalist model, was needed precisely for the aforementioned reasons, maintained Ilves. His Humboldt lecture remains a distinct Estonian contribution to the fleeting utopian moment of the European constitutional imaginary.

2.5 Conclusion

This chapter has probed a novel conceptual lens of vicarious sovereignty for making sense of the Estonian way of reconciling its long-coveted state sovereignty with its equally desired European belonging. In the wind of searching a secure international home for the Estonian state, vicarious sovereignty or the idea of elevated ontological security and international agency by pooling national sovereignty at the EU level emerged as the Estonian way of ‘becoming European’. Such a path was far from prescribed, nor has it been failsafe from the ‘neo-Westphalian’ backlashes which have recently emerged in the context of varying political sensibilities and responses to the migration pressures on the EU more widely.

The Estonian variety of constitutionalism and its European constitutional imaginaries hence raise the question of the broader applicability of the vicarious sovereignty concept within the CEE region and beyond. If the EU member states arguably feature three distinct varieties of constitutionalism – ‘post-fascist constitutionalism’, ‘evolutionary constitutionalism’ and ‘post-communist constitutionalism’Footnote ⁹⁴ – how does the concept of vicarious sovereignty fare in the constitutional regimes of other states with similar historical trajectories and their respective relationships to the project of European integration? The post-communist constitutions have been characterized as by and large more protective of sovereignty (hence, ‘souverainist’) compared to most of their Western European counterparts.Footnote ⁹⁵ According to a Sigrid Rehling Larsen’s trenchant assessment, post-communist constitutionalism beckons the return of ethno-nationalism to European constitutionalism for it is embedded in the notion of the sovereign power of the people (conceived of as the ethnically homogenous nation) as the source of all public authority.Footnote ⁹⁶

The concept of vicarious sovereignty and the Estonian practice of it in the run-up to the EU membership contests such a wholesale diagnosis. Compared to Poland’s and Hungary’s recent reservations about the limitation of sovereignty entailed in EU membership and thus the occasional viewing of the European project as a new form of foreign dominance,Footnote ⁹⁷ Estonia’s pooling of sovereignty has been publicly more effortless and enthusiastic throughout the accession process and membership, not least for the existential fear of Russia. Of course, resonating with the broader concerns over the EU endangering rather than protecting democracy, the Estonian national conservatives have similarly viewed the country’s ‘scaling up’ of its sovereignty to the level of the EU as a worrying sign of provincialization – potentially leading to the loss of sovereignty in toto and the collapse of the society in the long-run.Footnote ⁹⁸ Taken together, however, the Estonian interventions in the debate on the form and finalité of Europe considerably nuance, and at times disturb, a sweeping reading of the ‘imitation imperative’ and the ‘copycat mind’ of post-1989 Central and Eastern Europe.Footnote ⁹⁹

Nonetheless, the conceptual proposition of vicarious sovereignty calls for further empirical applications across other cases in the region, most immediately on the other two Baltic states. The Estonian case illustrates that small does not have to mean peripheral when envisioning the constitutional future for Europe.Footnote ¹⁰⁰ At a conceptual level, the idea of vicarious sovereignty in and through the EU could be potentially further explored in relation to Jennifer Mitzen’s notion of a ‘homespace’ – where home is conceived ‘as hearth and not container and borders as skin or membrane not wall’.Footnote ¹⁰¹ Juxtaposed to the other macropolitical idea of home – that is, homeland – homespace is accordingly conceptualized as ‘an articulation of “being with becoming”’ which is ‘located, but not reducible to its location’.Footnote ¹⁰² Just as the notion of homespace seeks to ‘loosen … the stranglehold of Westphalian territoriality on our political – and theoretical – imagination’,Footnote ¹⁰³ the concept of vicarious sovereignty stretches our understanding of the sovereignty games and paradoxes of a small East European state in the late sovereign European polity at the turn of a millennium.

3.1 Introduction

The aim of this chapter is to offer a study of the role of Europe (and European integration) in the Italian political and constitutional imagination. The argument tracks three discreet moments which have shaped the way European integration (and more generally the horizon of European political unity) has been perceived by Italian constitutional actors.Footnote ¹ In a first brief, but intense and crucial, phase, the position of the main actors identified ‘Europe’ as an horizon for political action. In this phase, the majority of Italian political and institutional actors partook an idea of Europe as a project for a federation or confederation for the exercise of collective political action. Central for tracking this commitment is to analyse how the political parties that organised the resistance against the occupying Nazi forces and the Fascists talked about Europe in their writings and newspapers. Europe is not the main or only political priority (any reference to Europe comes together with national and State reconstruction), but it is seen by most political parties as an essential component of collective political action. In brief, there is an implication that it is not possible to realise political freedom unless a constitutional structure (often imagined as federal) is organised at the continental level.

The second phase is marked by a certain level of displacement of Europe from the core of the constitutional imagination, or at least from the narratives that support the programmes of the political parties during the electoral campaign (in 1946) for the Constituent Assembly and (in 1948) for the first general elections. This phase began in 1946, but it provided a framework that would apply until (at least) the Single European Act in 1986. This phase saw the adoption of a neutral (and rather invisible to the public opinion) image of the European Economic Community, but it is important because it paved the way for the hegemony of a specific way of looking at Europe that would emerge with the fall of the Wall.

The third phase brings Europe back to the centre stage, but this time as an ‘external bound’ for domestic political power. Collective political agency is limited, when not quashed, by inputs coming from the European Union and its governing staples: the governance of the economic and monetary union. At this stage, in the imagination of the majority of Italian political actors, Europe has nothing to do (anymore) with enabling political agency. It constitutes an important point of reference for the activity of governing society because it is perceived as authoritative and as a vector of modernisation, though it is an essential component of a frightening move toward political passivity. Tellingly, the main act of political resistance, usually coming from the right-wing side of the parliamentary spectrum, becomes one not of political action but of victimisation. As a consequence, the horizon of constitutional imagination shrinks remarkably: either Italy should do its homework as demanded by ‘Europe’ or Italy is a victim of Eurocrats and can only suffer their diktats.

There are several lessons that can be learned by reconstructing the different narratives that animate Italian constitutional imagination and its relation to Europe. The argument of this chapter is based on the assumption of the material context that breathes life into different political and constitutional imaginations: based on the concept of the material constitution, it entails that the development of a constitutional imagination is based on the struggles around the organisation of social production and reproduction.Footnote ² Furthermore, following recent research on the formation of constitutional imaginations,Footnote ³ I will assume that the way we understand the value (and assess the potential) of political action is internal to the constitutional imagination itself. In this sense, the constitutional imagination of Europe is not an ideological supra-structure that emerges out of an already established material organisation. To the contrary, political action is part of the struggle for the formation of the spectrum of constitutional imagination.

3.2 Questions of Method: Narratives

Before moving to the analysis of the first phase (the resistance and the end of WWII), it is necessary to step back and explain the approach adopted in this chapter. The reconstruction of the shifting place of the European Communities (and later the European Union) in the Italian constitutional imagination is indeed premised on some methodological assumptions which can only be briefly sketched out in the following paragraphs.Footnote ⁴

Constitutional imagination is a way of giving form and meaning to the political order of a society. Martin Loughlin provides an insightful starting point when he notes that ‘[t]he constitutional imagination refers to the manner in which constitutions can harness the power of narrative, symbol, ritual and myth to project an account of political existence in ways that shape – and re-shape – political reality’.Footnote ⁵ The idea is that perceptions of reality are impacted (and fundamentally organised) by the operations of the faculty of imagination. Constitutional orders are no exception to this rule. The way we tell stories and narratives, or re-interpret myths, about the origins or the directions of a constitutional order are ways of moulding the latter. The struggle around the formation of the constitutional imagination is, therefore, a political struggle by definition. It is possible to push Loughlin’s point further: it is not only that constitutional orders can borrow the political energy provided by narratives, symbols and myths. It is also the case that, following Robert Cover’s iconic statement, ‘[f]or every constitution there is an epic, for each decalogue a scripture’.Footnote ⁶ This point brings with it two dimensions. On the anthropological level, narratives and myths are not seen as irrational folklore, but as a necessary component of the social condition. On the level of political action, the immanent presence of narratives and myths is also a source of constant proliferation of competing perspectives. In fact, the origin and development of constitutional orders cannot be severed from their narratives and the conflicts that developed around them.

The reconstruction of the constitutional imagination is a daunting task. As highlighted by the given quotes, the constitutional imagination of a social group cannot be neatly separated from social imagination itself. Moreover, there is nothing like an available and stable monolithic constitutional imagination. Part and parcel of the logic intrinsic to constitutional imagination is that there are, unavoidably, competing visions of how an order ought to be conceived in terms of its past, present and future.Footnote ⁷ As Cover noted, there is a jurisgenetic push behind the proliferation of narratives and myths in the interpretation of constitutional orders. For example, understanding a political order in terms of a system or as a project has profound implications over the operations of constitutional actors.Footnote ⁸ The interpretation of a constitutional order might swing between different conceptions according to the age. Furthermore, even in the presence of commonly recognised symbols and values, their interpretation will necessarily generate alternative and often incompatible visions. Let’s insist on this point: an inherent component of the constitutional order is the struggle for the formation of its imagination. If constitutional law is a ‘bridge’ that connects two states of affairs, the imagination constitutes the building material of the bridge. In other words, imagining is an inherent component of ordering.

3.3 Questions of Method: Subjects

These points suggest that the formation of constitutional imagination is a battlefield with many actors involved and it is not external to the wider social imagination.Footnote ⁹ Given the complexity of the task it is mandatory to narrow down the scope of the investigation. In what follows, I will focus only on narratives put forward by the most important political actors in Italian constitution-making: political parties. A caveat has to be inserted at this stage. It is indeed a relatively accepted thesis that mass political parties were crucial players in the reconstruction of Italy after the end of WWII.Footnote ¹⁰ Parties assumed constitutional relevance as the transmission belt between the State, its apparatuses and civil society. The prominent role of the political party in the Italian constitutional order was already a topic of debate among public lawyers during the Fascist age and the attention paid to their development did not stop with the end of the Fascist regime.Footnote ¹¹ Political parties were the crucial actors during the last phase of the war for the establishment of the new Italian government after the armistice with the Allies (September 1943). They were also the point of reference for communication with the Allies. Last but not least, they were the main organising forces of the resistance in the North of Italy after September 1943, where Germany had established a new ‘Social republic’, with a government based in the Lombardy region, whose head of government was, again, Mussolini (this time, however, imposed by Germany). To cut a long story short, political parties were the main organising force of what was, de facto, a double war: a war of liberation from the foreign occupant and a civil war between the Italian fascist government and Italian partisans undergoing in the North of Italy.Footnote ¹²

It should be added that, in 1945, the centrality of political parties is far from being an Italian peculiarity. Indeed, political regimes organised around competition between parties were spreading across Europe, though the crisis of 1929 generated a backlash with the rise of the single party system. Yet, the political party, whether in a single or multiparty political system, provided the centre of gravity of many European political systems. Though political parties were not the only organised collective subjects in the newly established republican political regime (trade unions were also well-organised and effective), they played a crucial role in the constituent process and, later, in the application of the constitution. Rather correctly, the republican political regime has been defined as ‘a republic of parties’.Footnote ¹³ The capacity of parties to organise political action was quite successful and effective in different spheres of the Italian society: from the workplace to education and healthcare, from industrial politics to new forms of social security.Footnote ¹⁴ The political and symbolic capital cumulated through the resistance made possible, at a certain point, to put forward a credible narrative of the new constitutional order as a project (the turning point could be located around 1958) with a set of narratives and myths that would be capable of mobilising ample sectors of the population for a couple of decades.

The transformation of the organisation of political parties into catch-all parties and, later on, into machines for capturing electoral consent and distributing privileges (with the annexed loss of representativity)Footnote ¹⁵ is a relatively recent development whose consequences for the constitutional order are becoming increasingly visible. Formally speaking, political parties are still the ‘bearers’ of the constitutional order and, in this sense, their strive for shaping the collective political imagination is still of some relevance. But one can doubt whether they are still capable of generating enough political energy for interpreting the constitutional order as a project. Given the focus of this chapter on Europe, the latter point is of remarkable importance. As we shall see, there is a direct connection between the place of the idea of Europe within the Italian constitutional imagination and the changing function of political parties. An analysis of the place of Europe within that imagination also teaches an important lesson on the subjects that steer the governing function. Post-Maastricht, though political parties retain a crucial role as the main conduit of inputs coming from other sources, they have lost their grip on the constitutional imagination in favour of other (often technocratic, but also economic) elites. A proof of this incapacity is the failure of the two formal attempts to change large parts of the written constitution in 2006 (under the impulse of the Berlusconi government) and in 2016 (under the initiative of the Renzi government). In both cases, the governing parties were not able to convince the citizens to vote, in a constitutional referendum, in favour of the constitutional reform.

The rest of the chapter will focus on the narratives adopted by the main political parties during crucial moments of constitutional development in Italian history. I will look at their political programmes, documents and sometimes official declarations published with a view to track the salience and the function of the relation with Europe and the perspective of political and economic unity on the continent. This investigation is far from exhaustive, but it will allow us to show that the change in the constitutional imagination of political parties corresponded to a change in the self-perception of their role in the national and supranational orders. Accordingly, Europe’s place in the constitutional imagination mutated as well. The main thesis guiding this reconstruction is that Europe became a different signifier according to the self-perception of the political system’s capacity for agency.

3.4 1943–1945: The Federation in the Writings of the Resistance

The obvious starting point for understanding the place of Europe in the Italian constitutional imagination is the resistance organised by the political parties initially ostracised by the Fascist regime, after the armistice in September 1943. The relevance of that resistance for the liberation of Italy and its role in the formation of the republican constitutional order have been subject of academic and political scrutiny for decades.Footnote ¹⁶ The impact of that movement is still a matter of controversy, and this is not surprising as, among many other things, the legitimacy of the origin of constitutional order is at stake. The thorniest issue concerns the role of the resistance as the main inspirational source of the new republican constitution. It is often said that the crucial function of the resistance for the liberation of the country and the influence over the proceedings of the constituent assembly is a myth (inspirational or evil according to the point of view) because, ultimately, it was only thanks to the intervention of the Allies that the country was liberated from the Nazis and the Fascists. Whatever the assessment, there is no denial that the protagonists of the organised resistance had been the political parties (six, in this specific case) banned by the fascist regime and these will later be the main constitution-making actors. They benefitted from the political capital they cumulated by fighting in the North of Italy and from their organisational capacities. The combination of these two factors made these actors the bearers of the constitutional order and, in that capacity, as steering agents of the public opinion.

The Resistance movements produced (with one important exception) a narrative about Europe through the publication (often clandestine and illegal) of pamphlets, newspapers and journals which would have the task of persuading the population not only of the necessity of fighting Nazi-Fascism, but of the virtues of a politically united Europe. The importance of these writings has been rightly emphasised. They do provide the main materials for tracking how these movements of resistance and political parties would see themselves in the future constitutional order. The importance of the Resistance writings cannot be overestimated in the reconstruction of the role a united Europe played in their constitutional projects. This is valid not only for Italy, but for all European movements of resistance, as noted by an historian of European integration:

Indeed, the call for a European federation was a transnational phenomenon shared (though not unanimously) across many sectors of the Resistance across the continent. As noted by Walter Lipgens,Footnote ¹⁸ there were many parallels between the documents produced by the Resistance about Europe and its future. The Italian Resistance was part of wider constellations of movements whose activities and publications presented certain common traits around the question of the future of Europe. It was not only the Italian parties of the Resistance which identified in the political unity of the continent a precondition for the restauration of democracy and the realisation of political freedom. This was a position shared by many movements and parties at least until 1945. It is known that documents and manifestos were circulating among multiple resistance movements, creating a dialogue between national experiences. There were also conferences organised (especially in 1944) for exchanging ideas and putting pressures on the Allies by advocating for the need of a European federation.

An analysis of the documents and key publications by members of the resistance and, most importantly, of the political parties shows that the commitment to economic and political unity of the continent was a position shared by all non-communist political forces. The source of this conviction is to be found in the common fight against Nazism and Fascism. The opinion of many political actors was that this fight created a bond of solidarity among European peoples that made political unity not only possible but necessary. It is not surprising that the totalising nature of the war was perceived as a turning point and a unique political opportunity.Footnote ¹⁹

This narrative (of the necessity of European political unity) is adopted and developed following the same thread in many countries. In Italy, the activity of publication and propaganda in favour of a European federation developed against the background of the drafting of the Ventotene manifesto by Altiero Spinelli, Ernesto Rossi and Eugenio Colorni.Footnote ²⁰ It is fair to say that this is the most influential document produced during WWII in support of a European federation and it gave birth to a strong (but, in the long-term, not majoritarian) federalist movement. An investigation into the perception of Europe in the imagination of Italian political parties cannot but begin from here. As known, Spinelli and his co-authors drafted the Manifesto in 1941 while under arrest and in confinement on the small island of Ventotene. The document started with a harsh critique of the national State and claimed that only a supranational federation could provide the institutional architecture for peace and political freedom. In brief, their narrative was based on the displacement of the main conflict between left and right with the conflict between the national and the supranational. However, the Ventotene Manifesto was not the product of an organised political force confident about its constituent capacity. It is for this reason that the Manifesto contains an a-political view of the European federation. Written under the shock of the success of the Nazi army and the collapse of continental democracies, the Manifesto does not convey a particular optimistic message about collective political action. It is probably this cautiousness that later made it into a classic point of reference for the federalist side.

Be that as it may, the manifesto served as catalyst for the rise of a federalist movement which was created in 1943 with the aim of building a transnational network of political forces in support of the creation of a European federation. This aim translated into a specific operative approach: influencing the choices and the positions of key political parties, with a special emphasis on their youth sections.Footnote ²¹ The movement also published a (clandestine) journal (L’Unità Europea) with interventions from some of the most prominent and respected supporters of the federalist idea. In the second issue, one of the co-authors of the Ventotene Manifesto explained that the solution of the problems affecting Europe was to create political unity on a continental scale and invited all political forces to work together for a ‘European Revolution’.Footnote ²² Behind the project of a continental political unity there was the idea of a third regional force, relatively autonomous and distant from the two rising super-powers, the United States and Russia.

The cultural and political activity of the Federalist Movement achieved important outcomes in two cultural areas: the leftist liberal and a section of the socialist party. The first one gave rise to the Action Party (Partito D’Azione), which gathered many intellectuals and partisans and adopted from the very beginning a pro-European and federalist position.Footnote ²³ In several documents, often written by Spinelli, and circulated in 1944, with the fear of an increasing influence of the Allies over the future of European unity, the Action Party proposed to operate the alliance among the resistant political parties on two tracks: a national one, revolving around the administration of the future Italian republic, and a supranational one, with a clause to be inserted in the future constitution of a transferring of sovereignty to a democratic European federation.Footnote ²⁴ Part and parcel of the narrative put forward by the Action Party publications was insisting on the timeliness of European political unity but, unlike Spinelli’s approach based on the primacy of the supranational, most of the writings maintained that the supranational was functional to national reconstruction.Footnote ²⁵

The impact of the federalist movement was possibly even more felt on socialist political culture. Before 1943, only a few (eclectic and heterodox) members of the party were advocating a federalist outcome.Footnote ²⁶ As it could be predicted, socialist international solidarity would not represent a sufficient ground for the autonomous value of a European political federation. For this reason, the fact that, during the period starting from 1943, the publications of the Socialist party addressed the federal question with a certain radicality is quite remarkable and, possibly, a proof of the penetration of the Federalist movement’s ideas within the party. Of course, the socialist party still considered the socialist revolution as the ultimate end of its political organisation but, from 1943, in many sectors of the party, the European federation came to be seen as a necessary step towards a socialist upheaval. The official position of the party was expressed in the Political declaration of 25 August 1943, published in the clandestine newspaper L’Avanti, where we can read the following: ‘the Socialist Party rejects policies of political isolation and economic autarchy, and it considers international solidarity of proletarian parties as an essential element of their action. International solidarity is an instrument for the promotion of a politics of peace and it should work toward the transformation of Europe into a free federation of States’.Footnote ²⁷ Moreover, the interventions of Eugenio Colorni on the same newspaper during 1944 insisted on the opportunity, for the strategy of the socialist party, of committing to the project of a European political federation. The argument acquired a certain traction within the socialist party because the federation was deemed to be the institutional guarantee for the redemption and autonomy of European peoples in their relationship with the Allies. In other words, for the Socialists, a popular, socialist and European political initiative was the only realistic platform which could not be captured by the reason of State of the Allies. The latter could have allowed the formation of a European unity, but this would have been an operation orchestrated ‘from above’.

