Constitutional Democracy in a Multicultural and Globalised World: English translation from the German 3rd revised edition “Allgemeine Staatslehre” by Katy Le Roy

687 Pages·2009·6.795 MB·English

by  Professor Dr. Thomas Fleiner, Professor Dr. Lidija R. Basta Fleiner (auth.)

Constitutional Democracy in a Multicultural
and Globalised World
Thomas Fleiner (cid:127) Lidija R. Basta Fleiner
Constitutional Democracy
in a Multicultural
and Globalised World
English translation from the German 3rd revised edition
“Allgemeine Staatslehre” by Katy Le Roy
123
Professor Dr. Thomas Fleiner
Professor Dr. Lidija R. Basta Fleiner
Route de Beaumont 9
CH-1700 Fribourg
www.thomasfleiner.ch
[email protected]
[email protected]
ISBN 978-3-540-76411-3 e-ISBN 978-3-540-76412-0
DOI 10.1007/978-3-540-76412-0
Library of Congress Control Number: 2008938063
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Preface
After World War II, states transformed into ‘collective fortresses’ in order to protect
competing ideological systems. The debate on post-modern statehood heavily built
on ideological disputes between liberalism and communism, over the nature of the
economic and social system, and the state and government that could sustain such
a system. What is an ‘ideologically acceptable’ state-concept; which tasks and func-
tions should the state fulfil, and how to legitimate not only democratic, but also
authoritarian and even totalitarian regimes? These questions were at the very
centre of state theory. However, after the fall of communism in Europe and the
former Soviet Union, the discourse of state and government scholarship radically
changed. The need for a profound shift in the state paradigm was emerging.
The time after 1989 seemed to proclaim that the nation-state had lost its raison
d’être as an island of undisputed and unlimited sovereignty. A globalised world
order broke open the ‘fortress state’ that developed within the tradition of European
constitutionalism. Given the simultaneous structural changes to the nation-state’s
foundations, socio-economic and political reforms going hand in hand with new
constitutional designs, the ‘state in transition’ started paving the way towards a
new state paradigm, and not only with regard to the states in the process of demo-
cratic transformation from socialist into liberal constitutional democracies. With
universally valid fundamental human rights becoming part of the jus cogens of
international law, the nation-state lost its exclusivity as the basis for the rule of
law and the principle of good governance. Does the announced, and subsequently
renounced, ‘end of history’ also lead both to the ‘end of nation state’ and of the
nation-state as basis for human rights and the rule of law? At the same time, theo-
rising on triumphant liberal constitutional democracy as a ‘finished concept’ faced
new critical questions about its fundamental principles. The universality of human
rights was contested because of its particular, Western Christian background, which
does not embrace the values of other civilisations (e.g., the discussion on Asian
values). In addition, the revival of minority rights within an international setting,
and their understanding as part of the fundamental human rights, challenged tradi-
tional majoritarian democracy’s claims of inclusivity and thus its democratic authen-
ticity. Furthermore, the policy concept of good governance most notably launched
by the World Bank called for debate on the context related effects of its key pos-
tulates. In a nutshell, once seen as self-evident, self-reflected concepts of the modern
nation-state, classical democratic constitutionalism – although in the meantime
enriched with welfare principles – had to be reconsidered.
Critical universalism as an alternative offered the enforcement of constitutionalism
through the adoption of additional fundamental substantive values, notably inter-
cultural peace. More importantly, challenging modern politics in structural terms
suddenly became the primary focus of critical discourse on post-modern statehood.
Why do we need a nation-state at all, when the globalised market economy already
goes against nation state based policies, notwithstanding their different social,
cultural and ideological background? The globalisation argument of ‘denationalisation
viii Preface

