EUROPEAN
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A
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UNDERGRADUATE
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EUROPEAN SOCIAL AND
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ACADEMIC YEAR
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NUMBER THIRTEEN
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EUROPEAN SOCIAL AND POLITICAL
RESEARCH
A multidisciplinary undergraduate journal
in European Social and Political Studies
Academic Year 2006–2007
Number Thirteen
Crise des banlieues: State, media and the imaginary in the
national press coverage of the French rioting of November
2005
Tristam Barrett
1
The incest taboo
Alkistis Elliott-Graves
25
Verfassungspatriotismus: The key to understanding Jürgen
Habermas’s political thought?
Beth Foley
50
The economic dimension of the public sphere: Jacques
Necker’s public agenda in Compte rendu au roi
Franz-Julius Morche
80
The role of law in optimising the legitimising effect of civil
society involvement: The case study of EU antidiscrimination employment law
Milena Müller
104
European Social and Political Research, Vol. 13 (2006–2007)
Crise des banlieues:
State, media and the imaginary in the national
press coverage of the French rioting of
November 2005
Tristam Barrett
Toute la vie des sociétés dans lesquelles règnent les
conditions modernes de production s’annonce comme une
immense accumulation de spectacles. Tout ce qui était
1
directement vécu s’est éloigné dans une représentation.
1. Introduction
2
‘Violents affrontements dans des cités de Seine-Saint-Denis.’ A
couple of front-page column inches announced, on 28 October 2005,
the rioting that over the next three weeks would explode into the ‘crise
des banlieues.’ The article appearing in Le Monde described ‘des
affrontements particulièrement violents’ between the fire brigade and
the police on one hand and ‘des bandes de jeunes rendus furieux par
3
la mort de deux de leurs amis’ on the other. By 17 November, eleven
days into the riots, it seemed as if the French state itself has been
‘interpellé’ [arrested]. Exponential violence was reported, not only in
the peri-urban conglomerations, but also in the ‘provinces’. Whereas
Jacques Chirac – expressing himself publicly for the first time during
the crisis – declared ‘[L]a République est tout à fait déterminé à être
4
plus forte que ceux qui veulent semer la violence et la peur’,
1
G. Debord, La Société du Spectacle, Paris: Éditions Gallimard, 1992 [1967].
[Violent clashes on the estates of Seine-Saint-Denis]; Le Monde, 29
October 2005. All translations are my own unless otherwise noted.
3
[particularly violent clashes]; [gangs of youths enraged by the death of two
of their friends]. Ibid.
4
[the Republic is absolutely determined to be stronger than those who want
to disseminate violence and fear]
2
1
Tristam Barrett
Crise des banlieues: Press coverage of the French 2005 riots
5
Libération saw fit to herald ‘L’échec de l’intégration à la française’.
6
With 1295 vehicles set ablaze, ‘le gouvernement semble impuissant’.
A conclusion is nevertheless reached eighteen days into the riots,
with the announcement of a state of emergency and the public reappearance of the French President affirming that ‘il a pris ‘toutes les
7
mesures nécessaires’ sur la crise des banlieues.’ Libération reports:
8
‘La France prend trois mois ferme’.
Contemporary approaches to the media take it for granted that it is an
essential element in the social construction of reality. From this
assumption, it is easy to theorise the media as a tool for the
imposition of ideological messages upon society; be this within the
early ‘transmission’ approach pioneered in the USA or the Frankfurt
School’s understanding of a mediated relationship between base and
superstructure, the media are viewed as a site for the transmission
and reception of, and resistance to, dominant discourses. This
approach, however, renders the media invisible other than as a
mediator between social positions. If ‘media … are both mechanism
(of representation) and source (of taken for granted frameworks for
9
understanding the reality they represent)’, it is imperative to probe
the mechanisms whereby media institutions obtain and maintain their
status in the social construction of reality.
This is a task to which Nick Couldry has applied himself in a
reinterpretation of Pierre Bourdieu’s ‘theory of fields’ and further work
on the symbolic power of the state. To Couldry, Bourdieu extends
5
[the failure of the French style of integration]; cf. also ‘Le bûcher de
l’intégration à la française’, Libération, 9 November 2005.
6
[the government seems impotent]
7
[he has taken ‘all necessary measures regarding the crisis in the
banlieues’]; Le Monde, 12 November 2005.
8
[France gets three months without parole], Libération, 16 November 2005.
9
N. Couldry ‘Media, symbolic power and the limits of Bourdieu’s field theory’
MEDIA@LSE Electronic Working Paper, No.2, 2003. URL (accessed 8
January 2007):
http://www.lse.ac.uk/collections/media@lse/mediaWorkingPapers/ewpNumbe
r2.htm
2
European Social and Political Research, Vol. 13 (2006–2007)
Tristam Barrett
Crise des banlieues: Press coverage of the French 2005 riots
Weber’s definition of the state to ‘a monopoly of legitimate physical
and symbolic violence’ – a move which requires a distinction
between:
(a) the level at which the state’s own power (its symbolic
power) is established, and (b) the field in which agents
compete for the ‘monopoly over the advantages attached to the
10
state’s monopoly’.
In this context, whilst actors may compete for positions within the
various fields of social life, there are planes across which the state
bears symbolic pre-eminence, legal and educational status, for
example. The state can thus be considered as a meta-field, ‘a
11
reference-point in social life … across all fields’
Theorising the power of the media requires a parallel move. Over and
above the workings of the journalistic field, the whole notion of media
as a powerful force in the social construction of reality – a ‘legitimate
12
controller of access to public existence’ – entails a conceptualisation
of the media’s symbolic potency in terms similar to the state; as a
meta-field.
This article interrogates the notion of ‘the media’ as a meta-field
through a parallel discussion of the anthropological contribution to
such an understanding of the state, and the media’s role within this. In
this case study, the notions of state and media are both product and
producers of a particular French modernity. Yet how is this
maintained by those parties interested in its perpetuation? If, as this
article demonstrates, ‘the media’ claim their authority in the same way
as the state is reproduced, an analysis of the reporting of three
French reference newspapers – Libération, Le Figaro and Le Monde
– in their coverage of the rioting that resounded throughout urban
France in October and November 2005 may shed light on the manner
in which this authority is claimed.
10
Ibid.
Ibid. Couldry refers here to P. Bourdieu, Language and Symbolic Power,
Cambridge: Polity Press, 1990.
12
Ibid.
11
European Social and Political Research, Vol. 13 (2006–2007)
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Tristam Barrett
Crise des banlieues: Press coverage of the French 2005 riots
2. France, media and the imagined community
Not only has Benedict Anderson’s Imagined Communities invigorated
contemporary understandings of the nation-state, but his reflections
on the origins of nationalism have also fuelled a debate over the place
the mass media hold as a tool for imagining this contemporary social
formation. Anderson’s achievement is to overcome the inadequacies
of a strictly functionalist approach to the nation-state which sees
nationalism and the state as the product of the necessities of
industrial society – standardised language, education, mobile
13
workforce. Similarly, he transcends the limitations of the classical
sociological canon and its conception of the state as ‘a human
community that (successfully) claims the monopoly of the legitimate
14
use of physical force within a given territory’. As a concept, the state
is not nearly so unproblematic as this definition implies, for whilst the
authority of its institutions is reproduced daily in the lives of its
citizens, the potency of the state as a signifier (to Bourdieu, its
symbolic force) for which the ultimate sacrifice may be made cannot
be understood as a ‘top-down’ concept, it is rather the product of a
certain kind of imagining.
Anderson argues that only through the definition of the nation as, first
and foremost, an ‘imagined political community’ can one begin to
understand its evocative grasp. ‘Nationality,’ he argues, ‘as well as
15
nationalism are cultural artefacts of a particular kind’. To Anderson,
the nation-state, as a cultural artefact, is an imagining made
necessary by the radical changes which were precipitated by the
European advent of modernity. The disappearance of sacred
communities, the shift to vernacular languages and the decline of the
13
This approach is not validated by historical evidence, nor does it explain
the genesis of the notion of nation.
14
M. Weber, ‘Politik als Beruf’ [‘Politics as Vocation’] in Gesammelte
Politische Schriften, Munich, 1921, pp. 396-450. Translation available online
(accessed 8 January 2007):
http://www2.pfeiffer.edu/~lridener/DSS/Weber/polvoc.html
15
B. Anderson, Imagined Communities: Reflections on the Origins and
Spread of Nationalism, London: Verso, 1991, p.4.
4
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Crise des banlieues: Press coverage of the French 2005 riots
ancien régime brought about not only a profound political vacuum, but
a fundamental change in the apprehension of the world. Ultimately,
however, the development of print-capital, argues Anderson,
engendered an ‘awareness of being imbedded in secular, serial
16
time’ and thus – allied with new technologies of statecraft, map and
census – produced a distinctly modern perception of time and space.
More important than the political and economic ramifications of
standardised languages, it was the very notion of ‘a sociological
17
organism moving calendrically through homogenous empty time’ –
enabled by newspaper and novel – which created the type of
imaginings, and the ruptures, that made it at once possible and
18
necessary to imagine the nation-state as a narrator of identity.
If to Anderson, the role that the media have in the possibility of this
imagining is premised on their reorientation of our conceptions of time
and space, Arjun Appadurai equivocates, arguing that
print capitalism can be one important way in which groups who
have never been in face-to-face contact can begin to think of
themselves as [national] …. But other forms of electronic
capitalism can have similar, and even more powerful effects,
19
for they do not work only at the level of the nation-state.
To Appadurai, it is the possibilities opened up by the development of
media technologies that now transcend the imagined territoriality and
sovereignty of the nation-state. Newspaper, television, film, radio and
internet, along with global flows in capital, ideas, technology, and
people have decentred the nation-state as a concept to the point that
the possibility of new imaginings which characterises postmodernity is
conducing a ‘terminal crisis’ in the nation-state. These global flows
are thus the building blocks of what, extending Benedict
Anderson, I would like to call ‘imagined worlds’, that is, the
16
ibid., p.205.
Ibid., p.26.
18
ibid., p.205.
19
A. Appadurai, Modernity at Large: Cultural Dimensions of Gobalization,
Minnesota: University of Minnesota Press, 1996.
17
European Social and Political Research, Vol. 13 (2006–2007)
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Tristam Barrett
Crise des banlieues: Press coverage of the French 2005 riots
multiple worlds which are constituted by historically situated
20
imaginations of persons and groups spread around the globe.
In arguing that the possibility offered by electronic media transforms
the field of mass mediation and permits the construction of imagined
21
worlds, Appadurai departs from a key element in Anderson’s
argument. To Anderson, it was the change in perception of time and
space brought about by modernity that engendered the need for such
national imaginings, and it was the technologies of print-capital that
provided the possibility of the nation qua imagining. Whilst mass
media may have ‘provided the technical means for ‘re-presenting’ the
22
kind of imagined community that is a nation’, it was the
psychological gap opened up by modernity that needed to be filled.
This is a subtle but key distinction; it is not the possibility of other
imaginings or other media that determines Anderson’s argument, but
the necessity for such an imagining.
Appadurai’s theory nevertheless highlights the duality necessary to
any imagining. His analytical distinction between nation and state is
one between a signifier (the nation), and the institution which claims
this signifier (the state) in order to legitimate its practices. The
argument thus implies that it is other practices permitted by new
media technologies which undermine the hyphenation of nation and
state. This presents an interesting vicissitude to Anderson’s theory,
demonstrating in essence that the imagined community cannot exist
purely as a function of the symbolic potency of the ‘imagining’, but it is
necessarily linked to praxis. The tension, to Appadurai is that ‘while
nations seek to capture or co-opt states and state power, states
simultaneously seek to capture and monopolize ideas about
23
nationhood’.
20
A. Appadurai, ‘Disjuncture and Difference in the Global Cultural Economy’
Theory, Culture & Society, Vol.7, 1990, pp.296-297.
21
Appadurai, 1996.
22
Anderson, p.25
23
Appadurai, 1990, p.303.
6
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Crise des banlieues: Press coverage of the French 2005 riots
However, Appadurai’s argument that praxis offered by media provide
an alternative vehicle for the imagination of the nation, one which
impairs the ability of the nation-state to meaningfully contain its
populations, risks only addressing one side of the coin. If the notion of
the nation-state as the narrator of identity finds itself challenged by
Appadurai’s thinking, in the French context, it is the notion that
‘nation’ can be a cradle of identity at all which finds itself challenged;
by the state. The example of France reveals that the state need not
repose on the signifier of nationhood, but the notion of state may have
a symbolic power of its own.
In a lecture given to the Sorbonne in 1882, Ernest Renan declared on
the subject Qu’est-ce qu’une nation?, that for him, ‘tous les habitants
de la France sont des Français. L'idée d'une différence de races dans
24
la population de la France … ne se présente à aucun degré. A
valuable exception thus presents itself to Appadurai’s assertion that
‘there is a fundamental, and dangerous, idea behind the very idea of
25
the modern nation-state, the idea of a “national ethnos”’. The notion
of a community bound by Appadurai’s ‘ethnic genius’ of primeval
origins is abhorrent to the French republican conception of
citizenship:
C'est là une très grande erreur, qui, si elle devenait dominante,
perdrait la civilisation européenne. Autant le principe des
nations est juste et légitime, autant celui du droit primordial des
26
races est étroit et plein de danger pour le véritable progrès.
24
[all the inhabitants of France are French. The idea of racial difference in the
population of France … cannot be found in any degree]; E. Renan, Qu'est-ce
qu'une nation? [What is a nation?] conference delivered on 11 March 1882 at
Sorbonne University. URL (accessed 8 January 2007):
http://ourworld.compuserve.com/homepages/bib_lisieux/nation01.htm
25
A. Appadurai, Fear of Small Numbers: An Essay on the Geography of
Anger, Durham, London: Duke University Press, 2006, p.3.
26
[Therein lays a great error which if it became dominant, would be the ruin of
European civilisation. Just as the principle of nations is just and legitimate, so
that of the primordial rights of races is narrow and full of danger for real
progress] Renan, op. cit.
European Social and Political Research, Vol. 13 (2006–2007)
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Tristam Barrett
Crise des banlieues: Press coverage of the French 2005 riots
Forged from the Enlightenment project of a state cast in social
contract, French republicanism as a political ideal can be seen to
embody, not nationalism, but statism. As such, this rationalist project
has historically found itself well placed to defend itself against the
virulent national-romanticism of the late nineteenth and early
twentieth centuries. As Maxim Silverman remarks, ‘[t]his concept of
the nation triumphed over the other major model for the formation of
modern nations, that of the concept of a predetermined community
27
bound by blood and heredity’. The universalist French context also
reveals itself as having significant consequences for Anderson’s
theory of the modern reconceptualisation of space and time. For
whilst spared the scourge of European nationalism, modernity, as an
idée forte, implied nothing less than the sacrifice of historical time and
place at the altar of la république.
The student and general strikes of May 1968 paralysed France and
brought down an uncomprehending government. In a striking parallel
with Jacques Chirac’s admission in Le Monde concerning the anxiety
28
of French youth today – ‘Je ne les comprends pas’ – the events of
May 1968 were declared equally ‘incomprehensible’ by General de
Gaulle. Nevertheless, at their intellectual heart burned the shadowy
figure of Guy Debord; a thinker for whom the riots made perfect
sense, and whose writings inflamed the territorial inscriptions of the
Parisian student uprising. Debord’s 1967 book La Société du
Spectacle formed the rallying flag around which the reclaiming of the
streets from authoritarian modernity was orchestrated, and it has
since become a modern classic of the French canon, Debord himself
wrote in 1979 of his pride in being ‘a rare contemporary example of
someone who has written much without being immediately refuted by
events … I have no doubt that the confirmation all my theses
27
M. Silverman, Deconstructing the Nation: Immigration, Race and
Citizenship in Modern France, London: Routledge, 1992, p.19.
28
[‘I don’t understand it’]; Le Monde, 16 April 2005, cited in J.G. Shields,
‘Political Representation in France: A crisis of democracy’, in Parliamentary
Affairs Vol.59(1). URL (accessed 23 January 2006):
http://pa.oxfordjournals.org/cgi/content/full/59/1/118#RFN1
8
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Crise des banlieues: Press coverage of the French 2005 riots
encounter ought to continue right until the end of the century and
29
even beyond’.
If the particular value of ethnography is to unpick and bring to light the
30
‘ways in which people make sense of the world in everyday life’, La
Société du Spectacle can be seen as crystallising a moment of
contemporary reflection on the media at the height of the imposition of
modernity upon France. Debord’s writings reveal an understanding of
the ramifications of such a potent idea as modernity when harnessed
by the state, and bear witness to a similar orientation of le spectacle
as the imaginary which underlies the contemporary conception of the
media. To Debord, there is an underlying displacement—physical,
environmental, historical, and social—engendered by le spectacle:
the origin of which ‘est la perte de l’unité du monde, et l’expansion
gigantesque du spectacle moderne exprime la totalité de cette
31
perte’.
This sense of upheaval is echoed in the profound demographic
changes of post-war France to which he bore witness. Buoyed by a
strong economy and massive postcolonial labour immigration, the
government of the 1950s and 1960s implemented the construction of
the grands ensembles throughout France. With 400,000 units of
apartment block housing built each year during the 1960s – attaining
32
a peak of 555,000 in 1975 – the intensity of change as well as the
social costs were enormous. In Paris alone, what Debord saw as an
33
attempt to ‘restructure society without community’ led to the
displacement of 550,000 people to the banlieues as twenty-four per
cent of the surface area of the city was destroyed to make way for this
urbanisation of industrial society. The social demography of Paris
29
A. Merrifield, Guy Debord, London: Reaktion Books, 2005, p.63.
M. Hammersley & P. Atkinson, Ethnography: Principles in Practice (2nd
edn.), London: Routledge, 1995, p.2.
31
[is the world’s loss of unity, and its massive expansion in the modern period
demonstrates how total this loss has been] Debord, 1992 [1967], p.30.
32
J. Ardagh, France in the New Century: Portrait of a changing society,
London: Penguin, 2000, p.200.
33
Debord, op. cit., 1995, p.123
30
European Social and Political Research, Vol. 13 (2006–2007)
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Tristam Barrett
Crise des banlieues: Press coverage of the French 2005 riots
changed as well; with a forty-four per cent decline in the working class
population and a fifty-one per cent increase in the cadres
34
superieurs. Debord’s understanding that everyday life was
35
36
becoming a ‘colonised sector’ was shared by his contemporaries,
and indeed, was not unfounded.
Paul Rabinow argues that France’s first comprehensive effort at
urban planning took place under the leadership of Hubert Lyautey –
the Governor-General of Morocco. The genesis of modern urbanism
as a key component of the post-war restructuring of France can thus
be found in the colonial context where such ‘settings served as
laboratories for experimenting with the norms of the modern welfare
37
society prior to their application at home’. The chimerical task for the
French administrators, architects and planners in these colonial
38
champs d’expérience was to evacuate the highly contested political
dimension from colonial relations and to subliminate their task into
one of social ordonnance. A conference in Paris was told ‘[w]e have
quit the technical terrain to enter into the realm of social politics, of
39
which urbanism is one of the principal means of action.’ Whilst the
early modernism of Lyautey and architects such as Prost (who
planned Casablanca) recognised history as ‘the most important bond
40
in modernity’, the reforms after the Second World War in France
34
D. Pinder, Visions of the City, Edinburgh: Edinburgh University Press,
2005, p.137.
35
Ibid., p. 133
36
cf. H. Lefebvre (trans. S. Rabinowitz), Everyday Life in the Modern World,
New York: Harper Torchbooks, 1971.
37
P. Rabinow, ‘Representations are social facts: Modernity and PostModernity in Anthropology’, in J. Clifford & G. Marcus (eds.), Writing Culture:
The Poetics and Politics of Ethnography, Berkeley, Los Angeles, CA:
University of California Press, 1987.
38
[experimental terrains] G. Wright ‘Tradition in the Service of Modernity:
Architecture and Urbanism in French Colonial Policy, 1900-1930’, in The
Journal of Modern History, Vol. 59(2), 1987, pp.291-316.
39
Wright, ibid.
40
P. Rabinow, ‘France in Morocco: Technocosmopolitanism and Middling
Modernism’, in Assemblage (17), 1992, pp. 52-57.
10
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Tristam Barrett
Crise des banlieues: Press coverage of the French 2005 riots
were performed in a modernist vein that was ‘openly hostile to history
41
and regionalism’. The u-topian project was to construct society
according to principles that in their universality could literally allow
‘no-place’. It is in this context that the city became a battleground for
competing valorisations of space and place, time and history.
Debord’s theory of the spectacle unveils a similar critique to his tirade
against the modernist project: the threat of the image is that it
evacuates historically specific experience in the name of the totality of
the image, now conceived along the twin vectors of utopia and
uchronia – i.e. the absence of both place and time. The spectacle
42
itself becomes the ‘alpha and omega’ of spectacular society. The
spectacle
ne peut être compris comme l’abus d’un monde de la vision, le
produit des techniques de diffusion massive des images. Il est
bien plutot une Weltanschauung devenue effective,
materiellement traduite. C’est une vision du monde qui s’est
43
objectivée.
In all its specific manifestations – ‘news or propaganda, advertising or
the actual consumption of entertainment’ – the spectacle is seen as
44
‘the very heart of society’s real unreality’.
Cast in an Andersonian light, Debord’s writings give a specifically
French content to the national imagining and the symbolic power of
the state: They underscore the need for an imagining superimposed
upon a vacuous modern Weltanschauung and equally illustrate the
level of investment by state institutions in the creation and
maintenance of such a Weltanschauung. Similarly, Debord’s
41
Ibid.
Debord, op. cit., 1992, p.27.
43
[cannot be understood either as a deliberate distortion of the visual world or
as a product of the technology of the mass dissemination of images. It is far
better viewed as a Weltanschauung that has been actualised, translated into
the material realm—a world view transformed into an objective force.] Ibid.,
p.17 (trans. Debord, op. cit., 1995, p.19).
44
Ibid., p.19ff.
42
European Social and Political Research, Vol. 13 (2006–2007)
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Tristam Barrett
Crise des banlieues: Press coverage of the French 2005 riots
discussion of the symbolic power of the spectacle may be equally
revealing of the interest that media institutions have in perpetuating
such a notion as ‘the media’ and imbuing it with symbolic force, over
the production of reality.
3. Covering the coverage
Following the electrocution of the two youths which sparked the riots,
45
tracing ‘les pas de Bouna et Zyed’ was a major preoccupation of the
French press. Even as late as December 2005, Le Monde ran an
46
article recounting ‘Le dernier jour de Bouna Traoré et Zyed Benna’.
Several more storylines emerged during the crise, which together
serve to narrate the events of October and November 2005. From the
articles that appeared in France’s three national newspapers from 28
October to the end of the rioting in mid-November 2005, three themes
may illustrate the ideological prise de position of the press during this
47
crisis.
Firstly, the privileging of the ‘official’ in story lines affects the balance
of the coverage given to the crise des banlieues and thus refracts the
precise nature of the crisis through this lens. However, to indicate that
the press coverage was preoccupied by the official does not mean to
say that the press uniformly supported the government, nor does it
mean that an official view was hegemonic. Instead the notion of ‘state’
took on many diffuse forms in the press, indicating a more profound
45
[Bouna and Zyed’s paces] Libération, 31 October 2005.
[The last day of Bouna Traoré and Zyed Benna] Le Monde, 8 December
2005.
47
Additional to these three weeks of coverage, I undertook a textual analysis
of a sample of articles drawn from two days of coverage (4 November and 8
November 2005), omitting unauthored items such as the faits du jour and
maps. This enabled me to analyse a total of 85 articles according to two
vectors of analysis, (1) orientation – official, local, international,
editorial/comment – and (2) markers associated with the rioters. I was thus
able to draw limited but systematic conclusions pertaining to the reporting of
and characterisation of the rioters. This also enabled me to avoid managing
an unwieldy quantity of data (in excess of 600 articles).
46
12
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Tristam Barrett
Crise des banlieues: Press coverage of the French 2005 riots
embroilment of the media in the production of ‘state’ than as pure
perpetuators of official discourse.
This calls for a more detailed analysis of the critical stance of the
press towards the state, also manifested by the playing out within the
pages of the press of a conflict which ripped through the heart of the
government. This proved an acute crisis for the authority of the state
institutions, yet the press perpetuated the notion of ‘state’ in abstract
terms throughout. The framing of these criticisms, it shall be argued,
betrays the position of the press in relation to such a signifier.
Thirdly, the coverage did, in no small measure, offer a questionable
portrayal of those involved in the riots. The descriptions of the
protagonists in the articles can certainly be viewed as ‘othering’: with
key markers of foreignness, immaturity, and inarticulacy pervading
the press discourse. Yet it is also possible to see it in terms similar to
the press’s criticism of politicians – a denigration of transgression –
and at the same time a means of legitimating the press as articulators
in the public sphere.
There is ample literature on the reproduction of discourses on, for
example, racism, nationalism and national identification, as well as
48
the construction of minorities in the press. These accounts –
including those pertaining to la sociologie de la banlieue – do not
shed light on why media institutions perpetuate these representations.
I wish to address this by proposing a perspective that does not treat
the press as a transparent lens refracting the positions of dominant
social groups, but instead views press discourse as revelatory of the
position of the press in relation to its own wider authority. The
argument that I advance is thus that (a) media institutions gain the
symbolic capital necessary to claim their role in the production of
48
cf. M. Billig, Banal Nationalism, London: Sage, 1995; P. Braham ‘How the
media report race’ in T. Bennet, J. Curran & J. Woollacott, Culture, Society
and the Media, London: Routledge, 1982; S. McKay & J. Pittam,
‘Determinants of Anglo-Australian Stereotypes of the Vietnamese in Australia’
Australian Journal of Psychology, Vol.45(1), 1993, pp.17-23; T. van Dijk,
Communicating racism: Ethnic prejudice in thought and talk, Newbury Park,
CA: Sage, 1997.
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Crise des banlieues: Press coverage of the French 2005 riots
social reality, not naturally, but through the creation of hegemony over
an articulatory space, and (b) that this space is maintained through a
regulation of the articulatory possibilities within this space, to some
extent through its characterisation as a moral space, which provides a
means of disciplining those outside and within this moral order
(professionals and profanes).
It is interesting to note that whilst Chirac did not appear at all in the
initial stages of the crisis, his televised address to the nation clearly
marked the end of the crisis. This echoes ‘perhaps the most dramatic
media event in the Fifth Republic’: the total absence of President De
49
Gaulle from the public eye during the social upheavals of 1968. His
return to the scene, recasting the spotlight on the General, enabled
him to master the situation and to bring the crisis to a close. Perhaps
most importantly, both incidents underline the media tendency to
orientate towards the official, particularly in press coverage of social
unrest. The absence of the anticipated voice (i.e. Chirac’s) did not in
any way undermine the perpetuation of the official in the press
discourse. Just over fifty per cent of articles sampled reported
specifically on the actions and responses of official figures to the
crisis. This comprised government figures and police, fire brigade,
and local mayors. A number of articles were concerned with foreign
media coverage of the crise. Amounting to just 9.4 per cent, there
were fewer reports covering a local perspective of the banlieues than
editorials expressing the paper’s own position.
An examination of the initial reporting may reveal the precise ways in
which the official was employed. Initial misreporting of events,
reflected confusion in the politicians’ and police accounts of the cause
of the rioting. On 29 October, Le Monde précised that six youths had
50
been arrested ‘à la suite d’un vol dans un cabanon à Livry-Gargan.’
Nicolas Sarkozy was quoted declaring ‘La police ne poursuivait pas
51
physiquement’ and the prefecture affirmed that ‘le lien n’est pas
49
R. Kuhn, The Media in France, London: Routledge, 1995, p.67.
[following a burglary of a construction shed at Livry-Gargan] Le Monde, 29
October 2005.
51
[the police didn’t follow physically]
50
14
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52
établi’ between the attempted theft and the death of the two youths.
These official perspectives were all cited in order to define what had
occurred. However, the following Monday Libération found that there
53
were ‘plusieurs versions des faits’ over the course of that Friday. It
quotedthe contradictory accounts of Sarkozy, de Villepin, Bonté (from
the Prefecture), Sarkozy again, and François Molins (Procurator of
the Parquet de Bobigny) asking itself ‘Pourquoi ils les ont courses
54
55
comme ça?!’ Libération deplores the ‘‘bavure’ verbale’ of the two
government figures under the headline ‘les dérapages de Villepin et
56
57
Sarkozy’ and decries them for going ‘trop fort, trop vite, trop loin.’