The third major political force that produced a stimulating activity of publications and political propaganda in favour of a European federation was the Christian Democratic party. Although the elaboration of the party’s position on the supranational question came slightly late compared to the other two parties (at the moment of the reconstitution of the party, in 1942, the major concerns were related to the status of the social doctrine of the Church), the Christian Democrats endorsed the prospect of some form of political cooperation or unity early on. Already in the first manifesto of the future programme of the party, the international question was treated as a crucial one (under the auspices of a refoundation of the international order). However, the constitutional form to be given to the cooperation among European states was subject to different proposals within the same party. Publications on clandestine newspapers show an array of options that would go from a fully-fledged political federation to a classic confederation among States, and a different geopolitical identification of the position of a European polity. In certain articles, European political unity is a way of organising the relation between the South of Europe and the wider Mediterranean area; in other proposals (against the Atlantic option supported by the party leader, De Gasperi), aware of the future role of the USSR, the suggestion was to build up a confederation open to the participation of Eastern States (in order to favour cooperation with the Italian Communist Party).Footnote ²⁸ Overall, while in the socialist field those who supported a European federation deemed it necessary for achieving socialism, in the Christian democratic area, the push towards some form of European political unity was dictated by the recognition that security for citizens could not be delivered only at the national level, but required cooperation and concerted action at least at the regional level.Footnote ²⁹

In the context of Italian resistance, the only party that maintained a cautious and often critical stance towards the idea of a European federation was the Communist Party. The questions of national reconstruction and international cooperation were, for the Communists, a priority; and they often saw, in the federalist ideas, a trojan horse for the containment of communist goals.Footnote ³⁰ Politically, there were two reasons behind the scepticism towards European unity. First, since 1934 the Communist Party had adopted the position of the Comintern on the fight against Fascism: popular and patriotic fronts with international cooperation. Second, the Communist Party’s leaders feared that a United States of Europe would be heavily bending towards the Atlantic. These motives explain why the two main publications (printed in clandestinity) of the party (L’Unità, a newspaper founded by Antonio Gramsci, and ‘La Nostra Lotta’) dealt with the questions concerning Europe with caution. A review of the pages of L’Unità shows that not a single article, from 1943 to 1945, is exclusively devoted to the topic of the political future of Europe. When the European question was touched upon, it was in articles devoted to other international topics: the Yalta conference, the recognition of the government of national unity by the USSR, the third Moscow conference held in 1943. Often, these nods to the potential for a European political unity are dismissive of it as a project with a classist basis. Parallel to the marginal space devoted to the European federal question is the extended coverage of Federal Democratic Yugoslavia, the antecedent of the Socialist Federative Republic of Yugoslavia. In the analyses dedicated to Yugoslavia, the federal question is given a social spin: the Federation of Yugoslavia is lauded because it has already advanced on the path towards socialism and, in that case, the federal basis of the constitution protected the equal rights of all peoples.Footnote ³¹ In short, the question of federalism was addressed (in positive terms) only for the constitution of the USSR and Yugoslavia. Overall, the Federalist movement’s project for a European federation did not have much of an impact on the leadership of the Communist Party.Footnote ³² As we shall see, ultimately the Communist party advocated the priority of the issue of national reconstruction within the framework of an international cooperation among peoples.Footnote ³³

It is time to take stock. The experience of the Resistance against the German occupants and the Fascists produced a constitutional subject (with constituent legitimacy) comprised of six political parties (those banned by the Fascists in the 1920s). Their clandestine activity during the occupation of the North of Italy suggests that (with the exception of the Communist Party) the ideal of European political unity was part of their vision for the future constitutional order of Italy and Europe. Some themes recur in many of the documents circulated by these political parties: the creation of supranational institutions with democratic basis; the strengthening of economic cooperation; in a few cases, even the creation of a European army. The narratives put forward by the Resistance movement suggest that the ideal of European political unity was often treated as an autonomous political and constitutional theme, though sometimes linked to the security of the nation State. Yet, these ideas were developed in a situation where they did not have to be tested against the external context of international relations. This lack of a political test diminished the symbolic legacy of these projects. While it was evident that the partisans’ exposure to sacrifice was linked to a project of national liberation from both the German occupant and the Fascist government, it was not equally manifest to all involved actors and the wider public opinion that partisans’ activities were symbolically connected to the construction of a European political unity.Footnote ³⁴

Partly because of their abstract formulation, partly because elaborated in a precarious and mutating international context, all these writings and dialogue over European unity did not lead to any political achievement in the short-term (and, for what it is worth, the long-term). They informed the constitutional imagination of the new political system, but they did not have the chance to become ‘embodied’. More specifically, the project of European unification did not remain central to the collective imagination of those parties after the end of the war. Already in 1946, the topic was not at the forefront of the concerns of many European political parties. Italy was no exception. We turn now to an analysis of the place of European integration in the Constituent Assembly and during the first decade of the new republican constitutional regime.

3.5 1946–1957: European Integration by Stealth

The end of the war signalled the beginning of a process which would make the European question less visible in the public and political debate. It is difficult to track the causes of this process with absolute certainty. A plausible, but not definitive answer, is that the quick mutation of the international context made the difference and frustrated the chances of a European federation. Accordingly, what was at the core of the various parties of the resistance as a constitutional project soon became sidelined in favour of other ‘international’ themes. As already noted, the communist parties of the resistance mostly adhered to the Soviet interpretation of the strategic value of a European federation. This interpretation seemed to be confirmed by the approval of the Truman doctrine (and the Marshall plan of economic aid) and the rise of centrist political parties in what will be the six founding Member States clarified what was the available political space for a supranational community. We should be clear that it is not the case that these political parties stopped supporting the option of a form of European cooperation. It is just that the latter started to be understood as a union which would solidify the connection with the United States.Footnote ³⁵

In Italy, the sidelining of the European question can be seen in the path that led to the writing of the republican constitution and, especially, on the formulation of the crucial article that regulates the relation of the constitutional order with international law and organisations. The consensus surrounding the writing and final adoption of Article 11 (crucial for the definition of Italian’s foreign policy) is telling. Indeed, the division between the Christian democrats and the communists (with the socialists having a slightly more nuanced position) was also reflected on the more general theme of the relation between the Italian constitutional order and international law. In the preparatory committee for the first draft of the constitution (known as the Committee of the 75),Footnote ³⁶ the divergences were visible and openly expressed. Communists and socialists were suspicious of an opening of the constitution toward international law for strategic reasons. They were convinced that the international law that was emerging through the United Nations was not favourable to an internationalism of the workers. For this reason, they conceived of international law as a set of treaties signed by sovereign States.Footnote ³⁷ For the socialist and the communist parties the political unity of the Continent had to be grounded on the unity of workers.

Although the reasons behind the adoption of Article 11 were different, but all major political forces were able to converge on a highly abstract formulation of a principle of constitutional openness towards the international legal order: ‘Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations. Italy promotes and encourages international organisations furthering such ends’. Following the advice of the subcommittee, the formulation of the article remained rather vague and it committed the republic to a pacifist approach to international relations and law. The article also expressed a generic favour for membership of international organisation without specifying its nature and telos. Recent research has shown that it was possible to converge on such an abstract formulation and, despite the deep division that was emerging with the incipient Cold War, in virtue of an agreement among all constituent parties to leave international relations outside of constitutional politics (though it would still be a central matter for ordinary politics).Footnote ³⁸ A feature of this agreement was that the programmes presented by the majority of political parties remained silent on the international and regional dimension of the future constitution.Footnote ³⁹ An exception was represented by the Action Party and the Republican Party which mentioned (again, rather vaguely) the principle of international cooperation. This was, as we have seen, in stark contrast with what the same political forces were advocating between 1943 and 1945.

It should be noted that, both in its first formulation and in the final version, in Article 11 there is no reference to Europe. If this might be thought of as a natural outcome given that the process of integration had not yet started,Footnote ⁴⁰ it is rather surprising when one bears in mind the centrality of European cooperation for the parties of the resistance. In fact, the fate of Europe was still present in the public debate and it was mentioned several times during the debates in the Constituent Assembly. Amendments in favour of an explicit reference to European international organisations were proposed by a member of the Christian Democratic Party and a member of the Socialist Party. Both proposals were rejected on the basis of the argument that the reference to international organisations would cover regional organisations as well. Other references to the possibility of future European integration were made during the debates in the Assembly.Footnote ⁴¹ One can already track different visions of European integration from these interventions: from the classic reference to the Ventotene Manifesto to a confederal understanding of European unity. In other interventions, a functionalist conception of integration was formulated with a view to advocate the construction of a European market and the abolition of tariffs.

Article 11 was interpreted already by the first republican parliament, whose majority gave a wide scope to its field of application. In this sense, the aim of the article ought to be read in expansive terms, that is, beyond the references to peace and the containment of armed conflicts. The parliamentary majority hinted to the fact that membership in international and supranational organisations had to be seen as a legitimate and constitutionally desirable way of pursuing peace.Footnote ⁴² This constitutional attitude indicated a default position of constitutional openness towards supranational and international norms. Unless convincing evidence was brought to demonstrate the potential dangers of membership in an international organisation, the constitution was interpreted by the political majority as always supportive of international law.

However, one can track a different path for the process of European integration that did not apply to the ratification of other international treaties. It is quite telling to compare the parliamentary reaction to the CECA treaty and the adoption of the ECHR, on one hand, and the NATO treaty on the other hand. In the latter case, the option of adhering to the North Atlantic Treaty was seen as a highly political choice in a world increasingly polarised between loyalty toward the United States and the Soviet Union.

In the context of the political culture of the Italian constitutional order, the position of the PCI (the Communist Party) was rather distinctive and a quick look at it will help in explaining why the path of European integration was judged, at least in the first years, as constitutionally irrelevant. The vote of the communists against the CECA treaty and then the Rome Treaty (instituting a common market) was representative of a significant part of the Italian electorate. It should be added that the Socialist Parties abstained during the vote for the ratification of the Rome Treaty, making the inception of the process of European integration an affair of majority politics rather than a constitutional issue. In fact, the communists were not against the idea of further integration in Europe but they disagreed over two essential issues. First, the idea of Europe underlying the Rome Treaty was judged to be too divisive and, potentially, contrary to the aim of bringing peace to the continent as stated by Article 11 of the Constitution. In a famous intervention on the Communist newspaper L’Unità, the leader of the Communist Party (Palmiro Togliatti) made clear that the idea of Europe promoted by European integration was heavily inclined towards Atlanticism and, for this reason, prone to cause division and conflict among European nations. The Communist Party, he noted,

The Communists were worried about the economic impact generated by these treaties. They thought, for example, that the CECA treaty was part of an agreement between monopolistic groups derived from the Schumann plan and that it would have impacted countries like Italy in a negative way. Moreover, the Treaty would exclude the countries under the influence of the Soviet Union, blocking potential economic collaborations between the two rising blocks.

The vote against CECA of the Communist Party was the beginning of a season of opposition of that party against European integration. But the organisation of the discussion in Parliament and the following vote of ratification moulded the perception of European integration within Italian constitutional imagination. The constitutional question of the compatibility of the Treaty with the republican constitution was sidelined by key political actors. The report submitted by the executive in support of the proposal of ratification of the treaty was utterly uninterested in the constitutional basis for the adoption. The document was simply silent on the constitutional question, implying that the ratification of the Treaty was not of constitutional relevance. In the Senate, however, the question of the correct constitutional basis for the ratification was posed by arguing that the ECSC was not pursuing the aims stated in Article 11. Moreover, the political opposition demanded, in the lower chamber, that the ratification should take the form of a constitutional statute and not an ordinary one.Footnote ⁴⁴ In the ensuing debate, the political majority minimised the issue, highlighting that the new international organisation granted conditions of reciprocity to its members and that the birth of every new international organisation would require a loss of sovereignty. The reply in the lower chamber by the spokesperson of the political majority tended to minimise this loss and, more generally, the impact of the Treaty on the Italian constitutional order.Footnote ⁴⁵ Ultimately, this interpretation of the first step of European integration paved the way for two important tenets concerning the position of Europe within the constitutional imagination. First, there was no problem of compatibility between the aims of Article 11 and the rise of a regional organisation based on the common management of certain resources and, later, on a common market. Second, by minimising the impact of European integration (with the aim of de-escalating conflict between political parties), the political majority and the executive built the premises for what would become ‘integration by stealth’. In other words, it is thanks to this important antecedent that the constitutional question on the legitimacy of European integration was first minimised and, later, made almost invisible. It is also thanks to this decision (and to the structure of the Italian judiciary) that the process of introjection of European norms was channelled, for several years, by the lower bodies of the judiciary.Footnote ⁴⁶

The same approach to Article 11 was adopted at the time of ratifying the EEC and Euratom treaties. Although those treaties clearly widened the scope of European integration, their impact on the Italian constitutional order was minimised by the government with the support of the political majority. In both chambers the constitutional question of their legitimacy was briefly discussed, but the answer from the majority was to belittle the significance of the loss of sovereignty requested for the adoption of those treaties. The ratification of the EEC treaty sealed the Italian constitutional approach to European integration and succeeded in excising any questions of constitutionality from the horizon of available political options. Given the opposition of the Communist Party and the scepticism of the socialists, the political majority built around the party of Christian Democracy could not pursue the path of constitutional reform (as the majority required would be two thirds in both parliamentary chambers).Footnote ⁴⁷

This established practice made European integration so invisible to the eyes of political actors that even the approval of a major transformative treaty like the Maastricht treaty went almost unchallenged. The ratification of the Maastricht Treaty represented both the pinnacle of the introjection of primary EU law by stealth and, at the same time, the beginning of what we have termed the third phase, that of Europe as a benevolent external bound. In the parliamentary debate for the approval of the Treaty, only one objection to the constitutionality of the Treaty was raised (from the extreme right-wing of the parliamentary spectrum) and in relation with the lack of reciprocity in light of the opt-out clauses granted to the United Kingdom and Denmark.Footnote ⁴⁸ A few doubts on the capacity of Article 11 of providing the basis for the Maastricht treaty were raised, but once again the strategy of the executive (supported by a wider majority in Parliament as, in the meantime, the former Communist Party had become supportive of European integration) was to promise (in vague terms) to undertake the necessary initiatives for making the Treaty compatible with the Italian constitution. Yet, nothing was done after the ratification of the Treaty. The same happened for the ratification of the Constitutional Treaty and then the Lisbon Treaty. This strategy of internalisation of EU primary and secondary law was also cemented by the silence of the Constitutional Court which never called for the need of a constitutional reform for further integration.Footnote ⁴⁹ But, in terms of the constitutional imagination, something had changed after the Maastricht Treaty. It is worth pausing and unpacking the changing context which brought about the change.

3.6 Europe as an External Constraint (‘Vincolo Esterno’)

While European integration did not often make it into newspapers’ headlines and many of the constitutional debates during the first decades of the republican constitution ignored it, the political system and other domestic institutions (like the newly instituted Constitutional Court) had to apply the constitutional document (often in conflicting ways) when they had to relate with European norms. Many important reforms were approved by statutes (that is, by Parliament), often with a lively dialectic between the political majority and the opposition. In certain key areas of societal organisation (labour markets, schools, health care system, social security system), the narrative was one of active implementation of the constitutional project, and the intensity of the conflict during the 1960s conveyed a message far from political passivity, which also actively involved several social movements (labour, students, women).

This period of political mobilisation lasted for a decade. It brought about several social and legal changes which would entrench certain interpretations of the republican constitution (especially on civil and social rights).Footnote ⁵⁰ However, the end of a cycle of remarkable economic growth, the sudden and conspicuous rise of inflation and the emergence of terrorist organisations with their violent attack against institutions and symbols of the republic marked the end of that phase of constitutional development. These material and political changes created the conditions for the formation of a new public discourse. By the end of the 1970s, the seeds for a new narrative around the Italian political system had been sewn. Domestically, the analysis of the Italian political system as incapable of deciding became central in the political debate and, in brief, it involved public lawyers as well under the question of how to build a ‘deciding democracy’. A narrative initially confined to certain neo-liberal and conservative circles acquired increasing traction in the public debate. The main features of that narrative concern two important points: first, a growing distrust of the political class generated by the diffuse political corruption and the incapacity of political parties to realise major social and economic reforms (under the idea that the Italian economy was stagnating by the end of 1970s and needed an injection of economic reforms); second, the organisation of political institutions and powers as dictated by the constitution was stigmatised as the cause for the perceived absence of the governing capacity. More specifically, the parliamentary basis of the form of government and the plurality of political parties comprising the political system were taken to be the cause of a weak decision-making system. A consequence of the rise of this interpretation of the malfunctioning of the constitutional system was the emergence of a discourse around constitutional reform or, even, a new constituent assembly. The call for a constitutional reform with at its core the strengthening of the executive and in particular of the government was already a symptom of the weakening capacity of traditional political parties to steer the political direction of the government. Several attempts were made for a formal change of the second part of the constitution (on the organisation of powers), but none was successful. Possibly, this failure enhanced the perception of the decreasing political power of parties.

It is at this point that a new narrative element was introduced in the public debate and it will successfully transform the perception of European integration in the constitutional imagination. Revealing of the new forces influencing the political imagination, a new idea was coined by the then President of the Bank of Italy – Guido Carli – and supported by the highest State officials. The idea was to build a narrative about the so-called external constraint (‘vincolo esterno’).Footnote ⁵¹ Tapping into a tradition of Italian political thought, often afraid of the foreign imposition of political will over the peninsula, the idea was quite simple: the Italian constitutional order and certain sectors of the State ought to be transformed by binding politics to rules and benchmarks set outside of the ordinary domestic political process.Footnote ⁵² The underlying assumption was that the main political actors and the constitutional organisation of powers could not muster enough political power for achieving changes deemed to be necessary. In other words, according to the ideologues of the external constraints, the political system did not have a full governing capacity anymore.

As was the case for the period after the drafting of the republican constitution, the shaping of the constitutional imagination was heavily influenced by international events. The end of the Cold War, the fall of the Berlin Wall and the inception of a new economic globalisation were among the causes of the collapse of the political parties that wrote and applied the republican constitution. By 1993, the parties that wrote the constitution had almost completely collapsed, new political subjects emerged, the Maastricht Treaty had been voted and the first steps toward a new wave of globalisation had been undertaken and more were developing. While in the first phase of the republican constitution, the external constraint had been operating on the basis of international relations and it was represented by the Atlantic alliance, the new external constraint was now identified in a more integrated European Union. But, while the limits imposed by membership of NATO did not impede domestic political action (or at least, it was not perceived to be directive of domestic political action), in the case of the new European Union and the introduction of the path toward the single currency, the impact on the perceived capacity of acting domestically in an autonomous way was quite remarkable. The trauma of the end of the so-called First Republic was compensated by a new narrative which portrayed political actors as deprived of real political agency even over crucial domestic issues. The conditions attached to the participation in the single currency and then the conditions imposed in order to remain member of the Eurozone shaped the constitutional imagination in profound and remarkable ways.Footnote ⁵³ The ideologues of the ‘external constraint’ inspired the negotiating strategies of the Italian representatives during the process leading to the approval of the new single currency and the creation of the European Central Bank.Footnote ⁵⁴ Many domestic reforms (salary moderation, privatisations, liberalisations, pensions reform) were also voted and implemented quite rapidly during the second half of the 1990s. But the impact of the narrative of the external constraint would be felt even more during the following decade, leading to the formation of technical governments (lead by former central bankers or former European Commission members) when the political system could not deliver on the aims and conditionalities decided at the supranational level and the constitutionalisation of the principle of sound budget after the 2008 crisis (art. 81 of the constitution).

The culture of the external constraint has shaped the imagination of the main political actors by framing the available options on the table. For the moment, the majority of the actors in the political system still support the idea that the political programme coming from the external constraint has to be introjected into the Italian legal order and one of the key tasks of political parties is to make sure that this agenda is pursued. It is not surprising that the hegemony of this attitude generated a perception of inevitability of certain measures and the corresponding decline of political agency (at multiple levels). It is also not surprising that the reaction against the narrative of the external constraint has taken up the form of the victimisation of Italy and its citizens. This is the other side of the coin of a constitutional culture where only guarantee institutions and external powers (e.g., the European Commission, the EMU, Germany) are deemed capable of sending proper inputs into the political process.Footnote ⁵⁵ However, the victim-like pose adopted by certain political actors took up a conspiracy-theory rhetoric rather quickly: it is the Brussels’ bureaucracy or elite that wants to dictate to Italians what they should do and how they should live, as if the project behind the external constraint was only a ‘supranational’ project pursued by obscure bureaucrats for reasons that, ultimately, cannot be easily retrieved.

3.7 Conclusions

An inquiry into the place and meaning attributed to the ideal of European political unity by the Italian constitutional imagination provides several important insights. The most important one is that the struggle for constitutional imagination over Europe allows one to track a remarkable shift in the conception of Italian collective political action. Europe has moved from being (at least for the majority of constitutional actors) an ideal political space for a politics of self-government to being an external constraint and the source of important political aims for the constitutional order. Narratives and myths over Europe changed as the perception of the political parties’ capacity of exercising autonomous political power started to decline. One can observe the trajectory that began with ‘Europe’ being seen as the optimal political space for the realisation of political freedom. It is a narrative that makes up a constitutional imagination of active and transformative party politics. In the language of Italian constitutional law and doctrine, this was a political system capable of forming and imprinting a political direction onto Italian society. Contextual reasons made the role of Europe rather marginal during constituent debates, but this did not affect the perception of the constituent capacity of the political system. However, the international context and the domestic pressure for a quick economic recovery pushed the question of European political unity aside and made it, increasingly, an ordinarily legal (rather than constitutional) question. By 1957, the perception of European integration as an ordinary process had come to shape the imagination of the majority of political actors. By the time of the approval of the Maastricht Treaty, a new vision of the role of Europe had come to inform the constitutional imagination of Italian political parties. Almost unanimously (and this time including the left parties), Europe had become an essential external staple for the stabilisation and modernisation (in economic and liberal terms) of Italy. Quite interestingly, it will only be at the turn of the twenty-first century that the impact of this conception of Europe will be felt as a ‘constitutional issue’. Yet, quite tellingly, the main reactions against some of the substantive inputs coming from the European Union were either of political passivity (we cannot but do what Europe is asking us to do) or of political victimisation (Europe is ruining Italy and its constitutional achievements). This political stalemate is the product of many factors. But one of the most important can be found in the trajectory of a constitutional imagination whose formation goes back, at least, to the 1950s.