of a world of states’ even called for the ‘privatisation’ of the state. This proved
wrong, since the nation-state does not lose, but instead transforms its sovereignty.
Because its ‘external’ sovereignty has become weaker, there is a growing need for
an ever stronger ‘inner’ democratic sovereignty. Multiculturality redefined and
enriched the paramount questions of procedural democracy and checks and balances
with equally important substantive issues on the constitutive foundations for multi-
cultural societies. The answer on the governmental system best guaranteeing human
rights, efficiency and effectiveness in policy-making, as well as just distribution
of resources, could not be found without at the same time answering another
fundamental question: In a fragmented society, to which of the conflicting com-
munities does the state belong? Last but not least is issue of migration. Should
new immigrants also matter politically, or only communities with a long-standing
presence in the country? Whereas initial nation-state policies on migration and
labour recruitment mainly followed economic objectives, major political diffi-
culties have emerged in coming to terms with permanent changes in the ethnic and
cultural composition of the population, and the role which political and legal
accommodation of such diversity should play in integration politics. As a con-
sequence, ethnic conflicts not only threaten the peace within the state. They also
endanger world peace. Multiculturality became an endemic, illiberal challenge to
constitutional democracies.
In order to confront ourselves with some of the major transformational problems
for the state pulled between internal heterogeneity and unprecedented interdep-
endency at the global level, we have put our analysis into historical and comparative
perspectives. We have analysed the nature and causes of ethnic conflicts, and their
effect upon the discourse on human rights and the rule of law. We describe the most
relevant differences between English speaking countries and continental European
countries in terms of their understanding of the state and its administration. The
different approaches of lawyers from the common law tradition and those from the
civil law tradition concerning the ongoing constitutive dilemmas of European unity
are explained. Furthermore, the basic problems of current polities are mapped out
within an international comparative context. Finally, the originally Eurocentric
French-German tradition of the doc-trine of the state is reconsidered in its new
global context. Our key insights, resulting from ten years of common research,
could be summarised as follows:

– The theory of liberal democratic constitutionalism falls short of providing
immanent answers for the current challenges of multiculturality. The latter
challenges the constitutive nature of the modern nation-state in general and
its inherently individualist paradigm of human rights in particular.
– In a fragmented society, the state is legitimate not only because it protects
individual liberty, but also under the condition that it can democratically
guarantee peace among different ethnic, religious or linguistic communities.
– Notwithstanding globalisation tendencies, the nation-state remains the
centre of democratic politics. It can decide who will be a member of its demo-
cratic polity by deciding on the terms of citizenship. In addition, although
Preface ix

the nation-state shares with the international community the duty to protect
human rights, it remains the most important guarantor of their effective
implementation.
– Constitution-making has ceased to be an exclusive domain of nation-states.
The international community as a constitution making power presents a
new phenomenon in epochal terms, since in such cases it is not a constitu-
tional demos which decides on a new constitution.
– Minority problems are not merely those of inadequate or ineffective human
rights protection. In all cases of serious and systematic minority rights viol-
ations, the issue of the state has been opened in the form of territorial demands
and legitimacy denials.
– Not every federal design can in and of itself meet the challenges of multi-
culturality and minority demands. More than a vertical check-and-balance
system, federalism aimed at accommodating multiculturality must democ-
ratically integrate ethnic, religious and linguistic demands.
This book is the English version of the third edition of the German book with
the title Allgemeine Staatslehre. Literally translated, this means ‘General Theory of
the State’. The word Staat in German has a different meaning than the English
word state. In German the word Staat encompasses governmental system, legitimacy,
the relationship between ‘state’ and society, political theory and questions with
regard to good governance. In order to meet the expectations of an English speaking
audience, the title of the book has been adapted in order to better describe its
contents.
The first two editions of the German version have been translated into French
and Portuguese. This is the translation of the third German edition, which has been
significantly enlarged and completely revised. Here, the centrality of the themes
emerging at the beginning of the 1990s, namely: transition, globalisation and multi-
culturality are taken into account in order to critically reconsider the very concept
of the nation-state. This work would not have been possible without the financial
support of the Swiss National Science Foundation and of the Swiss Agency for
Development and Cooperation of the Swiss Federal Department of Foreign Affairs.
The book is in every sense the result of a common endeavour between its
authors, Thomas Fleiner and Lidija Basta Fleiner. Although we grew up in different
cultures and political systems, we have always had similar research interests. Our
different approaches and in particular the difference in priorities with regard to
philosophical and theoretical issues supplemented and influenced almost every
chapter. It was possible to build upon our research of the previous 25 years and
bring our different views together into a common manuscript. For instance, we
believe the book benefits from the integration of aspects of Lidija Basta Fleiner’s
long term research on democratic transition, constitutionalism and the rule of law
in a new chapter on the rule of law.
We have undertaken common research on the problems of multiculturality
and federalism over the past ten years within the Institute of Federalism of the
University of Fribourg. The outcome is a new chapter on the multicultural state. Our
x Preface