The conclusion is that contrary to Sarkozy’s allegations, there was in
58
fact ‘ni “cambriolage” ni “dégradation”’ on the part of the dead
youths.
The police received very circumspect treatment at the hands of the
media, and their involvement took on a particular salience in the
newspaper coverage of the riots. Alec Hargreaves notes a pattern to
the sporadic urban violence that has been covered by the media
since the 1980s:
An unarmed youth of immigrant origin involved or suspected of
involvement in petty crime (most commonly the theft of a motor
vehicle) has been shot dead by a police officer, and this has
been followed by an outbreak of street violence by other
59
youths.
Given the confusion over what the police had done in this case, the
reporting that surrounded the police at once confirmed and probed
the reputation that the forces de l’ordre have for heavy-handed
52
[the link isn’t established]
[several versions of events] Libération, 31 October 2005.
54
[Why did they chase them like that?!]
55
[verbal ‘smudges’]
56
[the slips of Villepin and Sarkozy]
57
[too strong, to fast, too far]
58
[neither a break-in nor vandalism]
59
A. G. Hargreaves, Immigration, ‘race’ and ethnicity in contemporary
France, London, New York: Routledge, 1995, p.73.
53
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policing in the so-called quartiers sensibles. Libération affirmed that
‘L’animosité à l’égard des policiers est souvent confortée par la
conception trop musculaire que certains d’entre eux font de leur
60
métier’ and Le Monde highlighted in bold quotes that ‘Les
arrestations sont souvent musclées, et les jeunes se sentent
61
humiliés.’ On this basis a conditional recognition is offered to the
riots: ‘nous pouvons comprendre la colère de certains’; ‘[m]algré le
démenti du parquet, nombre de jeunes croient encore que les deux
62
adolescents électrocutés étaient poursuivis par la police’.
Not only does the legitimacy of the violence depend on it resulting
from inappropriate police action, but as the police were vindicated by
the inquiry, the press decried the articulatory failings of the
government as a ‘machine à rumeurs [qui] a fonctionnée pour
63
enflammer les esprits des jeunes habitants de Clichy-sous-Bois’. In
the wake of this ‘colère attisée par les déclarations erronées du
64
gouvernement’, the press assumes a moral role.
When the Parquet de Bobigny exonerated the police of wrongdoing,
the press became the locus of a dispute as much between parties as
between members of the government. Not only were Sarkozy’s two
65
most provocative utterances – ‘racaille’ and ‘nettoyer au Kärcher’ –
criticised by the Left, but Ministre pour l’égalité de la chance, Azouz
Begag (UMP), attacked Sarkozy saying that ‘il ne faut pas dire aux
jeunes qu’ils sont des racailles … il faut aller avec un volonté
60
[Animosity towards the police is often reinforced by the overly muscular
conception that some of them have of their job] Libération, 30 October 2005.
61
[Arrests are often strong-arm and the youths feel humiliated] Le Monde, 29
October 2005.
62
[We can understand the anger of some of them] Le Monde, 29 October
2005; [In spite of the clearing up of the Parquet de Bobigny, a number of
youths still believe that the two electrocuted teenagers were chased by the
police] Le Figaro, 30 October 2005.
63
[Rumour-mill which has served to inflame the spirits of the young
inhabitants of Clichy-sous-Bois] Libération, 31 October 2005.
64
[anger stirred up by the erroneous declarations of the government]
65
[scum]; [clean up with a pressure-washer]
16
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66
d’apaiser’. Former sociologist and the only minister of North African
origin in the cabinet, Begag was accoladed in the pages of the press
67
as ‘principal opposant à Nicolas Sarkozy’. Libération proferred a
front-page banner:
Sarkozy, retour de bâton … Le ministre Azouz Begag s’en
68
prend à la méthode de son collègue de l’intérieur.’
To the press, ‘Azouz Begag fait entendre sa difference.
69
Whereas it can be seen that the press made extensive use of official
sources, this does not necessarily conduce an analysis which regards
the ‘problem [as] controlled by news framing and use of official
sources to demonise, marginalise and delegitimise the groups and
70
their actions’. Whilst they may be important definers in the events, it
is difficult in this case to interpret the focus on the official as premised
on an unquestioning support for this perspective. Michael Stewart’s
71
ethnographic analysis of mulatśago – ‘true speech’ – may be a more
helpful model. The formalised space provided in ritual singing, in
Stewart’s analysis, ‘is an attempt to create an ideal communal world
where men can respect each other’. Yet the world of mulatśago only
grotesquely relates to the ‘daily one of rivalry, squabbles, divisive
72
specificities and particularities’:
66
[You can’t tell youths that they’re scum … you have to go in with a will to
soothe {the situation}] Le Monde, 1 November 2005.
67
[main opponent of Nicolas Sarkozy] Le Monde, 2 November 2005.
68
[Sarkozy, it blows up in his face … Minister Azouz Begag takes issue with
the method of his Interior Ministry colleague] Libération, 1 November 2005.
69
[Makes his difference known] Le Figaro, 1 November 2005.
70
S. G. Larson, Media & Minorities: The Politics of Race in News and
Entertainment, Lanham, Oxford: Rowman & Littlefield, 2006, pp.147-148.
71
[The main ceremonial form of gypsy life, in which men gather together, eat,
drink and then sing about the trials, tribulations and joys of being one of the
gypsy brothers. Editor.]
72
M. Stewart, ‘”True Speech”: Song and the Moral Order of a Hungarian
Vlach Gypsy Community’, in Man, Vol.24(1), 1989, pp.79-102.
European Social and Political Research, Vol. 13 (2006–2007)
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Crise des banlieues: Press coverage of the French 2005 riots
How is it then that the Rom can accept as ‘truth’ these biased
and limited representations of reality? How is it that Rom song
73
comes to define what the life of the Rom is like for them?
Stewart’s question strikes an interesting parallel with the question with
which Debord grapples throughout La Société du Spectacle.
Stewart’s answer, however, focuses not on the representations
themselves, but the context in which they are employed. The lyrics of
mulatśago acquire their defining force only within the heavily
circumscribed, normative space of Rom singing. In this light, the
press criticism of politicians becomes as comprehensible as that of
the rioters. When Libération’s editorial castigates Sarkozy for ‘parler
74
sans savoir’ in exonerating the police a priori of all responsibility, it is
thus casting judgement over who has the right to speak in the media
sphere, and claiming the newspaper’s own authority in this matter.
Similarly to Stewart, Fred Myers and David Brenneis argue that ‘the
creation and maintenance of communicative contexts is the creation,
75
however fleeting, of a political order.’ During the crise the press
were able to claim a political function through creating and
legitimating ‘the media’ – the press in particular – as such a
communicative context. Indeed the crisis element of the crise des
banlieues may have permitted the press even further to establish this
function as it increasingly assumed a voice of moral authority. The
preponderance of official voices within the reporting of the riots, not
only enabled state institutions to assure the status quo, but it
reinforced the press as a key component of the maintenance of this
political context.
In spite of the clearly critical stance that the press took to the
government and the police from the start, the state appeared in
diffuse form through the ordering voice of the mayors. Claude Dillain
73
Ibid.
[speaking without knowing] Libération, 30 October 2005.
75
D.L. Brenneis & F.R. Myers (eds.), Dangerous Words: Language and
Politics in the Pacific, London, New York: New York University Press, 1984,
p. 25.
74
18
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the socialist mayor of Clichy-sous-Bois was interviewed in Le Monde
immediately subsequent to the first night of rioting. In the interview, he
assured that the events ‘ne traduisent pas une dégradation de la
76
situation dans sa ville’ and in another article he told the interviewer
that ‘[m]anifestement, des individus, qui ne sont pas de Clichy-sousBois, ont trouvé un prétexte pour commettre des actes de
77
vandalisme.’ Whatever the crisis being played out in the upper
echelons of the government, the mayors are revealed as upholders of
Republican order. A cluster of articles allude to the mayors as ‘en
première ligne dans la bataille de la banlieue.’ In their attempt to
78
‘raisonner les jeunes’ on the front lines – mediating between the
political and the local – the presence of the mayors is in direct
counterpoint with that of the youths in the banlieues. They offer either
a narrative foil of authority in the face of the wild intrepidity of the
rioters or a dramatic irony: ‘A Asnières, c’est le maire qui chauffe les
79
nuits.’ The clarity of the press’s focus on such official figures
contrasts strongly with the dramatic, often impressionistic coverage of
the violences. Detailed portrayal of police and fire-brigade strategies
80
81
(‘Pompiers, façon légions romans’ ) and citizens in ‘rondes de nuit’
are juxtaposed with lists of authorless destructions which, in each
newspaper, represent a running tally of the dégats incurred during the
crisis. Libération lists:
691 véhicules incendiés, des bâtiments publics et des
commerces pris pour cibles, 1000 policiers mobilisés, 143
76
[don’t translate into a deterioration of the situation in his town] Le Monde,
29 October 2005.
77
[Clearly, individuals who aren’t from Clichy-sous-Bois have fond a pretext
to commit acts of vandalism]
78
[reason with the youths]
79
[In Asniers, it’s the mayor who heats up the nights] Libération, 8 November
2005.
80
[Firemen, organised like Roman legions] Libération, 29-30 November 2005.
81
[on night patrols]
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Crise des banlieues: Press coverage of the French 2005 riots
interpellations, 43 comparutions, 17 incinérations, 4 tirs
82
d’armes à feu.
The burnt-out cars, bins, schools, post-offices and buses, along with
police injuries are counted without reference to the perpetrators. The
shadowy presence of hooded youths is merely implied; menacing the
interstices of the text.
Given the contrast between the sharp-focus portrayal of such figures
as the mayors and the blurred, indistinct portrayal of the violence, it is
the articulation of the mayors which bears descriptive authority: when
rioters are described direct quotes are used. In this context a torrent
of chaotic images are employed. Vandales, visage masqué, bandes
[qui] donnent l’exemple aux jeunes, voyoutocratie, voyous and
83
bandes de voyous, casseurs, actes délictueux et gratuits are easy
currency in this economy of images and are further nuanced with a
proliferation of markers indicating foreignness: l’implication des
musulmanes, étrangers,, refus de s’intégrer, rebelles, des islamistes
84
qui essaient de récupérer le mouvement. Furthermore, the idea that
the youths may be manipulated by a hardened core which is
characterised by its criminality or Otherness, contributes to the
effective denial of a voice to the rioters in the press:
85
Le maire dit vouloir isoler le noyau dur;
la plupart se laissent entraîner et … certains sont peut-être
86
manipulés par des gens qui ne sont pas d’Aulnay;
82
[691 vehicles set ablaze, public and commercial buildings targeted, 1,000
police mobilised, 143 arrests, 43 appearances before a court, 17
incinerations, 4 gunshots]
83
[vandals, faces masked, gangs setting an example for the young,
‘mobocracy,’ hoodlums, gangs of hoodlums, vandals, unlawful and gratuitous
acts]
84
[Muslims implicated, foreigners, refusal to integrate, rebels, Islamists who
are trying to rehabilitate the movement]
85
[The mayor says he wants to isolate the hard core]
20
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Ce sont pas tous des voyous. Certains viennent juste pour
s’amuser. Au lieu de jouer à la Playstation, ils tapent le CRS.
87
Dans quelques jours, ceux-là reprendront une vie normale.
All three examples carry the unwavering voice of a mayor, who as
guardian of Republican order does not get swept up in the commotion
of events. Not only does this undermine any possibility of the rioting
being legitimate, it also devoices the rioters: If those implicated are
either hardened criminals or have just let themselves get carried
88
away, what meaning can one read into the violence?
The comments of Eric Raoult – UMP Mayor of Raincy in Seine-SaintDenis – published in Le Monde, are also indicative of the more
pejorative construction of the rioters which emerged in the press. His
89
claim that now it’s time to ‘mettre les mômes au dodo’ is not only
indicative of his stance towards the rioting, but finds broad support in
the tone of articles which further reinforce the juvenile portrayal of the
rioters, accompanied by repeated injunctions to parents to take
90
control of their children. A question of public order is domesticated
within the strong symbolism of parenthood. With a host of diminutives
employed to portray the rioters – jeunes, jeunes de 10-12 ans,
91
mineurs, gamins, gamins qui mettent le feu, calmer les esprits – the
86
[Most of them are letting themselves get led astray and … some are
perhaps manipulated by people who aren’t from Aulnay]
87
[They are not all hoodlums. Some of them come just for the fun of it.
Instead of playing on their Playstation, they beat up the riot police. In a few
days they’ll get back to normal life]
88
This was a sentiment echoed in certain sociological analyses of the rioting,
see e.g. M. Wievorka, ‘Violence in France’, 2005. Available online (January
30 2007): http://riotsfrance.ssrc.org/Wieviorka/
89
[Put the babies to bed]
90
There is a certain irony in this appeal considering the sympathies that the
parents—themselves ‘issus d’immigration’—may have had towards the youth
revolt. This argument is made in S. Beaud & M. Pialoux, ‘La « racaille » et les
« vrais jeunes »: critique d’une vision binaire du monde des cités’ in C. Autain
et al., Banlieues, lendemains de révolte, 2006.
91
[youths, youths from 10-12 years old, minors, kids, kids who set fires, calm
the spirits]
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Crise des banlieues: Press coverage of the French 2005 riots
parents are called upon to take control of the situation: ‘il n’y a qu’eux
92
qui peuvent tenir leurs enfants.’ The issue is thus condensed into
one of poor parenting and family breakdown and devoices the
protagonists by attaching them to apron-strings instead of regarding
their actions as having either a political dimension or political
repercussions. Le Monde’s article of 4 November encapsulates the
ludicrousness of such a discourse when it quotes the Director of the
Department of Public Security, Jacques Méric:
On est face à des problèmes de société profonds, une grande
paupérisation, des citoyens qui veulent la paix publique et
93
d’autres qui brûlent les voitures de leurs voisins.
Given the highly critical nature of the press’s coverage of the political
elements in the rioting, the fact that the media not only bought in to
this discourse but perpetuated it is surprising, and calls for some
attempt at explanation. An account which sees the media in terms of
its allegiance to political power-holders would prove inadequate
considering the highly critical dimension to the press coverage
already discussed. Similarly, to analyse it in terms of the economics
of journalism – as a sensationalistic device aimed at increasing
94
sales – would simplify the nuanced portrayal of the youths involved
in the rioting. Instead, it may be fruitful to return to the idea of the
maintenance of an articulatory space. The coincidence of the crisis
with the profound criticism levelled at the state in the press indicates
not only that media institutions have considerable autonomy from the
political process, even as they may repose on the state at a symbolic
95
level, to the point of reproducing it but that their symbolic efficacy
relies upon them successfully claiming a monopolistic space of
92
[Only they {the parents} can rein in their children]
[We are faced with deep running social problems, a great pauperisation,
citizens who want public peace and others who burn their neighbours’ cars]
Le Monde, 4 November 2005.
94
See for example E. Néveu, Sociologie des Mouvements Sociaux, Paris: La
Découverte, 2004.
95
cf. Y. Navaro-Yashin, Faces of the State: Secularism and Public Life in
Turkey, Princeton, NJ: Princeton University Press, 2002, p.171.
93
22
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articulation. In mulatśago, one is only accorded a voice if one sings
appropriately; in distinguishing between those with a right to a voice
and the perturbing babble of those without, the national press were
able to establish their purview as guardians of this hallowed
articulatory space.
4. Conclusion
One year after the rioting which struck the peri-urban conglomerations
surrounding Paris and other parts of France, an article in Le Monde
left little doubt of the media’s role in producing social reality. A
conference united journalists and other media professionals in an
96
interrogation of the reporting of the 2005 crise des banlieues. The
question addressed was: ‘What has changed in the way in which the
media ‘cover’ this reality of French society?’ Even more important
than the questions posed and the answers offered by this article are
the assumptions that such a probe implies. The journalists involved in
the event were very keen to assert their political independence, not
wanting ‘se laisser instrumentaliser, surtout en cette periode
97
préélectorale’. However, in this search for an objectivity which seeks
independently to reproduce ‘la realité de ce qu’on découvre sur le
98
terrain’ the unquestioned presupposition in this discourse is that ‘the
media’ do in fact have a determining role in constituting social reality.
This attitude is not just one of journalists; it has reached the heart of
contemporary popular and academic understandings of the media.
Yet as the state’s pre-eminence as a foundation of social life is
assured by its perpetuation of notion of ‘the state’ as an imagining, so
the institutions of the media exert a very real violence in the
maintenance of their role as legitimate public articulators. This is
achieved, through the embroilment of media institutions in the
reproduction of the state, whilst at the same time creating a distinct
space, characterised in moral terms and opposed to the inarticulacy
of the disordered mob, and even the hasty politician.
96
‘Banlieue, terra incognita’, Le Monde, 22 October 2006.
[let themselves be used, especially in this pre-election period]
98
[the reality of what happens on the ground]
97
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Crise des banlieues: Press coverage of the French 2005 riots
In studying the media, this article, has confined itself to analysing the
reporting of three French newspapers during the 2005 crise des
banlieues. Perhaps though, it is the uniting of these three papers
under the banner of a transcendent notion, ‘media’, which is the most
powerful means by which traditional media institutions acquire their
symbolic potency; in the same way as the very creating and enacting
of the idea of ‘the state’ guarantees this particular form of imagining.
This view, however, does not take into account the impact of the
development of ‘electronic media’ upon this media imaginary. Whilst
Appadurai’s theory places great importance on the development of
electronic media – whose ability to transcend national boundaries,
Appadurai argues, allow for alternative imaginings to the nation-state
– this article has sought to demonstrate to the contrary; that the very
notion of ‘the media’ is itself an imagining. The development of new
media – blogs, websites and Internet forums brings with it a
democratising potential, for example, to publicly articulate the
perspectives of the banlieusards, without recourse to the traditional
gatekeepers of this space. In light of the myriad communicative
technologies to which the modern world now has access, the media
imaginary faces redefinition. The notion of ‘the media’ is, now more
than ever, an unstable guarantor of traditional media institutions’ role
99
‘at the heart of society’s real unreality.’
99
24
G. Debord, 1995, p.19.
European Social and Political Research, Vol. 13 (2006–2007)
European Social and Political Research, Vol. 13 (2006–2007)
The incest taboo
Alkistis Elliott-Graves
1. Introduction
One of the great philosophical debates which is still important today is
the debate concerning nature and culture. Which of the two is more
important? Which of the two ultimately shapes human nature? It
seems that scientists, social scientists, teenagers’ magazines,
cookery books, indeed almost everyone has their own idea about how
far humans are influenced by their genetic makeup and how much is
left to cultural conditioning. The debate itself however, is very
significant philosophically, because of its far-reaching implications.
One’s position on this debate greatly influences one’s perception of
other important philosophical questions, such as: what it means to be
human, to what extent human action is free as opposed to predetermined, what, if anything makes humans stand out from the rest
of the animal order. These questions then give rise to moral positions
concerning for example, human and animal rights, fairness, justice,
tolerance, economic policy, education, and so on. The list is endless.
Many scientists and social scientists have dealt either directly or
indirectly with the nature versus culture debate and its implications.
One such account, though indirect in its approach, is nevertheless
truly interesting. This is Claude Lévi-Strauss’s explanation of the
phenomenon of the incest taboo as the bridge between nature and
culture, which occurs in the introductory chapters of the Elementary
Structures of Kinship. Here, Lévi-Strauss gives the incest taboo a
unique place among all phenomena concerning humans, because it
belongs at once to both the natural and cultural domains. His work is
controversial in many ways and though some of his points may be
viewed as overstated or extreme, the overall work is still considered a
classic and essential reading for anyone studying the subject.
In this essay, I will examine Lévi-Strauss’s conception and analysis of
the incest taboo from a philosophical perspective, i.e. by focusing on
25
Alkistis Elliott-Graves
The incest taboo
the ideas and situations which influenced Lévi-Strauss, together with
their implications. The first part will be an analysis of Lévi-Strauss’s
definition of the incest taboo and its implications for the nature versus
culture debate. I will then argue that Lévi-Strauss’s seemingly
extreme position that culture overrules nature is based on a deep
rejection of anti-rationalism, fuelled by his philosophical and historical
context rather than an absolute rejection of the natural sciences. This
will be shown through an analysis of the evolution of Lévi-Strauss’s
own ideas. Ultimately, I will attempt to show that if a theory of the
incest taboo which focuses on its pre-social origins can be at least
conceptually combined with Lévi-Strauss’s own theory, then the view
that nature and culture are in radical opposition, must be revised or
even rejected outright.
2. Lévi-Strauss’s theory of the incest taboo: a brief summary
It is possible to define the incest taboo in many ways and on many
different levels. In fact, many of the problems which arise in
discussions of the phenomenon stem from its definitions and the
connotations which each of these involve. Lévi-Strauss’s theory of the
incest taboo is very complex, and at first glance can even seem
contradictory. According to Lévi-Strauss, the incest taboo is a
universal rule existent in all societies which prohibits marriage and
sexual relations between specific kin members. Together with
exogamy, the rule which prescribes possible marriage and/or sexual
partners, it is the basis of the system of kinship which in turn is the
1
structure on which society is based. However, this concept of a
‘universal rule’ is paradoxical. This can be seen when one takes into
account Lévi-Strauss’s conception of Nature and Culture. Both these
concepts do not have clear definitions in Lévi-Strauss’s writings, nor
are their interpretations constant. Still, there are a few characteristics
of the two orders which seem to stand out. Nature’s main
characteristics are universality, spontaneity and the absence of rules,
whereas if a phenomenon is particular, non-spontaneous and
1
C. Lévi-Strauss, The Elementary Structures of Kinship, London, 1969, pp. 89, 46.
26
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The incest taboo
2
governed by rules, then it must belong to the domain of Culture. In
fact, the ‘surest criterion for distinguishing a natural from a cultural
3
process’ is the presence or absence of rules. Therefore the incest
taboo must be a cultural phenomenon, as it is a rule and more
specifically, a particular rule, which is expressed differently in each
society. On the other hand it is at the same time universal, as it exists
4
in all societies, and thus must also belong to the domain of nature.
There can be no objection to this, Lévi-Strauss states, as it is obvious
from empirical observation (anthropological research) that the incest
taboo is universally present, while its cultural aspect is asserted by its
5
very definition.
Lévi-Strauss dissolves this paradox by giving the incest taboo a
unique place among all socio-biological phenomena, indeed among
all phenomena that can be characterized as human. He states that as
it is the only exception in this categorization of phenomena, it must
6
represent the transition from a state of Nature to a state of Culture.
Lévi-Strauss famously asks in the first chapter of the Elementary
7
Structures: ‘Where does nature end and culture begin?’ It is easy to
see where culture begins; anywhere there is a rule. Yet with the
8
incest taboo also comes the ‘end of sovereignty of nature over man’.
Thus the prohibition of incest marks the passage form nature to
9
culture. This passage however does not result in a complete loss of
nature’s influence on humans, just that the universal natural
spontaneity and instinct become coded, modeled and governed
2
F. Korn, Elementary Structures Reconsidered: Lévi-Strauss on Kinship,
London, 1973, p. 10.
3
Lévi-Strauss, 1969, p. 8.
4
Ibid.
5
Ibid., p. 9.
6
H. Gardner, The Quest for Mind: Jean Piaget, Claude Levi-Strauss, and the
Structuralist Movement, New York: Knopf, 1973, p. 125.
7
Lévi-Strauss, 1969, p. 4.
8
Ibid., p. 25.
9
R. Deliège, Levi-Strauss Today: an Introduction to Structural Anthropology
(trans. N. Scott), London: Berg, 2004, p. 58.
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Alkistis Elliott-Graves
The incest taboo
according to specific rules. Therefore although nature still is part of
10
the equation, culture superimposes its influence on the end result.
The above analysis is however a simplification of Lévi-Strauss’s
theory, even though he himself expresses it thus in the first chapters
of the Elementary Structures. There is another concept, another rule
which precedes the incest taboo and is located in the unconscious of
all humans. This is the theory of reciprocity, which is based on LéviStrauss’s analysis and interpretation of the work of Marcel Mauss. In
Essai sur le don. Forme et raison de l’échange dans le sociétés
archaïques, Mauss states that the basis of society is the need for the
11
exchange of gifts. The giving of a gift includes the obligation to
reciprocate which is the foundation of the ‘rousseaunian’ social
contract and so the relation between the individual and society is
12
formed. It would be impossible to do justice to Mauss’s work in this
essay, therefore the analysis will only focus on Lévi-Strauss’s
interpretation of Mauss. For Mauss, the relation of gift exchange is the
basis for the social contract and thus for society itself. For LéviStrauss however, it is not that exchange occurs in order for the gift to
be given in return, but vice versa, i.e. that gifts are given in order to
13
secure exchange. The focus is different between the two thinkers.
Lévi-Strauss views gift giving as a means for exchange, while for
Mauss it was the actual gift and its symbols which was more
important than generalized exchange.
This may seem like a small change yet its significance is immense.
The actual gift is just an example of exchange, and is of minimal
importance in itself. It is now possible for Lévi-Strauss to formulate his
theory of kinship as another example of the manifestation of
reciprocity. In terms of kinship, the elementary parts of the exchange
are women, who are exchanged between families. Yet in order for this
10
Lévi-Strauss, 1969, p. 25.
M. Godelier, The Enigma of the Gift (trans. N. Scott), Chicago, IL:
University of Chicago Press, 1999 p. 1.
12
S. Clarke, The Foundations of Structuralism, Sussex: Harvester, 1981, p.
44.
13
Ibid.
11
28
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The incest taboo
to occur, the incest taboo must exist so that no claim can be made
14
from the men in one family over their own women. This does not
mean that the incest taboo becomes less important; it is still universal.
It is the first manifestation of the theory of reciprocity into an
empirically observable phenomenon. Thus, even though it is the
theory of reciprocity which is the actual transition from nature to
culture, the incest taboo is the first universal manifestation of this
transition. Its universality also proves that the theory of reciprocity
from which it derives must also necessarily be universal. Thus LéviStrauss can now explain how the theory of reciprocity originates in the
unconscious without having to do the same for the incest taboo. It is
enough to show that the incest taboo is a product of the theory of
reciprocity, and this he has done by showing that the exchange of
15
women is the fundamental social relation.
However, there still exists the problem of the apparent opposition
between nature and culture and the difficulty of understanding the
relation between them. Even though the incest taboo is the bridge
between them, Lévi-Strauss often states and implies that they are at
odds. In the Elementary Structures he states that the phenomenon
can only be examined from a cultural, i.e. anthropological/sociological
perspective, while the natural sciences cannot provide insight into its
workings. He does not deny the natural aspect of the taboo but also
attacks those who would explain the prohibition of incest as a purely
cultural or natural phenomenon by affirming that both these extremist
explanations lead to contradiction. Nor is it a ‘composite mixture’ of
nature and culture, but a transition, a transformation of one into the
16
other. Still, he denies that the study of biology, genetics or
evolutionary theory could help with its explanation. He states:
14
Ibid. p. 68-69.
Ibid. p. 68.
16
Lévi-Strauss, 1969, p. 24.
15
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The incest taboo
even if the incest prohibition has its roots in nature it is only in
the way it affects us as a social rule that it can be fully
17
grasped.
It can thus be deduced that on one hand Lévi-Strauss does not want
to deny completely the role of nature in the prohibition of incest, yet at
the same time he wants to assert the importance of culture over
nature.
Lévi-Strauss gives little justification of these statements. He does,
however, state explicitly in the Elementary Structures that ‘a vicious
circle’ develops if one looks for a natural explanation for the origin of
institutional rules, which by his definition are culture, as they cannot
18
be established without language . (He does not, however, give any
further analysis of this point). It seems to be taken for granted by LéviStrauss that language is what distinguishes humans from the animal
19
order and as soon as it exists, society and culture also exist.
Language is also a manifestation of reciprocity, given that there must
necessarily exist at least two individuals exchanging symbolic
information. I will return to this point in section 5. It is now time to
examine why Lévi-Strauss conceived of and defined the incest taboo
and its implications for nature and culture in this particular way.
3. Why does Lévi-Strauss assert culture’s importance over
nature in the explanation of the incest taboo?
Intellectual context, theoretical aims and conception of social
anthropology
There are many reasons which pushed Lévi-Strauss to this
controversial theory and to the remarkable statement that the incest
taboo can gain nothing from explanation which focuses on its natural
aspect. The motivation is a combination of factors which range from
17
Ibid. p. 29.