4.1 Introduction

One of the idiosyncrasies of the countries in Eastern and Central Europe is supposed to be their especially strong attachment to sovereignty. Ivan Krastev has argued that Europe’s East–West divide is also inscribed in political imaginaries, and that this fact was clearly visible at the time of the EU’s Eastern enlargement. In contrast to the anti-nationalist postmodern vision that had emerged in the West, ‘the Eastern European nation-states that joined the EU in 2004 were rather obsessed with the ideas of national sovereignty and ethnic homogeneity’, claims Krastev.Footnote ¹ Or, as Rogers Brubaker has put it: at the time when Western Europe seemed to be moving beyond the nation-state, Eastern Europe was apparently moving back to it.Footnote ² Of course, even in Western Europe, it has never been obvious to everyone that the nation-state is on the way out. The ideas of sovereignty and the nation-state have often been questioned in a polemical mode, vis-à-vis those believing that, whatever the innovations in the legal architecture of the EU, these novelties do not call for a fundamental revision of constitutional categories. Others have insisted that the nature of the EU could never be captured without the imagination being expanded beyond the already familiar. As Joseph Weiler memorably said in reference to the Maastricht decision of the Bundesverfassungsgericht, to describe the EU without rethinking in creative ways the concept of a polity is to be ‘looking backwards, like Lot’s wife’, to something based on the tired old idea of an ethno-culturally homogenous people.Footnote ³ Against the background of such discussions of the new and the old in constitutional thinking, East-Central Europe has tended to appear as a site of almost comic archaism. According to Anneli Albi, when the recently restored countries of East-Central Europe began to consider EU membership, they did so from the perspective of a traditional idea of sovereignty, centred on such ideas as independence, ethnically defined nation-state and national self-determination.Footnote ⁴ In a similar vein, Signe Larsen has contended that post-communist countries have retained their own brand of constitutionalism which celebrates ‘the ideas of nationalism, the nation-state and national sovereignty’.Footnote ⁵

When faced with such claims, and reflecting on the role of constitutional imaginaries, the first question that comes to mind is whether it could make sense to ascribe a uniform constitutional ideology to a region as large and variegated as East-Central Europe. But if constitutionalism is not an ideology or a worldview, weaving together a set of consistent beliefs about the nation, the state and sovereignty, then what could be meant by saying that these concepts are nonetheless central to the constitutionalism of East-Central Europe? Needless to say, sovereignty itself can be imagined in various ways. There is a long tradition of portraying sovereignty as a myth – something with no corresponding reality other than the force by which it captures the imagination.Footnote ⁶ Hans Kelsen decried the ‘dogma of sovereignty’ and accused it of inhibiting the development of international law.Footnote ⁷ Resistance to European integration has sometimes also been explained by the strength of outdated ideas.Footnote ⁸ Indeed, to suppose that some national judiciaries remain in thrall to a conception of sovereignty as an absolute and indivisible power, would this not make it hard for them to see it as shared or parcelled out in a way that European integration is assumed to require? And if this is true, are not countries in East-Central Europe particularly exposed to sovereigntism by their shared constitutional outlook? On the other hand, if their proneness to distinct ways of thinking about the nation and its relation to the state – assuming that such regional idiosyncrasies exist – do not translate directly into any legal doctrines, or even an attachment to some traditional notion of sovereignty, then how could their views about the nation be depicted as constitutional ideas or imaginaries, as opposed to more general social representations that might be populating the mind of those interpreting the law?

Despite all the diversity encountered in East-Central Europe, there is, in fact, a recurring cultural theme running through this region: the idea of being a small nation that has suffered great historical tragedies. This theme certainly gives rise to an imaginary of sorts, a very rich imaginary even, which loses its subtlety when reduced to such catch-all expressions as ‘ethnic nationalism’. A distinction should be made between the general concept of the nation and the particular set of ideas that a group of people entertain about themselves as a nation, such as the idea of being a small afflicted nation situated in a dangerous area.Footnote ⁹ The latter is an example of the kind of social myth that offers an identity to a collective and becomes an essential part of collective imaginaries.Footnote ¹⁰ Attempts have already been made to find some common themes in the political myths of East-Central Europe (for example, the theme of a civilizational bulwark against the East), and to distinguish their varieties in different countries (aside from such particular national myths as the Holy Crown of Hungary or Polish messianic martyrdom).Footnote ¹¹ If the idea of being a long-suffering small nation is to be considered a common regional myth of this sort, then it, too, must be understood in a sufficiently vague manner, allowing for variation in what exactly the predicament of the nation consists in and what historical tragedies it has suffered. Moreover, if this idea is to be taken as a constitutional imaginary, then it must be admitted that it is thoroughly ambiguous in its implications. No political or legal position with respect to sovereignty follows from the mere observation that the nation is small, endangered, and therefore in need of protection.

Contrary to what has been suggested by Benedict Anderson – who famously defined nations as imagined communities – the nation is not always imagined as a sovereign entity, destined to inhabit a sovereign state.Footnote ¹² The national imaginary may be more open-ended. Depending on the kind of threats that are thought to besiege the nation, state sovereignty may appear either as an all-important protective shield or, on the contrary, an obstacle precluding membership in some larger political community where the nation could fare better than in solitude. In other words, even supposing that countries in East-Central Europe share a collective mentality centred on the category of the nation, and that this mentality induces them to consider fundamental political problems through a particular lens, it does not follow that they should be especially attached to state sovereignty in any traditional sense. Rather than viewing constitutionalism as an expression of some definite ideology, it might be more helpfully approached from the perspective of the problems that are deemed essential by those who practice it. On this reading, constitutionalism is a language that simultaneously frames and engenders disagreements about issues related to constitutional interpretation. The ‘nationalist rhetoric of the small nation’, as Siniša Malešević has described it, is an axis of debate which functions by continuing to stir up new, often contradictory ideas that can be built into rivalling constitutional doctrines.Footnote ¹³ When the question of sovereignty is treated in this framework, we realise that East-Central Europe’s constitutionalism is actually much less archaic than it might seem. Not merely is it open to revising the concept of national sovereignty; it positively invites questions that lead us to re-imagine nation-statehood in a way that supports European integration.

4.2 The Misery Thesis

It is remarkable how consistently descriptions of East-Central Europe have advanced some version of what might be called the misery thesis. All nuances aside, the thesis is broadly about an Eastern Sonderweg: the idea that the region is different from Western Europe now because its history has been different. In other words, the thesis has two parts. It asserts, on the one hand, that the region possesses some distinguishing characteristics (a particular political culture, a type of nationalism different from the one current in the West) and, on the other, that this peculiarity is best explained by going back to the past, in some cases to the Middle Ages or beyond. This line of thinking finds its locus classicus in the famous essay ‘The Miseries of East European Small States’ by István Bibó, a Hungarian political theorist who wrote at the time of WWII, attempting to lay bare the deep origins of the catastrophe he had seen unfolding. Contrary to the view that was dominant in Hungary, Poland and Czechoslovakia – the three states he was mostly concerned with, alongside Germany which he also assigned to Eastern Europe – Bibó argued that the neighbourhood’s small states had not appeared in pre-war dramas merely in the role of victims but had made a large contribution to international tensions with their chronically maladjusted, at times grossly anti-democratic internal politics. For him, the fundamental question for understanding the catastrophe was this: Why had the region abandoned democracy and political liberalism after hailing them so enthusiastically in the wake of the First World War? Bibó’s explanation was that, whilst the cause of freedom and the cause of nationalism had progressed harmoniously in the West, these ideals had drifted apart in the East. A sequence of traumatic collective experiences had led to the conviction that democracy cannot be realised without jeopardising the national community. Not only leaders but the populations of small Eastern European states had come to believe that, if they cared about the fate of their nation, they simply could not afford to implement democracy and political freedoms to the full, however much they may have approved of these values in the abstract.

Bibó’s thesis was not only about the predicament resulting from someone imagining (wrongly, he emphasised) that there is an incompatibility between democracy and national welfare or even survival. For understanding how this mistaken conclusion could be drawn, and how it could ensconce itself in the mind of Eastern Europeans as a putative lesson of history – prompting them to develop ‘the greatest monstrosity of modern European political development: anti-democratic nationalism’Footnote ¹⁴ – one had to revisit the process by which nations had first emerged in this region. Bibó claimed that the great divergence between East and West could be traced back to the circumstances of nation-building in various parts of Europe. In the West, nations took shape and had the opportunity to mature within pre-existing states, with the result that national and state boundaries overlapped when masses began to be drawn to nationalism at the time of the French Revolution. The Eastern lands, by contrast, were under the power of great empires in the nineteenth century, so that the smaller nations inhabiting this space, unable to realise their aspiration to statehood, were reduced, faute de mieux, to cultivating their language and folk customs – not as an idle pastime but to prove that nations were more real, more solid entities than the existing states. According to Bibó, it was not smallness as such which produced the impasse from which Eastern national movements hoped to escape by a turn to a völkisch identity. Small nations also existed in the West, but they fared much better, noted Bibó, pointing to Belgians, Danes and others as examples. The main distinguishing factor in the East was the presence of loosely integrated, semi-fixed political organisations: not sufficiently implanted to create national loyalties corresponding to state boundaries (to swallow up the small nations, as it were), yet strong enough to prevent fragmentation and consolidation along national lines (the formation of small nation states). Such conditions prevailed only in Central-Eastern Europe and, for this reason, as Bibó put it, linguistic nationalism became the region’s specialty.

Bibó was not the first to emphasise the lack of overlap between national and state borders in Eastern Europe and to remark on the importance of this fact for the mentality of the region’s inhabitants. In 1915, at the time of WWI, Tomáš G. Masaryk had told a London audience that, if they wanted to understand Eastern Europe, they needed not a political but an ethnographic map. ‘An Englishman, speaking of his nation, identifies the nation and state. Not so the Serb or the Bohemian, because to his experience state and nation do not coincide, his nation being spread over several states, or sharing a state with other nations.’Footnote ¹⁵ Not that this was a great misfortune, from Masaryk’s point of view. Although he spoke of Eastern Europe as an ethnological ‘danger zone’ ridden with cultural and political conflict, for him, there was no misery in the condition of its small nations. Yes, they were latecomers in staking their claim to statehood, but their prospects were bright. Small nations were no less able to protect themselves if sufficiently determined to resist attacks. Masaryk conceded that the nations of East-Central Europe might suffer from some disadvantages, such as a more limited population and a weaker economy, but these handicaps were the result of imperial oppression. ‘Let the smaller nations be free: do not interfere, leave them alone, and these drawbacks will soon disappear.’Footnote ¹⁶

Here was an authoritative view of Eastern Europe that underlined the small size of its nations yet was thoroughly optimistic in tenor. How did the misery thesis emerge then? It started to take shape at the time when the ‘danger zone’ of small nationalities became a scene of many independent states. In the mid-1920s, Edvard Beneš, the foreign minister of Czechoslovakia, could still confidently maintain that most of these states were committed to freedom and democracy. Beneš admitted that the region was beset with the problem of discontented ethnic minorities, but he brushed this difficulty aside and, like Masaryk, depicted current difficulties as a legacy of imperial misrule (‘a bad training for the present majorities and minorities alike.’).Footnote ¹⁷ What brought about a crucial change in perspective (reflected in Bibó’s later analysis) was the claim that the most fateful legacy of the imperial period was a distortion in how Eastern Europe nations imagined themselves. Outside observers pointed out a discrepancy between the self-understanding of the new countries as ‘national states’ and the fact that none of these states included only one single nation.Footnote ¹⁸ Bibó took up this line of reasoning, contending that, when small Eastern European nations gained statehood, they remained captivated by the territorial fantasies they had developed under imperial domination, and acted as if these aspirations were somehow more real than the reality. As Walter Kolarz put it in his study of the myths of Eastern Europe (1946), beside every actually existing state, there was a ‘shadow State shaped by the nationalist imagination’.Footnote ¹⁹ To see the potential clashes between these various shadow states, one only needed to draw a graph of the divergent claims.

Even today, the canonical picture of Eastern Europe’s misery is that of a strange nationalist fantasy world saturated with historical memories. The ‘demons of the past’ appear to be especially active in this region.Footnote ²¹ The main thrust of such arguments is that East-Central Europe’s idiosyncrasies cannot be explained by the fact that the region remained on the wrong side of the Iron Curtain. ‘If one regards Soviet Communism as a disease, then it seems that Eastern Europe may have had a pre-disposition to the infection’, wrote one historian.Footnote ²² In the mid-1990s, Tony Judt tried to show that the line dividing Eastern from Western Europe is not an artificial creation dating from the Cold War, ‘recently drawn across a single cultural space’, but rather something older and more real. Similarly to Bibó, Judt made much of the fact that Eastern European peoples were confronted with a well-formed state system at the time they came to political consciousness. ‘To have been formed into a recognized nation and a permanent state in earlier centuries was to have been extraordinarily fortunate’, wrote Judt. ‘Whereas the northern and western European peoples formed states by expansion from a core, absorbing their own peripheries until constrained by topography or competition, the countries of modern eastern Europe were born and could only be born from the collapse of empires – Russian, Turkish, Austrian, German – a process that is still incomplete … This is the great misfortune of the eastern half of Europe: that its division into states came late and all at once. It is what gives to these lands their common history and their common weakness – and it is what in the end makes them crucially different from the luckier peoples to the west.’Footnote ²³

Admittedly, it is not quite obvious why the circumstances of the birth of Eastern European states should be essential for understanding their character today. Why should developments in the nineteenth century and earlier be relevant to an enquiry into the region’s present political culture? Bibó offered an answer that has proven extraordinarily influential: the region has acquired a traumatised identity as a result of its history.Footnote ²⁴ The theoretical paradigm in which Bibó worked was that of collective psychology.Footnote ²⁵ Within this paradigm, it was natural to think that, if past collective experiences have been negative, then the present can literally suffer from history, in the form of a neurosis, for example, or a national inferiority complex that leads to a sense of impotence and a desire of compensation.Footnote ²⁶ Bibó described how major shocks (such as revolutions, foreign invasions, military defeats) can make communities behave as if they were hysterical individuals: lose touch with reality, be constantly afraid of conspiracies, display both insecurity and overblown self-assessment. Unable to come to terms with an overwhelming trauma, a community concocts various make-believe solutions in an effort to ensure by all means that the catastrophe will not be repeated. ‘These are the situations when a nation behaves as though it were unified while it is not, as though it were independent while it is not, as though it were democratic while it is not, and as though it were involved in revolution while it is only languishing.’Footnote ²⁷ Bibó claimed that, although some Western European countries have also suffered from a ‘collective hysteria’, Eastern Europe is especially susceptible to this condition because of its unique calamity-filled history.

A similar relationship between history and collective mentality emerges from a text that has become another locus classicus on regional misery. Milan Kundera’s ‘The Tragedy of Central Europe’ (1984) also described the weight of history and its lasting effect on the mind of those who may not have experienced any great traumas personally. Indeed, Kundera asserted that an element of trauma is part of the very idea of a small nation. ‘But what is a small nation?’, he asked, after having highlighted the importance of this notion for understanding the identity of Central Europe (an ‘uncertain zone of small nations between Russia and Germany’).Footnote ²⁸ He proceeded to offer his famous definition: ‘the small nation is one whose very existence may be put in question at any moment; a small nation can disappear, and it knows it.’ Kundera claimed that, for the inhabitants of Central Europe, the possibility of collective extinction is not merely an abstract truth but a harrowing lesson of history. ‘A Frenchman, a Russian, or an Englishman is not used to asking questions about the very survival of his nation. His anthems speak only of grandeur and eternity. The Polish anthem, however, starts with the verse: “Poland has not yet perished …”’. This statement – ‘Our nation has not yet perished’ – captures Central Europe’s particular vision of the world, according to Kundera. The crucial difference from Bibó is that Kundera did not depict this attitude as pathological in any way. When ‘the devastating march of History’ produces a vision based on distrust and existential fear, the outcome is hard-won wisdom, not a hysteria, he suggested. By contrast to Bibó, who was continually insisting on the distorted character of the imaginaries born out of catastrophes, Kundera seems to have thought that contemporary events were amply justifying the fears of Central Europeans. He described how Russia was again expanding eastward, crushing all cultural variety within the Soviet Union and the satellite countries. On the other hand, it was precisely by such shared experiences of existential peril that nations were drawn together into a regional community. ‘Central Europe therefore cannot be defined and determined by political frontiers (which are inauthentic, always imposed by invasions, conquests, and occupations), but by the great common situations that reassemble peoples, regroup them in ever new ways along the imaginary and ever-changing boundaries that mark a realm inhabited by the same memories, the same problems and conflicts, the same common tradition.’Footnote ²⁹

The emphasis on perception in Kundera’s definition of smallness is very illuminating for understanding the functioning of imaginaries. If smallness is seen as a collective mentality rather than an objective, numerically quantifiable fact, then it matters little if some nation is actually small, or indeed whether there is such a thing as a nation at all outside the cognition of individuals. What matters is that the category of being a small nation is being used to make sense of the world. Moreover, as already mentioned, Kundera situated smallness geographically, speaking of a zone between two large neighbours, Germany and Russia. For the purpose of studying imaginaries, it, again, matters little if we designate the relevant area as Central or Eastern Europe, or whether the region defined by reference to national fragility exists at all in some objective sense. The important consideration is that smallness and location are unified into an essential nexus – national vulnerability is perceived geopolitically, against the background of some geographical place that is seen as determining for the nation’s prospects. It has been observed that national identity nearly always includes an idea of a homeland.Footnote ³⁰ In the case of a ‘small nation’ as defined by Kundera, this must be true, for existential danger is hard to imagine separately from a ‘politico-geographic situation’, to use the expression by which Friedrich Ratzel sought to capture all the consequences of belonging to a particular place (climate, borders, size, relations with neighbouring states).Footnote ³¹

The ‘misery of small Eastern European nations’ can thus be understood in two very different ways. It can refer to an objective condition of vulnerability or, alternatively, it can denote a collective self-image that foregrounds vulnerability. Consequently, the misery thesis may also be reinterpreted as a claim about the potency of a certain kind of rhetoric in East-Central Europe. This is how Miroslav Hroch approached the problem of ‘small nations’ in his influential account of nation-formation under foreign domination. Analysing post-communist countries, Hroch argued that the imperial background of East-Central European history resulted in some ‘permanent characteristics’ that are still present in the collective mentality of its inhabitants. The leaders of dominated national movements idealised smallness, but they also reacted defensively against claims that their nation was a fiction. ‘This gave rise to the ensuing feeling of permanent endangerment of the nation – which was later transformed into a lasting stereotype – as well as an urge to prove the legitimacy of one’s own national existence.’Footnote ³² According to this account, it is thus via stereotypes, such as the tendency to represent the nation as a person with its own history, that the experience of living in a multi-ethnic empire continues to impact the present.Footnote ³³ ‘Identification with a national group includes, as it did in the last century, the construct of the personified and personalised nation’, wrote Hroch in 1992. ‘The glorious history of this personified nation is understood as the, or a, personal past of each of its members. Its defeats are understood as personal failures and continue to affect their feelings.’Footnote ³⁴ By unifying the past and present, and thereby grounding social identity, the category of the nation exhibits the typical structure of a myth, understood not as a false story but as a narrative employed for particular social purposes.Footnote ³⁵ ‘When the object of history is the nation’, remarked Ladislav Holy in his overview of Czech self-stereotypes, ‘it is its imagined existence over time which makes possible the construction of the enduring “we” who imagine “our history” and unproblematically utter, as Czechs do, the phrase “We have suffered for three hundred years”’.Footnote ³⁶

Since myths support social identities, the two may be seen as interchangeable, yet there is clearly no such thing as a single, universally shared national identity, nor should we look for the national myth with respect to any collective. Identity politics can take the form of a debate over whether the nation is small or not.Footnote ³⁷ Even when this happens, however, the category of smallness is still imposed as a frame of political thought. Of course, we do not have to suppose that all countries in East-Central Europe are equally suitable for an analysis emphasising smallness and fragility, even at the level of perception. As we saw, one version of the misery thesis regarding Eastern Europe is that its national myths are loaded with dangerous megalomania. But a great nation with a heroic past can suddenly become small and vulnerable when the mode of interpretation is switched from glorious to tragic, yielding a retrospective impression that its whole history has been overshadowed by the ‘fear of the slow death of a small nation’, as Paul Lendvai has said regarding Hungarians.Footnote ³⁸ Another important characteristic of a myth is that, rather than something fixed, it is a theme which allows for the emergence of many variants or elaborations as the ‘work on myth’ progresses.Footnote ³⁹ In this way, the idea of being a small endangered nation can be continually updated, adding new subthemes or varieties of existential threat – such as demographic decline, for example – so that it becomes a myth that never ceases to resonate with the times.