work on constitutionalism and human rights convinced us that a theory of democratic
statehood needed first and foremost to examine the relationship bet-ween citizens
and their government. But it was also important to understand how governmental
processes should be organised, in order to have the rule of law effectively
guaranteed in the ever changing context of globalisation and multiculturality. In
the first case we wanted to explore what individuals can demand from the state and
its officials. In the second case we wanted to know which values should underlie the
law that limits state power and controls state governments. Demands towards the
state and the legal principles ruling the state are inherently linked to the principles
of morality and human rights. For this reason, two chapters, those on human rights
and on the rule of law, sometimes overlap. This was unavoidable in order to demon-
strate that the related values of liberty and equality have different meanings,
depending on whether one adopts the point of view of the individual, or the point
of view of the perception of the legal theory and system.
In preparing this book we have been attentive to using readable and readily
understandable language. Almost each paragraph is headed with a significant key
word. Whenever possible we have written in the first person plural in order to
engage the reader in a dialogue.
Several readers of the German version suggested that we translate our book to
make it accessible to an English speaking audience. The translation was under-
taken, thanks to the financial support of the Swiss Agency for Development and
Cooperation of the Swiss Federal Department of Foreign Affairs. In Ms. Katy Le
Roy we found an excellent editor for the English version. She reviewed and deci-
sively improved the first version of the translation, which was done by Thomas
Fleiner. Her constitutional expertise and excellent knowledge of the German
language helped her to find appropriate formulations not only in a linguistic sense,
but more importantly also in terms of the differences between common and civil
law cultures.
Unlike the German version of this book, the English translation contains an
index that was carefully prepared by Ms. Gabriela Mirescu, an assistant at the
Institute of Federalism, and supervised by Mr Tobias Kallenbach, teaching
assistant to Thomas Fleiner,. This work follows the pattern of previous editions, as
it also does not make use of footnotes. When we use quotations or refer to parti-
cular arguments of other authors or court decisions and documents, we indicate
the relevant source of the literature or the internet material in brackets. The book
also contains an index of classical texts of philosophers. Other literature has to be
found by means of the classical tools, known and available to scholars. It would
be almost impossible to list all the literature in various languages on the broad
topics of state theory which has informed our research over many years.
Researchers are also welcome to use the library of the Institute of Federalism
(www.federalism.ch).
Once again, we would like to express our gratitude to those who helped us in
preparing the English translation of our ‘Allgemeine Staatslehre’. We would like
to thank Ms. Gabriela Mirescu for her careful and committed work on the index.
Our special thanks for the final editing of the book go to Ms. Katy Le Roy. She
Preface xi

was indeed a most knowledgeable and scrupulous editor. Her remarks and ideas to
improve the English version were most helpful and have considerably contributed
to the clarity of the text. We owe our sincere appreciation also to Mr. Tobias
Kallenbach who prepared the book for the Springer editor. It was his meticulous
patience when supervising the index and his extraordinary capacities in electronic
formatting that made it possible for this book to go to print in a timely fashion.
With the book ‘Constitutional Democracy in a Multicultural and Globalised
World’, we hope to join the ongoing world-wide debate on how to reflect upon
the transformation of the nation state today and the epochal challenges it faces.

Thomas Fleiner
June 2008 Lidija Basta Fleiner