Ibid. p. 8.
19
Lévi-Strauss, in R. Kearny, Modern Movements in European Philosophy:
Phenomenology, Critical Theory, Structuralism, Manchester: Manchester
University Press, 1994, p. 255.
18
30
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The incest taboo
the philosophical trends during the time Lévi-Strauss was writing to
the fact that at this stage his theory was far from complete.
All people who live in a certain historical period are to a greater or
lesser extent influenced by their environment and surroundings. The
philosophical, literary and scientific trends help shape the way people
think, even what they choose to study. Lévi-Strauss was no
exception. When the first edition of The Elementary Structures of
Kinship was published in 1949 social anthropology was a relatively
young science. If his work was to become influential, Lévi-Strauss
knew that he had to first create a niche for his discipline and underline
its importance, in order to accentuate its diversity from other
20
disciplines such as zoology and mainstream sociology. The human
species was said to differ from animals only in terms of degree, and
that degree was culture. An example of this can be seen in LéviStrauss’s attack on the Westermark-Ellis theory of incest aversion,
which states that there is a natural, biological aversion towards
21
incest. (This theory will be explained further in section 4.) This
naturalistic explanation was to a large extent reductionist, and was
therefore regarded as inadequate by Lévi-Strauss as he searched for
a more complicated explanation which took into account all of the
variables of his theory.
On the other hand, Lévi-Strauss would not want to express ideas too
closely related to sociology or psychology. Thus he had to be careful
in underlining that the role of nature is not obliterated completely, in
the way that many social scientists of his time tended to do. Therefore
culture would not be part of nature, nor would it be the opposite of
nature, but it would transform nature into something higher and thus
22
worthy of specific research. In fact, Lévi-Strauss does not break free
completely from previous sociological theories such as that proposed
by Durkheim, yet makes significant changes to fit his own
explanation. It has been suggested by some of his critics that Lévi20
Mepham, in D. Robey (ed.), Structuralism: an Introduction, Oxford:
Clarendon, 1973, p. 111.
21
Lévi-Strauss, 1969, p. 16-18.
22
Robey, 1973, p. 112.
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The incest taboo
Strauss diverged from Durkheim but then later on in his life returned
to some of Durkheim’s viewpoints. In the Elementary Structures,
23
however, the divergence is apparent. Lévi-Strauss keeps the idea of
functionalist explanation yet asserts that it cannot stand on its own. If
it is to make any sense, it must be rooted in the individual psychology
24
and not in the collective consciousness. This is a very important
philosophical point, as by providing a functional underpinning for
social structure in the individual, he could eliminate Durkheim’s
25
appeal to a metaphysical logic of evolution. Functional explanation
is not causal, i.e. a phenomenon is not explained by how it has come
about, but by its function, its purpose, and thus the temporal order of
26
cause and effect is inverted. One way of providing a functional
explanation within the temporal framework is to combine it with
evolutionary theory. Thus, as the origins of social structure cannot be
explained in terms of human actions (given that, according to
functionalists, society superimposes itself on the individual), a
genetic, evolutionary explanation is given whereby the selective
pressures of evolution dictate how both society and humans come
27
into being and act. (This is very simplistic view of Durkheimian
functionalism, which serves purely to show the similarities and
differences with Lévi-Strauss’s own work.) The implication is that all
societies in the world today are arranged on a type of evolutionary
28
scale from the most primitive to the most advanced.
Even if this claim is a somewhat extreme version of evolutionary
reductionism, it is easy to see why Lévi-Strauss would reject such an
explanation. This extreme biological reductionism does not leave any
space for free individual action, or more importantly for Lévi-Strauss,
23
Moravia, Sergio La Ragione Nascosta. Scienza e Filosofia nel Pensiero di
Claude Lévi-Strauss, Firenze: Sansoni, 1969, pp. 155-168.
24
Clarke, 1981, p. 47.
25
Ibid. p. 39.
26
The author acknowledges the lectures given by Professor Sebastian
Gardner for having explained this idea to her.
27
Clarke, 1981, p. 48-49.
28
Ibid. p. 49.
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The incest taboo
the individual unconscious as the basis of society. Lévi-Strauss was
attempting, through his account of the unconscious, to give a rational
explanation for the basis of society, and in order to do so he had to go
against this simplistic view of evolution. In fact, it is biological
reductionism itself which caused the greatest gap between LéviStrauss and Durkheim. (This will become more apparent from the
analysis in the following sections.)
The historical context is also important. In the late 1940s, the world
was just picking itself up from the horrors of the Second World War.
Evolutionary thinking had been used in a very negative way, the ideas
of Social Darwinism attesting that human races were diverse and that
some were biologically superior to others. Lévi-Strauss, as an
anthropologist, was striving to show exactly the opposite; that all
humans were biologically similar and that any cultural differences did
not show advancement or regression, simply different ways of doing
essentially the same thing. Thus, for example, the contents of the
incest taboo may be different in each society yet the important thing is
that the incest taboo exists everywhere. In 1959 Lévi-Strauss wrote
‘Race and History’, a paper which condemns the ‘ethnocentric
attitude’ that existed in the Western world at the time and did not
allow for cultural differences, dismissed anything non-Western as
29
primitive. Thus Lévi-Strauss used an almost relativist argument in
order to show how much he feared the misinterpretation of
evolutionary theory and biological reductionism.
At the same time, he was an important part of the structuralist
movement, which became very popular during his lifetime. Some of
the basic concepts of structuralism would logically lead to his ideas
concerning nature and culture, described above: for example, his
belief that structures, especially in their elementary forms, are the
basis of human life. These structures are not consciously conceived
by humans and then put into practice, but exist as entities in their own
30
right. Thus, when examining a social phenomenon, it is more
29
Lévi-Strauss, 1952, p.21.
G. Gutting, in E. Craig (ed.), Routledge Encyclopedia of Philosophy,
London: Routledge, 1998. URL: http://www.rep.routledge.com
30
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The incest taboo
important to analyze these structures (an expression of culture) and
their relationships with the individuals in whose unconscious they
exist, rather than the natural or biological characteristics of these
individuals. As a structuralist, Lévi-Strauss also advocates a type of
determinism which again results in the importance of culture over
natural instinct. ‘L’esprit humain’ –loosely translated as ‘the human
mind’ – is determined by the laws that govern the structures of
31
society. The unconscious, which is the same for ‘primitive’ peoples
and those who live in more complex societies provides the point of
contact between the social and the individual mind, yet it is never
32
reduced to ‘a matter of individual psychologism’. Thus again, the
natural individual impulse must be contained within the greater
structure.
However, in many ways Lévi-Strauss’s writings diverge from
structuralism. Many of his commentators write that identifying his
work and structuralism as identical is a great error, which leads to a
33
misinterpretation of his ideas. Others agree that Lévi-Strauss’s
ideas do contain some basic structuralist ideas, but say that the bulk
34
of his work goes beyond the frame imposed by structuralism. In fact,
in the Elementary Structures he places a lot more weight on
individualism than is generally apparent in mainstream structuralism.
Another motive that drove Lévi-Strauss to this conclusion concerning
nature and culture is the following. As noted in the introduction, the
nature versus culture debate in terms of the incest prohibition appears
mostly in the preface and introductory chapters of The Elementary
Structures. This is because it is used only as an introduction and
framework for his elaborate theory of how kinship systems work. Thus
he stresses the importance of incest prohibition as the basis of
society itself in order to ‘justify’ the focus of his book. Then, through
his brief discussion he argues (whether successfully or not) that any
31
P. Pettit, The Concept of Structuralism: A Critical Analysis, Berkeley, CA:
University of California Press, 1975, p. 77.
32
Clarke, 1981, p. 212.
33
Dyson-Hudson, in Robey, 1973, p. 218.
34
D. Sperber, p. 25.
34
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The incest taboo
explanation of this phenomenon must focus on its cultural aspect. He
can then proceed with the in-depth analysis of his theory, which
explains kinship systems solely in terms of their cultural and social
characteristics.
Lévi-Strauss does not differentiate between the origins of the incest
taboo and the taboo itself. Still, his analysis of how the incest taboo
transforms nature into culture and the eminence of culture after that
implies a historical progress from one time period or era into another.
This strikes the reader as a distinction which needs to be made if the
analysis is to make sense. It comes to a point where, he states,
there only, but there finally culture can and must, under pain of
not existing, firmly declare ‘Me first,’ and tell Nature, ‘You go no
35
further’.
It is almost as if he is imagining an ‘Age of Nature’ ending and an
‘Age of Culture’ beginning. Therefore one could interpret the natural
aspect as important in the origins of the incest taboo, while the
cultural aspect as essential to its evolution ever since. If this is the
case, and Lévi-Strauss is deliberately leaving the origins of the incest
taboo out of his analysis, then one could understand why he goes to
so much effort to explain why the incest taboo has these two
conflicting aspects, but then rejects the first. If it is only in the origins
that nature is important, then Lévi-Strauss’s has provided a
justification for his insistence that culture is the only aspect important
to his own study.
Whatever his reasons may have been, the result of this was a deep
rejection, one could say even fear, of evolutionary thinking and
explanation, which stayed with Lévi-Strauss even though he revised
his own theory later on in his life. As will be shown more extensively
in the following sections, this rejection stemmed mostly from the
residual contempt for biological reductionism rather than a rejection of
evolutionary theory itself.
35
Lévi-Strauss in Korn, 1973, p. 10.
European Social and Political Research, Vol. 13 (2006–2007)
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The incest taboo
4. The later development of Lévi-Strauss’s theory and its
implications
As the discussion in the previous section has highlighted, when trying
to get to grips with Lévi-Strauss’s work, it is often quite difficult to
understand what exactly he means. Indeed sometimes he comes
across as ambiguous, even contradictory. And it is not only details
which seem to change but central definitions which oscillate between
various meanings. Some of Lévi-Strauss’s commentators interpret
this simply as resulting from his style of writing. For some it is this
artistic way in which he expresses himself which is part of the genius
36
of his work. For his critics however, this ambiguity undermines his
argument. His use of ‘poetics’, i.e. a reliance on metaphors, has been
criticized as drawing away the reader from the argument in question.
A parallel criticism is that this inconsistency throughout his works
(especially the inconsistency of definitions) and his use of technical
terms renders his analysis incomprehensible to the reader and thus
37
detracts from its intellectual value.
Even though there may be some truth, however exaggerated, in these
criticisms, the underlying reason for the inconsistencies is simply that
Lévi-Strauss’s theory evolved throughout his lifetime. The Elementary
Structures of Kinship was originally Lévi-Strauss’s doctoral thesis and
when writing it his ideas were not yet fully formed. Indeed, in the
preface to the second edition of the Elementary Structures, written in
1967, he reassesses his position dramatically. He states explicitly:
As to the basic problems raised in the introduction, many new
facts and the development of my own thought mean that
38
nowadays I would no longer express myself in the same way.
The preface to the second edition is probably the key text which
shows the evolution of his theory and is central to its understanding.
36
Sperber in Sturrock, 1971, p. 21.
Korn, 1973, pp. 142, 144.
38
Lévi-Strauss, 1969, p. xxviii.
37
36
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The most important change is demonstrated by the new definitions of
nature and culture. Culture is
the synthetic duplication of mechanisms already in existence
[in nature] but which the animal kingdom shows only in
disjointed form and dispersed variously among its members – a
duplication, moreover, permitted by the emergence of certain
39
cerebral structures which themselves belong to nature.
This means that culture is what makes humans human, and even
though animals do have behavioural patterns that can in some sense
be interpreted as examples of culture – tool-making, communication,
social structure etc. – humans are the only species which
systematically combine all their characteristics given by nature and
transform them into culture. Humans thus still differ from other
animals, yet to a much smaller extent than was previously suggested.
It is the natural characteristics which exist in all animals to different
degrees, which can be used to form culture or aspects of it. However,
there is no teleological reason, on Lévi-Strauss’s account, which
shows that it must necessarily be so. The implications of the
statement quoted above are far-reaching and the answer to the
famous question ‘Where does nature and Culture begin’ raised in the
second section takes on a whole new meaning.
Nature and culture are no longer to be viewed as diametrically
opposed. Before, the idea was that the incest taboo, as a
manifestation of the theory of reciprocity, was the mediator between
those two orders. Now, however, ‘the contrast between nature and
culture would be neither a primeval fact, nor a concrete aspect of
40
universal order’. In other words, nature and culture are not a thesis
and antithesis, but just two not-easily distinguishable aspects in the
essence of humanity. In fact, Lévi-Strauss explicitly states that in
order to understand culture, one must ‘trace it back to its source’ and
seek out its ‘loose ends in other animal and even vegetable
39
40
Ibid p. xxx.
Ibid p. xxix.
European Social and Political Research, Vol. 13 (2006–2007)
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Alkistis Elliott-Graves
The incest taboo
41
families’. This is effectively an admission that evolution has played
an important role in the origins of culture. Moreover, he even
acknowledges the fact that culture neither necessarily superimposes
42
itself over nature, nor ‘irreducible to it’. The Lévi-Strauss of 1967 has
thus virtually obliterated the contrast between nature and culture.
However, he continues to believe that there is no room for ‘biological
causation’ in the explanation of the prohibition of incest within the
framework of social anthropology. The question one therefore needs
to consider is, why does Lévi-Strauss still deny the importance of
biology in the explanation of a phenomenon which he himself has
admitted originates in nature? The answer can be found again
through the examination of the social and intellectual context in which
Lévi-Strauss was writing. It seems that Lévi-Strauss was not against
biological explanations in general, but was adamantly against a
certain type of biological explanation, evolutionary reductionism.
I now want to introduce the hypothesis that Lévi-Strauss was not at
odds with biology as such but with the notion of reductive explanation.
Application of this notion could lead to extreme biological
reductionism, as shown in the previous section. Lévi-Strauss rejected
all sorts of reductionism, not just the reductionism found in
evolutionary and genetic analysis. In the same way he believed that
humans are more than the sum of their genes and societies more
than the sum of their subjects, he did not reduce the unconscious to
43
individual psychology. He rejected psychological reductionism as
much as he rejected any other type of reductionism and the
irrationalism that he believed usually went with it.
It may seem that there is a contradiction here. On the one hand LéviStrauss rejects reductionism, yet, on the other hand, he himself
reduces reciprocity to the unconscious and culture to nature. There is
a subtle difference, however. Lévi-Strauss’s reductionism has a
certain limit and does not seek irrational explanations, whereas it
41
Ibid p. xxx.
Ibid.
43
Clarke, 1981, p. 212.
42
38
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The incest taboo
seems that he thinks that social, psychological and biological
reductionism are extreme forms of reductionism, which verge on the
irrational and are thus counter-intuitive. Though this point cannot be
irrefutably proven, it is probably safe to say without further analysis
that this rejection of extreme reductionism would have, among other
factors, led to his dismissal of genetic and evolutionary explanations.
It is now widely accepted, however, that biological explanations –
evolutionary explanations included – do not have to be reductionist.
Even though it has often been the case in the past that evolution is
the classic example of reductionism, it is now widely believed that this
is a very simplistic interpretation of evolution, indeed a
misinterpretation. Natural scientists affirm that evolution is not a linear
process, as interpreted in the past, but much more complex. It is
driven simultaneously by many factors, many of which are now
known, some of which can be rationally inferred, which have resulted
in the immense biodiversity which we see today. Although genes are
important as the smallest units of evolution, one cannot explain every
single process of evolution, natural and cultural, solely in terms of
genes. This means that although more complex than previously
thought, evolution is also a lot more sophisticated and evolutionary
analyses are not irrational. Evolution does not explain individuals by
reducing them to the interactions of their genes, but allows for other
factors, including cultural ones, to influence their behaviour.
5. Theorising the pre-cultural incest taboo
5.1. Some theories which explain the absence of incest with little or
no reference to culture
As shown in the third section, Lévi-Strauss states in the preface to the
second edition of the Elementary Structures that due to ‘many new
facts’ especially from the field of genetics, he would not express
44
himself in the same way if he were to rewrite the book. However the
phrase ‘many new facts’ is an understatement for the huge boom of
research in the natural sciences since 1947. The focus of some of this
44
Lévi-Strauss, 1969, pp. xxviii-xxix.
European Social and Political Research, Vol. 13 (2006–2007)
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The incest taboo
new research has been the incest taboo and its position as a
landmark for the origin of culture. In this section I will examine some
of the most important theories and their findings, focusing especially
on an evolutionary explanation of the origin of society, and the presocial explanation of incest aversion.
By the time Lévi-Strauss was writing the first edition of the Elementary
Structures, Edvard Westermark had long since published his theory of
biological incest aversion. This stated that children growing up
together will either develop an instinctive revulsion of sexual relations
for one another or will simply become indifferent to each other as
45
potential sexual partners. This theory also has newer evidence
which supports it. Studies of kibbutz systems in Israel and ‘minor
marriages’ in China also seem to show an inherent incest aversion for
46
children who grow up together as brother and sister. These studies
demonstrate that it is not necessarily only the existence of a taboo
which makes people feel aversion towards their siblings, but
conversely that the taboo could have evolved from this natural
aversion. Furthermore, there is additional evidence in the animal
world which supports Westermark’s theory.
A surprisingly large number of animal species do not commit incest,
47
ranging from insects, prairie deer mice and geese to chimpanzees.
Although the existence of these occurrences does not prove beyond
all doubt that there is some sort of conscious or unconscious natural
mechanism which inhibits desire for incestuous reproduction, it does
support the theory that the incest taboo is something more than a
purely cultural phenomenon and that studying its natural aspect could
provide answers to the riddle it poses.
45
Westermark in D. Aberle (ed.), ‘The Incest Taboo and the Mating Patterns
of Animals’, American Anthropologist, New Series, Vol. 65 No 2 (Apr. 1963),
p. 260.
46
D. Spain, ‘Taboo or not Taboo: Is that the Question?’, in Ethos, Vol. 16,
No.3 (Sept. 1988), p. 285.
47
Roscoe, 1994, pp. 49-76.
40
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The incest taboo
It has been proposed that aversion to incest has evolved because of
its deleterious effects on offspring. We know that incestuous relations
48
run a much higher risk of resulting in dead or mutated offspring.
Close inbreeding is therefore dangerous for the particular population.
This however does not explain the origin and persistence of the incest
taboo. Deleterious effects do not always occur as a result of
inbreeding; there are many other factors which are important
49
simultaneously. Moreover, the danger decreases dramatically if the
individuals are not within the nuclear family, i.e. between second, third
50
cousins and so on. The incest prohibitions around the world,
however, do not reflect this. It is very often the case that one set of
cousins – for example on the patrilineal side – are encouraged to get
married, yet marriage with the same cousin on the matrilineal side
51
would be considered incest. The degree of relation is exactly the
same and has the same chances of producing dead or ill offspring,
but the cultural incest prohibition views them differently. This shows
that we cannot take for granted the idea that primitive peoples took
the possible deleterious effects of inbreeding into account when the
incest taboo came into existence. In fact, if Lévi-Strauss is right in
saying that the incest taboo has its roots in the unconscious, it seems
improbable that the connection between inbreeding and genetic
depression was made. Even if it was made, then it could only have
occurred after the incest taboo already existed and at most, could
have given the incest taboo greater credibility.
5.2. The pre-cultural basis of the incest taboo as an explanation of its
origin: Seymour Parker’s interpretation
There are many theories which differentiate between the natural and
cultural aspect of the incest taboo, but focus on its origin, i.e. its
natural aspect. One such theory is developed by Seymour Parker in
‘The pre-cultural basis of the incest taboo: toward a biosocial
48
Aberle, 1963, p. 256.
R. Bixler, Ray, ‘Incest avoidance as a function of Environment and
Heredity’, in Current Anthropology, Vol. 22, No. 6 (Dec. 1981), p. 641.
50
Brown, 1991, p. 123.
51
Lévi-Strauss, 1969, p. xxxii.
49
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Alkistis Elliott-Graves
The incest taboo
52
theory’. In it, Parker states that even though reducing the cultural
phenomenon of the universal incest taboo to instinctive need is not an
adequate explanation, this does not mean that there is no biological
53
basis for the incest taboo. That is, he distinguishes between the
origins of the incest taboo and its eventual cultural importance as a
rule. Although incest may have some sort of function in society, its
origins, he believes, are genetic. He does allow for the fact that
cultural factors added ‘new selective advantages’ but that they did so
54
to a ‘pre-existing propensity towards incest avoidance’. . The idea is
that the incest taboo became very important as a cultural
phenomenon, yet it did so by reinforcing natural, instinctive human
propensities. He states that incest avoidance is not a sufficient
condition for the existence of the incest taboo, and nor is it a
necessary condition; yet he is adamant that it was a facilitating
55
condition. In terms of evolutionary probability however, a facilitating
condition is so important that no theory can afford to dismiss it
altogether.
Parker’s theory attempts to answer the question ‘When did the human
56
way of life become peculiarly “human”?’ This question bears striking
resemblance to Lévi-Strauss’s own question about where nature ends
and culture begins if viewed from a certain viewpoint. I will return to
this point in the next section. Parker gathers evidence about
prehistoric life and formulates a hypothesis for the emergence of
57
incest prohibitions based on systems of alliances. Very briefly, the
idea is that the hunting of large game results in population dispersal
where social life is based on hunting family groups. Scarcity of
resources forces alliances between family groups which are
cemented with marriage between members of different groups. Incest
52
S. Parker, ‘The precultural basis of the incest taboo: toward a biosocial
theory’, in American Anthropologist, New Series, Vol. 78 No.2 (Jan. 1976),
pp. 285-305.
53
Ibid p. 286.
54
Ibid. p.287.
55
Ibid. p. 299.
56
Ibid. p. 298.
57
Laughlin, 1974, quoted in Parker, ibid., p. 298.
42
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The incest taboo
prohibitions reinforce this by prohibiting marriage with the women of
the family group, thus enabling individuals to seek spouses outside
the family group.
This, however, is quite similar to Lévi-Strauss’s own explanation of
exogamy in terms of alliances between family groups. According to
Lévi-Strauss, when something is scarce, it takes on the properties of
58
an ‘economic good’. Incest prohibition alone ‘freezes’ women within
the family group, making them scarce, and with the rules of exogamy
this action is annulled. Thus alliances between family groups work
together with the rules of exogamy to make sure that potential
spouses can be found when necessary.
The importance of the existence of these theories does not stem from
the plausibility of their content. In fact, I am in no position to be able to
determine their validity. However, they have aspects which are
compatible, or even in some cases strikingly similar to Lévi-Strauss’s
own theory, even though their focus and objectives are different. Thus
one can examine if these theories are at least conceptually consistent
with some of Lévi-Strauss’s fundamental ideas. This will be the focus
of the next section.
6. Is it conceptually possible to combine Lévi-Strauss’s theory
with other evolution-oriented theories of the incest taboo?
As shown in sections 3 and 4, Lévi-Strauss did not think highly of
evolutionary or biological explanations of the incest taboo. Even
though he revised his own theory in later life and admitted that he had
treated discoveries in the field of genetics too lightly, he still stated
that the importance of the incest taboo was to be found in its cultural
aspect. However, in section 5 it was shown that many theories which
provide an evolutionary explanation for these phenomena are not
always diametrically opposed to Lévi-Strauss’s own theory. Moreover,
many of the scientists writing these papers quote Lévi-Strauss and
use his theory as a point of reference from which to proceed. The
purpose of this section is to examine whether at least some of these
58
Korn, 1973, p. 13.
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The incest taboo
evolutionary explanations are theoretically compatible with LéviStrauss’s own discussion of the incest taboo. In order for this to
occur, it is necessary for Lévi-Strauss’s warnings about the
evolutionary explanation of the incest taboo to be ignored. After all, it
was shown in section 3 that his warnings stemmed from his rejection
of extreme reductionism, not evolution itself.
The first important premise for the argument is that Lévi-Strauss did
not reject evolution as the explanation of biological features. Indeed, it
would be rather absurd if he did, because of the accumulated
evidence which supports Darwin’s theory for the evolution of species.
In terms of anatomical and biological characteristics, Lévi-Strauss
agreed that humans, like all other animals, have the genes and forms
they do today because of environmental and natural selection
pressures. However, many scientists today believe that behavioural
patterns can also evolve, and more importantly, that aspects of this
evolution are brought about by similar selection pressures as those
which control the evolution of genes and forms. In fact, it has also
been suggested that some genes can even influence behavioural
patterns. For example, very complex behavioural patterns of courtship
have evolved in many animal species which take place before
reproduction can occur. It is also a frequent occurrence that young
animals observe and copy their parents’ behaviour for finding and
catching food.
Changes in behavioural patterns also occur in humans, and it is often
easy to see how they evolve. Some of these changes occur within a
lifetime; for example, infants’ behaviour changes as they grow into
adults. In addition, the study of history shows that within a few
generations, behavioural patterns can change dramatically; for
example, people can espouse a new religion which changes their
whole outlook towards life. Alternatively, sudden changes in the
environment, such as a plague, can upset normal modes of behaviour
and result in new patterns. After all, one cannot deny that cultures
differ from each other and from those cultures existent in the past.
The natural, easy explanation for this is that each culture has evolved
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The incest taboo
into a pattern that suits it best, and enhances its chances of survival.
59
This, however is bad evolutionary thinking. Cultures do not know
what is good or bad for them, nor is their evolution predetermined.
There is no perfect final state which a culture must reach and which
all cultures aspire. There exist also countless examples of
behavioural patterns in various societies that actually undermine the
survival of the individual and the society. It is not clear for example,
how civil wars or smoking can help the survival of the individual or the
group to which he/she belongs, nor how these phenomena can be
explained in terms of natural selection. In fact, to do so would be to
provide the reductionist type of explanation against which LéviStrauss warned.
Still, as stated in section 5, evolutionary explanations do not have to
be reductionist, yet they are equipped with the ability to take into
account many other factors beside natural selection pressures.
Seymour Parker’s theory is just one example of the many theories
which provide a bridge between incest aversion and the manifestation
of the incest taboo. It is of particular importance here because of its
close connection to Lévi-Strauss’s ideas, but it is by no means the
only important work. If it is proven that these two theories are not
incompatible, but that one can follow on from the other, then an
important connection will have been established. Even if later on
Parker’s theory is proven wrong, then there will still be the possibility
that another compatible theory can be formed to take its place.
As stated in the previous section, Parker – like Lévi-Strauss –
explains the cultural manifestation of the incest taboo in terms of
alliances between families, where the biological tendency of incest
aversion becomes a cultural way of life, which is then perpetuated
60
and reinforced by various cultural rules. This, according to Parker, is
the origin of the cultural aspect of the incest taboo. This theory also
gives extra support to the idea that incest prohibition is universal
(because of the way it originates) but the rules governing it differ from
59
R. Dawkins,The Selfish Gene (30th anniversary edn.), Oxford:
Oxford University Press, 2006, pp. 3-4.
60
Parker, 1976, p. 299.
European Social and Political Research, Vol. 13 (2006–2007)
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The incest taboo
culture to culture, because they evolve in different ways depending on
differences in each natural and cultural environment.
However, there still remains a problem if these theories are to be
compatible with each other. This is the problem of the so-called ‘big
bang’ theory for the emergence of culture. The problem is that on the
one hand Lévi-Strauss states that language and therefore culture
could only have come about all at once, but on the other hand
evolutionary explanations of behavioural patterns show that even
cultural phenomena evolve over a period of time. This problem is
dissolved, however, if one looks closely at the evolutionists’ concept
of a period of time. The evolutionary timescale is very different to that
used for practical purposes in everyday life. This is because the
evolutionary timescale starts billions of years ago, in order to take into
account the formation of the planet and everything from then until
now. Therefore if the timescale is billions of years, 30,000 years (the
time in which it is believed that culture came into existence) is truly a
blink. Any evolution within this timeframe is really an explosion, a ‘big
bang’. In terms of human a human timescale, it still is thousands of
generations. With this in mind, it is at least conceivable that LéviStrauss’s theory can be reinterpreted and extended to fit this
evolutionary timescale. The main point here is that what Lévi-Strauss
explains as the workings of incest prohibition, its manifestation of
reciprocity, and the role of the unconscious do not have to change.
The only factor which needs to be revised is the timeframe in which
all this occurs.