4.3 The Idea of Post-Traumatic Sovereignty

But how exactly should we think about the political implications of such myths?Footnote ⁴⁰ What is the politics of being a small nation? The thesis that perceived national misery of the kind observable in Eastern Europe leads to an obsession with sovereignty has been defended perhaps most comprehensively by Jarosław Kuisz who has introduced the idea of ‘post-traumatic sovereignty’ to express precisely this nexus. Kuisz starts from Kundera’s observation that it can be an essential, identity-forming experience for the inhabitants of some country to realise that their state may be wiped away. Once this possibility is recognised, and seared on the mind, as it were, the reappearance of foreign domination becomes the preeminent, all-embracing fear. For Kuisz, the paradigmatic case of such a traumatised condition is Poland where, as he says, the state’s survival is the main consideration in approaching nearly all fundamental political problems (with repeated references being made to the eighteenth-century partitions and other similar calamities, like the annus terribilis of 1939, when the country was again carved up by Nazi Germany and Soviet Union). Kuisz claims that, even the dispute over the rule of law that started in 2015 ‘should be understood and interpreted against the background of the trauma of the disappearance of the Polish state from the map of Europe’.Footnote ⁴¹ Whilst the connection may not be evident at first sight, it is precisely the idea of sovereignty that provides the link: the effect of past catastrophes has been to engender an obsessive determination never to lose political independence again, so that everything resembling it will henceforth be perceived as anathema. ‘The loss-of-sovereignty argument is constantly in play’, writes Kuisz, ‘although it is sometimes rhetorically re-packaged to better suit the twenty-first-century context’.Footnote ⁴²

Kuisz mostly dwells on Poland and its national imaginaries of doom, but he argues that East-Central Europe as a whole is suffering from a traumatised attitude to sovereignty, since the inhabitants of most, if not all, countries in this region have internalised the condition that Kundera thought is defining for a small nation.Footnote ⁴³ Loss-of-sovereignty arguments are also frequently heard elsewhere, of course. But Kuisz maintains that they have particular undertones in East-Central Europe where they are ‘fuelled by all sorts of regionally and nationally specific backgrounds from the past’.Footnote ⁴⁴ This claim appears as the latest iteration of a particular kind of misery theme about the political ideology of Eastern Europe. According to a popular view, history has endowed, or infected, this region with a special variety of nationalism centred on ethnicity. Whilst Western civic nationalism is taken to be relatively benign and nice, the Eastern ethnic variety is seen as ‘doomed to nastiness by the conditions which gave rise to it’.Footnote ⁴⁵ Another widely-held belief is that ‘ethnic nationalism’ is not merely an outlook about nationhood but also, implicitly at least, a political worldview prepossessed with sovereignty. Carlton Hayes, an important early figure in the study of nationalism, wrote that it is ‘a basic part of the nationalist creed, in which every citizen of a national state is now educated, that absolute sovereignty is a right inherent in his national state and that any impairment or threatened impairment of such sovereignty is a wrong which cries to Heaven – and to himself – for vengeance.’Footnote ⁴⁶ Although Hayes was not talking about any specific form of nationalism, others have argued that, when adherents of ‘ethnic nationalism’ attain statehood, they, especially, will exalt sovereignty as a high, if not the highest value. In other words, it is thought that ‘ethnic nationalism’ does not morph into something essentially different when the aim of statehood is achieved. On the contrary, it is the state that is rendered cultural and ethnic in orientation, the leaders of the former national movement now having the ambition to enable the core nation to fully realise its sovereignty by permeating the political organisation that has been created. Rogers Brubaker has argued that all states in Central-Eastern Europe are and will be nationalising (and not civic) in this sense, at least to some degree.Footnote ⁴⁷

But is this really true? And how could we possibly test the theory that, in East-Central Europe, statehood is imagined according to what Brubaker calls a ‘nationalist understanding of the world’ which views the political universe as being made up of ‘sovereign, independent and culturally distinctive nation-states’.Footnote ⁴⁸ We can certainly assemble a lot of material that seems to show that states in this region have valued sovereignty in the past. For example, the historian Vojtech Mastny has attempted to demonstrate that East-Central Europe has historically exhibited an aversion to federalism. ‘Federal structures of any kind had been exceptional and federal thinking at best marginal in the part of Europe whose modern history had been so prominently shaped by an ethnic quest for self-assertion within national states’, writes Mastny.Footnote ⁴⁹ He recalls the words of Edvard Beneš who said that federalism reminded the region’s inhabitants of their experience as subject nationalities under imperial domination. Some additional evidence for reluctance to parting with sovereignty could perhaps be derived from the 1950s when a group of exiled politicians and diplomats from nine East-Central European countries (Albania, Bulgaria, Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Poland and Romania) drew up a joint report assessing the prospect of eventually joining the federal projects that were being launched in Western Europe at the time. The group noted that, even though the countries under Soviet rule realised the need for European integration, they were so attached to their national characteristics and cultural independence that they could only countenance pooling some limited sovereign rights.Footnote ⁵⁰ Many other such examples could be found. To come to the more recent period, is it not the case that some East-Central European countries have been contesting with unmissable vehemence the legitimacy of the EU in the name of sovereignty, sometimes going as far as declaring its core treaties unconstitutional?Footnote ⁵¹

The first objection that suggests itself is that sovereigntism is hardly specific to East-Central Europe.Footnote ⁵² The more fundamental problem, however, is that the relationship between ‘ethnic nationalism’ and sovereignty is, in fact, deeply ambiguous. Theories which associate some sort of general worldview with ‘ethnic nationalism’ tend to obscure the concrete aspects in the representation of the nation (whether it is seen as small or large, for example), assuming, mistakenly, that such nuances are immaterial in comparison to what is considered typical, namely, that the outlook is ethnic rather than civic. Also, if the nation precedes the state in the imagination of its adherents, in line with the typical scenario envisaged by the category of ‘ethnic nationalism’, then it means that the nation is separable from the state and can be thought of independently of the legal concept of sovereignty traditionally associated with statehood. To illustrate this fact and show how nations and their political destinies were imagined against the background of empires as they existed in East-Central Europe in the nineteenth century, we can evoke the famous letter that the Czech scholar František Palacký sent to the Frankfurt Parliament in 1848. Palacký said that the Czech nation had a vital interest in the continued existence of a strong multi-national Austrian state because it needed protection from the menacing expansion of Russian power to its east. The disappearance of smaller nations in the Austrian Empire was not a danger, Palacký argued, so long as its constitution was built on the right principles.Footnote ⁵³ There was indeed a strand of thinking which presented sovereign statehood as a natural goal for every truly respectable nation – a sign that a nation had reached full personhood.Footnote ⁵⁴ National fragility was sometimes adduced as a consideration for acquiring independent statehood as a form of protection.Footnote ⁵⁵ Yet by no means was this a self-evident position for someone who asked, liked Masaryk, at the end of the nineteenth century: ‘how can a small nation survive and remain independent?’Footnote ⁵⁶ If political structures were assessed by their ability to further the intellectual and material flourishing of the nation, then it could be argued that a strong empire is, in fact, preferable to a small nation-state. Given the geopolitical realities at the turn of the twentieth century (as the leaders of national movements saw them), the smallness of the nation could also be a strong argument against seeking an independent state.

The notion that all small East-Central European states whose political culture was dominated by the idea of an ethnically or culturally defined nation were obsessed with sovereignty as a result of their having emerged from empires is historically quite inaccurate. Of course, once political independence is achieved, it will tend to become a cherished ideal. The imaginary about nationhood is enriched, becoming multi-layered as it now encompasses ideas about one’s own state and, in addition, some conception of how the state and the nation cohere. A process of mixing, compounding and rearrangement quickly starts. Citizens of the new state are likely to be too attached to the idea of their nation enjoying sovereignty for wishing to revert back to older ‘ethnic’ ideas of merely cultural independence. History will often be re-cast in a way that depicts the state as the crowning achievement of the nation, as if political sovereignty has always been the goal.Footnote ⁵⁷ In reality, as David J. Smith and John Hiden have written about developments in the Habsburg and Russian empires, nation-statehood was mostly thrust upon subject peoples ‘as a result of the sudden collapse of the dynasties under the pressures of war and revolution’.Footnote ⁵⁸ Natasha Wheatley has argued that, if the inauguration of the successor states is narrated ‘purely within the tracks of nationalist history – as the self-actualization of freestanding national units – we risk obscuring the extent to which their modes of self-presentation and self-understanding might originate not with the “nation” but with the empire they ostensibly shucked off.’Footnote ⁵⁹ Wheatley claims that the states created after WWI transported a whole imperial-constitutional imaginary from their imperial origins into the new world order.Footnote ⁶⁰

There was also continuity in thinking about the nation, for ideas about imperial constitutionalism were built into national imaginaries, as the case of Palacký shows. The fundamental dilemma of a ‘small nation’ endured. ‘What good is political independence if the nation is not economically independent?’, asked Masaryk in 1905. ‘Some Balkan states are independent in name only. In reality, decisions about them are made by neighbouring states or only by some large banks.’Footnote ⁶¹ As we saw, ten years later, when WWI had broken out, Masaryk was extremely sanguine about the prospects of small Eastern European nations, albeit without denying that they had some economic drawbacks. By this time, he had come to embrace the idea of an independent Czech nation-state.Footnote ⁶² Yet this hardly means that the considerations he mentioned earlier – the advantages of a greater economic space, the fact small states are dominated by great powers – suddenly became irrelevant.Footnote ⁶³ When new states were erected on the ruins of empires in East-Central Europe, they could also be considered as being independent in name only. Formal sovereignty was not a guarantee of independence.Footnote ⁶⁴ It is true that, in the mid-1930s, when the League of Nations had proven ineffective, Northern and Eastern European small states adopted neutrality as their official line of policy, agreeing to the watering down of the League’s Covenant, preferring greater independence, freedom of action and the absence of any security commitments.Footnote ⁶⁵ This did not result from any abstract conception of sovereignty, however. Neutrality was felt to be the only viable option once it had become clear that all dreams of collective security and federal union had failed.

Before WWII, most governments were reluctant to take on the kind of commitments that multiplied later (the protection of individual rights, the creation of supranational bodies, etc). No Pan-European federation emerged, despite the fact that international and constitutional lawyers began to hail the voluntary limitation of sovereignty as a sign of enlightened thinking.Footnote ⁶⁶ The size of the catastrophe that befell East-Central Europe in the late-1930s, which made any status quo solution impossible there, explains why its politicians were actually among the first to imagine a new political order not merely for their region but for Europe as a whole. ‘After this war, Europe must become an entity, political and economic’, said Władysław Sikorski, the Prime Minister of Poland, calling for a new approach to cooperation in 1941. ‘The State, for example, must begin by relinquishing some of its sovereign rights, if this is necessary in order to reach agreement with a neighbouring State on matters of common interest, especially when the basic problem of security and defence is concerned.’Footnote ⁶⁷ Sikorski was negotiating a federal agreement with the Czechoslovak government, whose representative Edvard Beneš, in spite of his earlier remarks on federalism’s lack of appeal to a post-imperial mentality, also claimed that small nations can only improve their economic conditions and strengthen collective security by creating a larger bloc.Footnote ⁶⁸ As was noted by commentators, the humiliating fate of Central European countries had caused political thinkers to revise their views on state sovereignty. ‘After the last war [i.e. WWI] even the smallest nations aspired to complete independence, but they found it only led to isolation in the face of danger … Today the idea of closer international associations is coming to the fore, so that nations may combine to resist aggression by their stronger neighbours.’Footnote ⁶⁹

The conclusion to be drawn is not that past traumas have made East-Central European countries more, rather than less, willing to curb their sovereignty. Decades of Soviet rule certainly established untrammelled independence as a desirable goal. Soviet domination was often compared to colonialism, so that the language of self-determination became a natural idiom for the ‘captive nations’ of East-Central Europe.Footnote ⁷⁰ Nonetheless, as Jarosław Kuisz is keen to stress, the idea of post-traumatic sovereignty does not posit agreement on where the greatest threat to political independence lies after the shocks that have caused this neurotic condition. It only stipulates that the threat of losing sovereignty is now the fundamental, never-forgotten consideration in approaching political issues. The inevitability of disagreements can be brought home by considering another ‘post-’ condition: a once-imperial nation seeking to come to grips with its diminished status. In attempts to explain Brexit, references were made to British political culture and history, some arguing that the wish to ‘take back control’ is ‘deeply embedded within the political psyche of a large group of British citizens’.Footnote ⁷¹ But interpretations of Britain’s imperial past shaped arguments both for and against membership in the EU. The EU could be presented in two contrasting ways, either as an obstacle to or a vehicle for Britain’s imperial ambitions. As has been said, this ambiguity ‘requires us to recognise post-imperial patterns of thought, not as a psychological affliction to which only half the population is subject, but as a common cultural inheritance through which all sides think and argue’.Footnote ⁷² In the case of Britain, we may thus speak of post-imperial sovereignty, not having in mind any doctrine but something crucial about British political culture, namely, that the question of sovereignty is there embedded in particular patterns of thought. These patterns do not yield any consistent set of political views, nor even a belief in the value of sovereignty as traditionally understood. Britain’s attitude to European integration has been aptly described as ‘Euro-equivocation’.Footnote ⁷³

If we distinguish between general patterns of thought, or political languages, on the one hand, and particular arguments formulated within these languages, on the other, then the idea of post-traumatic sovereignty would belong to the level shared by various political camps existing within a country. This means that it cannot be understood as a worldview with a set of clear-cut beliefs about what endangers sovereignty and how to best protect it. Such beliefs pertain to the level where disagreements appear about the central problem, namely, how to ensure that political independence is not lost. On this reading, it becomes much less problematic to portray the idea of post-traumatic sovereignty as a regional phenomenon. Countries in East-Central Europe cannot be lumped together meaningfully for all purposes. What Kuisz claims is that, despite all the differences between their individual historical experiences, countries in this region are similar in being small nations in the sense used by Kundera – they share a feeling of existential danger derived from these experiences. This does not condition these countries to adopt any single position on the value of retaining unlimited independence as opposed to joining some larger organisation. The imaginary of misery can accommodate a whole variety of positions, depending on how the predicament attributed to the nation is articulated in political and legal terms. Even assuming attachment to national independence as a vague general goal, it leaves open a series of hard problems. What exactly is independence? Is it captured by the legal concept of sovereignty? Can it be hollowed out in a federal organisation? Consensus cannot be expected on such questions, since they express ambiguities in the very idea of sovereignty. When threats are seen to emanate from various sources, not merely from legal limitations on decision making, then the same political position (for example, joining a federation) can be seen as either compromising or protecting sovereignty. In the presence of such difficulties, it is surely equivocation we should expect, not consistency and agreement.

4.4 Post-Communism and the ‘Sovereignty Conundrum’

In the light of what has been said, we can also form a better understanding of an apparent inconsistency in the behaviour of post-Soviet countries or what Wojciech Sadurski has called the ‘sovereignty conundrum’, referring to an irony he noted in the eastern enlargement of the EU. ‘Countries with a proud national history’, wrote Sadurski in 2004,

Indeed, how can this be explained? How to account for the wish of post-communist countries to join the EU when, as several authors have claimed, theirs was an old-fashioned sovereigntist outlook, either because East-Central Europe had missed the aggiornamento of constitutional imagination that the West had experienced since the 1950s or because the Soviet era itself had produced a form of constitutionalism that favours an archaic conception of nation-statehood? According to Signe Larsen, one important effect of the Soviet period was to ingrain the idea that threats to democracy emanate primarily from foreign oppressors (from ‘them’, not ‘us’). Hence the image of a pure, ethnically defined nation, deserving of unlimited freedom, and the ‘constitutional emphasis on nationalism and sovereignty’.Footnote ⁷⁵ But, if so, there really is a puzzle. If the mindset of the post-Soviet countries was ‘incompatible with the constitutional reality of the Union they were acceding to’, as Rehling says,Footnote ⁷⁶ how could these countries not merely join the EU but subscribe to even deeper forms of integration later?

Different explanations have been offered for the ‘sovereignty conundrum’. Anneli Albi maintains that it was in virtue of some strange naiveté that lawyers in East-Central Europe failed to make their idea of national sovereignty a serious obstacle to the process of accession to the EU. ‘Although constitutional awareness about the EU gained ground as accession drew closer, Central and Eastern European scholars tended to devote minimal space to analysing the nature of the EU polity, and to view the Union therefore merely as an international organisation or a confederation of states, finding that it would not significantly affect national sovereignty.’Footnote ⁷⁷ Sadurski detected more strategy in the efforts to show that accession to the EU actually involves no loss of sovereignty. In his view, the role of scholars has been either to back up with constitutional arguments political choices made for other reasons or to influence decisions by helping to convince the political class and the society at large that their traditionalist ideas regarding sovereignty and the nation are not at all incompatible with European integration. Thus, some commentators downplayed the unique character of the EU, pointing out that all international treaties entail a surrender of sovereign rights – this being depicted itself an exercise of sovereignty – and emphasising that the difference is simply one of degree. It was also said that some important powers were retained by Member States or that the transfer was not irrevocable. ‘In conclusion’, writes Sadurski,

One difficulty with such explanations is that they make an assumption about what the reality is with regard to the EU, namely, that it involves a loss of sovereignty, so that there must appear an element of deception or at least artificiality in the work of constitutional lawyers who deny this. As a matter of fact, sovereignty is a contested idea and the multiplicity of its meanings can produce genuine disagreements about its continuing relevance, even in an organisation as deeply integrated as the EU.Footnote ⁷⁹ From the point of view of constitutional imaginaries, the more important point is this, however: such explanations also assume too much about what can be deduced from the kind of lofty rhetoric encountered in constitutional texts. There is little doubt that some of the constitutions in East-Central Europe celebrate sovereignty in exalted terms. For example, the preamble to the Polish constitution (1997) reads: ‘Homeland, which recovered, in 1989, the possibility of a sovereign and democratic determination of its fate …’. This line conveys a sentiment that can certainly be described as pride and joy in the possession of sovereignty. The late-1980s witnessed an explosion of such rhetoric in East-Central Europe. To illustrate the solemnity that was common at the time, we can recall a speech that Bronislavas Genzelis, a Lithuanian politician, gave in 1989: ‘Until a nation does not regain independence, its existence is constantly endangered. If a nation has necessary conditions to develop its culture, it is alive; if it has its own economy, it exists, but without political independence it only vegetates.’Footnote ⁸⁰ When the Lithuanian Constitution was adopted a few years later, its opening words struck a similar note. As if to dispel any prospect that the nation will have to vegetate again, Article 3 provided: ‘No one may limit or restrict the sovereignty of the People or make claims to the sovereign powers of the People.’Footnote ⁸¹ Whilst it would be hard to claim that such statements do not demonstrate an attachment to political independence, they nonetheless tell us very little about how sovereignty is actually understood in the constitutional culture that informs the interpretation of these texts. Fundamental questions persist. What is independence? Is it enhanced or weakened in a federal organisation? Which concept of sovereignty is best able to capture the predicament of a small nation in danger?

The ‘sovereignty conundrum’ may cease to need an explanation once we discover that there is no objective inconsistency in joining the EU under the cover of independence-minded rhetoric. Let us suppose that the Soviet shock indeed produced, or reinforced, a condition of post-traumatic sovereignty – that is, an obsession with political independence – in post-communist countries. As noted by Jarosław Kuisz, one of the expressions of this condition is a Europeanist position which is quite willing to accept the limitations that membership in the EU brings. These limitations are accepted not because of some theoretical notion of sovereignty or a lack of understanding about the incompatibility of these limitations with a traditional idea of sovereignty. The rationale is that membership in the EU strengthens political independence. From this perspective, there is no conundrum, since it is precisely the experience of foreign domination that is thought to weigh in favour of EU membership. Perhaps too schematically, Kuisz divides Poland into two political camps, sovereigntists and Europeanists, attributing to each a reasonably consistent set of views about how Polish sovereignty should be defended. Both camps are supposedly traumatised by Poland’s past. Both are fully committed to the imperative of not allowing Poland’s political independence to be taken away again. And unsurprisingly, both believe that their views, not those of the other camp, reflect the correct interpretation of Polish history. Sovereigntists look back to interwar Poland, often idealising it, extracting from it what they see as relevant, and project this vision into the future as a model of maximal sovereignty.

To generalise beyond Poland, rather than ascribing a single constitutional ideology or mind-set to a country, it might be more appropriate to distinguish between several competing outlooks, without thereby denying the existence of a common framework of ideas and representations.Footnote ⁸³ The presence of some overarching framework and a multiplicity of views within this structure are both central elements if we wish to recognise the indisputable fact of disagreement and still retain the notion that even fundamental differences of opinion are embedded in a shared collective inheritance. In Poland, the Law and Justice party has directed its loss-of-sovereignty rhetoric mostly against the EU. According to Sadurski, this party possesses a ‘worldview’ that it shares with Hungary’s Fidesz and that it hopes to make dominant in all of East-Central Europe – a vision that ‘is primarily based on a suspicion of the outside world, and on the celebration of national sovereignty as the supreme value in a nation’s policy, which needs to be forever defended and strengthened’.Footnote ⁸⁴ Kuisz describes the ideology of the Law and Justice party in nearly identical terms but he adds a crucially important caveat: its liberal opponents are similarly attached to national sovereignty, only they warn against Poland leaving the EU and finding itself exposed to Russian aggression.Footnote ⁸⁵ Although sovereigntists and Europeanists agree on the importance of preserving sovereignty, they disagree on whether some sort of fundamental equivalence can be established between the threats emanating from Russia and the EU. Those opposing the Law and Justice party are not blind to the imperfections of the EU, nor are they necessarily unable to appreciate the difficulty of reconciling the present configuration of the EU with a traditional notion of sovereignty. What they believe, according to Kuisz, is that these problems are either secondary or merely apparent when compared to the much more serious danger posed to Polish sovereignty by Russia.Footnote ⁸⁶

The collective self-image of being a small endangered nation can be considered as precisely the kind of overarching structure of meaning which operates by framing an on-going debate, rather than dictating any political positions or legal doctrines. To insist on ambivalence and equivocation is not to imply that such malleable imaginaries are without effect on constitutional reasoning. Clifford Geertz has observed that some of the most critical decisions concerning the direction of public life are not made in formal institutions such as parliaments but in the unformalised realms of the collective consciousness, at the level of the ‘conceptual structures individuals use to construe experience’.Footnote ⁸⁷ Whatever their deep cultural sources, it is undeniable, however, that decisions are also made in parliaments and courts. This begs the question of how exactly do the collective images that swirl in a culture enter the realm of formal decisions. Summing up the literature on why national courts have accepted the jurisprudence of the CJEU, Karen Alter has distinguished between two rival approaches: legalism, which invokes legal logic and reasoning to explain national court behaviour, and neo-realism, which puts the emphasis on politics and the pursuit of national interest. Alter criticises both approaches, legalism mainly for ignoring politics and neo-realism for not offering any clear account of how the ‘national interest’ is constructed.Footnote ⁸⁸ One way to bring culture into this analysis would be to assert that politicians and judges are indeed seeking to further the national interest, but that they understand it in a pre-conditioned manner, in the light of a concrete, culturally informed view of what is the situation of the ‘nation’.Footnote ⁸⁹ But even this line of analysis would yield an excessively simplified picture of judicial reasoning. Legal arguments are mostly not a mere dressing up, devised ex post after having latched onto some idea of the national interest. Few constitutional scholars would probably accept the claim that, in assessing whether membership of the EU involves a loss of sovereignty, all they are doing is making some pre-determined decision about the national interest palatable to an audience. On the other hand, it would be equally unconvincing to say that, when engaging in this kind of exercise, their eyes are fixed on some abstract notion of sovereignty which they merely unpack by the rules of logic.

What other frame of mind could there be, then, if legal arguments must retain some force yet also be penetrated by the categories that are used to make sense of collective experience? For clarifying the nature of constitutional imaginaries and their role in legal reasoning, it might be useful to start from Carl Schmitt’s famous classification of different types of legal thinking, in particular, the distinction between normativism and concrete-order thinking. Schmitt claims that there exist some socially consecrated images (or ‘concrete-order notions’, as he calls them) such as brave soldiers, duty-conscious bureaucrats, respectable comrades, and so on, which a strictly normativist understanding (‘rule and statute thinking’) excludes from the law altogether since it considers that they have no direct legal relevance. Actually, says Schmitt, such concrete notions are central to law as abstract rules never enforce themselves but are applied by people in well-determined situations, against the background of concrete patterns of social order which should be honoured, not ignored, according to Schmitt.Footnote ⁹⁰ Irrespective of whether one agrees with this last point (on the need to respect established social institutions), Schmitt’s analysis can be taken as an insightful portrayal of how constitutional reasoning really proceeds. Although this might not be how Schmitt himself viewed it, concrete-order thinking could be seen as being directed by what Hans-Georg Gadamer has described as a ‘fore-conception’.Footnote ⁹¹ Interpretation always starts from some provisional understanding which is later replaced by a more suitable one if the expectations of the interpreter are not met. Like Europeanists and sovereigntists in general, scholars and judges may also be impelled by an impression of where the greatest danger lies given the concrete situation of their nation, without this fore-conception necessarily determining their conclusions about the law. They could have a Europeanist sensibility and believe that military aggression is what really threatens their small nation – much more than any formal limitations within the EU – yet still be swayed by the claim that sovereignty (as enshrined in the constitution) is an obstacle to European integration. Some legal arguments may simply appear irresistible to them. What their fore-conception brings is an articulation of the situation in terms of concrete facts and circumstances. But it also brings something else. Schmitt’s insight was to note that, when lawyers practice concrete-order thinking, they do not apprehend society as a factual realm separate from applicable norms. The concrete situation bleeds into law by making some interpretations seem more appropriate than others.

The ‘sovereignty conundrum’ grows out of the assumption that there is no fundamental difference between the Soviet Union or the EU at the level of the idea of foreignness. As Sadurski remarked, for all its benign character, the EU is also a foreign body. When looking at how courts in East-Central Europe have reasoned on European integration, we see, however, that they do not start from such abstract notions as a ‘foreign body’. In several cases, courts have explicitly underlined that the problem of sovereignty should be approached in a particular way if membership in an organisation such as the EU is being considered. In its judgment on the Lisbon Treaty, Poland’s Constitutional Tribunal maintained that globalisation and European integration had transformed the character of sovereignty, which ‘is no longer perceived as an unlimited possibility of exerting influence on other states or a manifestation of power that is free from external influences’.Footnote ⁹² According to the Tribunal, in protecting the nation’s freedom to determine its own fate, the Polish Constitution confirms rather than negates the possibility of accepting international commitments, especially if they have ‘the compensatory effect in the form of partaking in the decision-making process in the European Union’ or are otherwise beneficial for the nation. ‘The accession to the European Union creates unique possibilities, in our history, of carrying out modernisation projects in the conditions of stability arising from the membership in the community of values and traditions, in which the Polish national identity is rooted.’Footnote ⁹³ Lithuania’s Constitutional Court has described EU membership as a geopolitical choice which ensures better preconditions for achieving constitutional imperatives.Footnote ⁹⁴ The Czech Constitutional Court adopted a similar perspective in reviewing the Lisbon Treaty. It asserted that, in a modern democratic state, sovereignty of the state in not an end in itself but a means at the service of foundational values. After dwelling on the sui generis character of the EU, the Court cited the memorandum attached to the Czech Republic’s accession application from the 1990s which declared:

It might be argued that this passage reveals what is really happening: that courts are presenting an internationalist conception of sovereignty to underwrite a political decision at which governments had ‘irrevocably arrived’. Yet there is no reason to suppose that the Czech Constitutional Court was being insincere or cunningly strategic when it insisted that the country’s independence can be enhanced rather than diminished by membership in the EU since the latter ‘can ultimately lead to protection and strengthening of the sovereignty of member states vis-à-vis external, especially geopolitical and economic factors’.Footnote ⁹⁶ In analysing the Court’s judgment, one commentator focused on the doctrinal part regarding sovereignty and set it apart from these ‘rather political statements emphasizing the necessity of EU integration in the globalised world’.Footnote ⁹⁷ Such a line of separation can be drawn, of course, and it almost imposes itself when law is distinguished from politics, as it traditionally is. On the other hand, in so doing, we also cut off a flow of reasoning that somehow appears continuous and follows a curiously similar path in many judicial decisions where membership in the EU is under consideration. Arguments about sovereignty are not derived but rather framed, prepared, set out as appropriate against the background of some picture of the world where the nation or the country supposedly finds itself. Moreover, even the most Europhile judgments have not refrained from caveats. By leaving it to Parliament to list the competences that cannot be transferred to the EU, the Czech Constitutional Court suggested that there are such competences and thus limits to integration. Poland’s Constitutional Tribunal stated explicitly that there is a point at which the ‘essence of sovereignty’ is compromised.Footnote ⁹⁸ This reservation was later invoked to contest the validity of EU law.Footnote ⁹⁹ To explain such reversals, we again need to look beyond abstract legal concepts, not assuming, however, that another political decision must have been taken and is simply being justified in the language of sovereignty. Both pro- and contra-EU arguments were linked to sovereignty at the time of the eastern enlargement of 2004.Footnote ¹⁰⁰ By studying cultural imaginaries, we are making it easier to understand how such contradictory arguments can still make sense today.

5.1 Introduction

Britain’s constitutional evolution falls within the mainstream of European constitutional traditions, but the gulf between its governing practices and those adopted in the European mainstream has grown progressively wider. While most European nation-states have adopted written constitutions at critical moments of modern history, Britain continues to adhere to the traditional conception of a constitution as a set of laws, customs and practices that continuously evolve in response to social, economic and political change. This is one reason why Britain’s involvement in the venture of creating a European Union has always been rather awkward.

In this chapter, I sketch the main constitutional tropes that have emerged in British thought and show how they express a constitutional identity antithetical to the assumptions driving the project of continuing European integration. I first introduce a series of constitutional stories through which the English have sought to explain themselves as a nation and a state and then consider how these accounts have evolved with the expansion of the English state into a British imperial state. Finally, I will indicate how these legacies ensured that Britain could never become an active participant in the European federal project.

5.2 English Constitutional Narratives

We live in an age of constitutionalism. With so much ideological power now being invested in that term, it is difficult today to speak of the constitution of a state without there looming over us an image of the constitution as a foundational text that not only establishes the framework of government but also expresses the regime’s sense of collective identity. Because of this, it may be less confusing simply to state that Britain does not possess a constitution. This claim was first clearly expressed by Alexis de Tocqueville, who noted in 1835 that ‘in England the constitution may change continually or rather it does not in reality exist’.Footnote ¹ Now that the normative weight invested in that term is so great, it is difficult to discuss the British constitution without this leading to a skewed understanding of the nature of the regime.

The British certainly have a system of government, but those who now invoke ‘the constitution’ invariably end up investing it with an inappropriate degree of normative authority. Whatever normative power the term carries can only be grasped by immersing ourselves in the sense of the constitution as the inheritance of a long tradition in the practical art of governing. But, because the authority of its practices rests on experience, the type of knowledge these practices embody cannot easily be reduced to formal rules: to codify the practices is to change them. To the extent that constitutional rules exist, they are invariably rules of procedure and precedent rather than of principle. Consequently, the normative force of the practices is best revealed through a series of stories that have grown up around them.

These stories have generated a series of shared beliefs about the formation of not just an imagined community (a people, a nation), but also of the terms on which they are governed (a state). I introduce five related narratives through which the political identity of the English is shaped: the ancient constitution, the tradition of local self-government, the authority of the rule of law, the status of the Crown and the principle of sovereignty.

5.3 The Formation of the British State

The narratives of constitutional identity so far examined have been English. With the formation of the modern British state, the influence of these schemes became more qualified. The English, as the largest and most powerful nation on the islands, have always sought a dominating influence over the Irish, the Scots and the Welsh, if only to maintain the security of their state. This policy was first advanced by incorporating Wales into the structure of the English state. This was quickly pursued by the Normans through a brutal practice of subjugation, which was formally concluded by the Statute of Wales of 1535. By this Act, Welsh lands were absorbed into the English shire system and the English common law was then applied throughout England and Wales. In this respect, the English state comprises the territories of England and Wales. The Welsh maintain a distinctive identity but, rather than a political identity indicated by distinctive institutions, it is a cultural identity mainly signified by language.

In the eighteenth century, however, constitutional narratives become more ambiguous. Scholars continued to talk about the English constitution – evident in the works of Blackstone and Dicey in the eighteenth and nineteenth centuries – but in 1707 a new state, that of Great Britain had been formed. This state, encompassing England, Wales and Scotland, was established not through conquest but by treaty. In 1707, Scotland and England were joined by a Treaty of Union to create the United Kingdom of Great Britain.

5.4 The British Constitution and the Project of European Union

With the coming of democracy and the dramatic extension of government powers in the twentieth century, the traditional narratives of constitutional identity were all eroded. What followed was a decline of faith in this constitutional inheritance and increasing ambiguity about constitutional identity. The conviction that progress rested on restoring ancient liberties (rather than meeting new claims) sounded increasingly hollow. The idea that the tradition of local government might be retained in the face of rapid urbanization could not be sustained and the formation of nationally-organized political parties put an end to the notion that MPs were primarily representatives of their localities. Governmental growth shifted the action from Parliament to government, leading to the emergence of a body of administrative law and the necessity of eliminating Crown immunities. It also required a distinction to be drawn between public and private law matters which eroded the significance of the rule of ordinary law. Sovereignty remains the basic principle binding together the British state but, no longer bolstered by its religious and imperial anchoring, the gulf between legal doctrine and governmental practice grows ever wider.

By the end of the century, there had emerged a relatively broad-based conviction that Britain’s inherited constitution had come to the end of its useful life. The need for basic reform – for modernization – was touted across the political spectrum, though without much insight as to what that might entail. And, in the background, one powerful impetus of modernization had often been overlooked: the UK’s participation in the venture of continuing European integration.

Involvement in the European project has empowered the judiciary to enhance rights-based methods of review and has resulted in the British adopting what is in effect a Bill of Rights without having gone through a process of extensive public deliberation.Footnote ⁴⁰ It has also helped set in place a dynamic scheme for devolving governmental powers to the constituent nations of the UK.Footnote ⁴¹ And it has bolstered the unique cross-border arrangements that brought about a peace settlement in Northern Ireland.Footnote ⁴² Continuing European integration had enabled governing arrangements to be re-configured and constitutional fundamentals re-ordered so as the bring the UK into closer alignment with the frameworks of modern constitutional democracies.

The British have lived with a tension between myth and reality in these stories of constitutional identity throughout the modern era, but this tension acquired a new dimension with accession to the EU. Because of its imperial legacy and close trading ties to British Commonwealth countries, the UK did not initially seek participation in the European project. By the 1960s, however, views were changing. When first contemplating joining, the Government asked its leading lawyer (Lord Kilmuir, the Lord Chancellor) to assess the constitutional implications. His opinion focused directly on the impact of sovereignty and the rule of law:

Kilmuir concluded that it will not be easy to persuade Parliament or the public to accept them.Footnote ⁴³ And so it proved. The UK eventually joined in 1973 but controversy over the implications for sovereignty has permeated debate ever since.

The European Communities Act 1972, which gave effect in domestic law to this ‘new legal order’, was a masterpiece of concise legislative drafting. Stating that all rights and obligations ‘from time to time arising by or under the Treaties … are without further enactment to be given legal effect’, few grasped its radical implications. It was commonly felt that, holding a veto over any proposed new powers, the UK retained control. But, as the Union evolved, decision-making was streamlined, with majority voting becoming standard. The claim that Parliament retained final authority over adoption of new social or economic regulations therefore became rather strained.

Furthermore, being immersed in the traditions of law-making by Parliament, British politicians were oblivious to the point that the European Court of Justice (ECJ), quickly establishing itself as the guardian of this ‘new legal order’, could itself be a major source of law. The Court’s rulings, especially in enunciating the principles of the supremacy of European law (requiring European law to prevail over any conflict with domestic law), and direct effect (conferring rights and obligations that can be directly enforced by individuals in the courts of member states), seriously compromised parliamentary sovereignty. Operating as the constitutional court of the European legal order, the ECJ went about constructing that regime and, after years of avoiding the question of the ECJ’s primacy, the point was finally accepted by the British courts in the early 1990s.Footnote ⁴⁴

Following the completion of the single market programme, in 1992 the EU moved to the next – federalist – stage of the project, which included the launch of a single currency (the euro) in 1999. This was accompanied by a period of growing scepticism within the UK about the project, signified politically by the rising influence of the United Kingdom Independence Party (UKIP) and constitutionally by pledges from all major political parties not to agree to the transfer of new powers to the EU without holding a referendum. ‘The essence of the problem’, noted Vernon Bogdanor, ‘was one of fitting Britain into a continental system whose assumptions about constitutions, politics and economics were so different from those held in Britain’.Footnote ⁴⁵

These developments eventually came to a head in 2015 when the Conservatives were returned as a majority government, having pledged an in/out referendum on EU membership. Held in June 2016, it resulted in a majority (52%:48%) voting to leave. This led to a protracted period of unsettlement, the constitutional implications of which did not end on 31 January 2020, when the UK formally left the EU.

5.5 The Contemporary Crisis of Constitutional Identity

In different circumstances, Brexit might have become a constitutional moment, an occasion when the nation, recognizing that a new chapter in the development of the British state was opening, grasped the opportunity to renovate constitutional fundamentals. This is not what happened. Instead, Brexit has come to signify the depth of cleavage in Britain’s constitutional identity. The referendum split the country down the middle, exposing fissures on class and geographical lines. It led to Remainers extolling the virtues of the EU as a symbol of modern, liberal, cosmopolitan values and Brexiters, under the mantra of ‘taking back control’, claiming the decision would lead to the restoration of traditional practices. Both claims were divorced from reality.

One immediate effect of the referendum result was to highlight the gulf that had emerged between the political class and the popular will: having effectively transferred the decision to the electorate, MPs found themselves saddled with implementing a decision despite the fact that around 75 per cent of them had voted to remain. In these circumstances, the traditional practices of parliamentary government were placed under severe strain and at times entirely broke down.Footnote ⁴⁶ Following the resignation of two Prime Ministers (David Cameron after being on the losing side in the referendum; Theresa May after her negotiated withdrawal deal was thrice voted down by the Commons), Boris Johnson took over in summer 2019, went to the country and was returned with an eighty-seat majority (though he was also obliged to resign for other reasons in the summer of 2022). But, ultimately, the process highlights just how much it is the Government, not the Parliament, that has assumed control.

The longer-term implications are even more unsettling. In the process of negotiating withdrawal, the Government has made determined efforts to bolster the traditional principle of sovereignty. It included in the EU (Withdrawal Agreement) Act of 2020 a provision that ‘[i]t is recognised that the Parliament of the United Kingdom is sovereign’, that ‘its sovereignty subsists’ notwithstanding any continuing EU law, and that ‘nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom’ (s.38). This might be read simply as a technical clause within a complex transitional process, but it also sent a signal. That signal was reinforced by the then Government’s apparent intention to replace the Human Rights Act with a Bill of Rights Act. Ostensibly designed to restore the balance of power between the legislature and the courts, in reality it aimed to lessen the influence of the European Court of Human Rights and reinforce the sovereignty principle.

The signal being sent is directed primarily to the judiciary who, building on the modernization theme, over the last few decades have been seeking to reorder constitutional fundamentals by asserting that the rule of law, rather than sovereignty, is the basic principle of the British constitution. This thesis, generally called ‘common law constitutionalism’, asserts that sovereignty does not lie with ‘those who wield governmental power’ but rests ‘in the conditions under which they are permitted to do so’ and the role of the judiciary must be to make explicit these conditions as ‘a framework of fundamental principles’.Footnote ⁴⁷ It is controversial, not least because it implicitly assumes the primacy of English common law within the British state. Yet it is one on which the judiciary have, in certain landmark decisions, made significant advances.Footnote ⁴⁸ Here we see a struggle between the Government and the judiciary over the fundamentals of British constitutional identity.

But there also looms an even more fundamental problem than this contest between the principles of sovereignty and legality. By exposing significant differences across the UK’s territorial regions, Brexit has thrown up certain more basic existential threats to the British state. The various devolution schemes set in place since 1998 have created a governmental mosaic, with the devolved schemes all containing modernizing elements and governing arrangements for each part of the UK now significantly varying. Lip service continues to be paid to the continuing sovereign authority of the Westminster Parliament, but these developments have strained this to breaking point. The catalyst has been the Scottish National Party’s (SNP) majority rule in Scotland since 2011. They pushed for a referendum on Scottish independence which was held in 2014 and yielded a majority vote against (55.3% to 44.7%). But the Westminster Parliament felt it necessary to make further concessions, including passing legislation stating that ‘the Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements’ and ‘are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum’.Footnote ⁴⁹ These developments signal the beginning of the end of Dicey’s doctrine of parliamentary sovereignty, and the incremental evolution of an asymmetric federal scheme for the UK.

Brexit has brought a new dimension to these territorial developments. Although the 2016 referendum yielded a majority for leaving the EU, Northern Ireland and Scotland recorded majorities (56%:44% and 62%:38%, respectively) in favour of remaining. This divergence strained territorial relations throughout the negotiating process, including claims that withdrawal without the consent of the devolved legislatures was illegitimate. It has also had serious post-exit consequences. Arguing that Scotland had been removed from the EU against its will, the SNP then pledged to hold a second independence referendum (though this would require Westminster’s consent). The situation in relation to Northern Ireland is no less serious. It is the one area of the UK that maintains a land border with an EU member state, yet the erection of customs barriers here was felt to threaten the peace process and accords established in the Good Friday Agreement. Consequently, a Protocol to the Withdrawal Agreement was negotiated, under which Northern Ireland would remain in the customs union, with a customs border being established in the Irish Sea. But the working arrangements for this have generated disputes between the UK and EU, are a source of continuing discontent among unionist groups in Northern Ireland and may be signalling the moment at which the holding of a referendum on re-uniting Ireland becomes ever closer.

Ruling Britannia today presents greater challenges than has been faced at any stage in modern history. The idea of British nationhood was formed out of a Protestantism that bound the Anglo–Scottish union, flourished with the expansion of the British Empire and was sustained in the twentieth century by the establishment of a national industrial economy. These ties have since been progressively loosened: first through secularization of public life, then through loss of Empire and most recently with the promotion after 1979 of policies of de-industrialization and privatization.Footnote ⁵⁰ Yet, once the factors enabling the British to identify themselves as a nation and a state have dissipated, the conditions for rejuvenating a common constitutional identity no longer seem propitious. It would require a conscious and determined effort to restore a pan-British sense of patriotism, and that seems a distinctively un-British thing to be contemplating. In this respect, George Orwell’s observation that ‘England is perhaps the only great country whose intellectuals are ashamed of their own nationality’ still rings true.Footnote ⁵¹ The best hope lies in the advancement of radical reforms to the system of government, which might incrementally provide an institutional foundation for a renewal of faith.

6.1 Introduction

The popular narrative in Estonia says that, during the revolutionary periods, there have never been serious alternatives to political independence. From 1991 onwards, this narrative has not lost its momentum. However, this chapter looks at the period of 1987–1988 and claims that it was the finest hour for imagining alternative futures for Estonia.

In the distant past, there have been several, even utopian visions of how we could ‘imagine alternatively’ Estonia’s future. For instance, socialist revolutionary poet Gustav Suits proposed a dual Finnish–Estonian state in November 1917 and later the ‘Estonian Labour Republic’ (Eesti Töövabariik) in January 1918.Footnote ¹ In 1972, when Estonia was occupied by the Soviet Union, the Estonian émigré professor Rein Taagepera proposed his 30-year plan for Estonia towards a socialist satellite state status (the ‘Hungarian path’).Footnote ² Both envisioned Estonia as expanding the internal sovereignty but sharing the united external politics. Both men shared the view that it is important to focus on the available resources at your disposal, to exhaust all the means to survive as a nation, even if it does not severely cut ties with the big neighbour. In 1987–1988, new imaginary scenarios emerged in Estonia. Should Estonia develop itself into an economically independent republic (or at least a free trade zone) in the renewed Soviet Union, to a sovereign socialist republic (which shares its foreign and defence politics with the centre) or an independent republic, restored by the legal continuation of the pre-war Republic?

In a more general sense, this chapter shows how the imagination of alternative futures take place in a state-socialist system which has opened all the channels to vision and discuss reforms. In what language and through which concepts are the alternative futures being produced? Taking Soviet Estonia as a case study, the chapter shows the specific concepts during the mid-perestroika (1987–1988) period which opened, facilitated, but also delimited the imagination of Estonian futures. The chapter argues that these concepts were innovated by local reformists, through which the alternative scenarios were constructed, creating the peripheral ‘conceptual revolution’ during the perestroika.