In addition, the existence of a timeless unconscious does not
undermine this analysis. If humans are not conscious of the cultural
changes that are occurring around them, but merely externalising and
vocalising concerns which pre-exist in their unconscious, then it does
not matter if it takes a second or 30,000 years for a cultural
phenomenon to be ‘fully formed’. In fact, one cannot say that the
incest taboo, or any other cultural phenomenon for that matter, is fully
formed, as it is constantly evolving even in our time. This is apparent
in Western societies, where the prohibition of incest concerns only
closely related individuals, while ‘moral’ sanctions for incest are
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The incest taboo
applied less strictly or not at all if the incest relationship occurs
between consenting adults.
Subsequently, it seems that at least on a conceptual level, LéviStrauss’s theory can be combined with others in order to produce a
fuller explanation of the incest taboo, and through it the origin of
culture itself. The practical examination of this combination is a
complex, empirical matter. What should be retained is the idea that
interdisciplinary analysis can result in an explanation more fruitful
than one confined to a single field of study. Socio-biologists have
started down this path and although not every single paper published
is necessarily valid or useful, the idea of combining materials and
methods is, I think, a way of expanding mental horizons and could
result in great explanatory success.
7. Conclusion: Is the Nature Culture debate necessary?
The opposition between nature and culture has been a central theme
in this essay. Importance and power has oscillated between the two
orders for a very long time resulting in the ingraining of this idea of
opposition in many people’s minds. Nowadays however, the
legitimacy of the debate itself is being questioned. There has been an
increasing tendency to view nature and culture as interrelated and
working together in terms of their effects on the human environment.
Many natural and social scientists now think that everything that
occurs in humans is a result of a combination of heredity and the
effects of the environment, and thus any explanation must take into
61
account both natural and cultural factors.
There is however a problem with this idea. Not everything in human
nature is the result of combination of environment and heredity. There
is a distinction between natural and cultural phenomena which cannot
be simply eliminated. For example, one would be hard-pressed to find
genetic reasons for one person’s preference for one particular ballet
production over another. Conversely, it would be absurd to seek a
61
S. Pinker, ‘Why nature & nurture won’t go away’, in Dedalus, Nov. 2004.
European Social and Political Research, Vol. 13 (2006–2007)
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Alkistis Elliott-Graves
The incest taboo
cure for genetic disorders such as Down’s syndrome or haemophilia
in the cultural sphere.
There seems to be no simple way out of this debate. Not even
combining the two extreme theories always provides good answers.
In addition, every time a particular theory is proven unsatisfactory, the
debate seems to spring up again anew. Still, a very important point
has been made with the combination of the ‘extreme nature’ and
‘extreme culture’ theories. Even though it is not always the case that
both nature and culture influence human phenomena, very often both
do and moreover, it is not usually easy to say whose influence is
more obvious and important. Lévi-Strauss’s account of the incest
taboo greatly reflects this. He himself, who was so adamant in the
beginning that nature’s importance as an explanatory mechanism was
obliterated by the advent of culture, later acknowledged that things
are not so simple, and that culture is a lot more easily reducible to
nature than was previously thought.
This is a very important shift in ideology, which was to have far
reaching effects. The important difference is that nature and culture
are no longer viewed as diametrically opposed. As shown in section
4, with a few sentences, Lévi-Strauss effectively eliminated the
nature-culture debate; he was not alone. His shift in ideology was
mirrored by many natural and social scientists to great success. This
is, I think, one of the most important changes of ideology of our time,
because the destruction of the idea that natural and cultural factors
are independent and necessarily work against each other, has
allowed both the natural and social sciences to make huge leaps
forward. It has also allowed for the emergence of new disciplines
which would have been unthought-of if nature and culture were at
odds, for example socio-biology, evolutionary anthropology, etc. It
seems as though both the natural and social sciences do not feel the
need to seek answers in extremist theories any more. It seems to be
understood now that even if something cannot be explained by a
combination of natural and cultural theories, this is not because they
are at odds; it is usually because on one hand there is no time for the
cultural aspects to have any influence, as with the case of hereditary
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The incest taboo
diseases, or on the other hand, there is no space for the natural
factors to influence, as in the case with the artistic preference.
It now seems rather counter-intuitive to say that overall, nature is
more important than culture or vice versa. After all, ‘human nature’,
and maybe even some animal ‘natures’, are the way they are
because of both natural and cultural phenomena: they have both
natural and cultural aspects to them.
The ultimate aim of this essay has been to show the limitations which
a theory can encounter if nature and culture are defined in particular
ways, especially if they are viewed as opposites; at the same time,
the aim has also been to show that as soon as nature and culture are
not viewed as opposites, many of the original limitations of the theory
disappear, and more importantly it can now, at least in theory, be
combined with other theories and thus provide more satisfying
explanations of the phenomenon being examined. Lévi-Strauss’s
theory was particularly interesting for many reasons. Firstly the very
topic of the incest taboo and its universality is simply fascinating.
Secondly, the connections Lévi-Strauss makes are not always
expected, yet sometimes provide insight into the workings of human
nature. They are intellectually stimulating, pushing the reader’s own
mind to examine the issues at hand. Examination of his theory of
incest sparked my interest in the extremely complex nature of
humanity and alerted me to the importance of the nature versus
culture debate. Interestingly, with the analysis of the theory, it seemed
obvious that Lévi-Strauss was writing at a time very different to our
own (at least in terms of scientific research), and that my own
education (and interest in evolution) greatly affected my interpretation
of it. It seems that we are all products of our time to some extent, and
it is possible that being a product of this time may require this
dissolution of the debate between nature and culture.
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European Social and Political Research, Vol. 13 (2006–2007)
Verfassungspatriotismus:
The key to understanding Jürgen Habermas’s
political thought?
Beth Foley
1. Introduction
In The Seduction of Culture in German History, Wolf Lepenies has
recently argued that the German Sonderweg is characterised by a
conflict between culture and an idea of civilisation grounded in
political participation. He claims that it was the peculiarly Germanic
notion that progressive, democratic politics constituted the greatest
threat to the German Kulturstaat that had given rise to the disastrous
1
political experiment of the Third Reich. Though Lepenies makes no
mention of Jürgen Habermas, Germany’s leading contemporary
social theorist, Habermas can readily be located within the frame of
his thesis. Since his first major work in 1962 examining the
importance of the public sphere, Habermas has systematically argued
the case for the ‘civil-isation’ of German thought – and therefore
stands opposed to the elitist, anti-Enlightenment, Romantic flight of
inwardness that characterized the German Kulturstaat. Habermas’s
line of inquiry has culminated in his development of the concept of
Verfassungspatriotismus (constitutional patriotism) – the need to
modernise our understanding of collective allegiance and to move
away from notions of the Volk, land and tradition to embrace respect
for the universal values of freedom and equality implicit in modern
ideas of constitutional democracy.
This article uses the concept of constitutional patriotism to cast light
on the nature and significance of Habermas’s work. Constitutional
patriotism, I argue, provides the bridge that brings his philosophical
work on discourse theory and communicative reason into alignment
1
Wolf Lepenies, The Seduction of Culture in German History, Princeton:
Princeton University Press, 2006.
50
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
with his commitment to certain political values. Since the concept is
applied not only to state his position in specifically German debates
but also to inform his argument about European and global affairs, it
also helps to identify the distinctive contribution Habermas makes to
contemporary social and political thought.
After briefly situating Habermas’s social philosophy in the tradition of
German idealism and critical thought, I explain the connection
between the development of his theory and his political commitments
in stages. I first consider his intervention in the Historikerstreit, from
which the idea of constitutional patriotism as an alternative identity for
Germany emerges. This constitutional orientation is then developed
more systematically by Habermas in the late 1980s in his major work
on constitutional theory, Between Facts and Norms. From the cooriginality thesis that he presents in that work, the key principles
underpinning his concept of constitutional patriotism can be
explicated. While this concept is initially invoked as part of a
specifically German debate, Habermas subsequently applied it to
newly emerging political arenas. If the concept expresses universal
values, can it be located beyond the constitutional arrangements of
the nation-state? Habermas takes up this challenge of what he terms
the ‘post-national constellation’, first in the context of debates over the
European constitution and then, most recently, at the global level.
My objective in taking this evolutionary approach is to subject
Habermas’s concept of constitutional patriotism to ‘a genealogical
2
critique’. Although constitutional patriotism presents itself as being
expressive of a universal morality, the problems it is designed to
address can be traced back to the exceptional circumstances of
Habermas’s native West Germany in the post-war period. At their
core, these concern the construction of national identity and its
attempt to reconcile universally-couched political values with loyalty to
a particular cultural community. Yet the particular cultural community
in which Habermas is situated has been uniquely and indelibly
tarnished by the unspeakable form this national loyalty has taken. As
2
See J. Müller, ‘On the Origins of Constitutional Patriotism’ in Contemporary
Political Theory, Vol. 5, 2006, p. 279.
European Social and Political Research, Vol. 13 (2006–2007)
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
such, Habermas’s attempt at re-defining identity becomes one that
seeks not so much to strike a balance between particularism and
universalism as to eradicate all connections to a disgraced cultural
community.
The balance between universal and particular becomes both a
recurrent theme in the Habermasian project, a continuous point of
contention, and a challenge he does not successfully resolve. In his
portrayal of the dangers associated with national and cultural
affiliations, Habermas tends to neglect the positive elements of the
interaction between universal norms and particular affiliations which
constitute political identity. I therefore propose an alternative
conception of constitutional patriotism and suggest that, although its
origins are culturally specific, in its reworked formulation Habermas’s
concept is able to retain its value as insightful critique of modern
political existence.
2. Strukturwandel: The course of Habermas’s political and social
theory
The idea that society, as well as an individual, is capable of ‘learning’,
and that the progression of human reason is the catalyst for social
3
development, is widely held in German philosophy. Habermas’s
thought is rooted in this German tradition through his education within
4
the Frankfurt School and from his close reading of Marx. While often
perceived to work within the Marxist tradition, Habermas makes two
important departures. The first is over Marx’s perception of ‘rational’
historical development. Reason, for Habermas, can also act as a
coercive construct – ‘Enlightenment destroys itself’ – and rationality is
in fact the cause of both the emergence and the current crisis of
5
modern capitalism. Accordingly, human autonomy is being stifled by
3
C. Turner, ‘Jürgen Habermas: European or German?’ in European Journal
of Political Theory, Vol. 3, No. 3, p.303.
4
R. Bernstein, The Restructuring of Social and Political Theory, Philadelphia,
PA: University of Pennsylvania Press, 1978, Part IV ‘The Critical Theory of
Society’.
5
See J. Habermas, Legitimation Crisis, Boston: Beacon, 1975, Pt.II.
52
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
the seemingly unstoppable growth of ‘rationality’, evident in
mechanised capitalist production. The second divergence is
developed through his contributions to social theory that led to the
1981 publication, The Theory of Communicative Action (TCA).
In TCA, Habermas argues that modern critiques of the role of
rationality (Weber, Durkheim and Parsons) mistakenly treated
6
rationality as a uniform concept, centred on ‘instrumental’ rationality.
Habermas’s social theory thus focused on a second form of rationality
– ‘communicative rationality’ – which had been overlooked in modern
thought. He argued that the evolution of modern society had been
spurred on by that society’s collective reflection on the range of
7
values to which it is committed, and that for a traditional society to
take the kinds of decisions needed to transform itself into a capitalist
state, communicative interaction was in fact the key to technological
growth. Only communicative debate on the essence of fundamental
values could lead to the mutual understanding and rational consensus
upon which modern nation states are based.
Yet Habermas also observed that the modern world’s ever-expanding
capacity for material production and the subsequent escalation of
bureaucracy – features of society he terms the System – had given
rise to a ‘colonisation of the lifeworld’ – the realm of the informal,
8
culturally and socially rooted interactions of daily life. The
replacement of traditional communicative practices with monetary
exchanges and administrative procedures causes the breakdown of
interpersonal relationships characteristic of advanced capitalism:
this increasing system complexity … not only outflanks
traditional forms of life, it attacks the communicative
9
infrastructure of largely rationalized lifeworlds.
6
See esp Habermas The Theory of Communicative Action, Vol.1, London:
Heinemann, 1984, Section IV, 2.
7
J. Braaten, Habermas’ Critical Theory of Society, Albany, NY: State
University of New York Press, 1991, pp. 80-81.
8
J. Habermas, The Theory of Communicative Action, Vol. 1, pp.196, 367-73.
9
Ibid. p.375.
European Social and Political Research, Vol. 13 (2006–2007)
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
Although this critique follows the lines of Weber’s argument,
Habermas acknowledges that the evaluative sphere of the lifeworld
has in fact played a crucial role in its own colonisation, in that such
developments were actively supported and demanded by modern
citizens. With a massive growth in material production, people began
to call for a systemised authority which could oversee and combat the
negative effects of this growth. The rapid expansion of the welfare
state in the twentieth century saw an individual’s life no longer defined
simply by moral norms but by political institutions and laws. This is
10
examined in detail in Strukturwandel der Öffentlichkeit, the central
theme of which is the need to re-introduce communicative action into
modern democracies. We should seek to return political autonomy to
the realm of the lifeworld, he argues, where debates are ‘driven by the
11
search for the better argument rather than strategic power’.
A great deal of criticism has been levelled at the Habermasian
philosophical project. Although this criticism comes from various
directions, its general thrust is its lack of scope for diversity and
particularity within communicative rationality. The idea that discourse
ethics will ever be able to establish a politics grounded in rational
consensus has met with a great deal of scepticism. Hutchings, for
example, points out that communicative rationality ignores the
masculine bias within the idea of a public sphere, and favours the
particular Western ideal of rationality: ‘the “weak transcendentalism”
of Habermas’s discourse ethics presupposes a great deal about what
12
morality must mean’. Rummens also portrays this conception of
morality as intrinsically linked to post-traditional societies:
Deliberative democracy is based not on the universal
presuppositions of rationality, but on the moral presuppositions
10
Habermas, ibid., Section III: ‘Politische Funktionen der Öffentlichkeit’.
T. Diez and J. Steans, ‘A Useful Dialogue? Habermas and International
Relations’, in Review of International Studies, 2005, Vol. 31, p.133/
12
K. Hutchings, ‘Speaking and Hearing: Habermasian Discourse Ethics,
Feminism and IR’, in Review of International Studies, 2005, Vol. 31, p. 165.
11
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
of the typically modern practice of validating action norms
13
without having recourse to traditional sources of authority.
This questionable potential of Habermas’s aim to transcend the
particular and establish a rational, universally-acceptable basis for
modern society is a central problem to which I return with respect to
his later political writings. But to place the development of his theory
in context, we must first assess Habermas’s early contributions to his
native West German political culture.
3. Habermas and the Historikerstreit
The Historikerstreit, a specific debate which erupted amongst West
German historians during the late 1980s, was the moment at which
Habermas made his first serious contribution to public debate. This
dispute, in the form of numerous articles in the mainstream press,
followed controversial commemorations set to mark the fortieth
anniversary of the end of the Second World War, but later expanded
into wider German debates over ways to define a modern political and
cultural identity, in the wake of their calamitous twentieth century
history. It was in response to this unique set of circumstances that
Habermas first began to elaborate the idea of constitutional patriotism
as an identity better suited to a ‘post-national’ world.
To appreciate Habermas’s contribution, it is necessary briefly to
explain the national circumstances that generated this debate. The
dispute centred on demands from the German right – led by Helmut
Kohl – for a stronger sense of national identity and unity, necessarily
accompanied by a more positive image of the past. Only with a more
‘normal’ sense of political identity could Germany gain an equal
footing with other western nations. Several prominent West German
historians spoke out in support of Kohl’s agenda, accusing the left of
refusing to allow the past, as Ernst Nolte put it, to ‘pass on’. They
13
S. Rummens, ‘Debate: The Co-originality of Private and Public Autonomy
in Deliberative Democracy’, in Journal of Political Philosophy, Vol. 14, No. 4,
2006, p. 481.
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
were challenged by left-wing historians, led by Habermas but
including Jürgen Kocka, Hans Mommsen and Martin Broszat.
While the debate was fiercely polemical, there was a significant point
of consensus. Nolte’s appeal for a more ‘normal’ sense of national
identity and Habermas’s claim that denouncing Nazi crimes should
provide an impetus for the German people to disassociate from
‘particularist’ national sentiment both take a normative view of history.
Past events and their interpretation provide appropriate locations for
14
Sinngebung – the giving of meaning. As Stürmer put it:
wer aber meint, dass alles dies auf Politik und Zukunft keine
Wirkung habe, der ignoriert, dass in geschichtslosem Land die
Zukunft gewinnt, wer die Errinerung füllt, die Begriffe prägt und
15
die Vergangenheit deutet.
The debate was therefore not focused on the question of whether
national identity could be separated from its historical origins, but on
whether and how far these origins should be subject to critical
assessment. Habermas’s line – that critical scrutiny of collective
historical consciousness was vital in modern democracies – provides
a significant insight on the interdependency of particular and universal
elements that constitute political identity, an idea to which we must
return.
Habermas treats this re-assessment of recent history and the
subsequent calls for a renewed sense of national purpose as
signifying a dangerous trend. In attempting to relativise the scale of
Nazi crimes, these historians were, he claimed, detracting from the
incredible progress made by German post-war political culture: ‘Die
vorbehaltlose Öffnung der Bundesrepublik gegenüber der politischen
14
S. Brockmann, ‘The Politics of German History’, in History and Theory, Vol.
29, No. 2, p.186.
15
M. Stürmer ‘Geschichte in geschichtslosem Land’, cited in Historikerstreit:
Die Dokumentation der Kontroverse, München: R. Piper, 1987, p.36.
[‘Whoever believes that all this has no effect on politics or the future ignores
the fact that, in a country without history, the future belongs to those who give
substance to memory, shape concepts and interpret the past.’]
56
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Verfassungspatriotismus and Habermas’s political thought
Kultur des Westens ist die größte intellektuelle Leistung unserer
16
Nachkriegszeit.’ Having grown up in the shadow of Europe’s darkest
nationalist experiment, Habermas’s political theory is marked by the
awareness of the need for both Germans and Europeans to redefine
17
their sense of national identity. Only by truly renouncing Nazi
Germany’s doctrine of national and racial superiority and regarding
1945 as the Stunde Null from which a new society must be
constructed, could West Germany fully anchor itself in the liberal,
democratic political culture of the West. To achieve this, he argues
that the German people would have to relinquish national and
patriotic sentiment and adopt a modern and unconventional form of
identity: ’wer die Deutschen zu einer konventionellen Form ihrer
nationalen Identität zurückrufen will, zerstört die einzige verläßliche
18
Basis unserer Bindung an den Westen’. Habermas’s proposals for
this identity came to characterise much of his later political theory.
The notion he began to advance during the Historikerstreit was that of
Verfassungspatriotismus or ‘constitutional patriotism’ – ‘der einzige
19
Patriotismus, der uns dem Westen nicht entfremdet’. With earlier
national identities based on ideas of racial and cultural unity rendered
illegitimate, a new sense of collective identity would be required, one
which found its roots in the universal, rather than the aggressively
particularist. A post-national identity should draw instead on the
universal constitutional principles of Western liberal democracy. For
16
Habermas, ‘Eine Art Schadensabwicklung’ in ibid., p. 75 [‘The unreserved
acceptance in West Germany of the political culture of the West is the
greatest intellectual achievement of our post-war era.’]
17
See Habermas, Die postnationale Konstellation, Frankfurt am Main:
Suhrkamp, 1998, esp. ‘Aus Katastrophe lernen? Ein zeitdiagnostischer
Rückblick auf das kurze 20. Jahrhundert’.
18
Ibid. p. 76 [‘Those who want to see Germans return to a conventional form
of their national identity are destroying the only reliable basis of our
connection to the West.’]
19
Ibid. p.75 [‘the only form of patriotism that does not alienate us from the
West’] This idea has also been developed by theorists such as Dolf
Sternberger; see Verfassungspatriotismus, Frankfurt am Main: Insel-Verl.:
1990.
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
Habermas, true democracies should be striving for a political identity
based on the active and open engagement of their citizens, thus
reintroducing the lifeworld’s element of communicative consensus into
the overarching ‘system’ of the state. In an interview with the
Frankfurter Rundschau, Habermas stated that there could be ‘no
20
constitutional state without a radical democracy’. A deliberative
public sphere encourages open debate, which would lead to rational
consensus on the form constitutional principles should take.
The concept of post-national identity subsequently became a hallmark
of Habermas’s political commentary. His proposals would take on
increasing significance during the years following the Historikerstreit,
as two major events – the fall of the Berlin Wall in 1989 and the
signing of the Maastricht Treaty on European Union in 1992 – brought
the future scope and role of nation states into the spotlight. Habermas
argued against the Wiedervereinigung; as a unified and fully
independent sovereign state, Germany was in danger of recovering a
more ‘normal’ sense of patriotic pride, which could lead to a
nationalist resurgence. To avoid this scenario, Habermas highlighted
the need for an appropriate and meaningful orientation for the identity
of the new German nation. In his recent work, Habermas has come to
regard the European project as the key transition through which postnational identity can be forged.
In seeking integration into the West and the European alliance,
Habermas argues that the German people should take the lessons of
their history and use them wisely in their construction of a ‘postnational’ identity: ‘Eine in Überzeugungen verankerte Bindung an
universalistische Verfassungsprinzipien hat sich leider in der
Kulturnation der Deutschen erst nach – und durch – Auschwitz bilden
21
könne’. This view adds a certain irony to his later proposals since,
20
J. Habermas, interview with the Frankfurter Rundschau, 12 June 1993,
cited in A Berlin Republic: Writings on Germany, Cambridge: Polity, 1998, p.
74.
21
Ibid. p. 75 [‘Unfortunately, the German nation has been able to establish a
convincing connection to universal constitutional principles only after – and
through – Auschwitz.’]
58
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Verfassungspatriotismus and Habermas’s political thought
although he accepts that the particular Sonderweg of German history
does and should inform current political action, the form of identity he
supports is one which actively seeks to rid itself of the particular and
to embrace the abstract and universal. Before advancing this
argument further, the key elements of the constitutional theory that
Habermas favours to substantiate this identity must first be sketched.
4. Faktizität und Geltung: The constitutional theory of Habermas
Several of the hallmarks of the Historikerstreit returned to the fore as
Habermas began in the late 1980s to develop a specific constitutional
theory upon which constitutional patriotism could be based. Its
recurring theme is the enduring tension between universal and
particular that Habermas seeks to overcome: specifically, that
historical origins retain a powerful normative force within a nation’s
constitution, thereby introducing an incongruity between a particular
national history and the broad-based, universalised foundations of
constitutional patriotism. Habermas’s attempt to overcome this
tension attracted much scepticism and, with respect to his
constitutional project, this is taken up by Dieter Grimm, who
challenges the Habermasian model and thus the basis of
constitutional patriotism itself.
At the heart of Habermas’s debate with Grimm lie their radically
different perspectives on the nature of constitutionalism: whether a
constitution is a document or a culture, and whether it is a
‘prescriptive’ or ‘descriptive’ concept. For Habermas, the idea of a
nation’s ‘constitution’ goes far beyond any single legal document. It
refers instead to a nation’s political culture in the broader sense. The
constitutional patriot therefore identifies with a set of political
principles, rather than with specific outcomes or policies. Habermas
claims that in a healthy democracy the constitution should provide the
appropriate channels through which civil society can exercise
influence over national policies and laws. Grimm, however, argues
that the American and French revolutions – which ‘violently overthrew
ancestral rule and established a new order on the basis of rational
planning and legal codification’ – shifted constitutionalism ‘from a
European Social and Political Research, Vol. 13 (2006–2007)
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
22
descriptive to a prescriptive concept’. Primacy became ‘an
indispensable element of constitutionalism’; only by preceding the
political order could a constitution limit state power ‘not only for the
benefit of a privileged group, but generally’. This prescriptive model of
the constitution has implications for the potential force of
constitutionalism beyond the nation state, which will be examined in
the next section. Here, it would first be pertinent to assess how far
Habermas succeeds in his attempts to incorporate the prescriptive,
‘binding’ elements of constitutionalism highlighted by Grimm without
compromising his faith in the constitution’s potential as a means of
political emancipation.
In his major work on this subject, Between Facts and Norms (1992;
BFN), Habermas returns to these tensions between freedom and
domination that characterise his general theory of modern society.
The objective of BFN is to overcome a fundamental dilemma within
Western political thought:
according to the classical conception, the laws of a republic
express the unrestricted will of the united citizens.…The
principle of the constitutional exercise of power, on the other
hand, appears to set limits on the people’s sovereign self23
determination.
To do this Habermas seeks to develop a ‘discourse theory’ of law and
democracy, centred on the idea that ‘human rights and the principle of
popular sovereignty still constitute the sole ideas that can justify
24
modern law’. The task for discourse theory is to demonstrate ‘how
popular sovereignty and human rights go hand-in-hand’. We do so by
grasping what Habermas calls ‘the co-originality of civic and private
25
autonomy’.
22
D. Grimm, ‘The Constitution in the Process of Denationalization’ in
Constellations, Vol.12, No.4, 2005, p. 448.
23
Habermas, Time of Transitions, Cambridge: Polity, 2006, p. 113.
24
Ibid. p.99.
25
Ibid. p.127.
60
European Social and Political Research, Vol. 13 (2006–2007)
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Verfassungspatriotismus and Habermas’s political thought
Habermas’s solution – the co-originality thesis – contends that, rather
than opposing one another, the principles of popular sovereignty and
human rights are in fact mutually dependent. According to our
conception of democracy, one cannot exist without the other: the ideal
of popular sovereignty stems from a basic respect for our rights to
autonomy (freedoms of belief, speech, association, family life etc)
while the very implementation of the human right to autonomy
demands popular sovereignty. Constitutional law goes on to form the
fundamental component of modern democracy:
Political power can develop only through a legal code, and it
26
is…constituted in the form of basic rights.
The co-originality thesis therefore argues that the constitution forms
the basis of democracy’s reconciliation of the tensions between public
and private autonomy. This conclusion raises two important points,
both of which pose obstacles to Habermas’s aim of extending
constitutionalism beyond the nation state and which will be discussed
further in the next section. The first is that, in line with Grimm, it
ultimately ascribes a prescriptive role for the constitution, assuming it
must constitute a polity, and this raises questions about the potential
of constitutionalism when applied to heteronomous bodies such as
the European Union. The second is raised by Ferrara, who argues
that co-originality can only apply to the genesis of the constitution. For
later generations the paradox is not avoided; it returns in that ‘the
democratic self-determination of these citizens is constrained by
rights that they did not by any means reciprocally grant one
27
another’. Habermas’s response to this problem is in fact rather
difficult to reconcile with the idea of a universal constitutional
28
patriotism. Arguing along similar lines to Rawls, Habermas contends
that the acceptance of this paradox is not a problem if modern
26
Ibid, p.134.
A. Ferrara, ‘Of Boats and Principles: Reflections on Habermas’
Constitutional Democracy’, in Political Theory, Vol. 29, No. 6, p. 784.
28
See J. Habermas, ‘Reconciliation through the Public Use of Reason;
Remarks on John Rawls’s Political Liberalism’, in Journal of Philosophy,
Vol.92, No.3 (1995), p. 109.
27
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
citizens are able to identify with and place themselves in the positions
of their ancestors. Here Habermas returns to the notion of the ‘self29
reinforcing, spiral-like historical learning process’ discussed in
section 2. Having considered their situation, modern citizens are likely
to accept that they are part of a shared political project, a learning
process which began with their forebears but continues into the
present.
The ultimate goal of Habermas’s social and constitutional theory is
the reconciliation of the ‘inevitable cleavage between ego-identity
derived from universal structures and collective identity bound up with
30
a particular community’. Yet the idea of co-originality portrays the
relationship between facts and norms as one marked by a complex
combination of conflict and interdependence. In seeking to link
respect for universal norms with a more concrete connection to a
particular cultural learning process, the co-originality thesis
demonstrates that the modern state cannot be shaped only ‘by the
abstract normative core of law and politics itself; identification must
reach beyond the normative and toward the factical to obtain its
31
necessary supplement of particularity’.
This conclusion necessarily brings the grounding of constitutional
patriotism into contention. Political identity must provide a means of
uniting cultural self-understanding and universal norms. But
constitutional patriotism is a doctrine that demands the renunciation of
the ‘particular’ and the embrace of the abstract, post-national
‘universal’. In this respect, Habermas’s constitutional theory appears
to contradict the very form of political identity it is supposed to uphold.