6.2 Creating the Repertoire of Futures

Alexis de Tocqueville wrote in 1856, that ‘it is not always that things are going from bad to worse that revolutions break out. On the contrary, it oftener happens when a people suddenly find the government relaxing its pressures.’Footnote ³ Relaxation of the top-down planning in the economy but also the media censorship during 1986–1987 became the most visual marker of the change in Soviet society. In retrospect, we can conceptualize this moment as an early revolutionary situation. Nowadays, many scholars confirm Tocqueville’s observation, however, less has been said about specific conceptual processes of how these ‘moments of relaxation’ during the pre-revolutionary periods become revolutionary situations. Charles Tilly has defined the nature of ‘revolutionary situations’ in history by referring to the main two characteristics as ‘the appearance of contenders, advancing exclusive competing claims to control the state, or some segment of it’ and the ‘incapacity or unwillingness of rulers to suppress these contenders’.Footnote ⁴ While these conditions were indeed present in 1988 in the Soviet Union, I am more interested in looking at the more ambiguous start of this situation in which the contenders emerge from the local political and scholarly elite. Which claims, concepts and arguments do these contenders use, and in which forms do they make them? Tilly’s concept of ‘contentious repertoires’ brings us closer to this question.Footnote ⁵ According to Tilly, ‘repertoires’ refer to ‘claim-making routines that apply to the same claimant–object pairs … these can include, for instance, petition letters, pamphleteering, strikes, civil disobedience, etc.’Footnote ⁶ Repertoires function as an available structural menu for contenders (to choose their action form), but also limit it, as, according to Tilly, repertoire changes very rarely.

However, Tilly’s approach to ‘repertoires’ as a menu for contentious actions was related to the direct, physical form of action and not so much to intellectual conditions. For instance, although Tilly highlights ‘pamphleteering’ in France in the eighteenth century before the French Revolution, we are not shown the actors’ manipulation in the pamphlets to pursue their political goals, or whether, and if so, how, some concepts were made oppositional. In this chapter, I view expert concepts, argumentative languages and even scientific methods as potentially open to innovation and manipulation in the political sphere. Thus, I want to expand the concept of repertoire for innovators in revolutionary situations by moving from direct physical forms of contention to more abstract ones, considering many more linguistic aspects. Which kind of ‘concepts’ and ‘languages’ can be used in the moments when the regime’s pressure has been relaxed, but only a limited array of concepts are at hand? To answer that, I will turn next to the Estonian case, which shows the importance of concepts, including its impact on the Soviet collapse.

6.3 From ‘Future Scenarios’ to ‘Self-management’ in 1987

Two years before Polish Round Table Talks (February–April 1989), before the Civic Forum and Václav Havel’s last arrest by the secret police in Prague in October 1989 and before the first mass demonstration in Romania in December 1989, one of the first revolutionary situations in Eastern Europe after the Solidarność movement, where (to use Tilly`s words) ‘the contenders advance claims to control some segment of the state’, emerged in 1987 in Soviet Estonia. On 26 September 1987, a group of Estonian scientists and experts published a short article entitled ‘A Proposal: Estonian SSR to Full Self-Management’ (Ettepanek—kogu Eesti NSV täielikule isemajandamisele) in the progressive local newspaper Edasi (Forward).Footnote ⁷ Four men were named in the byline (Siim Kallas, Tiit Made, Edgar Savisaar and Mikk Titma) and, thus, the document was quickly named the ‘Four-Man Proposal’ (Nelja mehe ettepanek). All four men were members of the Communist Party of the Soviet Union (CPSU).Footnote ⁸ The proposal called upon the Estonian government and the scientific community to draft plans to achieve an independently operating economy in the union. The request declared the need for ‘a radical rearrangement of the Estonian economy and the society as a whole’. The proposal’s main message was that public debate should be started on how to gain ‘full self-accounting status’ for the republic and how to place the economy (including all-union enterprises) on Estonian territory completely under the jurisdiction of the Estonian SSR. The article also proposed giving the republic its national currency. The novelty of the revolutionary ‘Four-Man Proposal’ consisted of the quest for financial independence of the republic – the claim for the budgetary control over the all-union enterprises, independent economic foreign relations, taxation and currency on the republic’s level was unheard of in the Soviet Union. The proposal was considered a ‘utopian’ plan by many contemporaries. Siim Kallas (one of the signatories of proposal) later said that, although the project was clearly unreachable, ‘it was still very useful and healthy project, which helped [metaphorically] to heat the oven, to present constantly more and more radical claims to Moscow’.Footnote ⁹

The project was also presented as ‘opening up the multiple scenarios’, inviting experts and scholars to join the debate. This approach was established in May 1987 through a public contest of ‘economic development scenarios’ announced by the main activist of the Four-Man Proposal, Edgar Savisaar, who headed the department in the Estonian Plan Committee, the regional branch of Gosplan. Although the scenario method known by the local management school from the 1970s, the contest for ‘future scenarios’ was the first of its kind in Estonia. The Planning Committee’s official manual for contestants stated that:

More than 100 teams registered for the contest; although only around 20 proposals were accepted (because of the contest’s strict requirements), and 6 of these won prizes.Footnote ¹¹ The topics of the scenarios included imagining foreign trade in ESSR in the service sector, the vision for secondary schools, reforms in agriculture and so on. After the contest, Savisaar demanded from the government that the six winning scenarios be made public and debated with scientists. The public discussion (as a pillar for glasnost policy) was supposed to change the political culture. Savisaar wrote, in spring 1988, that is why ‘a scenario method is an ideal tool for a dialogue between scientists and the political authorities, helping to present alternative future visions and their probable results’.Footnote ¹² However, the results of the contest were not taken into account at higher levels of political decision-making. This was one of the reasons why Savisaar organized another brainstorming session with an expert group in the Plan Committee in August 1987. The task for the experts was to continue with the scenarios, this time to work out innovative ideas on how to radically change the whole republic`s economic management. However, fearing that it will stay in the cabinets like the scenario contest, Savisaar decided to publish the new proposal straight away in the popular media and it was made on 26 September 1987. Although the new proposal was worked out by approximately ten members, it was publicly signed by only four men in September.

The Four-Man Proposal called the Estonian scientific community to brainstorm the concept of ‘territorial self-management’ (isemajandamine) and to ‘release the intellectual resources of the people’. Most importantly, it generated a massive debate from October 1987 until the end of 1988. The discussions on ‘what it would take to carry out this project’ took place every week, mostly in progressive newspapers, mobilizing reform-minded top officials, intellectuals and academics from very different fields. In the end, the reform-minded vice-chairman of the Council of Ministries of Estonia, Indrek Toome, publicly endorsed the project. The new project was exported to other Baltic republics as well. In the autumn of 1988, the governments of all three Baltic republics established a common platform to begin negotiations with Moscow to gain ‘economic independence’ from central planning. Two concepts, the ‘scenario method’ and ‘economic self-management’, had not only helped to construct a novel political project but also facilitated the scientists’ path to politics.

Thus, Estonian experts and scientists entered politics by means of their professional language. How unique was this process in East Central Europe? Although it was an exceptional move in the Soviet republics, we can find similar cases in some other countries. For instance, Czechoslovakian forecasting scholar Miloš Zeman rose to politics with his article Prognostika and Perestroika, published in August 1989. While Savisaar in Estonia employed the concept of ‘future scenario’ in 1987, Zeman used ‘prognostika’ in 1989 as an important scientific source of critical thinking on the ‘plurality of possible futures’.Footnote ¹³ Just like Savisaar, Zeman emphasized the necessity of dialogue and public discussion on both social and economic problems. In both cases, the published texts were arrowed at the ultra-centralist rule. This shows one transnational current in Eastern Europe in the late 1980s, where forecasting experts became politicians with the help of their professional language. Both men eventually became prime ministers of their countries; Savisaar in 1990 and Zeman in 1998.

Month after month, the utopian project of ‘self-management’ (isemajandamine) gradually expanded in Estonia. The meanings that were initially connected only with economic policies permeated the social and political sphere in early spring 1988. The Tartu Group of Self-Management (Isemajandamise Tartu rühm), consisting of academics from various fields at the University of Tartu, stated in their first meeting on 15 February 1988, that ‘isemajandamine is not only an economic but also a social and ideological problem … the hope is that regulating the society’s economic base will also reactivate social mechanisms’.Footnote ¹⁴ A fundamental shift in the rhetoric was the group’s statement that ‘the economy is only an instrument for the ultimate goals of isemajandamine’, which were the ‘increase of sovereignty and subjectivity, growth of welfare, increase of freedom of choice, etc.’Footnote ¹⁵ The ‘self-management’ as a concept quickly expanded to self-management in all spheres (culture, environment, regional policy, etc.).

Again, comparing the Estonian case with the developments in East-Central Europe in that period, there is a similarity between this discourse of ‘self-management in all social spheres’ and the discourse of self-management in the civic society proposed by Czech dissidents in the mid-1980s. In 1985, Czech dissident Petr Uhl, in his essay ‘The Alternative Community as Revolutionary Avant-garde’, explicitly says that ‘social (and not merely economic) self-management is a combination of direct and indirect forms of democracy’.Footnote ¹⁶ In the same year, another Czech dissident, Rudolf Battěk, argued in favour of ‘different forms of self-management’ and the need for ‘pluralizing sovereignty’ in society. According to Battěk, ‘social structures can be democratized by expanding the elements of self-management, limiting institutional growth, making allowances for ideas as motivational factor, and strengthening direct democracy by eliminating priorities and privileges’.Footnote ¹⁷ Paul Blokker has described it as a continuation of ‘republican language’, as it promoted direct democracy, people’s moral responsibility to the state and civic initiative from below.Footnote ¹⁸ The intriguing part is that, whereas in East-Central Europe this ‘language’ was kept alive by dissidents, in the Estonian SSR it emerged from the community of social scientists, many of them being members of the Communist Party.

6.4 From ‘Self-management’ to ‘Sovereignty’ in 1988

The Tartu group changed the abbreviation of isemajandamine (IM) to IME (Isemajandav Eesti) in the spring of 1988. In Estonian, ‘IME’ literally means ‘miracle’ (ime), which helped to give the movement even more positive, creative, even spiritual image. Reformers saw that, although an (economically) utopistic project, a miracle in that sense, it mobilizes the whole nation. By autumn 1988, IME had multiple simultaneous meanings – it denoted a social movement, economic independence, and social self-regulation, but perhaps most importantly it acquired the meaning of political sovereignty.

Indeed, from the perspective of world politics, the most important by-product of the mushrooming discourse on self-management was the revival of the forgotten concept of ‘sovereignty’ at the end of 1987. By the constitution of the Soviet Union (1977), every Soviet republic was a ‘sovereign socialist Soviet state’ (§ 76). The concept of ‘sovereignty’ (in Estonian, suveräänsus) was brought into the IME debate in October 1987 by lawyers who said that the republic’s economic independence cannot be achieved without the republic’s sovereignty. Legal scholar Indrek Koolmeister was the first, who stated in October 1987 that ‘speaking of being a master in your country, it is not only an economic but also a political-legal category … to speak about the people as a master at the state level means to talk about the sovereignty of people, about its power, and the ways of its realization’.Footnote ¹⁹ From there, several lawyers started to argue that ‘sovereignty’ was a constitutional right of every Soviet republic, as the all-union constitution clearly states. Legal scholars Igor Gräzin and Peeter Kask emphasized in November 1987 that ‘the republic`s self-management presumes the sovereignty of the republic to expand its rights … and using the constitutional rights that ensure sovereignty is not only the republic’s right but also its duty’.Footnote ²⁰ It was a remarkable conceptual transfer of the ‘sovereignty’ from constitutional law to the public sphere, irrespective of the fact that, only a year earlier, this very concept was not perceived by Estonian reformers applicable on the political arena at all.

In September 1988, the politically and legally more useful term ‘sovereignty’ replaced ‘self-management’ in reformists’ tactics. During the 11th Plenum of the Estonian Communist Party on 9–10 September 1988, Estonian political scientist Andrus Park invited others ‘to pay attention to the legal-political questions to secure the Estonian SSR’s economic independence’, stressing that ‘the keyword for the IME movement from now on should be “sovereignty” and only then “self-management”’.Footnote ²¹ However, the final manoeuvre was made due to a direct constitutional dispute with Gorbachev’s team, who demanded in summer 1988 that Estonia should confirm the new amendments in the Soviet Union’s constitution. In response, on 16 November 1988, the Supreme Soviet of the Estonian SSR adopted the Declaration of Sovereignty. The declaration asserted the ESSR’s ‘sovereignty’ and Estonian laws’ primacy over those promulgated by Moscow’s all-union government. This step became a blueprint that was soon followed by virtually all other Soviet republics (including the Russian SFSR) and many autonomous republics in 1989–1990. This process, known as the ‘Parade of Sovereignties’,Footnote ²² put the central government at a serious disadvantage in its efforts to re-establish control over the Soviet Union and led to its dissolution in 1991.

The importance of the ‘sovereignty factor’ on the dissolution of the Soviet Union has been acknowledged. Edward D. Walker has written the most meticulous study on the effect of the factor on the USSR’s dissolution. Walker emphasized the importance of the sovereignty declarations adopted in 1988–1990, saying that

The political efficiency of the concept was also highly esteemed by Boris Yeltsin, who recalled later that ‘as soon as the word “sovereignty” resounded in the air … the last hour of the Soviet empire was chiming’.Footnote ²⁴ Throughout 1990, Boris Yeltsin presented ‘sovereignty’ as a central concept in his speeches in RSFSR regions, calling on regions to declare their sovereignty. Eventually, all fifteen union republics (SSRs) in the Soviet Union and twenty-six different autonomous regions (including ASSRs) in the Russian SFSR adopted sovereignty declarations between 1988 and 1991 (Table 6.1).

While the importance of the ‘sovereignty factor’ on the dissolution of the Soviet Union has been recognized, some of its questions remain unanswered. For instance, why did it happen first in Estonia and not in other Soviet republics? Why did the concept of ‘sovereignty’ rise to prominence in Estonia in late 1987? What was the reason for this particular development in the ESSR on the all-union scale?

Even though in November 1988 the ‘sovereignty of the Estonian SSR’ was declared on the grounds of the ESSR’s constitutional rights, its unexpected ‘emergence’ in late 1987 was related to something else. The rebirth of ‘sovereignty’ in Estonia was caused by the need to form a legal basis for the project of territorial self-management. In other words, in 1987–1988, ‘sovereignty’ was supposed to serve the goal of ‘self-management’ and not vice versa. ‘Self-management’ became a central political concept in the ESSR from September 1987 onwards, before it was replaced by its local successor, ‘sovereignty’, in late 1988. It was an unintended conceptual consequence of the gradually expanding debate on self-management in 1987. Thus, to understand the spread of ‘sovereignty’ in Soviet republics in 1987–1989, one should pay attention not only to constitutional factors (i.e., to the Soviet constitution) but also to why and where the new claim arose, what its relation was to other concepts in the ongoing debate, and which contextual resources made it possible to create those preceding claims.

6.5 Two Conceptual Revolutions: Central and Peripheral

The Sovietologist Archie Brown was the first, in 1989, to describe the years of the mid-perestroika campaign (1987–1988) as a ‘conceptual revolution’. To quote Brown, ‘the conceptual revolution, like perestroika in general, was in many respects a revolution from above, stimulated by the new vocabulary of politics Gorbachev used’.Footnote ²⁵ Brown pointed out several concepts in Gorbachev`s speeches that ‘helped to open space for the new political activity’.Footnote ²⁶ During perestroika, in 1989, Archie Brown noted that Gorbachev and his allies used three ‘new concepts’ in 1987–1988, which, according to Brown, ‘deserve special emphasis, as they helped to open space for new political activity and provide a theoretical underpinning for some of the concrete reforms that the more radical interpreters of perestroika were attempting to implement’.Footnote ²⁷ These were (1) ‘socialist pluralism’ (sotsialisticheskoe plyuralizm) as a pluralism of opinion; (2) ‘state based on the rule of law’ (pravovoe gosudarstvo); and (3) ‘checks and balances’ (sderzhek i protivovesov) as separation of powers.Footnote ²⁸ All three received the endorsement of Gorbachev, which corroborates Brown’s claim about ‘the revolution from above’. However, as we have seen, there was another, parallel conceptual revolution ‘from below’ (or ‘from the side’) happening in the periphery – the cases of ‘self-management’ and ‘sovereignty’ in Estonia showed the power of concepts during the perestroika. We saw the miraculous revival of ‘sovereignty’ in 1988, but the Estonian version of ‘self-management’ (isemajandamine) was similarly remarkable. What is the origin of that particular concept? Next, I will briefly describe the conceptual genealogy of isemajandamine in Estonia.

The Estonian term isemajandamine was part of the Soviet economic vocabulary. It was a translation from a Russian term khozrachet (an acronym of the longer version khozyaistvennyi raschet). As a Bolshevist concept, it was coined in the early 1920s, when Lenin and Bukharin explained the basis of the New Economic Policy (NEP) in terms of the ‘system of khozraschet’.Footnote ²⁹ To work ‘on khozraschet’ meant that a given economic unit (factory, enterprise) had achieved self-sufficiency, in which costs were covered from the unit’s own profits, that is, independently of state directives. Thus, it was completely different from Marxist concept of workers’ ‘self-government’ (sometimes used as a synonym to ‘self-management’) which had its own historical roots in East Central Europe (radnicko samoupravljanje in Yugoslavia; samorząd robotniczy in Poland, etc.). In short, khozraschet denoted the economic independence of the unit. In 1941, when the Soviets occupied Estonia, khozraschet was translated into Estonian as isemajandamine.Footnote ³⁰ It was widely used during the late 1950s (related with Khrushchev’s Sovnarkhoz reform) and during the Kosygin reform plans in the mid-1960s when the self-sufficiency of the economic system was set as the priority in the reform agenda. In the 1970s, the concept faded from the publicity into a long quiescence everywhere in the Soviet Union, including in Estonia. During the early perestroika, NEP and khozraschet returned to the Soviet economic debate, perhaps most powerfully with pro-perestroika economist Nikolai Smelev’s article ‘Advances and Debts’ (‘Avansy i dolgi’) in Novyi Mir in June 1987.Footnote ³¹ From mid-1987 onwards, Gorbachev incorporated the term into his programmatic vocabulary and frequently spoke of the need for ‘full cost accounting in enterprises’ (polnyi khozraschet predpriyatii).Footnote ³² For instance, in his June 1987 speech in the CPSU Plenum, Gorbachev proposed that all state enterprises work ‘on full self-accounting and self-financing’, starting in 1988.

Smelev described khozraschet as more than just an accounting term. As he saw it, the NEP marked the transition from ‘administrative socialism’ to ‘khozraschet socialism’.Footnote ³³ However, in official Soviet economic discourse, the term still had a very technical meaning. It regulated only the management forms and hierarchical relations within the economic units. For instance, khozraschet’s qualifiers were ‘internal’ (in Russian, vnutrennyi; in Estonian, sisemine) and ‘full’ (in Russian, polnyi; in Estonian, täielik). Vnutrennyi khozraschet (internal self-accounting) was a management form in which only a small individual unit within a collective farm or enterprise (such as a brigade) had khozrachet status. In contrast, in polnyi khozraschet (full self-accounting), the whole enterprise or farm worked as an economically self-managing unit. It was used everywhere in the Soviet Union only as a technical accounting term, referring to the enterprises’ obligation to operate without losses and not to anything else. It was also the case with the Estonian SSR until 1987, when the Four-Man Proposal radically changed the conventional meaning of khozraschet. The conceptual change was made on two levels. The first was in September 1987, when the Four-Man Proposal lifted its meaning from the individual-unit (enterprise) level to the territorial (republican) level. The second took place in spring 1988, when the Tartu Group of Self-Management and the IME Council expanded it from the strictly economic level into a much broader social sphere. The aforementioned changes also had a specific linguistic resource. The Estonian term isemajandamine had the prefix ‘self-’ (ise-), which made it similar to another Estonian term, iseseisvus (‘independence’). The prefix was missing not only in the Russian term khozraschet but also in its translations to the native languages in other Soviet republics. This particular resource explains (but only partially) why the conceptual innovation of khozraschet was so resonant in the Estonian SSR.

The innovation of the isemajandamine inadvertently made space for other concepts and subsequent shifts, as it motivated other economists to come up with alternative ideas. In the autumn of 1988, economist Arno Köörna proposed that, instead of being a ‘self-managing republic’, Estonia should become the first ‘free economic zone’ in the Soviet Union, based on the Chinese model.Footnote ³⁴ The proposal of a ‘free economic zone’ by Köörna attracted numerous critics discussing how to proceed with the reforms in Soviet Estonia. While Köörna and his supporters emphasized that becoming a special economic zone would be ‘concrete, real and radical’, the vast majority of economists and intellectuals argued against it, saying that a free economic zone would not be a step forward but rather a step back. In October 1988, the rival working groups of the ‘self-management’ project (the Economic Institute of the Academy of Sciences and the IME Council) published a joint position paper in which they highlighted all the criticisms of Köörna’s idea. The main point was that ‘a self-managing republic can only be a sovereign state, whereas an economic zone can exist only as a part of a state but never as a state as a whole’.Footnote ³⁵ In other words, the orientation of the political elite was clear – it was not towards economic but to political sovereignty in 1988. In other words, the imagination process was so rapid that visions that might have been welcomed as innovative and appropriate in late 1987 (like a free trade zone) were, in the second half of 1988, interpreted as outdated, unnecessary and even dangerous to the IME project. Within a year, an economic proposal had been changed into a political request for republic’s sovereignty. The peripheral ‘conceptual revolution’ had transformed economic concepts into political ones.