This inherent contradiction may go far in explaining current
challenges to the theory of constitutional patriotism. Habermas has
consistently endorsed Germany as the pioneer of a modern, postnational identity; the ‘supranational’ European project has received
29
Ferrara, op. cit., p. 784.
P. Markell, .Making Affect Safe for Democracy?: On “Constitutional
Patriotism”’, in Political Theory, Vol. 28, No.1, p.41.
31
Ibid. p. 50.
30
62
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Verfassungspatriotismus and Habermas’s political thought
consistent support from German politicians and intellectuals,
32
particularly in its constitutional ambitions. Yet the current stagnation
of the European Constitution has produced serious questions over
what Europe should stand for in a rapidly shifting economic and
political environment. In recent years, Habermas has become heavily
involved with such questions, as he attempts to fashion a European
identity grounded in constitutional patriotism.
5. Die postnationale Konstellation: Habermas and the European
Constitution
In debates over the future of European political integration and the
drafting of a European Constitution, Habermas’s line has consistently
been to argue that constitutional patriotism provides the best means
to mould diverse national traditions into a cohesive ‘European’
identity. He claims that the European Union should encompass more
than the instrumental goal of competing in a global market. Instead, a
‘European way of life’, in the sense of a shared European
commitment to democratic society, is central to the idea of a
European Constitution. The parallel with his analysis of system
33
integration and social integration in BFN is evident.
The victory in 1945 of the Western ‘legally constituted’ nations over
the ‘naturalistic’, cultural identities favoured by Central and East
European nation states revealed that
32
See in particular the speech by Foreign Minister Fischer at the Humboldt
University, 12 May 2000: ‘Vom Staatenverbund zur Föderation – Gedanken
über die Finalität der europäischen Integration’ [‘From Confederacy to
Federation –Thoughts on the finality of European integration’]. URL:
http://www.auswaertigesamt.de/diplo/de/Infoservice/Presse/Reden/Archiv/2000/000512EuropaeischeIntegration.html
33
See above.
European Social and Political Research, Vol. 13 (2006–2007)
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
only a non-naturalistic concept of the nation can be combined
seamlessly with the universalistic self-understanding of the
34
democratic constitutional state.
Habermas makes frequent reference to the idea of a ‘European
people’ emerging from the catastrophe of their common twentieth
century experience to embrace this European ideal of
constitutionalism. If the constitutional project is to be viewed as a
35
progressive ‘learning process’, then the task of re-directing the
project should fall to the collective will of the people. With the newly
democratic nations of Europe now granted the opportunity to guide
their country’s post-war political development, Habermas hailed the
subsequent advent of the European Union as decisive proof that
Europeans had learned to renounce the national particularities that
had inflicted such destruction and suffering and were now committed
to channelling their individual constitutional projects towards a
common goal.
Despite the innovative political and social transformation represented
by the European Union, the project has so far proved unable to
escape the drawbacks associated with Habermas’s analysis of the
political tendencies of post-traditional societies. Arguing that the
‘Brussels bureaucracy’ has stifled the emergence of a sense of
common European citizenship, Habermas argues that any further
systemisation within European welfare states and the European
36
project itself can, and should, be socially controlled. He claims that
the obsolete nation state can play no role in the debate on the
formation of a new social identity. The only means by which citizens
will forge a post-national identity is in performing a more active role in
37
a constitutionally-defined European public sphere.
34
J. Habermas, The Inclusion of the Other: Studies in Political Theory,
Cambridge: Polity, 1999, p.115.
35
On society's capacity for learning see above: text at n.3.
36
J. Habermas, ‘Why Europe Needs a Constitution’ in New Left Review, Vol.
11 (Sep-Oct 2001), p. 14.
37
Habermas, supra. See ‘Does Europe Need a Constitution?’ pp. 155-161.
64
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Verfassungspatriotismus and Habermas’s political thought
Habermas’s staunch advocacy of this need to deepen political
integration in order to gain true political substance – in the form of a
European Constitution – has attracted much attention, as well as
criticism. The attempt to extend those ideas of post-national identity
and constitutional patriotism advocated for Germans in the 1980s
onto the general European level is well illustrated in his 2001 article
‘Why Europe Needs a Constitution’, in which he claims that the idea
38
of Europe stretches beyond the limits of ‘a mere market’. Whilst
accepting that the peoples of Europe currently have little sense of
themselves as ‘Europeans’ and that national affinities still prevail in
the political arena, Habermas argues that the formation of a European
identity is both necessary and feasible. To demonstrate this, he
examines the formation of nation states themselves, describing the
process by which civil solidarity and national identity were created as
39
‘highly artificial’: ‘a solidarity among strangers’. He argues that the
obstacles preventing this solidarity from emerging on the European
level are merely ‘the opacity of the decision-making processes at the
European level, and the lack of opportunity for any participation in
40
them’. This causes ‘mutual distrust’ among the citizens of Europe,
who feel they have no control over Europe-wide policies which affect
their nations. A more inclusive, pro-active political centre would allow
Europeans the opportunity to participate that they need to feel
comfortable with the deepening of European integration, and would
give rise to a party system transcending national boundaries.The
‘legitimation of shared values’ should form the central goal of
41
European integration.
Habermas stresses the necessity of this transition. National
governments are simply no longer in a position to successfully assert
these values in the face of the onslaught of deregulated, global
markets. Europe’s defining common features – the welfare state and
a society open to social, political and cultural inclusion – are now at
38
Habermas, supra.
Ibid., p.16.
40
Ibid. p.14.
41
Ibid. p.8.
39
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
stake. Habermas argues that ‘threats to this form of life, and the
desire to preserve it, are spurs to a vision of Europe capable of
42
responding inventively to current challenges’. Only a powerful and
self-confident European Union would allow European nations to ‘get
their voices heard in an international concert that is at present
43
dominated by a vision quite different from ours’.
Before turning to criticisms of Habermas’s European project, it might
first be helpful to consider his most recent attempts to locate his
constitutional theory in a global framework. For the fact is that the
composition of this ‘international concert’ has recently become a
matter of heightened significance. After the terrorist attacks on the
United States of September 11, 2001, questions about the nature and
purpose of an international order have again been placed on the
agenda, only this time at the global, rather than the European level. In
his most recent responses to the unilateral military action being taken
by the US in Iraq, Habermas argues that the type of international
order currently unfolding provides an even greater incentive for
Europeans to rally behind a common political vision which could act
as a counterweight to American hegemony. Der gespaltene Westen
details the ideological fault-line dividing the Western powers. While
the ‘Anglo-American’ contingent are ’mit dem normativen Ziel
zufrieden, die eigene liberale Ordnung auch andernorts…zu
verbreiten’, Europeans are prepared to use armed intervention only
’um die Schere zwischen Effektivität und Legitimation zu schließen,
um so auf dem Wege zum voll institutionalisierten Weltbürgerrecht
44
voranzukommen.’
42
Ibid. p. 9.
Ibid. p. 12.
44
J. Habermas, Der gespaltene Westen, Frankfurt am Main: Suhrkamp,
2004, p.35. [‘... are satisfied with the normative goal of propagating their own
liberal order internationally.’ ‘… to close the gap between effectiveness and
legitimacy, and so progress towards fully institutionalised cosmopolitan law.’]
See also Habermas, Time of Transitions, op.cit., p. 26: As long as human
rights are ‘weakly institutionalised at the global level, the boundary between
law and morality can easily become blurred’.
43
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Verfassungspatriotismus and Habermas’s political thought
Habermas argues that since European nations have been the first to
recognise the limitations of national sovereignty, they should take the
initiative in promoting the first attempt at global governance through
the United Nations. While accepting that, on a conventional reading,
the UN Charter was not designed as a global constitution, he claims
that – in its inclusive character, its commitment to peace and human
rights, and its ability to threaten prosecution and sanctions – there is
scope for such an interpretation. Habermas thus aims to move
beyond classical international law towards a Kantian, ‘cosmopolitan
45
order’.
The extension of his argument to the global stage, however,
highlights many of its limitations. It might be noted, for example, that
Kant himself explicitly dismissed the idea of a ‘world republic’, arguing
46
it would serve only to produce a ‘soulless despotism’. Here lies a
veiled reference to the dangers of proclaiming moral consensus;
Western political theorists have come to acknowledge that, in certain
cases, ‘to invite different groups to transcend their particularity…is to
47
issue a summons to submit to the hegemonic culture’. Habermas
has, to some degree, accepted the potential of particularity, and
concedes
dass die ’Völker’ unabhängiger Staaten, die ihre Souveranität
zugunsten einer Bundesregierung einschränken, ihre kulturelle
48
Eigenart und Identität nicht verlieren müssen.
45
J. Habermas, supra, p. 121: ‘Kant folgt der Analogie zu einer solchen
“staatsbürgerlichen Verfassung” um die allgemeine Idee der “weltbürgerlichen
Verfassung“.’ [‘Kant uses the analogy of a civil constitution to lend concrete
content to the general idea of a cosmopolitan constitution.’]
46
I. Kant, ‘Perpetual Peace: A Philosophical Sketch’ in Kant, Political
Writings, ed. H. Reiss, Cambridge: Cambridge University Press, 1991, p.113.
47
A. Linklater, The Transformation of Political Community: Ethical
Foundations of the Post-Westphalian Era, Columbia: University of South
Carolina Press, 1998, p. 187.
48
Habermas, supra, p. 127: ‘that the “peoples” of independent states who
restrict their sovereignty for the sake of a federal government, need not lose
sight of their culture’s distinctive identity.’
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Beth Foley
Verfassungspatriotismus and Habermas’s political thought
However, he continues to insist that
die Anerkennung von Differenzen – die gegenseitige
Anerkennung des Anderen in seiner Andersheit – kann zum
49
Merkmal einer gemeinsamen Identität werden.
Returning to a continuous theme in his work, Habermas highlights the
need ‘to understand the precarious transition from classical power
politics to a cosmopolitan order…as a learning process to be
50
mastered collectively’. This questionable potential of universal
principles and politics based on consensus has been highlighted by
the numerous critics of constitutional patriotism, as will now be
discussed.
6 Der gespaltene Westen: Challenges to and criticisms of
Verfassungspatriotismus
Many of Habermas’s detractors argue that there are good reasons
why constitutional patriotism has not found the resonance expected
amongst modern, cosmopolitan societies. But it should be noted that
critics of the Habermasian project divide into two categories: those
who argue that his version of constitutionalism is overly based in the
abstract realm of universality, and those who claim that, despite its
comprehensive ambitions, this project is the product of particular and
unique national circumstances.
Grimm’s criticisms fall into the first category. He argues that if we
accept ‘primacy’ as the central aspect of a constitution – which
Habermas’s constitutional theory implicitly acknowledges – the
European Union as it stands cannot be made the focus of a
constitutional order. Grimm claims that the distinction Habermas
makes between the Staat – a hierarchical organisation primarily for
the exercise of political power – and the Konstitution – ‘eine
49
Ibid. p. 48: ‘the recognition of difference – the mutual recognition of others
in their otherness – can become a distinguishing feature of collective identity.’
50
Habermas, ‘Eine Art Schadensabwicklung’, p.30.
68
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Verfassungspatriotismus and Habermas’s political thought
51
horizontale Vergesellschaftung von Bürgern’ – is non-existent. The
primacy of the constitution, Grimm argues, defines its role in
constituting a single polity. The ‘missing elements’ needed to
transform the EU Treaty into a Constitution thus require a transition to
European statehood. While some may approve of such a shift, Grimm
points out that this involves ‘abandoning constitutive elements of the
52
present basic order’, since the Union has always defined itself as a
political entity distinct from a nation state - as heteronomously, rather
than autonomously determined. Grimm does not treat European
statehood as a beneficial arrangement, arguing that a European State
would lack ‘the mediatory structures from which the democratic
53
process lives’. In this criticism, diversity and difference are again
portrayed not as a threat to consensus and unity, but as an important
counter-weight.
Although Habermas, in responding to Grimm, argued that the EU
54
might in fact benefit from a move towards federalism, Grimm’s
suspicions about the prospect of European statehood appear to be
widely shared. The debates on the proposed EU Constitution
exposed widely differing interpretations of the European project,
rooted in Europe’s diverse and contrasting political cultures. This
culminated in the rejection of the draft Constitution by two traditionally
pro-European member states, France and the Netherlands. Since
then, the plurality of national agendas has brought the entire project
to a standstill, with, for example, the Poles demanding some
reference in the preamble to Europe’s Christian origins and this
proving unacceptable to the staunchly republican culture of the
French. Ultimately, Germany emerged as one of the few European
nations supportive of the Constitution. Such evident lack of mutual
51
Habermas, ‘Why Europe Needs a Constitution’, p. 130: ‘a horizontal
association of citizens’.
52
D. Grimm, ‘Does Europe Need a Constitution?’ in European Law Journal,
Vol. 1, No.3: 1995, p. 298.
53
Ibid. p. 299.
54
J. Habermas, The Inclusion of the Other, p. 161: [On European identity]
‘perhaps German federalism … might not be the worst model’.
European Social and Political Research, Vol. 13 (2006–2007)
69
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
understanding in Europe raises questions not so much of its universal
elements, but of the particularistic origins of the Habermasian project.
Habermas himself is now prepared to concede that
the trend towards … ‘post-national’ self-understanding of the
political community may have been more pronounced in the
Federal Republic of Germany than in other European nations,
given its peculiar situation and the fact that it had, after all,
55
been deprived of fundamental sovereignty rights.
It is becoming increasingly obvious that the apparently ‘common
learning process’ of the twentieth-century has proved unable to
transcend Europe’s diverse national and historical consciousnesses.
Most recently, this was demonstrated in the inability of the EU to
come up with a clear foreign policy agenda in the face of worsening
conflict in the Middle East in the summer of 2006. As France, with its
former colonial ties to Lebanon, attempted to rally the EU to call for a
ceasefire, Germany – owing to the sensitivity of its relationship with
Israel – sided with Britain to reject the plan. The disappointment and
frustration with this deadlock was summed up by Nicholas Watt:
The clear stance adopted by Germany provided a telling
illustration of how - once again - the contrasting histories of
Europe’s key powers are leading them to adopt vastly different
approaches to the Middle East crisis. European romantics, who
dream of the day when the EU will forge a common foreign
policy, will once again have to come to terms with the reality of
56
deep divisions.
This growing scepticism surrounding the European project reflects on
the universal ideals of constitutional patriotism in general. The fact is
that the renunciation of nationhood and the adoption of a common
political project which could one day lead to some form of a federal
Europe are goals rooted in a specifically West German experience.
West Germany’s position as part of a divided nation whose national
55
56
70
Ibid. p. 119.
N. Watt, ‘New European Movements’, in The Guardian, 3 August 2006.
European Social and Political Research, Vol. 13 (2006–2007)
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
tradition had been wholly discredited posed unique challenges in the
definition of any kind of national identity, creating a ‘mistrust of
57
nationhood’ amongst post-war West German intellectuals. Thus, the
original formulation of constitutional patriotism proposed by Dolf
Sternberger was specifically tailored for this divided nation: ‘nun
erhebt sich die Frage … worauf sich denn der Patriotismus im
58
deutschen Fall beziehen solle oder beziehen könne’. Adopting
constitutional patriotism allowed some of these obstacles to be
overcome: ‘Insoweit könnten wir…ohne innere Beschädigung und
59
ohne Gewissensbelastigung … zum Patriotismus zurückkehren.’
Such trends reflect critically on Habermas’s proposals for a European
constitutional patriotism. Turner points out that Habermas’s European
objectives ‘draw heavily on the solutions he has offered in the past to
60
the specific problems of post-war Germany’. This observation
touches on the key reason for the apparent inability of Habermas and
many other pro-European German academics and politicians to find
support for their ideas on the wider European stage: their ideas are at
once universally defined yet nationally oriented. This results in two
major drawbacks. One is the over-simplification of the EU as a
uniform polity shaped by common historical experience. The other is
a fruitless attempt to split political identity from its cultural roots. Given
that, as discussed in section 4, Habermas acknowledges that
constitutional principles are both formed and re-formed by particular
national cultures, this appears a near-impossible division to make.
In this sense, the idea of constitutional patriotism does not represent
the radical break from the ‘particularist, nationalistic policies’ which
had blighted Germany’s twentieth century history: it is in fact a
continuation of entrenched peculiarities within German political
57
Ibid. p. 297.
D. Sternberger, Schriften: Verfassungspatriotismus, Frankfurt-am-Main:
Insel-Verl., 1990, p.7: ‘now the question arises as to what patriotism relates to
or can relate to in the German case’ [emphasis added].
59
Ibid. p.7: ‘In this respect we can return to patriotism without internal
damage or a heavy conscience’.
60
Turner, supra n.3, p. 294.
58
European Social and Political Research, Vol. 13 (2006–2007)
71
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
culture. In his essay on ‘The European Nation State’, Habermas
accepted that Germany had previously belonged to the group of
‘belated nations’ which had turned to pre-political, cultural ties as the
basis of their national unity. This is the point Lepenies expounds
when arguing that ‘an intellectual attitude can be observed throughout
61
German history: the overrating of culture at the expense of politics’.
As nationalist aggression boiled over during the twentieth century,
Germany’s political and intellectual elite saw themselves engaged in a
war to defend not only Germanic culture, but high culture in Europe
62
as a whole. Karl-Heinz Bohrer goes so far as to portray this
universalising of German national concerns as a distinct cultural
th
th
phenomenon. He claims that, throughout the 19 and 20 centuries,
Germany has long tried to ‘project’ herself onto the European
63
canvas.
A ‘universalising’ of the German experience might also be evident in
Habermas’s proposal of German federalism as a model for a federal
64
Europe. This argument is clearly advocating the widespread
application of a federal system that emerged from a very particular set
of historical circumstances. Other European nations can similarly
claim that their diverse political cultures, although products of different
historical patterns and trends, have no less to offer the integration
process.
Habermas’s over-simplified depiction of a common European political
culture also leads to the tendency to portray Europe as ‘culturally
61
W. Lepenies, The Seduction of Culture in German History, Princeton, NJ:
Princeton University Press, 2006, p. 8.
62
Ibid. p. 44. Lepenies cites the French writer Alphonse de Chateaubriant,
who ‘justified his collaboration with Nazi Germany as a confession of faith in a
unified Europe’.
63
K. Bohrer, ‘Why we are not a nation and why we should become one’, in
New German Critique, Vol. 52 (1991).
64
Habermas, The Inclusion of the Other, Cambridge: Polity Press, 2002,
p.161: ‘European identity can in any case mean nothing other than unity
within national diversity. And perhaps German federalism … might not be the
worst model.’
72
European Social and Political Research, Vol. 13 (2006–2007)
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
65
homogenous vis-à-vis its external others’. The claim that European
countries should band closer together to push for the
‘constitutionalisation’ of international law has given rise to a
conception of European identity that increasingly relies on the
repudiation of American goals. Der gespaltene Westen urges the EU
‘im Hinblick auf die universalistische Ausgestaltung der
internationalen Ordnung gegen die USA einen konkurrierenden
Entwurf zur Geltung zu bringen’ and to offer ‘ein politisches
66
Gegenwicht gegen den hegemonialen Unilateralismus’. But a
European identity focused on a clash with the Anglo-American ‘other’
is, according to Kumm, an ‘immature identity’: ’for its stability, it
67
focuses on something external to it’. Kumm thus joins Turner in
urging Habermas to look beyond the abstract norms of a constitution,
since constitutional principles remain inextricably bound up with
culture and ‘citizens appropriate them and interpret them in the
context of their particular history and in the light of their own ethical
68
and political commitments’.
The root problem appears to be that the oft-cited ‘learning process’ of
the twentieth century has in reality been unable to foster universal
goals and principles. But the real questions are whether universal
goals and principles can ever be defined, and whether they ever
should be. Habermas is a vocal critic of American unilateralism and
attempts to foist their political values onto countries that remain
unreceptive to them. His response stresses
dass sich nicht-westliche Kulturen den universalistischen
Gehalt der Menschenrechte aus ihren eigenen Ressourcen
65
Turner, supra n.3, p. 305.
Habermas, Der gespaltene Westen, Frankfurt am Main: Suhrkamp, 2004,
p. 53: ‘to bring a competing project to bear against the US with particular
regard to the universalistic arrangement of the international order’ and to offer
‘a political counterweight to hegemonic unilateralism’.
67
M. Kumm, ‘The Idea of Thick Constitutional Patriotism and its Implications
for the Role and Structure of European Legal History’, in German Law
Journal, Vol. 6, No. 2, 2005, p. 322.
68
Ibid. p. 321.
66
European Social and Political Research, Vol. 13 (2006–2007)
73
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
und in einer Lesart aneignen müssen, die zu lokalen
Erfahrungen und Interessen eine überzeugende Verbindung
69
herstellt.
Yet the substance of this ‘convincing connection to local experience’
remains a crucial obstacle. Non-Western cultures display a radically
different perspective on the meaning of human rights. Religious laws
and cultural practices often contradict Western, liberal democratic
principles. The fact remains that international law laid out to
guarantee human rights is inextricably linked to the Western model of
liberal democracy. How then can a global constitution to defend these
ideals gain the support of those with no cultural affiliation to them?
Would a European push to enforce such a constitution, against the
will of certain states, not amount to the hegemony Habermas so
deplores in the United States, this time in legal rather than military
form?
These internal tensions between ‘particularist’ cultural identities and
the ‘universal’ principles of constitutional patriotism have proved a
continuous obstacle to its adoption. If, as Habermas states, we accept
constitutional principles largely on the basis of an affinity with the
ideas of ancestors who engineered its creation, the framing of a
constitution becomes not the birth of a democratic state but the
product of a pre-existing, organically rooted political culture. Ferrara
then poses the question:
if the normative is totally agent-relative then by virtue of what
should a situated historical learning process … bear any
significance for any other political community differently
70
situated?
Habermas himself adheres to the thesis that ‘each national culture
develops a distinctive interpretation of those constitutional principles
69
Habermas, The Inclusion of the Other, p. 40: ‘that non-Western cultures
must appropriate the universalistic content of human rights with their own
resources and in their own interpretation, which establishes a convincing
connection to local experiences and interests’.
70
Ferrara, op. cit., p. 789.
74
European Social and Political Research, Vol. 13 (2006–2007)
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
71
… in the light of its own national history’. In attempting to distinguish
a common political identity from its diverse cultural roots, Habermas’s
constitutional patriotism fails to find an adequate grounding for his
vision of a united Europe within a united world.
Habermas defines the nation state as “an abstract, legally mediated
solidarity between strangers and sees no reason why this process
72
cannot be extended into the European arena. Turner responds that
the true achievements of the European Enlightenment consisted ‘not
in the provision of normative blueprints for a European state but in an
openness to and interest in the peculiarities of distinct European
national cultures’ and claims that any successful form of European
73
identity must take account of this diversity. Although his alternative
vision of a basis for European identity remains rather abstract,
Turner’s suggestion of the need for a renewed look at what it means
to be European, and at what our political identity consists of, is
significant. It highlights the idea that ‘particular’ identities are not an
antiquated idea that we should work to transcend, but provide an
important means of offsetting the hegemony of universalism. It is on
this basis that we should examine alternative visions of constitutional
patriotism and its purposes.
7. Conclusion: The past, present and future of
Verfassungspatriotismus
This discussion of the genesis and development of Habermas’s
concept of constitutional patriotism has highlighted a number of
tensions and inconsistencies, including the particular problem that his
ideal of a post-national identity has been unable to find much
resonance on either the European or the international level. There is,
however, no doubting the importance of the problems that underpin
his proposals: many political commentators addressing the topical
themes of globalisation, racial tensions in multiethnic societies and
the waves of migration taking place in the twenty-first century world
71
Habermas, Time of Transitions, p. 118.
See ibid.; ‘Does Europe Need a Constitution?’ pp. 155-161.
73
Turner, op. cit. p.296.
72
European Social and Political Research, Vol. 13 (2006–2007)
75
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
have recognised the need to foster some alternative form of political
identity which will be compatible with a more universalised set of
74
cultural norms. Habermas’s analysis of the challenges of latemodernity and his call for an innovative response to them is pertinent.
Are we able to develop some alternative vision of constitutional
patriotism which may be better suited to our self-understanding in a
post-conventional world?
Lepenies’ arguments highlight the troubled relationship between
cultural loyalties and democratic politics in German historical
development. It is precisely this tension which led Habermas to
conclude that the only solution involves transcendence of national
particularities and consensual commitment to democratic politics. But
it is the absence of any point of cultural reference that makes
constitutional patriotism so problematic as a proposed solution. Some
notion of ‘political culture’ is essential in tying the individual citizen to
the polity; as Canovan puts it, ’a state is unlikely to be powerful
enough to demonstrate the liberal democratic virtues that can attract
constitutional patriotism unless it is very widely recognised by its
75
population as our state rather than someone else’s.’ Since this
statement is, in effect, his own co-originality thesis, Habermas would
surely accept this. But, in admitting a role for the particular, are we not
tacitly accepting the fallacies and intolerance too often associated
with ethno-cultural affinities? As Markell says of political culture,
its facticity lends it the particularity it needs to become the
focus of an ‘imagined community’ of passionate identification;
yet, at the same time, political culture is neither as unified and
coherent as our representations of it suggest, nor as purely
76
expressive of universal principles as we believe.
74
See for example Linklater, op. cit.; D. Held, Democracy and Global Order:
From the Modern State to Cosmopolitan Governance, Cambridge: Polity,
1995; A. Giddens (ed.), The Global Third Way Debate, Cambridge: Polity,
2001.
75
M. Canovan, ‘Patriotism Is Not Enough’, in British Journal of Political
Science, Vol. 30, No. 3 (Jul. 2000), p. 423.
76
Markell, op. cit., p. 52.
76
European Social and Political Research, Vol. 13 (2006–2007)
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
In other words, an affinity towards ‘our own’ political culture
necessarily involves a misrepresentation of that culture, accompanied
by the political risks associated with nationalism.
This seemingly intractable situation may in fact offer a key to the
solution. European citizens now seem conscious of the limitations of
the particularist tenets of nationalism while remaining sceptical of the
universally framed ideals constitutional patriotism. Indeed, modern
democratic culture is itself marked by this very awareness and a truly
77
mature political identity lies in its resistance to a single ideology. As
Maurizio Viroli puts it, a modern republican polity is both diverse and
self-critical:
To see the right sort of patriotism grow, we need not strengthen
homogeneity and oneness but work to strengthen the practice
and the culture of citizenship … We need … more citizens
willing and capable of mobilizing when one or more citizens are
victims of injustice or discrimination, when unfair laws are
78
passed or constitutional principles are violated.
The public discourse Habermas reveres may not lead to consensus,
but this becomes its strength. Only with open and widespread debate
along both cultural and political lines can the communities of
European nation states continue to be ‘re-imagined’ into forms better
suited to the modern situation.
Ironically, this alternative form of constitutional patriotism has already
been acknowledged by Habermas through his comments on
Germany’s response to the wave of racially-motivated attacks that
swept the country in the wake of re-unification in the early 1990s. In
the face of the government’s inability to respond decisively and
effectively to the crisis, thousands of demonstrators took to the streets
to demand that their leaders act to protect those under attack. In an
article in Die Zeit, Habermas lauded these protestors “defending the
77
Ibid. p.41.
M. Viroli, For Love of Country: An Essay on Patriotism and Nationalism,
Oxford: Oxford University Press, 1997, pp. 184-185.
78
European Social and Political Research, Vol. 13 (2006–2007)
77
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
79
standards of civic intercourse” as true constitutional patriots. The
complexities of this ‘double-coding of citizenship’ – that ‘the legal
status defined in terms of civil rights also implies membership in a
80
culturally defined community’ – do not escape him, especially since
his position during the Historikerstreit also invokes this complexity;
there he argued that national traditions, when subjected to critical
scrutiny, have a crucial role to play in the continual process of
definition and re-definition which characterises national political
culture.
The awareness of the interdependence of cultural particularities and
political norms, and the benefits of this interdependence, has not
always been evident in Habermas’s advocacy of constitutional
patriotism. This irregularity is best explained by reference to the
unique historical background and national circumstances which gave
rise to his use of the concept. In many ways, therefore, Habermas
remains closely tied to those national particularities he aims to
transcend. But this by no means detracts from the insight and validity
of his arguments. As an earlier German philosopher once argued:
To comprehend what is, this is the task of philosophy, because
what is, is reason. It is just as absurd to fancy that a philosophy
can transcend its contemporary world as it is to fancy that an
individual can overleap his own age ... If his theory really goes
beyond the world as it is and builds an ideal one as it ought to
be, that world exists indeed, but only in his opinions, an
81
unsubstantial element where anything … can be built.
Constitutional patriotism can be viewed, then, not as a means of
eradicating particularity, but of harnessing its potential to subject the
universal tendencies of political theory to scrutiny, to ‘comprehend
what is’. Once we recognise this, Habermas can be acknowledged to
have made a major contribution to the tradition. As he is ever willing
79
Habermas, ‚Die zweite Lebenslüge der Bundesrepublik: Wir sind wieder
“Normal’ geworden” in Die Zeit, 11 Dezember 1992, pp. 48-52.
80
Habermas, Time of Transitions, p. 113.
81
G. W. F. Hegel, Philosophy of Right, ed. T. M. Knox, Oxford: Clarendon,
1952, p. 11.
78
European Social and Political Research, Vol. 13 (2006–2007)
Beth Foley
Verfassungspatriotismus and Habermas’s political thought
to point out, Germans carry the past burdens of their cultural
community with them. In recognition of this fact, they must remain
aware of the perpetual lack of equivalence between universal norms
and national political culture.
European Social and Political Research, Vol. 13 (2006–2007)
79
European Social and Political Research, Vol. 13 (2006–2007)
The economic dimension of the public sphere:
Jacques Necker’s public agenda in Compte
rendu au roi
Franz-Julius Morche
IN MEMORIAM: Fritz Junkermann (1982–2003)
The aim of this article is to investigate the public dimension of
Jacques Necker’s 1781 account Compte rendu au roi (hereafter
Compte rendu). As a political figure, Necker was aware of the growing
influence of public opinion on state matters, which he theorised in De
l’administration des finances de la France, 1784 (hereafter De
l’administration); since the Crown’s deficit-funding strategy was based
on borrowing from private investors, Necker devoted a critical portion
of his political efforts to the restoration of external credit (crédit
public). Without doubt, the Compte Rendu constitutes a striking
example of the political implementation of public awareness and
influences the evolving public sphere, while creating economic
advantages from its existence. Listing all government spending
departments and putting taxation policies up to debate, it adds a
public dimension to fiscal policy, which thereby becomes public
policy.
The crucial question is whether this reorientation in economic policy
making should be regarded as a mere consequence of the
transformation of the public in eighteenth century France, or whether
economic policies as exemplified by the Compte Rendu also helped
to partly trigger this very process. Moreover, regressive fiscal and
administrative policies by Necker’s successors following his first
ministry raise concern about potential links between the negligence of
the public sphere and state breakdown; the return to ‘reactionary’
fiscal policy caused a series of undesirable developments, of which
80
Franz-Julius Morche
The economic dimension of the public sphere
1
the deficit financing with fiat money was only the peak. In this regard,
the Compte rendu offers very specific insights to the connection
between the public sphere and Ancien Régime economic policy, and
thus to the relevance of a crucial sociological concept to an important
part of French economic history. It exemplifies not only a new
approach to economic policy, but also, in combination with Necker’s
explicit theory of public opinion, an unprecedented political conception
of the public sphere.
The discussion will proceed as follows: first, I will give an overview of
historical insights to the economic accuracy of the Compte rendu,
Necker’s political intentions and the social structure of his audience
(section 1). Second, I will expose the key aspects of the Compte
rendu and show how Necker’s fiscal policy conceptions give rise to a
new notion of the public (section 2). Third, I will examine the extent to
which Necker’s consideration of the public sphere is in line with his
theoretical treatment of public opinion in De l’administration, thereby
applying modern theories of the public sphere, notably that of
Habermas (1990), which will help to clarify this ambiguous term and
its specific meaning in relation to Necker’s policy conceptions (section
3). And, fourth, I will demonstrate how the processes of
transformation and segmentation enable the formulation of a specific
public sphere segment, the economic public sphere, which can be
generalised by methods of Comparative Historical Analysis (CHA). It
will be shown that the state breakdown of 1788 can be attributed to
the negligence of the economic public sphere by Necker’s
successors.
1. A preliminary remark: The Compte rendu and the French state
finances of 1781
Any examination of a historical document dealing with a conceptual
detail such as its public potential will have to include a prior
assessment of three other core attributes of increasing complexity,
namely its accuracy, its purpose, and its audience. In case of
1
E. N. White, ‘Was There a Solution to the Ancien Régime’s Fiscal
Dilemma?’, Journal of Economic History, Vol. 49, No. 3 (Sep. 1989), p. 567.
European Social and Political Research, Vol. 13 (2006–2007)
81
Franz-Julius Morche
The economic dimension of the public sphere
Necker’s Compte Rendu, all of these criteria have been subject to
rigorous debate among historians, with the result that the controversy
is still greater than it needed to be. This is particularly so for the
accuracy of the numbers given in Necker’s account. Clarifying
common misconceptions regarding Necker’s political intentions will
help to demonstrate why the public sphere is a key concept within his
strategy, and how exactly public considerations interact with the
administrative elements in the Compte rendu.
Accuracy
The image of Necker as a political charlatan harks back to his tenure
as director of the French East India Company and was essentially
fostered by revolutionary pamphlets and nineteenth century literature.
Pamphlets by Marat, Mirabeau and others opposed Necker on
political rather than economic grounds, each of them embracing more
radical social change that differed from Necker’s ideal of a
constitutional monarchy. However, since the political struggle was
fought with economic rhetoric, the notion of Necker having cooked the
figures or in other ways betrayed both the Crown and its investors
2
was widely accepted by historians of the nineteenth century. Fiscal
2
Gustave de Molinari, editor of the 15-volume Les principaux économistes,
despite giving an interesting and neutral account of Necker’s career
eventually describes him as ‘pauvre économiste; sa conduite, au début de la
Révolution française, quoique fort honorable, prouve … qu’il n’y avait pas en
lui l’étoffe d’un grand ministre; c’était un habile financier de second ordre et
un philanthrope honnête, rien de plus!’ [‘poor economist; his conduct at the
beginning of the Revolution, although very honourable, proves that he did not
possess the qualities of a great minister; he was an able financier of second
order and a respectable philanthropist, nothing more!’]: G. de Molinari,
Collection des principaux économistes 15: Mélanges d’économie politique,
Paris: Chez Guillaumin et Ce Librairies, 1848 ; Bibliothèque Nationale de
France, III-592 p.; in-8° [R- 55379], p. 209. For an objective assessment of
Necker’s life and work, the curious historian is best advised to chance upon
Tollendal’s article in the Biographie universelle (Biographie universelle,
ancienne et moderne, […] rédigé par une société de gens de lettres et de
savants, TOME TRENTE-UNIÈME, A Paris, chez L. G. Michaud, LibraireÉditeur, 1821 ; Bibliothèque Nationale de France [030.5 MICH b31].
82
European Social and Political Research, Vol. 13 (2006–2007)
Franz-Julius Morche
The economic dimension of the public sphere
historian Charles Gomel, in his 1893 volume on the financial causes
of the French revolution, wrote the decisive lines that became
prominently featured in mainstream twentieth century literature,
branding the balance sheets of the Compte rendu as ‘absolutely
3
false’; an assessment which, as Harris notes, ‘passed into many
4
historical works of the twentieth century.’ Although Gomel also
regrets the reestablishment of the old venal financial aristocracy
5
following Necker’s dismissal, the misunderstanding evoked by him
and many other serious historians in the nineteenth and twentieth
6
centuries is simply based on the false assumption that the Compte
rendu was intended as an extraordinary budget report that would
include the war expenditures. However, due to Necker’s achievement
of financing the war entirely by new borrowing, his aim was to present
an account of the revenue and expenditure of the ordinary fiscal
7
year. An account of both ordinary and extraordinary government
finances would have had to include the extraordinary income as well,
which would have stirred public debate into a direction contrary to
3
Quoted in R. D. Harris, Necker – Reform Statesman of the Ancien Régime,
Berkeley: University of California Press, 1979, p. 220.
4
Ibid., p. 226
5
‘Bref, la Révolution française eût été moins passionnée et moins tragique, si
Necker … n’était pas tombé en 1781 du pouvoir, et le roi … lui en avait
conservé la direction’ [In short, the French Revolution would have been less
severe and less tragic if Necker … had not fallen from power in 1781, if the
king had preserved his directorship] : Charles Gomel, Les causes financières
de la Révolution française – Les ministères de Turgot et de Necker, Paris:
Librairie Guillaumin et Cie, 1892; Universitätsbibliothek Heidelberg, B 73666 ::1892, p. 536. However, Gomel remains critical of Necker’s taxation
policies, condemning his decision to rely on external credit rather than
taxation adjustments. ‘Mais précisement parce qu’il avait commis cette faute,
il était le seul homme qui fût peut-être en mesure de la réparer’ [But precisely
because he had committed this mistake, he was the only one possibly able to
rectify it] (ibid., p. 535).
6
This includes eminent names such as Marion, Lavisse, and Luethy.
7
White,1989, p. 558.
European Social and Political Research, Vol. 13 (2006–2007)
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Franz-Julius Morche
The economic dimension of the public sphere
8
what Necker hoped to trigger. For the key message of the Compte
rendu is that, as for the ordinary year 1781, there was no persistent
peacetime deficit. This is what Necker intended to highlight and what
9
he had striven to achieve since taking office in 1776. There is no
sound evidence that Necker tried to conceal the extraordinary costs of
10
the war, since those are explicitly mentioned on the balance sheet.
Furthermore, it is doubtful whether even an account of both ordinary
and extraordinary expenses would have shown a deficit at all.
Necker’s successor Joly de Fleury, in his ‘Situation of the finances for
11
the year 1783’, finds no overall deficit. This is not surprising
considering that financial policies since the partial bankruptcy of 1770
had sought not only to optimize administrative efficiency, but also to
12
devote utmost attention to public credit.
Purpose and audience
The purpose of the first ever publication of the French state finances
is arguably the most intrinsically difficult question. By purpose, we
differentiate its political intention from its hermeneutic pertinence. As
outlined above, the political intention can be identified as offering an
overview of the ordinary workings of the state finances. However, this
cannot solely account for the contents of the historical interpretation,
since, from a historical perspective, any parameters potentially
responsible for social change need to be scrutinised. The
hermeneutic pertinence of the Compte rendu can be derived from its
historical ramifications, which consists chiefly of contributions towards
the institutionalisation of processes of transformation and
segmentation (the details of which are set forth in section 3). One of
the key results of this combined process undoubtedly is the discursive
involvement of a particular component of the public sphere, the
8
Ibid.; White notes that Necker ‘has been condemned by most historians’ for
his debt policy.
9
Ibid.; the ordinary deficit was eliminated in 1778.
10
Compte rendu, p. 112.
11
Harris, 1979, p. 222.
12
[It was the duty of my station to give the greatest attention to it] Compte
rendu, p. 17).
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audience, which also constitutes the greatest conceptual difficulty for
our case study. Though formerly addressed to the King, the Compte
rendu presented current government operations in the interest of
transparency and hence targeted investors into government
securities. The courtship of financial investors is, of course, not per se
a novelty; however, the information on which investment decisions
are supposed to be based is now – at least in Paris – available to
everyone with the ability to read, whether capable of providing
investments or not. Put in slightly different terms, the audience is now
involved, by means of critical reasoning, in the running of a social
system that formerly was a mere system of representation. The
difficulty in conceptually reconstructing this process lies in the
question about the components of the audience. In this respect, the
Compte rendu indeed proves a challenge to theories of the public
sphere, as it impacts the bourgeois société civile that is still formally
subjugated to an absolutist monarch. Prior to its publication, the social
boundaries between different estates begin to blur; critical discourse
relevant to state affairs first develops as an aristocratic inclination
towards the cognitive structure of bourgeois intellectuality. The
aristocratic salon and bourgeois intellectual discourse, eventually the
formation of clubs politically enhance the transformation of the
13
audience. In terms of economic discourse, physiocratic ideas
function as an intellectual precursor; in 1774, the appointment of
Turgot as controller general marks, as Habermas notes, the
14
assignment of a crucial ‘exponent of public opinion.’ However, as
Habermas also emphasises, it is Necker’s Compte rendu that first
systemises the discursive demand of this new, and indeed still
rudimentary, politically functioning public.
2. The Compte rendu au roi: some key aspects
The essential link between fiscal distress and the necessity of
administrative reform constitutes Necker’s foremost concern in the
13
For example Alary’s ‘Club de l’Entresol’, see J. Habermas, Strukturwandel
der Öffentlichkeit – Untersuchungen zu einer Kategorie der bürgerlichen
Gesellschaft, Frankfurt am Main: Suhrkamp, 1990, p. 135.
14
Ibid., pp. 135-136.
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Compte Rendu. Regardless of how the supposed state surplus ought
to be interpreted, it is evident that Necker was aware of the enormous
fiscal difficulties facing the Crown during his first term in office. In this
context, his plea for a reform of the vingtième may serve as an
indicator of his determination to modify the taxation system for the
sake of both fiscal relief and social welfare. Also, the critical
15
assessment of the taille as ‘grievous’ and his suggestions for a
16
reconsideration of economic privileges of the Second Estate
17
illustrate the urgency for fiscal reform.
The underlying desire of political reform (and, of course, its
implementation) represents a paradigm shift away from absolutist
conceptions to the notion of the state as a public institution. The
public sphere which the Compte Rendu exemplifies, and to which it
appeals, is therefore predominantly political and – to a necessary
extent – critical of the absolutist system. By dedicating a chapter to
18
the ‘Expenses of the King’s household’, Necker shows that the royal
expenditures are indeed a matter of public interest. Equally striking is
Necker’s concern with the public as a political entity which includes a
conception of public benefit that operates both on macro- and microsociological levels (i.e. to the benefit of public institutions as well as
the individual citizen).
Part I of the Compte rendu gives an overview of the current state of
the finances, including ‘all the operations which relate to the Royal
15
Compte rendu, p. 67.
Necker is in favour of the clergy being exempt from taxation, and he
generally praises their conduct of state office. See Compte rendu, pp. 79-81.
17
Taille: fix land and poll tax; vingtième (‘the twentieth’): direct income tax
payable by everybody regardless of rank. Introduced in 1749 as a temporary
complement to the dixième in order to levy the costs of the war of the
Austrian succession, it was extended by a second vingtième in 1756 and a
third in 1760. In 1780, Necker was granted permission by the Paris Parlement
for a further extension of the second vingtième.
18
Compte Rendu, Part II, Chapter 8; ‘All money-matters should be referred to
the minister of your household and the minister of your Majesty’s finances’,
Compte rendu, p. 44.
16
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19
Treasury, and to Public Credit.’ Part II lists reform policies that have
improved the efficiency of the financial administration. Part III, to
which I will devote particular attention, contains ‘an account of those
general dispositions which have had for their object only the welfare
20
of your [Majesty’s] People, and the prosperity of the State.’ This
indeed is the actual sensation, the conceptual novelty of the Compte
rendu which demonstrates its critical relevance to the transformation,
segmentation and institutionalisation of the public sphere.
Fiscal policy and administrative reform
Necker’s popularity was grounded primarily on his consistent strategy
of financing the French participation in the American War of
21
Independence purely by borrowing. Consequently, the tax policies
discussed in Part III indicate no intention to increase either ordinary or
extraordinary taxes. Rather, he proposes mechanisms to render the
existing taxation system more efficient. As indicated above, this
relates primarily to vingtième and taille; but most importantly, he
discusses the success of a key administrative reform of his ministry,
which is the establishment of administrations provinciales (provincial
administrations). In this context, it is worth noting that the Compte
rendu does not represent a plea for radical reform in the sense of a
complete overhaul of the existing fiscal regime. It contains moderate
reform projects and policy proposals, small gradual degrees of
institutional change that overall advance the notion of public
involvement.
Despite the particular importance of Part III with respect to the public
sphere, public considerations also play a role in the two previous
chapters. In Part I, relevant sections are on public credit, the
accounting method and the operations of the discounting bank; Part II
contains, amongst others, Necker’s reflections on pensions, the
abolition of the receivers general, and the expenses of the king’s
19
Ibid., p. 4.
Ibid., p. 5.
21
L. Burnand, Necker et l’opinion publique, Paris: Honoré Champion, 2004,
p. 21.
20
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22
household. By referring to state funding from private investors as
‘public credit’ (‘Crédit public), Necker stresses that, in order to attain
the ability to finance state deficits with private investments, the state
finances need to be considered a public interest as opposed to
merely a royal authority.
The issues of public credit and pensions are closely interrelated and
hence play complementary roles in Necker’s fiscal policy making. The
maximisation of public credit requires a solid degree of transparency
of government finances, to which the Compte rendu is intended to
contribute, and which is, in Necker’s view, best generated by the
English model. ‘But another cause of the great credit of England, is,
indubitably, the public notoriety to which the state of her finances is
23
submitted.’ Necker’s concern for the pensions issue represents a
strategic complement to this maximisation, which is the reduction of
government expenditures – expenditures that have stirred the interest
of the particular part of society which corresponds to the audience in
the formerly representative public. Both expenditures on and the
entitlement to pensions were considerably reduced during Necker’s
tenure, the latter being, of course, correlated with Necker’s consistent
actions against a venal financial aristocracy.
In the Compte rendu, Necker does not, in fact, lay out a proper theory
of taxation (this is done in De l’administration in 1784). However, he
demonstrates how administrative reforms have facilitated tax
operations; he also presents ideas for further improvement within the
22
It is worth noting that, during his first ministry, Necker extended the assets
of the discounting bank (Caisse d’Escompte, a precursor of the Banque de
France) by 12 million livres: Molinari, 1848, p. 206.
23
Compte rendu, p. 2; Necker goes on to remark: ‘In France the state of the
Finances has constantly been made a matter of mystery; or, if is was
sometimes spoken of, it was in the preambles of Edicts, and always at the
moment when there was occasions to borrow: but those insinuations, too
often repeated to be always true, must necessarily have lost their authority;
and experienced men no longer credit them, but under the security (if I may
be allowed the expression) of the moral character of the Minister of Finances.
It is of moment to fix this confidence upon a more solid basis’, Compte rendu,
p. 3.
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particular fiscal circumstances of high war expenditures, which he
regards as a main impediment of administrative reform and to which
he remains accordingly critical.
All those well-concerted plans would have been easily carried
out (into execution) had not so many savings and
improvements been wasted by the inevitable expenses of the
war: This is always, and at every instant, the painful reflection I
24
am forced to make.
But despite the fiscal constraints, Necker’s first ministry yields an
impressive record of administrative reform which, from a historical
perspective, appears much more significant than most contemporary
and nineteenth century critics could have imagined. Continuing the
work of his predecessors Terray and Turgot, Necker achieved a
considerable reduction of the number of treasurers in the spending
25
departments and the royal households. The collection of taxes was
centralised under the binding authority of the ministry of finance,
stripping the hitherto dominating profit-oriented General Farm off two
branches of the tax administration and reducing the number of
26
General Farmers from 60 to 40. Apart from the savings incurred by
the reduction of venal offices, these procedures furthered state
transparency and allowed for the establishment of the aforementioned
provincial administrations. This key reform project served the interests
of both the financial administration and an extended public by
reducing the impact of individual interests and appealing to public
27
reasoning. Necker discusses the positive impact of the first three
administrations of this kind, in Rouergue, Berri and Moulin,
24
Compte rendu, p. 70 (italics original).
The details of these reforms can be found in J. F. Bosher, French Finances
1770-1795 – From Business to Bureaucracy, Cambridge: Cambridge
University Press, 1970, chapter 8.
26
Ibid., p. 147; The ferme générale, the main profit-oriented tax collection
body of the Ancien Régime, saw its influence reduced, in the course of
Necker’s reforms, to the collection of direct taxes.
27
Compte rendu, p. 77.
25
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28
emphasising in particular a plan for the suppression of the corvée
adopted by the assembly of Berri and the attempts to ‘prevent the
29
arbitrary imposition of the Taille’ by the assembly of Moulin.
The success of Necker’s deficit-funding is well-illustrated by his
commitment to tax relief which can be deduced from his discussion of
taille and gabelle (salt tax). Necker advocates legal control over the
imposition of the taille to prevent its disproportionate increase due to
30
administrative ambiguities. In addition to being the ‘most grievous’
tax to the rural population, Necker regards the taille as ‘only a
31
momentary and inadequate resource’ and consequently proposes
its re-assessment. This relates both to the abolition of inequalities
between provinces and to individual repartition by means of
establishing land quotas which would function by individual
declarations and thus ensure justice in taxation being ‘ascertained by
32
the most simple and powerful motive – that of personal interest.’
Thus, similar to the provincial administrations, this measure seeks to
install public control over the fiscal system.
A novel conception: the public sphere
The most striking evidence of the new notion of public interest is
however given in Part III, which is primarily concerned with welfare
economics. This also relates to fiscal policy: Necker advocates a
more balanced share of the tax burden and criticises the tax
33
exemptions of the aristocracy. The critical attitude towards
aristocratic principles extends to the hereditary financial aristocracy
which is portrayed as incompetent and inactive; in contrast, the
28
The corvée, a feudal tax payable as labour, in the 1770s and 80s often
commuted into a money payment; was among the first elements of the
Ancien Régime taxation system to become abolished by the revolutionary
National Assembly in 1789.
29
Compte rendu, p. 82.
30
Ibid., p. 67.
31
Ibid., p. 68.
32
Ibid., p. 69.
33
„Thus it ever happens, that every exception and favour proves, at one time,
an injustice done to society at large”, ibid., p. 65.
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comité contentieux is cited as an example of favourable
34
administrative reform.
Public interest must not be confused with any contemporary
connotations, since the corresponding public sphere is a socially
restricted entity. In this context, the term ‘public credit’ is worth a
second look; it is of particular hermeneutic importance, precisely
35
because the process of transformation is also one of words that
need to be contextualised: ‘Public’ necessarily invokes a notion of
exclusion stemming from the separation of social spheres (combined,
as already mentioned above and further developed in section 3, with
a complementary process of segmentation). Public credit refers to
financial resources provided by members of a separate, exclusive
sphere which Habermas identifies as bourgeois. This can be derived
from the economic issues that essentially constitute the principal
regulations of administration
which, having no immediate relation to the increasing of the
royal revenues, concern the happiness of [your Majesty’s]
36
subjects alone.
and to which Necker devotes particular attention in the interest of the
bourgeois sphere. These issues are wide-ranging and include, for
example, a plea against salt tax discrimination between different
provinces. This in turn is closely linked to an overhaul of the toll
system by which Necker hopes to facilitate internal commerce
34
A ‘committee of magistrates appointed to examine that multitude of
contentious causes’: ibid., p. 60; essentially a body which controls the
spending departments.
35
Although public/ publique derives from the Latin publicus, ‘off the state/
property of the state’, its ancient meaning is given by the verb pūblicō -āre, ‘to
collect/ to confiscate’: A. Walde, Lateinisches etymologisches Wörterbuch, 3.
Aufl., ed. J. B. Hofmann, Heidelberg: C. Winter, 1954, p. 338. The
contemporary connotation as ‘place open to all persons’ and derivatives such
as public office, public opinion are contextualised in the early modern period:
R. K. Barnhart and S. Steinmetz, (ed.), Chambers dictionary of etymology,
Edinburgh: Chambers, 1999, p. 859.
36
Compte Rendu, p. 58 (italics original).
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effectively; state regulations of the manufacturing sector which,
enhanced by crucial foreign direct investments, is seen as the prime
37
source of innovation and economic progress; and even the
improvement of hospitals and prisons, although illustrating a
38
genuinely philanthropic effort, is discussed from a fiscal perspective.
These observations strongly suggest a purpose of information and of
appeal to an opinionated audience. However, the systematic appeal
to public opinion as the cognitive structure of the new audience
requires a conception of its nature, which was laid out in Necker’s De
l’administration (1784); this is examined in the next section. I will then
go on to show that there is indeed a structural coherence between
public opinion and the public sphere, which verifies the historical
process of transformation and offers strong evidence for the politically
intended purpose of the Compte rendu as a public document
designed for the information of financial investors.
3. Necker and public opinion
Necker’s conception of public opinion
Necker’s theory of public opinion, as described in De l’administration,
attaches a macro-sociological quality to the notion of public sphere.
With respect to the optimal conduct of the financial administrator,
public opinion fulfils the role of a ‘social spirit’ (‘L’esprit de société’)
that determines the reputation of the political elite.
According to Necker, public opinion developed historically amidst a
decline in absolutist power. During the reign of Louis XIV, all elements
of social reputation and reward in the French society were bound to
the grandeur of the King, and the system of dependence that his rule
brought about came to serve as a benchmark for subsequent cultural
and political orientations. That is, the state model of Louis XIV
provided a method of interpretation and judgment that would
gradually extend to a wider social circle and consequently increase
the political relevance of public opinion. The erosion of absolutist
37
38
92
Ibid., pp. 96-99.
Ibid., p. 104.
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power embodied by enlightened monarchs further strengthens this
39
political relevance, either by benevolence or weakness of the prince.
For these reasons, Necker regards the observed extension of political
influence as a typically French phenomenon, the extent of which
being difficult to fathom for foreigners. The French nation is embodied
by an intellectually homogenous society with public opinion (as
political mainstream) preventing the rise of a ‘multiplicity of opinions’
(‘multiplicité des opinions’) and isolating political deviators. The
political mainstream provides a structural order to society by
instituting hierarchical attributes and a social consensus
40
(‘consideration, les égards, l’estime et la renommée’ ) whose
regulating character also serves as a normative orientation. Public
opinion thus institutes a pattern of social values.
Since public opinion functions as a mediator of many kinds of
discursive systems (social reward, consent, values), the functioning of
these systems is essentially at risk in case of its negligence. The
political responsibility of the sovereign and his administration
therefore consists of mediating the social balance that public opinion
is supposed to assure; i.e. politics acts as the last resort of regulating
society (in terms of the social systems mentioned above) and may
intervene if public opinion is being ignored.
The necessary consideration of public opinion on the part of the
political actors is particularly crucial in the domain of financial
administration. Necker regards the negligence of public opinion as a
source of corruption: The abandonment of public opinion as a moral
guideline would lead to the administrator’s attempt to increase his
reputation by other means; it hence is an indicator of his proneness to
ignore the bien public.
However, any negligence of public opinion does trigger political
ramifications for the political actors, with those inciting it being
39
De l’administration des finances de la France. Par M. Necker [Texte
imprimé], (S. l.) 1784, Bibliothèque Nationale de France, 3 vol. in-8° [LF76- 7
(J)], vol. I, p. li.
40
Ibid., liii.
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exposed to public resentment. The administrator serving particular
interests as opposed to the bien public ceases to be a homme public
and consequently loses his wrongfully acquired reputation with his
office. In that sense, public opinion is not merely a moral guideline,
but also a political orientation offering advice to the political actor.
Institutionalising the public: the structural coherence of public opinion
and public sphere
In Necker’s conception, the public sphere clearly acts as a framework
in which discourse and political antagonisms give rise to public
opinion. There is, in fact, a dialectic relationship between the
morphological structure of the public sphere and the varieties of its
political appearance. The Compte rendu, as we shall see, helped to
create a particular segment of the public sphere and essentially
fosters its development; De l’administration, in contrast, appeals to
the critical reasoning of its members.
While Necker’s own conception of public opinion surely is a
remarkable early insight to both functioning and social impact of this
new phenomenon, contemporary social research enables us to define
its meaning in a more categorical fashion. With respect to the
adequate classification of the public sphere, Habermas’s theory of
transformation lends itself well to the evaluation of the observations
made by Necker in the Compte rendu (1); in order to link the process
of transformation to the related phenomenon of public opinion, it can
in turn be segmented as acting in different separate and autonomous
publics (2).
Habermas’s Transformation is based on gradual institutional change.
The feudal ‘representative’ public causes the early capitalism of the
late middle ages, institutionalising new forms of commerce and trade
tools (‘finanzkapitalistische Techniken’). Economic change and
institutional and technical progress in turn necessitate communicative
mediation provided by private correspondence and early forms of
‘news-trade’ (‘Nachrichtenhandel’) which, however, lacks publicity at
this early stage. In seventeenth century Europe (i.e. England as a
precursor), a censored press develops as an instrument of
governmental proclamation; the bourgeois society, already existing as
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a social, but not as a political entity, functions as an audience of the
41
representative system, but with increasing significance. The
interplay of state representation and its (still) subjected audience
causes a growing centralisation of the representative public sphere.