6.6 Conclusion

Concepts which derive from an expert-language framework can acquire broader resonance and meaning in society and contribute to the rise of a revolutionary situation. This chapter shows the identification of those conceptual processes in pre-revolutionary periods. A specific conceptual process sequentially unfolded in the ESSR in 1987–1988, culminating in the concept of ‘sovereignty’ rising to prominence in late 1987. First, the conceptual innovation of ‘self-management’ (isemajandamine) in Soviet Estonia enabled new kinds of social and political mobilization at different levels: (1) it opened the public press as a new discussion channel for the academics and experts who became involved in an intense debate about the current economic and political situation in Estonia; (2) official working groups were created to develop the idea at the level of the Communist Party and the Academy of Sciences; and (3) it helped to create a common conceptual platform for the Popular Fronts (and later for the national governments) of the three Baltic republics in their quest for economic independence. Secondly, if we analyse official language and concepts in authoritarian regimes, we have to consider the highly ideologized language, hierarchical discourse, censorship constraints, code words, previous connotations, and so on. The reform-minded scientists who masterfully innovated the old term, isemajandamine (which started to signify utopian situation where the whole republic could be financially independent), filled the conceptual void for reform-socialist forces. It became the centre of their language for two years (1987–1988) before it led to ‘sovereignty’ at the end of 1988 when the new concept took over the lead role in the reformists’ agenda. Thus, ‘self-management’ acted like a vanishing mediator, a utopian project, but at the same time an extremely useful one for the local reformers. Both the project and concept (isemajandamine) disappeared in 1991, when Estonia become an independent state, and has not been used in the local political sphere since.

However, it is important to stress that the political development of the ‘self-management’ project in 1987–1988 was an open-ended process without foreseeable consequences. One of the members in the initial expert group, management scholar Erik Terk, said in 2018 that ‘we had no way of knowing how it would end … we did not imagine independence; the realistic aim back then was to negotiate as many economic rights from Moscow as possible’.Footnote ³⁶ The development in the direction of political independence in 1988 was not initially planned as a step-by-step strategy, even if in hindsight it is very tempting to see it this way. We should not underestimate the role of the scenario method, used by the experts in the IME movement. We could illustrate this as a serendipitous process. The invention of ‘territorial self-management’ in September 1987 inspired the scholarly audience to produce new concepts (that they were not using in the first half of 1987) like ‘sovereignty’. Eventually, the concept of ‘sovereignty’, which was initially meant to serve as a legal empowerment for the self-management project, turned out to be the most powerful concept for all Soviet republics.

The process of expanding the ESSR’s economic-territorial rights, from ‘self-management’ to ‘sovereignty’, eventually culminated with the official Declaration of Sovereignty, the first of its kind in the Soviet Union (16 November 1988). In 1989–1990, following the Estonian example, all Soviet republics issued their declarations of sovereignty, including the Russian SFSR in June 1990. This process, known as the Parade of Sovereignties, seriously disadvantaged the position of the central government in its pursuit to rebuild the union and, therefore, led to its dissolution. What initially started as a local territorial innovation plan, almost as an imaginary utopia, ultimately had very serious and unexpected legal consequences for the Soviet empire.

7.1 Introduction

One of the peculiarities of the Polish Constitution of 1997 is its syncretism. The combination of various, often divergent or even mutually contradictory (apparently or actually) elements is visible not only in constitutional arrangements for the political system but also in the provisions for fundamental rights or even the ontology of law. The Constitution combines the chancellery and the presidential systems, economic neoliberalism and the vision of a social state, the positivist structure of the sources of law and a jusnaturalist conception of human dignity. This far-reaching constitutional eclecticism resulted from the fragmentation and polarisation of the Polish political scene during the initial period of the political transformation. A difficult and arduous constitutional compromise must have been ‘thrashed out’.Footnote ¹ Although the work on the new constitution had already commenced in 1989, the Constitution was approved in a national referendum only in 1997.Footnote ² It is therefore a relatively late constitution as compared to those adopted in other post-communist countries. The protracted constitution-making was still in progress when, firstly, European integration had already moved to a new level – marked by the creation of the EU in the Maastricht Treaty – and, secondly, Poland’s membership of the EU had become a political goal generally supported by all the political forces that participated in drafting the constitution. European integration was not the main topic of fundamental political disputes at the time. For the politicians involved in the work on the constitution, of greatest importance, inter alia, were the content of the preamble, the separation of the State from the Catholic Church, the division of powers within the framework of a bicephalous executive (between the President and the Council of Ministers) and the concept of individual freedom. Nevertheless, the content of Article 90 – the Polish ‘integration clause’ – also aroused controversy, mainly due to the politically and historically sensitive issue of transferring the powers of State authorities to an international organisation. The tension between the will to actively participate in European integration and the fears of losing or limiting sovereignty is thus inscribed in the DNA of the Polish Constitution. Interestingly, the provision that is the constitutional basis for Poland’s accession to the EU does not expressly indicate these two fundamental and, to some extent, opposing ideas: sovereignty and European integration.

The purpose of this chapter is to analyse Article 90 of the Constitution (in conjunction with other constitutional provisions on international law) as an element of the Polish constitutional imaginary. The notion of constitutional imaginary as formulated by Martin Loughlin will provide the theoretical framework for these considerations. Loughlin drew attention to the manner in which modern constitutions can harness the power of narrative, symbol, ritual and myth to project an account of political existence in ways that shape and re-shape political reality.Footnote ³ Loughlin draws attention to three elements that shape the constitutional imaginary: thought, text and action. He claims that the core of the constitutional imaginary and its meaning is determined by an interaction between the concepts of ideology and utopia.Footnote ⁴ Perceived through the lens of Louglin’s constitutional imaginary concept, Article 90 of the Polish Constitution turned out to be the provision that shapes intricate relations of two big ineffable ideas: sovereignty and European integration.

The three elements of Loughlin’s constitutional imaginary will be the starting point for organising the analysis on Article 90 as a key constitutional provision related to EU membership (and other important constitutional provisions related, inter alia, to the application of international law in the Polish legal order). Thought, understood as vision (or visions) of constitutional order,Footnote ⁵ will be identified in this chapter with (rather fragmented) discussion on the vision of Poland’s membership of the EU during constitution’s drafting. Text will be related to academic interpretation of constitutional norms, whereas the dimension of action will cover the judicial interpretation of the constitutional text presented in the Constitutional Tribunal case-law regarding Poland’s membership of the EU, the constitutional practice of applying (and not applying) Article 90 of the Constitution and the unsuccessful attempts to amend the Constitution and introduce a new ‘European chapter’ to it.

Loughlin points out that each of the elements that make up the constitutional imaginary are characterised by a tension between ideology and utopia. Ideology orders a pattern of action and is an expression of the fundamental symbolic structure of the association. The main function of ideology within the political domain is to perform the integrative role of maintaining its identity.Footnote ⁶ The primary function of utopia, in turn, is to present an imaginative variation of the prevailing interpretation of constitutional order.Footnote ⁷ ‘Utopia is the “view from nowhere”. Its role is to highlight the contingency of the existing order by offering a vision of what might be.’Footnote ⁸ In the constitutional imaginary, then, ideology is a technique of integration and utopia primarily a technique of subversion. Ideology conceals the gap in legitimacy claims, whereas utopian thought exposes it.Footnote ⁹ Loughlin points out that both ideology and utopia have a positive and negative dimension:

In my opinion, this dichotomy is somewhat relative. Indeed, ideology may contain certain utopian elements, and every utopia is to some extent ideological. With regard to the place of Europe and the vision of European integration within the framework of Polish constitutional imaginary, the ideology–utopia dichotomy can be identified, on the one hand, with liberalism and the vision of a ‘return to Europe’ and, on the other hand, with the idea of classically understood sovereignty and striving for a strong nation state. The lack of coherence between the extensive sphere of thought and the laconic and agonistic nature of the constitutional text has been reflected in the constitutional practice (action). The European integration has been perceived in the constitutional practice as both the ineffable aspiration and the object of serious concerns. Since 2004, for a long time, constitutional practice with regards to the EU was a syncretic collection of cautious friendliness towards EU law, emphasis on (formal) constitutional supremacy and narrowing down the interpretation of ‘the conferral of competences’. Nevertheless, until recent years, the constitutional text had tended to be interpreted as facilitating rather than limiting Poland’s participation in European integration. Therefore, the observed Eurosceptic turn in the political domain is not justified either in the sphere of thought or in the constitutional text. The recent constitutional practice disturbs the existing balance between ideology and utopia. Instead of promoting political unity and overcoming conflicts of interest, it establishes a new site of political conflict.Footnote ¹¹

7.2 Thought: European Integration and the Contested Constitutional Compromise

The work on the Constitution commenced at a relatively early stage of the systemic transformation but lasted – for various reasons – an unexpectedly long time. Besides other fundamental issues, the question of Poland’s future membership of the EU also turned out to be a subject of discussion and controversy.Footnote ¹² The constitution-making work intensified in the period when Poland’s integration with the EU was considered one of the key goals of State policy. All the major political parties declared their will to join the community structures as soon as possible. The pursuit of this goal was emphasised by the signing and subsequent ratification of the Association Agreement.Footnote ¹³ Nevertheless, the ‘return to Europe’ was not interpreted uniformly by all political parties. The political dispute mainly revolved around the understanding of State sovereignty.

A more detailed analysis of the constitutional provisions related to Poland’s membership in the EU should be preceded by an overview of the political dispute over the Polish Constitution, which will help understand the origin of the current ‘Eurosceptic’ twist in the constitutional practice. The first freely elected Sejm (the lower chamber of the Polish parliament) did not manage to adopt a constitution (1991–1993).Footnote ¹⁴ The 1993 elections were won by parties burdened with communist heritage: Sojusz Lewicy Demokratycznej – SLD (Democratic Left Alliance) and Polskie Stronnictwo Ludowe – PSL (Polish People’s Party). Nevertheless, they did not gain the two-thirds majority necessary to adopt a constitution. Therefore, they created a ‘constitutional coalition’ with opposition groups originating from post-Solidarity parties: the central-liberal Unia Wolności (Freedom Union) and the left-wing Unia Pracy (Labour Union). The right wing, divided between many parties, found itself outside the parliament but, before the elections planned for autumn 1997, it managed to unite and run for election under the name of Akcja Wyborcza ‘Solidarność’ (Electoral Action ‘Solidarity’).Footnote ¹⁵

The post-communist SLD–PSL government was losing in the polls along with the upcoming elections of 1997, and the right-wing parties questioned whether the parliament elected in 1993 had the legitimacy required to adopt a constitution, as they considered it unrepresentative. Moreover, they prepared their own constitutional draft promoted as ‘civic’. Although the constitution could have been passed before the 1997 parliamentary elections,Footnote ¹⁶ the right contested the parliamentary ‘constitutional compromise’ and called for a boycott of the constitutional referendum scheduled for May 1997 or for a vote against the Constitution. Interestingly, this campaign was quite effective: according to a public opinion poll in February 1997, 34% of Poles and 25% of parliament members would support the ‘civic’ project. Up to 41% of Poles believed that the parliament should not pass the constitution before the 1997 elections.Footnote ¹⁷ As a result, the parliament had to lower the threshold for the validity of the constitutional referendum, lifting the minimum 50% turnover requirement. The constitution was accepted by a hair’s breadth and with a very low turnout. Only 42.86% of those entitled to participate in the referendum actually voted, and only 53.45% of those who participated voted in favour of the Constitution. In eastern and southern Polish voivodeships (the highest-level administrative division of Poland), the percentage of ‘no’ votes exceeded 70%.Footnote ¹⁸ As a result, some right-wing parties, including Prawo i Sprawiedliwość – PiS (Law and Justice), which forms the current government, contested the Constitution as, in their view, passed without sufficient democratic legitimation. Presenting this broader background to the political dispute over the Constitution demonstrates the context of changes that took place in the constitutional practice following 2015. It also explains why European integration, initially of interest to a small section of politicians involved in constitution-drafting, at a certain point became the subject of a fierce debate in the National Constituent Assembly and beyond. This is also a historical aspect that should be accounted for when analysing why the final shape of the Polish ‘integration clause’ is how it is.

Of the seven drafts of the constitution submitted to the Constitutional Committee of the National Assembly in March and April 1993Footnote ¹⁹, only the so-called presidential draft contained an integration clause, that is, a provision enabling the conferral of State authority competences to an external entity.Footnote ²⁰ The draft stated that ‘the law may authorise the signing of an international agreement which authorises an international (supranational) organisation or institution to exercise certain powers reserved by the constitution for organs of legislative and executive power. The act ratifying such an agreement requires its acceptance by a 2/3 majority of votes.’Footnote ²¹

The Constitutional Commission of the National Assembly was composed of representatives of both the parliamentary majority and the remaining political forces represented in the parliament. It also established a team of experts.Footnote ²² European integration and the status of international law in the Polish legal system were discussed by two subcommittees: the Subcommittee on the Foundations of the Political and Socio-Economic System and the Subcommittee on Matters of Sources of Law. The main achievement of the former was to indicate the need for an ‘integration clause’ (i.e., a provision that might form the basis for Poland’s membership in the EU). The latter resolved most of the problems concerning the status of international law within the Polish legal system.Footnote ²³ Notably, the inclusion of an explicit legal basis for Poland’s accession to the EU raised doubts within the Constitutional Committee. The Committee pondered whether to work on such a clause at all or whether to leave this issue to the ordinary law-making process for when there would be a real chance of EU accession. In that case, a relevant provision would have to be added via an amendment to the Constitution. The parliamentary majority formed by SLD and PSL opted for not settling this issue in the Constitution. They argued that Poland’s accession to the EU could be carried out based on constitutional provisions for the ratification of international agreements without the need to explicitly regulate the ‘conferral of competences’. They pointed out that Poland had acceded to the Council of Europe in this way in 1991.Footnote ²⁴ Interestingly, K. Skubiszewski – an influential professor of international law and minister of foreign affairs between 1989 and 1993 – also opposed the regulation of issues directly related to Poland’s future membership of the EU in the Constitution. In an article published in 1994, he indicated that the new Constitution should not regulate matters related to the law of international organisations and that these issues should be left to the decision of the ordinary law-maker after the accession.Footnote ²⁵

Within the Subcommittees, experts played a decisive role in shaping the proposals that were subsequently discussed at the Constitutional Committee’s plenary sessions.Footnote ²⁶ The working material entitled ‘Preliminary draft of the catalogue of basic political principles that should be expressed in the Constitution of the Republic of Poland’ contained, inter alia, point 9 on ‘the transfer of some State sovereignty to international institutions’. Three variants were proposed, reflecting different visions of legitimation required for the EU accession:

The draft also emphasised that adopting such a provision might be beneficial or even necessary for Poland’s ambition to integrate with the EU.Footnote ²⁷ Nevertheless, a comprehensive draft of the chapter ‘Basics of the Political and Socio-economic System’ prepared in December 1994, contained no provisions directly related to European integration but only provisions on the relationship between national and international law. Ultimately, the issue of European integration was undertaken by the second of the aforementioned subcommittees (i.e., the Subcommittee on Matters of Sources of Law). It proposed an integration clause according to which the exercise of certain powers of State authorities might be delegated to an international or supranational organisation by way of international agreement ratified after obtaining 2/3 majority of votes in the parliament or submitted for approval in a national referendum.Footnote ²⁸

Starting from spring 1995, the Constitutional Committee discussed the draft constitutional provisions on the EU accession. A point of contention was where to place the integration clause: in Chapter I, regarding the fundamental political principles or Chapter III, regarding the sources of law. The supporters of Chapter I sought to highlight Poland’s pro-European policy,Footnote ²⁹ whereas the supporters of Chapter III relied on the link between the place of EU law and other international law in the national legal order and the far-reaching consequences for the principle of State sovereignty. In the latter’s opinion, bringing the integration clause to the fore of the Constitution would present ‘a certain political awkwardness’.Footnote ³⁰ Ultimately, it was decided to leave the integration clause in Chapter III.Footnote ³¹

The Constitutional Committee accepted a version of the integration clause based on a proposal by the Council of Ministers. The ratification of an international agreement based on which Poland would confer competences to an international organisation required the two-thirds majority in both chambers of the parliament or consent by way of a national referendum.Footnote ³² The decision as to the mode of ratification was to be made by the Sejm by an absolute majority of votes.Footnote ³³ Notably, the Committee pondered on making the referendum mandatory.Footnote ³⁴ However, ratification by the parliament was considered as the default option due to the principle of the representative democracy in the Constitution and the subsidiary nature of direct democracy.Footnote ³⁵

The axiological rift between the desire to participate in the process of European integration and the fears related to the loss of some sovereignty were reflected in the constitution-making works.

First, a major concern was expressed about the proposed paragraph 2 of Article 9 in Chapter I regarding the observance by the Republic of Poland of binding international law. In the version adopted in the Constitutional Commission on 16 January 1997, this additional paragraph was to become an ‘integration clause’ under which ‘the Republic of Poland may, on the basis of an international agreement, confer to an international organisation or an international body the competences of State authorities in certain matters’. At the final stage of editorial work, right-wing senator P. Andrzejewski submitted a motion to delete it. He stated that this provision raised the issue of ‘making the sovereignty in the operation of the highest State authorities in Poland – including legislative, executive and judiciary authorities – dependent on the undefined scope of subordination to an international organisation or international body’.Footnote ³⁶ This motion proves the fear held by some of the authors of the Constitution about overstating the ‘return to Europe’ in the Constitution. A similar motion was formulated by the right-wing non-parliamentary opposition in the ‘Position of the Social Constitutional Commission of 26 February 1997 on fundamental issues related to the parliamentary draft of the constitution’. This position stated, inter alia, that ‘it is necessary to unequivocally guarantee the sovereignty of the State. Upon cases of conferring some jurisdiction of the State to international bodies and organisations one cannot resign from the supremacy of the constitution, although such situations should be provided for by the constitution by establishing a careful and detailed procedure for making decisions, guaranteeing that the nation will not diminish its rights and that it will act according to its will. In the version proposed in the parliamentary draft of the Constitution, the provisions of Article 9(2) raise justified concerns regarding the abuse of the conferral of competences to international organisations’.Footnote ³⁷ In the second reading of the draft of the Constitution, three amendments were submitted for Article 9, all of which related to the content of Article 9(2). One of them proposed deleting Article 9(2) and this motion was voted through.Footnote ³⁸ As stated by then Freedom Union member of parliament, J. Zdrada, the discussion on the content of Article 9 was ‘… not even emotional, but worse. Many used false arguments in this discussion. They invented fears, as if not realising that the matter is somewhat different in international relations. It was alleged that this provision … actually sells Poland out, giving up sovereignty, independence, etc.’Footnote ³⁹ As mentioned earlier, the ‘integration clause’ ultimately ended up in Chapter III.

Second, there were numerous proposals for procedural restrictions on the conferral of competences to an international organisation. The authors of the constitution ‘opened it up’ to European integration but, being aware of the accusation made by the non-parliamentary right-wing opposition regarding a ‘loss of sovereignty’, they included in the integration clause far-reaching procedural limitations. Although they did not opt for an obligatory referendum, they required a qualified majority of two-thirds of the votes in both houses of the parliament. Notably, this solution meant that the procedure for ratifying the EU accession would be more rigid than that for amending the Constitution (which requires the two-thirds majority in the Sejm and only the absolute majority in the Senate; the referendum limited to the most important amendments is optional).Footnote ⁴⁰ Moreover, if the Sejm was to opt for a referendum regarding the accession, a 50 per cent turnout would be mandatory for its validity. Taking into account the fact that, during the referendum regarding the Constitution, the decision was taken to abandon this requirement (and less than half of those eligible to do so actually participated), the requirements of the procedure for ratifying the EU accession through a referendum could have turned out very difficult to fulfil.

However, an ambivalent attitude towards Article 90 of the Constitution was demonstrated by some members of parliament, as evidenced by a statement issued by R. Bugaj – at the time a member of parliament for the Labour Union. In an interview conducted with Z. Bujak, he stated that

When the interviewer stated that such an attitude was surprising, considering the fact that at the same time in Western Europe states entering the EU were introducing similar provisions to their constitutions, R. Bujak stated,

To sum up, the tension between the willingness to participate in the process of European integration and the fear of losing sovereignty was noticeable in the constitution-making work. Europe appeared as an unspoken aspiration but also a subject of concern. Political conflicts within the so-called parliamentary constitutional coalition meant that the ultimately adopted wording of Article 90 was a result of a painstaking compromise. Moreover, the criticism of the Constitution by the non-parliamentary right-wing opposition also applied to the Polish ‘integration clause’. Fears of a social reaction and the overarching goal of having the Constitution approved in a referendum prevented a stronger articulation of ‘openness’ to the EU. The broader formula of ‘conferral of competences to an international organisation or body’ was chosen and the ‘conferral of competences’ was removed from Chapter I of the Constitution. Therefore, Article 90 appears as, on the one hand, a provision that ‘enables’ opening up to Europe. Without it, the EU accession would be practically impossible.Footnote ⁴³ On the other hand, the EU accession is in this provision subject to relatively tough procedural requirements geared towards the protection of national sovereignty.