European absolutism creates a new form of representation, which is
the exclusive public of the courts.
In the course of the process of transformation, the bourgeois society
is to become politically relevant by deducing from its inherent property
of judgment a related sphere of political reasoning (‘politisches
Räsonnement der Öffentlichkeit’). Thus the bourgeois public sphere
has become a political reality, yet it needs to be institutionalised in
order to gain lasting political significance. For Habermas, Necker’s
publication of the state finances illustrates this evolved political
reasoning, and Necker himself was aware of the enormous
42
significance of the Compte rendu.
One rather useful scheme of segmentation is that of Yeric and Todd
who identify three basic forms of the ‘public’: the single-issue public,
which is instituted by a common concern among a given group of
individuals; the ‘organisational public’ shaped by organised groups
that are motivated by a particular interest; and the ‘ideological public’
41
Habermas exemplifies the increasing political relevance of the ‘subjects’
with the ‘Verordnungen des Landesherrn zum Besten der Untertanen’
[Decrees of the Sovereign to the benefit of the subjects] in Prussia and a
governmental newspaper in Electoral Palatinate ‘zum Dienste der Handlung
und des gemeinen Mannes’ [in the service of commerce and the common
man]:Habermas, 1990, pp. 79-80.
42
As he wrote in De l’administration (xciii): ‘le Compte rendu a introduit, s’il
m’est permis de le dire, comme une nouvelle ère dans les finances: les
calculs, les spéculations des prêteurs se rapportent à cette époque, & l’on ne
peut plus s’abandonner avec exagération aux idées sombres & aux
sentiments craintifs qu’une longue obscurité doit nécessairement faire naître’
[the Compte rendu has opened, if I am allowed to say so, the doors to a new
era of the public finances: the calculations and speculations of the creditors
depend on it, and it is impossible to surrender oneself without exaggerations
to the clouded thoughts and misgivings that has necessarily been brought
about by a long-enduring ambiguity].
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43
which gives rise to political debate based on ideological differences.
Apart from the organisational public, which is a rather recent
phenomenon, these segments of the public sphere can be deduced
from Necker’s writings. The Compte rendu thereby serves as an
indicator of a ‘common concern’ (the state finances) that is of interest
to a ‘single-issue public’ (creditors to the Crown); complementarily,
political opposition to Necker’s ideas provides the ideological element.
Based on the theory of segmentation, the Compte rendu can be
regarded as a political trigger of an economic dimension of the public
sphere.
Although Habermas’s conception of public opinion has been much
contested, its strong analytical coherence to the notion of
transformation is highly useful to the present context. What shall be
demonstrated here is that, in France, both public sphere and public
opinion developed in the course of the eighteenth century and that,
with respect to the financial administration, it took on a particular and
segmented form that is of interest to economic historians. Habermas’s
theory is applicable to the discussion, despite many reasonable
objections, precisely because he is concerned with a bourgeois public
44
sphere and hardly with a ‘Marxist’ postbourgeois public sphere.
However, the bourgeois element must not be misunderstood as a
political proposition (though it may serve as a social classification)
43
J. L. Yeric and J. R. Todd, Public Opinion – The Visible Politics, 2nd edn.,
Itasca (Ill.): F. E. Peacock Publishers, 1989, p. 3ff.
44
See P. U. Hohendahl, ‘The Public Sphere: Models and Boundaries’, in: C.
Calhoun, (ed.), Habermas and the Public Sphere, Cambridge, MA.: MIT
Press, 1992, pp. 99-108; this distinction is indeed of high significance, for it
prevents Habermas’s approach being interpreted ideologically. The
transformation theory is certainly not a Marxist ‘class struggle’ approach, as,
with respect to eighteenth century France, ‘the apparent simplicity of the
distinction between privileged and unprivileged is misleading’: C. Lucas,
Nobles, Bourgeois, and The Origins of the French Revolution, in Kates, Gary
(ed.), The French Revolution – Recent Debates & New Controversies,
London and New York: Routledge, 1998, pp. 44-70, esp. p. 48. Even for the
understanding of the revolution, ‘sphere’ is much more insightful a concept
than ‘class’ (see section 4).
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and it certainly is not intended as a classificatory scheme able to
account for the variety and complexity of modern public phenomena.
The bourgeois public sphere is a preliminary, but decisive episode in
the process of transformation by incremental degrees, and this very
fact has been recognised even by Habermas’s critics. Baker extends
this notion by pointing to the vast degree of congruence between the
English and French cases. Although denying the importance of the
bourgeois element (though his contestation seems to be based on
semantics rather than a conceptual disagreement), he convincingly
points to the link between public opinion and ‘a crisis in absolute
45
authority.’ As seen above, this is precisely the observation made by
Necker, writing in 1784. Thus the parallel processes of transformation
and segmentation give rise to a new form of bourgeois publicity and a
related segment, its economic dimension, which, like the
transformation itself, relies on institutional change. With respect to the
Compte rendu, institutional change is not an a priori process; its
publication would not have been imaginable without the prior process
of transformation. Thus it is part of the very institutionalisation that it
triggers.
Is this structural coherence immanent in the Compte rendu?
It is no coincidence that Necker’s explicit theoretical treatment of
public opinion would appear three years after the publication of the
Compte rendu. His own conception of public opinion as stemming
from the existence of public institutions (i.e. an institutionalised public
sphere) chronologically occurs after the transformation of the public
sphere. Necker’s public sphere is driven by a social consensus
providing structural order to society – this structural order is
45
K. M. Baker, ‘Defining the Public Sphere in Eighteenth-Century France:
Variations on a Theme by Habermas’, in Calhoun, op. cit., pp. 181-211, esp.
p. 192; the vast degree of congruence between C17 England and C18 France
is among the key insights provided by CHA approaches to revolutionary
theory (see J. A. Goldstone, ‘Comparative Historical Analysis and Knowledge
Accumulation in the Study of Revolutions’, in R. Mahoney (ed.), Comparative
Historical Analysis in the Social Sciences, Cambridge: Cambridge University
Press, 2003, pp. 41-90).
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institutionalisation and institutional change. Public opinion is the
reflection on the process of institutionalisation and constituted by
critical reasoning. This logical deduction – institutionalising the
(transformed) public in order to gain critical reflection – is to a great
extent immanent in the Compte rendu; in fact, it is its main purpose, in
the hermeneutic-historical sense.
The analysis indicates that the Compte rendu appeals to a new public
framework, one that has evolved from the purely representative public
through processes of transformation and segmentation. From a
historical perspective, the Compte rendu verifies both theories. The
publication of the state finances launches the involvement of the
audience (‘everybody with the ability to read’) and furthers its
structural transformation, while the details of the contents allow for the
formation of a particular segment, the single-issue financial public.
Based on this pattern, the Compte rendu can be regarded as having
established an economic dimension of the public sphere in eighteenth
century France; or, for the sake of semantic aesthetics, an economic
46
public sphere.
4. A political characterisation of the economic public sphere
In order to explain the specific contents of the economic public
sphere, it is worth summarising, at this point, the core findings that
have been established so far. We have seen that both the
hermeneutic-historical purpose and the addressed audience of the
Compte rendu differ from their previous social roles in the absolutist
representative system. The transformation of the audience, and
hence of the public sphere, is boosted by the publication of the state
finances which is designed to satisfy specific economic interests of
the new bourgeois public. The relationship between state and
bourgeois public is a reciprocal one and is instituted by the newly
conceptualised phenomenon of public opinion, the esprit social of the
46
Economic public sphere, of course, is itself a preliminary term; in
contemporary societies the eighteenth century economic public sphere may
have evolved into further segments, each accounting for different public
economic phenomena.
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The economic dimension of the public sphere
public sphere. Hence public life in eighteenth century France is
essentially preconditioned by a reorientation in economic policy
making, as exemplified by Necker’s writings. The evolution of the
bourgeois public sphere is an important preliminary step towards a
public modernity and, in addition to the process of transformation,
characterised by a parallel process of segmentation. An example of a
particular segment of the transformed public sphere is its economic
dimension. In the introduction, I have already hinted towards the
political relevance of this important aspect of social change, and
section 3 was largely devoted to the theoretical fundamentals of the
transformation process. Now, it remains to be shown which specific
economic parameters revealed by the above analysis determine the
political contents of the economic public sphere.
Key contents of the economic public sphere
Looking at the economic parameters deduced by the previous
analysis, two essential mechanisms characterise the transformed
public sphere (used interchangeably for ‘bourgeois’ public sphere)
with respect to its political pertinence. One is determined thematically
and given by the political nature of the core theme of fiscal policy. The
other is instituted by the process of segmentation, which gives rise to
an intriguing historical development: the publication of the state
affairs, which is grounded in a political decision, enhances the
creation of a spherical segment of society. The extraordinariness of
this occurrence cannot be emphasised too strongly. One way to grasp
this historical singularity is to think of it in terms of nouvelle histoire
methodology, in particular, Braudel’s concept of time differentials
47
(‘temps multiples’). The political decision of publishing the state
finances happens within a short-run chronosophic framework (‘temps
des événements’), whereas evolution and transformation of the public
sphere are long-term propositions (‘temps des structures’, ‘la longue
durée’). Hence the process of segmentation is a multidimensional
interaction of time structures, as it relates to both the political decision
and the long-term processes: a particular historical event very
47
F. Braudel, Écrits sur l’Histoire, Paris: Flammarion, 1969, pp. 11-85.
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The economic dimension of the public sphere
specifically impacts and shapes a long-term societal development.
One might also gain the necessary sensitivity by contemplating the
complexity of modern social spheres. That contemporary societies
are spherical is a key proposition of social theory, yet it seems difficult
to attribute the formation of public segments to single historical
48
events. However, this is precisely what can be observed for the
formation of a single-issue public of financial investors – the economic
public sphere – in eighteenth century France. The Compte rendu
fortifies the development of a public sphere segment, which helps us
understanding how public transformation worked; it is a literature of
such an immense socio-economic impact that it allows us to deduce
from it three core properties of the economic public sphere, as
follows.
The process of transformation induces fiscal policy to become a
public institution, the government to become a public economic agent.
As shown in section 3, the transformed bourgeois public remains,
although socially widened, an exclusive sphere of restricted access.
This is due partly to its preliminary nature and partly to the
segmentation of public awareness: governmental taxation and
spending policies serve the interest of the bourgeois public, but the
involvement in state affairs is bound to the spherical segment of
potential investors. However, the modern conception of the public
responsibility of governments is grounded in this transformation,
48
The modern notion of social spheres is independent of the concept of
class. That is, spherical distinctions are mostly based on intellectual
orientation (regarding economics, politics, science, arts) and not necessarily
correlated with class divisions. However, the historical development of
societal segmentation begins with .small differences which marked out one
social group from another in everyday life – notably dress and accent – and
the more palpable divisions of residence, lifestyle, and even seating in
church.: R. A. Houston, Social Change in the Age of Enlightenment:
Edinburgh, 1660-1760, Oxford: Clarendon, 1994, p. 56. Houston’s case study
on early modern Edinburgh provides valuable insight to how ‘bourgeois’
spheres in Habermas’s sense may have evolved – certainly not in
consequence of a particular event.
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The economic dimension of the public sphere
which despite its social restriction represents a spherical
enlargement.
Second, the notion of public benefit must condition any conception of
the public sphere as an economic entity. This can be deduced from
our discussion of the reciprocity of the relationship between the state
and the bourgeois public. The economic dimension of the bourgeois
public sphere develops as a system of exchange of benefits, with the
government satisfying the investors’ quest for transparency in order to
increase its ability to borrow. In doing so, government policy does not
only help maximising investor utility, but also sustaining and
modernising the economic institutions of the representative system
(taxation, commerce, toll, etc.). Hence it benefits the bourgeois public
sphere as a whole. The exclusiveness of this system of reciprocal
benefit is given by the fact that access to state benefits is to a great
extent correlated with property. As Hicks notes, the modern welfare
state and its concept of unconditional benefit is a result of
49
industrialisation; the bourgeois public sphere, however, is by its very
nature pre-industrial and pre-democratic.
Third, political reform is central to the economic efficiency of public
institutions. The notion of reform is used in a pre-revolutionary sense
of gradual adaptation which enables the institutionalisation of public
awareness. Necker’s incremental reform proposals and
implementations foster the notion of the public, as revealed in
particular by the discussion of the provincial administrations which
50
‘teach the love and knowledge of the public good.’
Economic public sphere: some evidence for validity
It is perhaps easiest to demonstrate the validity of the concept by
pointing to the severe consequences of its political negligence.
Harking back to the accuracy of the Compte rendu, the state
49
Even the development of the modern welfare state is of a coercive nature,
essentially resulting from the occurrence of organised labour and the increase
in workers’ bargaining power: J. Hicks, A Theory of Economic History, Oxford:
Oxford University Press, 1969, chapter IX.
50
Compte rendu, p. 81.
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The economic dimension of the public sphere
breakdown of the late 1780s can – at least partially – be attributed to
political ignorance regarding the economic public sphere. This
proposition is based on the observations summarised in section 1 on
the preventability of the state breakdown; interestingly, it can also be
derived from CHA insights that establish a pattern of congruence
between seventeenth century England and eighteenth century
France. Analysing the English state breakdown, Goldstone notes that
‘for any early modern state the chief cost was the expenditure for war,
51
an activity that could only rarely be avoided.’ The war costs certainly
also represent a major fiscal challenge in the French case, which is
repeatedly mentioned in the Compte rendu; however, Goldstone finds
yet another historical parallel: in both cases, strong population growth
52
was the core reason for high inflation and thus for fiscal distress, a
relationship which he captures in the following equation:
Long-term price pressure in nth decade after the base period =
n
e
k ( X i B)
,
i 0
where
X i is the inflation rate in the ith decade after a given base
period, k is a positive constant, and B is the growth rate of state
revenues without extraordinary measures such as the retraction of
elite privileges or the imposition of new taxes. If B < X i then inflation
will grow at a rate higher than the growth rate of state revenues,
leaving ( X i  B ) positive with the impact of inflation growing
exponentially over time. If B >
X i then ( X i  B ) will be negative and
the fiscal situation will improve since fiscal growth exceeds inflation.
53
The economic dimension of the public sphere significantly factors in
to this model. What Goldstone’s findings essentially reveal is that the
51
J. A. Goldstone, Revolution and Rebellion in the Early Modern World,
Berkeley and Los Angeles: University of California Press, 1991, p. 103.
52
Ibid., p. 89ff.
53
Ibid., p. 103.
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The economic dimension of the public sphere
fiscal stability of the early modern states depended to a great extent
on their ability to increase ordinary with extraordinary revenues, i.e.
by borrowing. This depended on the public transparency of their
finances. Hence the importance that is attached to the economic
public sphere is among the most crucial determinants of the variable
B in Goldstone’s equation. This notion offers strong evidence for the
link between the negligence of the (economic) public sphere and
fiscal breakdown; thus it reveals that the concept, as defined by the
three key parameters mentioned above, is a valid one in the historical
context of pre-revolutionary France. With respect to the notion of
gradual reform, it can be concluded that the Compte rendu represents
Necker’s most substantial contribution to political change. The end of
the government’s ability to finance its deficits by borrowing in the mid1780s must therefore be attributed to the abandonment of Necker’s
reform policies (and those of his congenial predecessors Terray and
Turgot) starting with the ministry of his successor Jean-François Joly
de Fleury and most prominently pursued by Alexandre de Calonne.
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European Social and Political Research, Vol. 13 (2006–2007)
The role of law in optimising the legitimising
effect of civil society involvement:
The case study of EU anti-discrimination
employment law
Milena Müller
Since the end of the 1990s the European Community institutions have
increasingly emphasised the integral role of civil society for European
1
governance. However, on the other hand, it has become obvious that
civil society involvement itself tends to suffer from legitimacy
problems. This is why the starting point of this article is that civil
society involvement can only be assumed to have a legitimising effect
if it is legitimate itself.
The following sections will analyse how the legitimacy of civil society
involvement can be improved and how this can optimise the
legitimising effect of civil society involvement. The main focus will be
on the following three aspects. Firstly, this article will concentrate on
the contact between civil society and the European Commission
because civil society has a stronger relationship with the Commission
than with any other EU institution. Secondly, a legal perspective will
be applied by focusing on the involvement of civil society in the lawmaking process only. Furthermore, it is significant that the main
hypothesis has a legal focus. This article will assume that law can
optimise the legitimising effect of civil society involvement. Thirdly, I
will focus on a specific case study. I have chosen this case study
because discrimination law traditionally suffers from legitimacy
problems. Despite the wide acceptance that discrimination should not
be tolerated in our society, it is still controversial whether legal
regulation is the right method to fight discrimination. I assume that the
1
See, for instance, European Commission, European Governance (White
Paper), COM (2001) 428, 25 July 2001.
104
Milena Müller
Law and optimising the legitimising effect of civil society involvement
legitimacy of law-making should be of the highest priority in areas
where the legislation itself is contentious.
1. A working definition of legitimacy
Attempts to explain the sudden interest in civil society lead us to the
2
heart of the question how legitimacy should be defined. Broadly, it
can be distinguished between subjective and objective definitions of
legitimacy. Weber emphasises in his concept of Legitimitätsglaube
[belief in legitimacy] that legitimacy has a subjective dimension.
Beetham summarises that this means that ‘legitimacy derives from
3
people’s belief in legitimacy’. On the other hand, proponents of
objective definitions of legitimacy argue that legitimacy has to be
judged according to objective standards. Such an objective definition
shall be the starting point for my working definition of legitimacy. It
shall be assumed that a polity, institution, process or outcome can be
4
regarded as legitimate when it meets certain criteria for legitimacy.
Underlying normative principles determine which criteria are required
for legitimacy. For example, the principle of parliamentary democracy
has strongly shaped the conception of legitimacy in Western
democracies. It should be noted that the criteria for legitimacy can
change or can be interpreted in different ways because the underlying
normative principles can change. Put differently, we are presented
with legitimacy paradigms which can change over time. This view
implies that this article adopts a subjective objective definition of
legitimacy.
The sudden attribution of a legitimising potential to civil society is a
strong indication that the prevailing legitimacy paradigm has recently
2
The scope of this article does not allow for a detailed discussion of different
concepts of legitimacy. The aim of this section is only to develop a working
definition of legitimacy.
3
D. Beetham, The legitimation of power, London: Macmillan, 1991, p. 8.
4
See, for instance, K. A. Strike, ‘Liberty, Democracy, and Community:
Legitimacy in Public Education’, Yearbook of the National Society for the
Study of Education, Vol. 102, No 1, April 2003, pp. 37–56.
European Social and Political Research, Vol. 13 (2006–2007)
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Milena Müller
Law and optimising the legitimising effect of civil society involvement
changed in the EU. This new legitimacy paradigm assumes that civil
society involvement can foster legitimacy.
Changing legitimacy paradigms in the EU
My working definition of legitimacy assumes that a legitimacy
paradigm is based on a set of normative criteria. The following section
will explain which normative criteria have shaped different legitimacy
paradigms in the history of the EU. These criteria will be called
5
legitimacy conditions hereafter.
Since their early days, the European Communities have been justified
in terms of legitimacy. The legitimacy conditions on which these
justifications have been based can be broadly divided into conditions
relating to input legitimacy and output legitimacy. Central input
legitimacy conditions have been ever since the 1950s ‘legitimacy as
6
7
legal validity’ and ‘legitimacy as consent’ . ‘Legitimacy as legal
validity’ implies that a polity, its institutions and its outcomes have to
comply with the legal rules on which they are based. ‘Legitimacy as
consent’ demands that a polity and its outcomes have to be based on
public consent. The legitimacy paradigm, which prevailed in the early
days of the Communities, suggested that this consent should be
derived from intergovernmental structures. Since the early days of the
Communities, the central output legitimacy condition has been
‘legitimacy as good outcomes’. This condition emphasises that
successful results in policy areas can justify intervention.
While ‘legitimacy as consent’ and ‘legitimacy as legal validity’ can
conceptualised as ‘first-order legitimacy conditions’, ‘legitimacy as
good outcomes’ is a ‘second-order legitimacy condition’. First-order
conditions can be defined as conditions that are required by legal
5
Beetham, op. cit. note 3 supra, pp. 90-97 and p. 182. The following analysis
draws on Beetham’s analysis of legitimacy and Parkinson’s interpretation
thereof. This means that Beetham’s and Parkinson’s conceptual frameworks
and terms will be used to develop a slightly different model of legitimacy.
6
Ibid., p.4.
7
J. Parkinson, ‘Legitimacy Problems in Deliberative Democracy’, Political
Studies, Vol. 51, No 1, March 2003, p. 182.
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Law and optimising the legitimising effect of civil society involvement
rules or that are axiomatic in our political system. An indication for the
importance of ‘legitimacy as consent’ and ‘legitimacy as legal validity’
8
is that both conditions are regularly reviewed by courts. ‘Legitimacy
as good outcomes’ can generally not be regarded as required by legal
rules. Courts do not tend to review outcomes according to the
question if they are good or successful, which is often a matter of
political persuasion, but if they are constitutional. This means that
they review the legal validity of outcomes and not the quality of
outcomes.
Towards the end of the 1970s the first great change of legitimacy
paradigm took place. At this time there was a growing realisation that
indirect consent to the Communities through intergovernmental
structures is not enough and that consent should be derived from a
directly elected European Parliament (EP). Since the early 1990s a
wide consensus has emerged that the mere existence of the EP is not
enough. This is why the role of the EP was further increased, for
example, through the introduction of the co-decision procedure.
However, these reforms could not entirely solve the EU legitimacy
9
deficit.
The concept of ‘good governance’ offers new approaches to the EU
legitimacy deficit. Smismans summarises that this implies a
broadening of the legitimacy debate because the concept of
governance looks at processes and actors that are ‘neglected by the
traditional focus on the core institutions of ‘government’, namely
10
parliament, executive, administration, and party politics.’
The increasing popularity of the concept of ‘good governance’ is an
indication that another legitimacy paradigm change has taken place.
A possible conceptualisation of this change is that a new legitimacy
8
See, for instance, Brunner v The European Union Treaty [1994] 1 CMLR 57
and Case C-65/93 Parliament v. Council [1995] ECR I-643.
9
S. Smismans, Law, Legitimacy and European Governance: Functional
Participation in Social Regulation, Oxford: Oxford University Press, 2004, p.
16.
10
Ibid., p. 25.
European Social and Political Research, Vol. 13 (2006–2007)
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Milena Müller
Law and optimising the legitimising effect of civil society involvement
condition has been added to the existing legitimacy conditions. The
normative criteria of good governance form the basis for this new
legitimacy condition, which shall be called ‘legitimacy as procedure’,
and which is also a form of input legitimacy. ‘Legitimacy as procedure’
puts emphasis on transparency, consultation of stakeholders,
representativeness, deliberation and effectiveness in the law-making
process. These aspects shall be called ‘procedural norms’ below.
‘Legitimacy as procedure’ can be regarded as a second-order
legitimacy condition because, while its requirements become more
and more accepted, it is not as axiomatic as first-order legitimacy
conditions.
‘Good governance’ puts emphasis on civil society involvement as a
11
procedural norm because such involvement can provide expertise.
However, two recent democratic theories assign a much more central
role to civil society in EU law-making. Expressed in terms of our
legitimacy model these theories argue that civil society involvement
might be an additional consent mechanism and contribute to
12
‘legitimacy as consent’. The central idea of associative democracy is
that parliamentary democracy, which is based on the classical ideal of
territorial representation, does not represent citizens in a sufficient
way. It is argued that associations can offer an alternative form of
representation. At this point it is important to note that the EU
institutions do not assume that civil society involvement can be a
substitute for traditional forms of representative democracy. This is
why ‘the guiding principle for the Commission is … to give interested
13
parties a voice, but not a vote’. However, at the moment consent is
usually conceptualised in form of a vote. Deliberative democracy
argues that there can be alternative mechanisms for consent.
11
S. Smismans, ‘European Civil Society: Shaped by Discourses and
Institutional Interests’, European Law Journal, Vol. 9, No 4, September 2003,
p. 486.
12
See, in general, J. Cohen and J. Rogers, 'Secondary Associations and
Democratic Governance', in J. Rogers (ed.), Associations and Democracy,
London: Verso, 1995, pp. 7–98.
13
European Commission, op. cit. note 3 supra, p.5.
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Law and optimising the legitimising effect of civil society involvement
This section has shown that civil society has a legitimising potential
because it can be a procedural norm and because it can be an
alternative consent mechanism. The distinction between these two
functions begs the question when civil society involvement should be
regarded as a procedural norm and when as a consent mechanism.
The answer to this question is a matter of degree. As shown above,
consent must be interpreted as public consent. This means that civil
society involvement only has the potential of being a consent
mechanism when it is sufficiently representative. If this criterion is not
fulfilled, civil society involvement should be regarded as expert advice
and be categorised as a procedural norm.
2. Civil society involvement in law-making: the case of EU antidiscrimination employment law
For the following analysis some background information on our case
study is required. This section will address this issue.
2.1. EU anti-discrimination employment law: a short overview of
important recent measures
2.1.1. Hard law
After the insertion of Article 13 EC, which gave the EU the
competence to legislate on more grounds than just gender
discrimination, the Commission enacted the Racial Equality
14
15
Directive and the Employment Framework Directive . Against the
background of these new directives, the large acquis of gender
16
equality directives was considered to be too limited. For this reasons
14
Council Directive (EC) 2000/43 on implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin [2000] OJ
L180/22.
15
Council Directive (EC) 2000/78 establishing a general framework for equal
treatment in employment and occupation [2000] OJ L303/16.
16
M. Bell, ‘Beyond European Labour Law? Reflections on the EU Racial
Equality Directive’, European Law Journal, Vol. 8, No 3, September 2002, p.
394.
European Social and Political Research, Vol. 13 (2006–2007)
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Law and optimising the legitimising effect of civil society involvement
17
the acquis was recently reformed by the Reform Directive and the
18
Recast Directive. Both of these directives are based on Article
141(2) EC.
2.1.2. Soft law
Since 1982, a series of action programmes has accompanied gender
19
equality directives. Also, the recent anti-discrimination directives
have from the start been accompanied by the First Community Action
20
Programme to combat discrimination (2001-2006). In 2006 the
Community Programme for Employment and Social Solidarity 21
PROGRESS (hereafter PROGRESS) merged several action
programmes, including those in the areas of gender equality and antidiscrimination law. Currently, action programmes are based on Article
13(2) EC.
Besides measures which were specifically enacted in the area of antidiscrimination and gender equality law, three general instruments
should be mentioned, which are partly concerned with the area of our
case study. The EES is a recent soft law instrument, which is among
17
Directive of the European Parliament and of the Council (EC) 2002/73
amending Council Directive 76/207/EEC on the implementation of the
principle of equal treatment for men and women as regards access to
employment, vocational training and promotion, and working conditions
[2002] OJ L269/15.
18
European Commission, Proposal for a Directive of the European
Parliament and of the Council on the implementation of the principle of equal
opportunities and equal treatment of men and women in matters of
employment and occupation (recast version), COM (2004) 0279 final, 21 April
2004.
19
th
From 2001-2006 this was the prolonged 5 Action Programme. See
Council Decision (EC) 2001/51 establishing a Programme relating to the
Community framework strategy on gender equality (2001-2005) [2000] OJ
L17/22.
20
Council Decision (EC) 2000/750 establishing a Community action
programme to combat discrimination (2001-2006) [2000] OJ L 303/23.
21
European Commission, Proposal for a Decision of the European Parliament
and of the Council establishing a Community Programme for Employment
and Social Solidarity – PROGRESS, COM (2004) 488 final, 14 July 2004.
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Law and optimising the legitimising effect of civil society involvement
22
others aimed at promoting gender equality and social inclusion. EES
instruments are in particular based on Article 128(2) EC. Also, the
Social Policy Agendas contribute to the strategic design of the EU
anti-discrimination and gender equality policies. Finally, equality is
mainstreamed in the European Social Fund. A recent example of this
23
is the EQUAL initiative. This initiative is based on Article 13(2) EC.
Recently, a more strategic approach to gender equality and antidiscrimination policy has been chosen. In 2001, the first Framework
Strategy for Gender Equality (2001-2005) (‘the First Gender Equality
24
Framework Strategy’) was enacted . The successor of the First
Gender Equality Framework Strategy is the Roadmap for equality
25
between women and men 2006-2010 (hereafter Roadmap).