7.3 Text: Constitutional Silence and Its Interpretation

Jerzy Ciemieniewski, MP in the 1990s and later judge of the Constitutional Tribunal, stated that the Constitution of 1997 was written by constitutional practitioners, ‘that is, people who, in their experience, have contact only with certain cases of the operation of constitutional norms and who regulate in this act the situations they encountered’.Footnote ⁴⁴ ‘This whole constitutional debate proceeded as if there had not been actually one good book on constitutional law, the philosophy of the state, and the philosophy of law. It was all extremely pragmatic and related to the specifics or to the wording of provisions.’Footnote ⁴⁵ And this – in his opinion – was one of the main reasons for the casuistic nature of the Constitution of 1997.Footnote ⁴⁶ He criticised the Polish Constitution for the lack of a coherent theoretical vision and for being too detailed.Footnote ⁴⁷ Considering the ‘integration clause’, this thesis may only be regarded as half the story. In this case, framers of the Constitution adopted the rule: the less is more. It can be assumed that one of the reasons for such a decision was simply Poland’s lack of experience in the field of constitutional aspects of EU membership. Accession to the EU in 1997 was still quite distant in time and uncertain. Moreover, the trend of amending national constitutions to take fuller account of the country’s membership in the EU was only just beginning (just as integration within the framework of the still relatively recently established EU was still developing). Therefore, both the substantive and procedural layer of Article 90 (1) is rather terse. Political compromises in the case of this clause took the form of ‘constitutional silence’ rather than casuistry. The tension between aspiration and fear of losing sovereignty is left unsaid. Article 90 does not contain the words ‘Europe’ or ‘sovereignty’. This ‘constitutional silence’ may also be described as ‘constitutional abeyance’. It does not arise because the issue has been overlooked,Footnote ⁴⁸ but rather expresses the need ‘to condone, and even cultivate, constitutional ambiguity as an acceptable strategy for resolving conflict’.Footnote ⁴⁹

The integration clause in the Polish Constitution is intentionally unfinished. ‘What is explicit in the text rests on implicit understandings; what is stated rests on what is unstated.’Footnote ⁵⁰ Article 90 ‘establishes a framework within which – and over which – further political deliberation takes place.’Footnote ⁵¹ This makes the interpretation of the constitution-makers’ understatements all the more important. This part of the chapter focuses on the academic interpretation of the constitutional text. This type of interpretation – due to its epistemic authority – is often used to justify certain actions within the framework of constitutional practice (although constitutional practice – on the basis of synergy – also influences academic interpretation).

Loughlin points out that constitutional text is often agonistic and contains the seeds of dissonance.Footnote ⁵² The tension between aspiration for Europe and fear of losing sovereignty is expressed again (after the completion of the constitution-making) in the academic interpretation of Article 90 of the Constitution. It shows the desire to establish a fragile balance between ideology and utopia. The ideology (fundamental symbolic structure) of the ‘Integration clause’ is the opening of the Constitution to Europe and the European system of values, while utopia is the Westphalian vision of sovereignty. On the one hand, it is pointed out that Article 90 plays the so-called role of legitimising (allowing) participation in integration processes. On the other hand, it is mentioned that it also functions as a safeguard of the Polish constitutional order and State sovereignty.Footnote ⁵³ In its role as legitimiser, Article 90 is considered an expression of opening the Polish legal system to the power of international organisations. Legitimisation relates to two areas. First, the transfer of power to an international organisation. Secondly, the opening of the Polish legal order to the validity and application of legal norms created by other legal entities.Footnote ⁵⁴

The search for a balance between the roles of legitimisation and safeguard is visible in the academic search for an appropriate interpretation of the concept of the ‘conferral of competences of State authorities’. The formulation that was eventually adopted was critically assessed by part of the legal doctrine.Footnote ⁵⁵ It was pointed out that, in the act of conferring competences, ‘the States only forego the exercise of relevant rights, although they remain [hereinafter] in their possession’.Footnote ⁵⁶ The effects of ‘conferral’ are two-fold: first, Poland relinquishes the exclusivity of its authority in certain areas; secondly, it allows for the application of ‘foreign sovereign acts, not originating from the Polish public authority’ in these areas.Footnote ⁵⁷

In the discourse on the limits of conferring competences, it was emphasised that the constitution-makers did not use the ‘politically delicate’ term sovereignty in Article 90. C. Mik – a professor of European law – stated that in this decision one can see the recognition of sovereignty as an inalienable property of the Polish state, a specific meta-competence (i.e., a general and primary competence), the competence to decide on the exercise of specific competences.Footnote ⁵⁸ It was academic interpretation that filled with content the constitutional silence, especially with regard to the fear of losing sovereignty. The position expressed by K. Wojtyczek – a professor of constitutional law and author of a monograph on the conferral of competences – is representative in pointing out that

There is a noticeable departure from the Westphalian vision of sovereignty and inspiration from contemporary theory of law, which redefines this concept.Footnote ⁶⁰

Nevertheless, the academic interpretation of Article 90 – based largely on concepts developed in German legal doctrineFootnote ⁶¹ – also emphasises the function of the ‘integration clause’ as a safeguard of sovereignty. In addition to the protection of sovereignty as a fundamental constitutional category, constitutionalists also highlighted quantitative (the ‘conferral of competences in certain matters’Footnote ⁶²) and qualitative limitations (the requirement to maintain the principle of a democratic state ruled by law and the requirement to respect fundamental rights and freedoms,Footnote ⁶³ the requirement of axiological consistencyFootnote ⁶⁴) resulting directly or indirectly from the content of Article 90. From the outset, the possibility of terminating an international agreement on the basis of which competences have been conferred was also accounted for, and the procedure under which this would be executed was considered. Despite the lack of an explicit reference to the EU in Article 90, academics narrowly interpreted the constitutional expression referring to ‘an international organisation or body’. A. Wyrozumska – professor of international law – pointed out that the practice of applying Article 90 should be limited only to organisations that may be defined as supranational.Footnote ⁶⁵ In turn, K. Wojtyczek emphasised that Article 90 de lege lata precludes the transfer of power to a future European federation.Footnote ⁶⁶

A distinct element of the academic interpretation of the ‘integration clause’ is its procedural dimension. Even long before Poland’s accession to the EU, loopholes in this respect were revealed.Footnote ⁶⁷ Although there were some shortcomings, as noted by M. Kruk – Professor of constitutional law and expert of the Constitutional Commission – any attempts to overly concretise the procedure for conferring power at the constitutional level would lead to an overextension of Article 90.Footnote ⁶⁸ The main controversies concerned the national referendum for the ratification of an international agreement, which is the basis for the conferral of competences. Most constitutionalists criticised the reference in Article 90 to Article 125 of the Constitution, which regulates ‘a referendum on matters of particular importance to the State’.Footnote ⁶⁹ The basic problem was the requirement arising from Article 125 to obtain at least a 50 percent turnout for a referendum to be considered valid. The Constitution did not explicitly regulate (neither in Article 90 nor in Article 125) what would happen if this turnout was not reached. The academics unanimously adopted an interpretation according to which, in such a case, it would be necessary for the Sejm to choose again the manner of ratification: another referendum or the parliamentary avenue requiring the two-thirds majority in both chambers. It was argued that this was the only rational interpretation of Article 90.Footnote ⁷⁰ It was postulated that, in this respect, it would be desirable to amend Article 90 but not necessary.Footnote ⁷¹ Prof. Wójtowicz emphasised that the constitutional ‘loophole’ may in this case be filled in with a statute.Footnote ⁷² And so it happened – the Constitution was made more precise by the act of 8 March 2003 on a national referendum. This act was challenged before the Constitutional Tribunal, which will be discussed in Section 7.4.

However, at this point it should be noted that the academic interpretation of the procedural dimension of Article 90 proves that constitutionalists sought to ensure the effectiveness of the ‘integration clause’. Even before its first application in 2003, they tried to discourage its interpretation that might lead to a ‘decisional impasse’ in terms of conferring competences. Due to problems related to the approval of the Constitution in 1997, inter alia, they were aware of the dangers posed by a referendum procedure requiring at least a 50 per cent turnout. Thus, they avoided such an interpretation that could end up torpedoing the legitimising role of the Polish ‘integration clause’. At the same time, they also searched for a way to accommodate the role of the integration clause as a safeguard of sovereignty. If the 50 per cent turnout in the referendum could not be obtained, it would be necessary to reach the two-thirds majority in both houses (i.e., the procedure would be more difficult than that for a constitutional amendment).

7.4 Action: Constitutional Practice before and after 2015: Towards Utopia and against Constitutional Compromise?

7.5 Conclusions

Europe as an element of the Polish constitutional imaginary was perceived from the very beginning as both an aspiration and a subject of concern. Hence, Article 90 of the Constitution is characterised by tension between two unspoken ideas: European integration and sovereignty. The reconstruction of thought (i.e., the first dimension of the constitutional imaginary) affords a thesis that this ambiguity was already highlighted while the Constitution was being drafted. Article 90 is a compromise between the ideology of returning to Europe and the utopia of the Westphalian vision of sovereignty. Contestation of the ‘constitutional compromise’ by the non-parliamentary opposition meant that, at the final stage of work on the constitution, overt articulation of ‘openness’ to integration with the EU was avoided and the possibility of ‘conferring competences’ was abandoned as one of the fundamental principles of the system. Article 90 was intended by the authors of the Constitution to be, on the one hand, a provision ‘facilitating’ opening to Europe, and, on the other hand, an ‘exceptional’ provision, applicable only when jurisdiction was to be transferred to a supranational entity so, in practice, only the EU. The dimension of the text, reconstructed not only on the basis of the rather laconic wording of Article 90, but also its academic interpretation, is illustrated, in turn, by the interesting phenomenon of the academic filling in of the deliberate loopholes left by the authors of the Constitution. It demonstrates an attempt to establish a balance between the legitimising and safeguarding roles of Article 90. This applies both to the concept of the ‘conferral of competences of State authority’ and the procedural layer of the Polish ‘integration clause’. With regard to the former, the academic interpretation was the first to fill the silence of the constitutional text with regard to fears of sovereignty loss. Commentators on Article 90, inspired by modern concepts of sovereign power, interpreted this constitutional abeyance in a post-Westwal spirit, while at the same time highlighting the qualitative and quantitative limitations of the transfer of competences to an international entity. On the other hand, with regard to the procedural aspect of the Polish ‘integration clause’, academic commentators avoided interpretations that could lead to a deadlock and torpedo the legitimising role of Article 90. The third element of the constitutional imaginary (i.e., action, identified with constitutional practice) indicates a turning point in the perception of Europe after the parliamentary elections were won by PiS in 2015. Until then, Article 90 had been interpreted and applied in constitutional practice primarily as a provision enabling Poland’s membership in the EU, rather than limiting or hindering it. So, the legitimisation function prevailed, while the guarantee function was considered primarily in a theoretical dimension. This thesis is confirmed by an analysis of three components of constitutional practice until 2015: cases of application (as well as non-application) of Article 90, the interpretation of this provision in the jurisprudence of the Constitutional Tribunal concerning Poland’s membership of the EU and in the drafts of the finally not adopted amendment to the Constitution providing for a separate chapter devoted to constitutional aspects of EU membership. What is noticeable in terms of the first of these components is the unique nature of Article 90 arising from the restrictive interpretation of the ‘conferral of competences’. This provision has so far been applied only twice: the ratification of the Accession Treaty and the Treaty of Lisbon. The second component (i.e., the jurisprudence of the Constitutional Tribunal) has been characterised by a balancing act between multi-level constitutionalism and traditionally understood constitutional supremacy. Despite visible aspects of the utopia of Westphalian sovereignty, until 2015 an ideology of (cautious) friendliness towards EU law prevailed in the jurisprudence of the Constitutional Tribunal. The binding factor of the third component of constitutional practice until 2015 (i.e., draft amendments to the Constitution) was the concept of ‘concentrating’ constitutional regulations regulating participation in integration processes into one chapter (the new Chapter Xa). Nevertheless, the two submitted drafts presented a very different vision of Europe in the Polish constitutional imaginary. While the presidential bill ossified the relative balance created so far in constitutional practice between the ideology of returning to Europe and the utopia of Westphalian sovereignty, the Law and Justice bill was the first harbinger of the Eurosceptic turn that took place after 2015. This should be seen in a wider context of legal and political shifts taking place in recent years in Poland. Law and Justice has consistently tried to rebuild the systemic framework created by the Constitution and undermine the contested ‘constitutional compromise’. Systemic changes are made by means of ordinary laws, which in fact lead to informal changes to the Constitution. The Eurosceptic turn is a reaction to the supranational dimension of the crisis of the rule of law centred on the ‘reform’ of the judiciary. Existing constitutional ideas about Europe have been swept away. There has been a gradual rejection of the legitimisation aspect of Article 90, focusing instead on a fetishised Westphalian sovereignty. First and foremost, Europe is starting to be an obstacle in the realisation of illiberal democracy. Nevertheless. there has been some asymmetry in the two components of constitutional practice after 2015. With regard to the decision not to apply Article 90 after 2015, the change is noticeable only in the political rhetoric of the government, which is starting to approach Europe in a purely instrumental fashion. On the other hand, the jurisprudence of the Constitutional Tribunal on European integration is gradually shifting in tandem with the completion of the political capture of the Constitutional Tribunal. The first symptoms of a Eurosceptic turn were decisions formally concerning the norms of domestic law, but in practice directed against the effective enforcement of the CJEU ruling that was unfavourable for the Polish government. Current constitutional practice (as well as the dimension of thought and text) has been fully negated in the recent adjudication made by the Constitutional Tribunal directly concerning the conformity of the EU primary law with the Constitution. In these unprecedented rulings, using the formula ‘insofar as’, the Constitutional Tribunal found several fundamental provisions of the TFEU and TEU to be unlawful, including Article 90(1) of the Constitution. The Eurosceptic turn in the case law of the politically captured Constitutional Tribunal is an element of the strategy of building an illiberal democracy. The dominant element is becoming polemical to the axiology of the EU legal system. Nevertheless, this phrase is inconsistent with the layer of thought, text, as well as constitutional practice shaped until 2015.

8.1 Introduction

The Hungarian political system after the regime change has become extremely polarised and deep political fault lines have developed between the domestic political communities, so much so that these relations can be described in most cases in terms of hate. Reinhart KoselleckFootnote ¹ speaks of so-called asymmetric counter concepts, that is, those cases in which the politically different from us is named and its identity is constructed, but the identity thus created is not necessarily in line with reality or with the self-definition of the person (the ‘political otherness’). The two most important components of the political identity are the aforementioned self-definition and the definition by others (i.e., what others, especially political opponents, think of it). In my view, hatred and the resulting violence (verbal and non-verbal) and its post-2010 constitutional representation have become one of the main structuring factors of the domestic political and social space in such a way that asymmetric counter-concepts have become dominant in the identification war between opposing political sides: this means that almost all possibilities for dialogue between opposing positions have been lost, because the definition and domination of the identity of the other has become the main aspect. Similar processes of attribution and identification have been taking place in the refugee crisis since 2015, and this time the hatred has been directed towards the ‘political other’, only to return to the domestic political scene and further deepen the dichotomies that have become familiar since the regime change. The post-2010 constitution-making process elevated this hostility to the level of the Fundamental Law, which entered into force in 2012, and created a system of Constitutionalised Image of Enemy (CIE).Footnote ²

The defining characteristic of the Hungarian Fundamental Law is its strong constitutional identity: the political identity of the supermajority has become constitutionalised. This identity image has a number of positive elements (i.e., elements that have been defined as desirable, a kind of fundamental characteristic of the public law system). These include Christianity, active memory politics, national cohesion and various aspects of sustainability. In this chapter, I argue that, in addition to the explicitly strong positive constitutional identity elements, the constitutional power intended that negative identity elements should be at least as strong as the positive ones (in many ways even stronger and more important in the daily political struggles relying constitutional identity). These are the pillars of constitutional identity that separate us from others in the political theoretical assumption of Gramsci, Koselleck and Schmitt and define boundaries and political fault lines.

The other main claim of this chapter is that the negative constitutional identity has been presented in the original constitutional conception, which started to unfold in 2010, but also since 2015 (embedded in the amendments to the Fundamental Law) the constitutional enemy formation pervades public law and political debates. Three basic strands of Constitutionalised Image of Enemy (CIE) have emerged (and this reflects the constitution-power’s view of history and the past): (1) anti-Communism framed in actual political framework; (2) anti-immigration; (3) anti-gender as the opposition to non-heterosexual forms of coexistence. I propose that anti-Communism as CIE can be found in the following sections of the Fundamental Law: the ‘Communist Constitution of 1949’ and its declared invalidity; the responsibility of ‘political organisations that gained legal recognition during the democratic transition as legal successors of the Hungarian Socialist Workers’ Party’. The various aspects of anti-immigration as CIE have been raised to constitutional level (police involvement in preventing illegal immigration; the terrorist threat; the amendment of the constitutional clause on accession to the EU with regard to the inalienable right of disposal of the territorial unit, population, form of government and organisation of the state). The definition of marriage and the constitutionalising of the biological sex of the mother and father represent the anti-gender CIE. I will argue that the mentioned sections are suitable to define the various enemy images for the political community with public law force, and therefore they can be considered as CIE.

The main focus of this chapter is on how the public enemy formation of the mentioned CIEs predominates in Hungarian society, the main political and moral effects and how these may have an impact on the constitutional identity itself, as enshrined in the Fundamental Law.

8.2 Enemy and Identity Construction and the Orbán Regime

8.3 The Orbán Regime and the Constitutionalised Image of Enemy

In this section, the theoretical framework of the Orbán regime, which has been institutionalised since 2010, will be used to illustrate the tendencies of the Constitutionalised Image of Enemy (CIE). First, the antecedents of the post-2010 CIE-regime and the basic elements of the right-wing’s enemy-constituting identity have been analysed. Reflecting on the 2010 turnaround, the directions in which the Orbán regime has shaped CIEs by the adoption of the new Fundamental Law will be investigated: the constitutional framework of anti-Communism, anti-immigration and anti-gender.

8.4 Conclusions: Constitutional Identity based on CIES

We conclude that Hungarian politics has been defined by Constitutionalised Images of Enemy, the Constitutional Court and the Orbán regime have increasingly invoked the concept of constitutional identity. In its decision 22/2016 (XII. 5.) AB,Footnote ³³ the Constitutional Court explained that ‘constitutional identity equals with the constitutional (self-) identity of Hungary’. As Gábor Halmai pointed out: ‘The Court holds that the constitutional (self-)identity of Hungary is a fundamental value that has not been created but only recognized by the Fundamental Law and, therefore, it cannot be renounced by an international treaty. The defence of the constitutional (self-)identity of Hungary is the task of the Constitutional Court as long as Hungary has sovereignty.’Footnote ³⁴

At the heart of Hungarian constitutional identity, the Schmittian friend–enemy dichotomy was integrated in the framework of asymmetrical counter-concepts (anti-Communism, anti-immigration, anti-gender) and the significant social impact of which unleashed considerable anger and hatred. The situation is tragic because on the other side of the asymmetrical counter-concepts there are not Communists, not supporters of illegal immigration and not the sexual abusers of children as propagated by the government, but the political opposition, the people who are about to give humanitarian aid to refugees and the supporters of the LGBTQ communities. Relying on the CIEs, the Orbán regime has thus fundamentally reshaped Hungarian political attitudes after the regime change and, to an unprecedented extent, it has intensified the divisive attitudes that had already divided Hungarian society, which was already prone to a significant degree of isolation.

The transformation of the hate-political space indicated here has had a very serious negative impact on an already fragmented Hungarian society, prone to xenophobia and suffering from numerous social, cultural and health problems. Various sociological surveys and public opinion polls confirm that Hungarian society is one of the most closed societies in Europe, and one of the most intolerant towards foreigners. According to the European Social Survey,Footnote ³⁵ among the EU countries, Hungary and the Czech Republic were the countries where people least thought that migration would make their country a better place. The ESS data were collected in 2002 and 2014, and Hungary was massively and consistently ranked as one of the most vulnerable countries in both cases, before and a decade after EU accession. Moreover, it is notable from the ESS data that, when it comes to migration, it is primarily those people who we perceive as closer to our own culture or civilisational approach that we tolerate more: anyone else who is outside our civilisational preferences we want to keep outside our borders. Perhaps it is not surprising that older and less educated people have a higher proportion of people who reject migration from outside Europe. What is more interesting is that, in a European comparison, the gap between the anti-migration attitudes of the elderly/uneducated and the pro-migration attitudes of the young/educated is the smallest: we are facing a systemic problem, since even young people, for whom Europe as a cultural and economic area is open, have reservations about coming from outside Europe.

All these data are supported by Eurobarometer’s research on EU member states for the period 2014–2018.Footnote ³⁶ In 2014, 39 per cent of Hungarians surveyed said that migration from outside the EU was a rather negative phenomenon, while 28 per cent said it was very negative – both figures are roughly in line with the EU average. By 2018, however, 30 per cent of Hungarians surveyed said that migration from outside the EU was a rather negative phenomenon, while 51 per cent said it was very negative. The divergence from the European trend is striking at EU level, only 18 per cent of respondents were very negative. The timing of the trend reversal clearly confirms the above findings on hate politics: in the May 2015 Eurobarometer,Footnote ³⁷ 21 per cent of Hungarian respondents thought migration from outside the EU was very negative, rising to 51 per cent by November 2015. Research published in September 2016 by the Pew Research Center (based on data collected in the Spring 2016 Pew Global Attitude Survey)Footnote ³⁸ confirmed these multi-year, decade-long trends. Hungarians think highly above the European average of refugees as a burden, saying they take away jobs and welfare services, and that their presence poses a higher risk of terrorism. Hungarian respondents also think highly above the European average of Jews, Roma, and above all Muslims.

The Orbán regime uses and mixes constitutionally codified asymmetrical counter-concepts as CIEs in parallel and inter-related ways. Éva Fodor points to very similar phenomena:

The Hungarian Fundamental Law and its continuous amendments represent such a discursive strategy which has at its core a racist regime of asymmetrical counter-concepts that form a system of inter-related enemies.