In 2005, this strategic approach was extended to general antidiscrimination law. Based on the recent Equality and NonDiscrimination Green Paper (hereafter Green Paper) and the
26
following wide-scale public web-consultation , the Framework
Strategy on non-discrimination and equal opportunities for all
(hereafter First Anti-Discrimination Framework Strategy) was
27
enacted . The First Anti-Discrimination Framework Strategy is
22
See, for instance, European Commission, Taking stock of five years of the
European employment strategy (Communication), COM (2002) 416 final, 17
July 2002.
23
European Commission, Guidelines for Community Initiative Programmes
(CIPs) for which the Member States are invited to submit proposals for
support under the EQUAL initiative (Communication), COM 1999 (476) final,
13 October 1999; European Commission, Guidelines for the second round of
the Community Initiative EQUAL (Communication), COM (2003) 840 final, 30
December 2003.
24
European Commission , Towards a community framework strategy on
gender equality (Communication), COM (2000) 335 final, 7 June 2000.
25
European Commission , A Roadmap for equality between women and men
2006-2010 (Communication), COM (2006) 0092 final, 1 March 2006.
26
European Commission, Equality and non-discrimination in an enlarged
European Union (Green Paper), COM (2004) 379, 3 June 2004.
27
European Commission, Non-discrimination and equal opportunities for all A framework strategy’ (Communication), COM (2005) 224 final, 1 June 2005.
European Social and Political Research, Vol. 13 (2006–2007)
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Law and optimising the legitimising effect of civil society involvement
accompanied by the European Year of Equal Opportunities for All
28
(2007) (hereafter European Year 2007) , which is based on Article
13(2) EC.
2.2. The legal framework for civil society involvement
This section will introduce the distinction between institutionalised and
non-institutionalised civil society involvement. This distinction will be
used throughout this article because, as will be shown below, there
are very distinct legitimacy problems concerning each form of
involvement. This article will take a pragmatic approach to defining
civil society by using the Commission’s definition of civil society. The
Commission defines civil society as NGOs, CBOs and the social
29
partners.
2.2.1. Non-institutionalised civil society involvement
Since 1999, when the Treaty of Amsterdam came into force, the
Protocol on the application of the principles of subsidiarity and
proportionality annexed to the Treaty of Amsterdam (the ‘Subsidiarity
and Proportionality Protocol’) requires that ‘the Commission should ...
consult widely before proposing legislation and, wherever appropriate,
30
publish consultation documents’.
This Subsidiarity and Proportionality Protocol has been
complemented since 2003 by the General Principles and Minimum
Standards for consultation of interested parties by the Commission
(‘Consultation Standards’). These standards establish ‘soft’ guidelines
for consultations of interested parties, including civil society, by the
31
Commission. The Consultation Standards are, in the first place,
applied to initiatives that are also subject to extended impact
28
European Commission, Proposal for a Decision of the European
Parliament and the Council on the European Year of Equal Opportunities for
All (2007) Towards a Just Society Brussels, COM (2005) 225 final, 1 June
2005.
29
Parkinson, op. cit. note 7 supra, p.183.
30
See the Protocol (N° 7) on the application of the principles of subsidiarity
and proportionality annexed to the Treaty of Amsterdam OJ C340/105.
31
European Commission, op. cit. note 3 supra.
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Law and optimising the legitimising effect of civil society involvement
assessments. They are explicitly non-legally binding and do not apply
to the EESC, comitology, expert committees or the European social
32
dialogue.
2.2.2. Institutionalised civil society involvement
The provisions concerned with institutionalised civil society
involvement are much more specifically linked to the area of antidiscrimination and gender equality law.
The Treaty articles 137 (1) EC and 137(2) EC, 141 EC and 128 (2)
EC state that the European Economic and Social Committee (EESC)
has to be consulted for any legislative proposal based on these
articles. Concerning proposals based on all other Treaty articles of
our case study, the EESC may be consulted optionally. Furthermore,
the EESC can give own-initiative opinions on proposals. In addition,
33
two expert committees are important institutionalised actors. Firstly,
the Advisory Committee on Equal Opportunities for men and women
(hereafter AC) helps the Commission to formulate and implement
34
gender equality measures. Among the 40 members of the
committees there are ten representatives of the European social
35
partners. Furthermore, two representatives of the European Women
Lobby are admitted as observers. Secondly, the ESF Committee is
relevant when analysing civil society involvement in our case study.
Besides representatives of national governments there are
representatives of the social partners from each Member State in the
ESF. It is significant that there are no strict legal requirements to
36
consult the two committees.
32
Smismans, op. cit. note 9 supra, pp. 454-455.
European Commission, ‘Register of Expert Groups’. URL (accessed 8
September 2007): http://ec.europa.eu/transparency/regexpert
34
The Advisory Committee was established under Council Decision (EEC)
82/43 relating to the setting up of an Advisory Committee on Equal
Opportunities for Women and Men [1981] OJ L20/35 and was amended by
Council Decision (EC) 95/420.
35
Council Decision 95/430/ EC, Article 2.1.
36
See, for instance, Case C-84/94, United Kingdom of Great Britain and
Northern Ireland v Council of the European Union, [1996] ECR I-6755.
33
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Article 138 EC states that the Commission has to consult the social
partners on the possible direction of Community action for initiatives
in the area of social policy. If the outcome of this consultation is that
the initiative should proceed, a second consultation with the social
37
partners on the content of a proposal takes place.
2.2.3. Other relevant provisions
Article 253 EC provides that the Regulations, Directives and
Decisions ‘shall state the reasons on which they are based and shall
refer to any proposal or opinions which were required to be obtained
pursuant to the Treaty’. In our case study this means that required
opinions of the EESC have to be mentioned.
2.3. Forms of civil society involvement
This short summary is not aiming at being comprehensive but will
only give a broad description of the most important forms of civil
society involvement that took place in our case study.
2.3.1. General tendencies
There is a general tendency for recent civil society consultations to be
conducted as ‘cluster consultations’. This means that only one
consultation is held in connection with several measures. Examples
are the Green Paper, which was used as consultation for the First
Anti-Discrimination Framework Strategy and the European Year
38
2007. Furthermore, the consultations for the First Community Action
37
C. Barnard, EC Employment Law, Oxford: Oxford University Press, 2000,
p. 87.
38
See, European Commission, Proposal for a Decision of the European
Parliament and the Council on the European Year of Equal Opportunities for
All (2007) Towards a Just Society Brussels, COM (2005) 225 final, 1 June
2005, p. 7 and European Commission, Non-discrimination and equal
opportunities for all - A framework strategy (Communication), COM (2005)
224 final, 1 June 2005, pp. 3-4.
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Programme to combat discrimination, the Racial Equality Directive
39
and the Employment Framework Directive were held together.
2.3.2. Non-institutionalised involvement
Non-institutionalised forms of involvement took place in the form of
informal ad hoc consultations, structured consultations and
consultations governed by the Subsidiarity and Proportionality
Protocol and/ or the Consultation Standards.
While most non-institutionalised involvement for soft law measures
was informal, hard law consultations had to be conducted in line with
the Subsidiarity and Proportionality Protocol and later with the
Consultation Standards. Under the Consultation Standards
consultations were conducted as open web-consultations. The
Consultation Standards were only applied to one soft law instrument,
which is the Green Paper.
In the mid-1990s a more structured form of informal consultations for
both hard and soft law measures was introduced in the form of halfyearly meetings between the Commission and the Social Platform.
2.3.3. Institutionalised involvement
No significant difference concerning institutionalised civil society
involvement can be found between hard and soft law. The EESC had
to be consulted, was optionally consulted or gave an own-initiative
opinion concerning all recent measures of our case study apart from
the First Gender Framework Strategy. The AC was consulted for all
recent soft and hard law measures apart from the First Gender
Framework Strategy. There is no public information available in which
cases consultations with the ESF Committee took place.
So far, no Article 138 consultations of the social partners have taken
place for measures in the area of our case study because the
Commission assumes that such consultations are not required for
initiatives and proposals not based on Article 137 EC.
39
European Commission, ‘Communication on certain Community measures
to combat discrimination’, COM (1999) 564, 25 November 1999, pp.6-7.
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3. An analytical framework for analysing the legitimacy of civil
society involvement
When discussing the legitimising effect of civil society involvement the
assumption has to be made that civil society involvement only has the
potential of increasing the legitimacy of law-making if it is itself
legitimate. Legitimacy of civil society involvement can be measured in
similar terms as legitimacy of legal measures. This means that even
though our level of analysis is different here from the working
definition of legitimacy above, our analytical indicators are similar.
3.1. Input legitimacy
3.1.1. Legitimacy as legal validity
Legal validity is an essential principle of the rule of law. It implies in
this context that the Commission abides by the rules governing civil
society involvement. As shown in the section concerning the legal
framework for civil society involvement, these rules can include
requirements to consult civil society and rules, for example,
concerning transparency and representativeness.
40
3.1.2. Legitimacy as procedure
(a) Transparency
Transparency implies in the context of this research topic that detailed
information about participants, agendas, minutes and outcomes of
civil society involvement is being made available.
41
Transparency has an ex ante and an ex post role for legitimacy.
Concerning our case study ex ante transparency ensures that all
interested parties can find out about future civil society involvement,
which will enable them to participate in it. Ex post transparency allows
for scrutiny and accountability of past civil society involvement.
40
It is important to note that due to the limited scope of this paper only
selected procedural requirements will be analysed here. This choice is based
on Smismans’ analysis of functional participation because his analysis is very
coherent and meaningful.
41
Smismans, op. cit. note 9 supra, pp. 233-234.
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Transparency can be achieved either through a right to access to
42
information or through publicity.
(b) Deliberation
Deliberative democratic theories assume that rational, public debate
can legitimise law- and policymaking and be a form of consent
mechanism.
(c) Representativeness
Representativeness is the essential requirement of representative
democracy. Traditionally, representativeness was associated with
forms of parliamentary democracy. However, it should also be applied
to civil society involvement because it can contribute to the fairness
and quality of such involvement.
(d) Effectiveness
The White Paper on governance identifies effectiveness as an
important principle of good governance. In the sense of the White
Paper, effectiveness means that civil society involvement is
conducted in a time-efficient manner.
3.2. Output legitimacy
Concerning our case study the central output legitimacy condition is
‘legitimacy as influence’. Civil society involvement could be conducted
according to all existing legal and procedural rules, but if it had no
43
influence it could not be assumed to be legitimate. Indicators for the
potential influence of civil society involvement are if consultations are
measure-specific and if there is an obligation of the Commission to
take consultations into account. Furthermore, influence depends on
the point during the law-making process at which civil society
42
43
Ibid. , p.234-244.
Ibid., p. 165.
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involvement takes place because it can be assumed that involvement
44
in the drafting process is more efficient than post-draft involvement.
4. The legitimacy of civil society involvement in recent EU antidiscrimination employment law
4.1. Input legitimacy
4.1.1. Legal validity
The requirement to hold consultations was met in all cases
concerning the Consultation standards, the Subsidiarity and
Proportionality Protocol and the consultations of the EESC. The
EESC was even consulted in most cases were consultations are only
optional.
However, there is uncertainty if the obligation under Article 138 EC to
consult the social partners also applies to initiatives and proposals
based on Article 141 EC and Article 13 EC. The Commission believes
that only initiatives and based on Article 137 EC of the Treaty require
45
the consultation of the social partners. BUSINESSEUROPE insists
that also Article 141 requires formal consultation of the social partners
in accordance with Article 138 of the Treaty. The legal uncertainty
surrounding this issue has a negative impact on legitimacy.
4.1.2. Legitimacy as procedure / Legitimacy as legal validity
(a) Transparency
In our case study it can be found that unstructured informal
consultations are least transparent. Informal consultations are
sometimes mentioned in the proposals for legislation but these
44
Ibid.; Extensive interviews would have to be conducted to measure the
actual influence of civil society involvement effectively. However, this is
beyond the scope of this paper.
45
European Commission, ‘Bipartite Social Dialogue at European level’. URL
(accessed 8 September 2007):
http://ec.europa.eu/employment_social/social_dialogue/bipartite_en.htm
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46
proposals do not contain detailed information . In most cases
informal consultations are not mentioned at all in proposals. For
example, there is no public information available that the Social
Platform and the Social Partners were consulted for the EQUAL
directive. This information was only available through an access to
47
documents request.
The structured consultations with the Social Platform are more
transparent than unstructured consultations but still suffer from
transparency problems. The agendas for these consultations are
published online and the consultations are sometimes mentioned in
legislative proposals. However, other documents such as minutes are
only available via access to documents requests.
The consultations with the ESF Committee are not transparent either.
In many cases no information is published that consultations with the
ESF Committee took place. For example, the ESF Committee was
consulted for the EQUAL guidelines. However, this information was
48
only available through an access to documents request.
The transparency of the AC is not sufficient either. Even though the
opinions of the AC are published online, no further information such
49
as minutes is available.
The consultations of our case study, which are governed by the
50
Subsidiarity and Proportionality Protocol, were published. However,
46
See, for instance, European Commission, Proposal for a Directive of the
European Parliament and of the Council on the implementation of the
principle of equal opportunities and equal treatment of men and women in
matters of employment and occupation (recast version), COM (2004) 0279
final, 21 April 2004, p.4.
47
An access to documents request was made on 19 September 2006 and
documents were received on 10 October 2006.
48
Ibid.
49
See,
http://ec.europa.eu/employment_social/gender_equality/gender_mainstreami
ng/gender/advcom_en.html.
50
See, European Commission, op. cit. note 66 supra, p.4-5 and European
Commission, op. cit. note 53 supra, pp.6-7.
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contrary to the guidelines of the Subsidiarity and Proportionality
Protocol no consultation documents were published.
On the other hand, consultations under the Consultation Standards
have the potential of being very transparent because there is a
requirement to publish all consultation documents, contributions of
participants and reactions of the Commission online. However, the
publicity requirements are not always met. For example in the case of
the Recast directive not all contributions can be found on the
51
Internet.
Also, the EESC is a transparent committee because it has clear rules
of procedure, its hearings are public and all of its opinions are
published in the OJ. The Commission draws up quarterly reports on
how the opinions of the EESC were taken into account.
So, what do these results mean concerning the legitimacy of civil
society involvement? The requirements to publish consultation
documents under the Subsidiarity and Proportionality Protocol, the
Consultation Standards and the Transparency rules of the EESC are
(soft) legal requirements. This means that they have to be met so that
the first-order condition ‘legitimacy as legal validity’ is fulfilled.
Informal and structured consultations and consultations of the AC and
the ESF on the other hand should be transparent to comply with the
procedural norm but are not legally required to be so. Our analysis
shows that the first-order legitimacy condition ‘legitimacy as legal
validity’ is met in more cases than the second-order legitimacy
condition ‘legitimacy as procedure’.
(b) Representativeness
All forms of civil society involvement in our case study, apart from
open web-consultations, suffer from representativeness problems.
Concerning our case study it can be criticised that the EESC has
representatives from the national social partners, but no
51
European Commission, ‘Open consultations’. URL (accessed 8 September
2007): http://ec.europa.eu/employment_social/consultation_en.html
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representatives from functional groups linked specifically to
discrimination and diversity such as women or ethnic minority groups.
It is important that also other functional groups than management and
labour should be represented because, traditionally, female workers
and workers of ethnic minorities are under-represented in many trade
union associations. The EESC tries to compensate for this problem
by holding hearings with non-represented groups. However,
Smismans points out that these hearings are by far not conducted for
52
every opinion.
The representativeness of the AC and ESF committee can be
criticised, even though they are essential forums for the European
and national social dialogue. Comparable to the case of the EESC,
the focus on the social partners leads to legitimacy problems. In the
AC, observers of the women lobby and other organisations can be
admitted in addition to the other members. However, due to the
limited role of observers, this cannot fully compensate for the lack of
representativeness. Furthermore, it is unfortunate that the two forums
concentrate on either the national or the European social partners.
Also non-institutionalised forms of civil society involvement suffer from
representativeness problems. Even though the Subsidiarity and
Proportionality Protocol requires consultations to take regional and
local dimensions into account, if appropriate, most consultations
concerning our case study do not even take account of national
dimensions. In practice, it can be seen that the Commission
concentrates its consultation activities on Brussels-based umbrella
53
groups.
Informal consultations are not subject to regulations which groups
should be consulted. In practice also here a concentration on
52
Smismans, op. cit. note 9 supra, p. 164.
European Parliament, ‘Replies to the Commissioner Designate’s
questionnaire’ (Vladimir Spidla’s reply to the specific part of the European
Parliament Hearings of the Commissioners Designate). URL (accessed 8
September 2007):
http://www.europarl.europa.eu/hearings/commission/2004_comm/pdf/speca_
spidla_en.pdf.
53
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European umbrella groups can be found, which leads to an underrepresentation of national and specific interests. The same problem
also applies to structured consultations with the Social Platform
because these consultations are focused on one umbrella group only.
So, what does this analysis imply for legitimacy? The Subsidiarity and
Proportionality Protocol includes a legal requirement to consult widely
and to take local and regional dimensions into account. The
Consultation Standards prescribe that ‘the Commission should ensure
54
that relevant parties have an opportunity to express their opinions’.
In these two cases representativeness is legally required. In all other
cases representativeness is a procedural norm. Currently, neither
legitimacy condition is sufficiently fulfilled. These representativeness
problems have important consequences for whether civil society
involvement has a procedural or a consent function in our case study.
As ‘legitimacy of consent’ requires public consent, the consent
function in our case study is limited.
4.1.3. Legitimacy as procedure
(a) Deliberation
It is difficult to measure deliberation. Institutionalised civil society
involvement can be assumed to be more deliberative than noninstitutionalised involvement because institutionalised civil society
involvement encourages discussions within civil society and with the
Commission. This is different for most forms of non-institutionalised
civil society involvement where only discussion with the Commission
takes place. The deliberative potential of web-based open
consultations under the Consultation Standards is limited because
web-based consultations are mostly based on the limited
correspondence between Commission and individual civil society
groups.
54
European Commission, Towards a reinforced culture of consultation and
dialogue - General principles and minimum standards for consultation of
interested parties by the Commission (Communication), COM (2002) 704
final, 11 December 2002, p. 19.
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(b) Effectiveness
Currently, there do not seem to be any problems with timeeffectiveness of civil society in our case study. However,
effectiveness is often put forward as a reason against expanding
procedural or legal requirements for consultation, which means that
different criteria for legitimacy can be in conflict with each other.
4.2. Output legitimacy
It is difficult to measure the influence of civil society involvement. As
outlined above, measure-specific consultations and consultations,
where the Commission is required to give reasons for decisions, can
be expected to be more influential than other consultations.
Therefore, recent cluster consultations would be expected to have
had less influence than recent measure-specific consultations. Also,
consultations governed by the Consultation Standards can be
expected to be more influential because the Consultation Standards
require the Commission to acknowledge contributions and to give
feedback.
However, it is difficult to assess if these expectations are met in
reality. Smismans shows that informal consultations might have more
influence than, for example, consultations of the EESC and the
55
Advisory Committee. Many commentators doubt the influence of the
EESC because the opinions of the EESC are too vague and because
56
the EESC intervenes too late, after a measure has been drafted.
However, the quarterly reports of the Commission show that the
opinions of the EESC in our case study were at least considered. But
when scrutinised in more detail, the reports show that the influence of
the EESC was rather limited, partly because opinions of the EESC
57
have been largely favourable.
55
Smismans, op. cit. note 9 supra, p. 224.
Ibid., p. 165.
57
This is the result of a review of the quarterly reviews concerning Actions
undertaken by the Commission on the Opinions adopted by the EESC
presented by the Commission concerning our case study. URL (accessed 8
September 2007): http://eesc.europa.eu/documents/follow-up/index_en.asp
56
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5. The role of law in optimising the legitimacy and legitimising
effect of civil society involvement
This section shall make constructive proposals how law can solve
these legitimacy problems while maintaining an acceptable level of
time-efficiency.
5.1. Judicial review under the current legal framework
The legitimacy of civil society involvement would be improved if the
compliance with the legal rules governing civil society involvement
was increased. However, currently, most problems with compliance
concern either procedural norms or soft rules, which are not legally
binding. Even though soft rules might be ‘justiciable as a source of
58
soft law’, it is unlikely that the CFI or ECJ would review civil society
involvement. This is because the ECJ has generally been unwilling to
59
review civil society involvement in the past. Furthermore, the
Consultations Standards explicitly state that judicial review of them
must be avoided.
However, concerning one specific question, namely the interpretation
of Article 138 EC, judicial review could help. If the Court clarified if
Article 138 EC also applied to legislation under Article 141 EC legal
uncertainty could be reduced.
5.2. Soft legalisation
Soft legalisation is a preferred tool of the Commission because it
precludes judicial review and is thus regarded as time-efficient. So
far, good practical experiences have been made with soft legalisation
in the area of our case study. The above analysis has shown that
consultations governed by the Consultation Standards are more
transparent and representative than many other forms of civil society
involvement.
Therefore, one suggestion to improve the legitimacy of civil society
involvement in our case study would be to extend the Consultation
58
59
Smismans, op. cit. note 9 supra, p. 454.
Ibid.
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Standards to institutionalised consultations, informal consultations
and structured consultations for both hard and soft law. It could be
argued that a legalisation of civil society involvement concerning the
making of soft law would be problematic because one of the main
advantages of soft law is its faster and much more flexible law-making
60
process. However, this should not be a reason for leaving civil
society involvement in the making of soft law unregulated. Many
aspects of soft legalisation such as transparency requirements should
not be regarded as a burden to time-efficient law-making. It is true
that it could be argued that the procedure of open web-consultations,
which is currently often applied, is too time-intensive for soft-law
measures. However, this problem could be solved by introducing
legalisation specifically tailored to law-making procedure of soft law.
In the course of an extension of soft-law legalisation it would be
sensible to review the Consultation Standards. Revised soft
legalisation should specify that civil society involvement should be
measure-specific to improve the influence of civil society. Also, soft
legalisation should put even more emphasis on transparency than this
is currently the case. Rules should require the Commission to publish
details of all consultations and to include consultation documents.
This should include publishing information on the consulted parties,
61
the composition of committees and minutes of meetings. Such a
step would not only increase transparency and accountability but also
encourage deliberation because civil society groups could also
comment on other contributions. Furthermore, the Commission
should be required to provide detailed explanations of how these
60
A. Peters and I. Pagotto, ‘Soft Law as a New Mode of Governance: A Legal
Perspective’ NewGov 04/D11, 2005, p. 24. URL (accessed 8 September
2007): http://www.eunewgov.org/database/DELIV/D04D11_Soft_Law_as_a_NMGLegal_Perspective.pdf.
61
See, for instance, for such a demand: The Social Platform, ‘European
Transparency Initiative: Response of the Social Platform Final Contribution,
September 2006.’. URL (accessed 8 September 2007):
http://ec.europa.eu/transparency/eti/docs/contributions/151_C3_Ch3_Social_
Platform.pdf.
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consultations were taken into account. This would not only increase
the transparency of civil society involvement but also increase the
influence of civil society.
While it would be straightforward to introduce a duty to consult
institutionalised civil society, it is often unclear which form a
requirement to consult non-institutionalised civil society should take.
Based on the results of the proceeding sections the Commission
should at least be required to undertake consultations with all relevant
and interested parties and not just European umbrella groups.
The suggested changes would transform currently existing procedural
norms into soft legal rules. To be legitimate all forms of civil society
involvement would then have to be legally valid and not just
procedurally correct. Experience has shown that legal requirements
are better observed than procedural norms. If this was also to apply in
this case, input legitimacy could be expected to increase. Also the
output legitimacy of civil society involvement could be indirectly
increased by these changes because the influence of civil society
could be expected to be greater.
If soft legalisation led to increased representativeness, this could also
be the basis for a stronger consent function of civil society
involvement. Currently, the function of civil society involvement is
mostly to contribute to the second-order condition ‘legitimacy as
procedure’. If the representativeness of civil society involvement was
greater, it could be expected to contribute to the first-order legitimacy
condition ‘legitimacy as consent’.
5.3. Hard legalisation
It has been shown above that the Consultations Standards are not
always observed in practice. Therefore, it could be argued that
legally-binding hard rules backed up by the possibility judicial review
62
should be introduced.
62
Smismans, op. cit. note 9 supra, p. 225.
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5.3.1. New committees
Smismans shows that law can only promote deliberation to a limited
63
extent. I agree with his analysis in so far as deliberation is a
dynamic process, which cannot be prescribed by legal rules.
However, as outlined above, committees offer more potential for
deliberation because they encourage discussion between
Commission and civil society and within civil society than for example
web-consultations.
In all areas of anti-discrimination and gender equality law
consultations take place with the EESC, many financial instruments
are discussed in the ESF committee and gender equality law
measures are discussed in the AC. This shows that there are already
a number of deliberative forums in the area of our case study.
However, concerning general anti-discrimination law there is currently
no specific Advisory Committee. Therefore, it could be suggested to
extend the tasks of the existent AC to general anti-discrimination law
or to establish a new AC for this area. An argument against such a
suggestion would be that not another committee should be added to
the overabundance of already existing committees. However, a
Committee that fulfils the legitimacy conditions outlined above should
be regarded as a benefit rather than a burden.
5.3.2. A changed composition of committees
As pointed out above, the AC, the ESF committee and the EESC
suffer from representation problems because non-socio-economic
groups of civil society are strongly underrepresented in those forums.
A solution to this would be to change the composition of the Advisory
Committees and the EESC to include more different functional groups
in the committees. This would mean a move away from the strong
focus on socio-economic groups.
A changed composition of committees could strongly increase the
representativeness of civil society involvement. This would be
generally positive for the legitimacy of civil society involvement.
63
Ibid., p. 217.
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Furthermore, it would be a way to strengthen the consent function of
civil society involvement.
5.3.3. A right to be heard
Two different rights to be heard could be introduced. Firstly, there
could be a right to be heard of every civil society group. Secondly,
there could be a right to be heard of committees. In terms of our
legitimacy model a right to be heard could be expected to increase
the consent potential of civil society and the output legitimacy of civil
society involvement by increasing the influence of civil society.
So far, no such right exists for civil society, even though several civil
society groups have demanded that civil society involvement should
64
be enshrined in a Treaty article.
However, many problems are associated with the realisation of such
rights. Currently, some civil society groups do not have internal
democratic structures, and it is not clear if they have a mandate to
represent the interests that they claim to represent. This is a problem
because only groups that adhere to high standards of democracy
should have a guaranteed right to be involved.
Thus, a hard right to be consulted would have to lead to quality-based
accreditation of civil society groups. However, it is not clear if such an
accreditation would be sensible. Currently, the Commission, many
civil society organisations and many academic commentators are
65
against an accreditation. It is especially questionable what the
criteria for a quality-based accreditation should be. Most
commentators who are in favour of a quality-based accreditation
argue that civil society would have to fulfil certain representativeness
66
standards. But it is not clear how representativeness should be
64
See, for instance, Social Platform, ‘A call for a formal recognition of the role
of NGOs at the EU level’. URL (accessed 22 January 2007):
http://www.socialplatform.org/code/en/camp.asp?page=321.
65
See, for instance, European Commission, op. cit. note 54 supra.
66
See, for instance, O. De Schutter, ‘Europe in Search of its Civil Society’,
European Law Journal, Vol. 8, No 2, June 2002, pp. 198-217.
128
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67
defined. Furthermore, De Schutter points out that
representativeness should not be the only selection criteria for civil
society involvement. He shows that representativeness requirements
68
might be obstacles to participation of valuable parties.
A right to be heard backed up by judicial review would be likely to
lead to a locus standi of civil society groups, which could increase
judicial review of civil society involvement. Furthermore, already the
process of civil society accreditation could be expected to lead to
efficiency problems. Legal action from groups who claim to have the
right to be accredited or those who claim that quality standards
threaten their independence could be expected. Therefore, the
introduction of a right to be heard for non-institutionalised civil society
involvement seems problematic.
A right to be heard of institutionalised civil society is less contentious
because there would not be the problem of accreditation.
5.3.4. Transparency requirements
As shown above, transparency requirements could assist in ensuring
that procedural requirements are met. This could increase the
legitimacy and legitimising potential of civil society involvement. Hard
transparency requirements would be the same as those outlined
above concerning soft legalisation and would include the requirement
to publish consultation documents and to give reasons how
consultations were taken into account. These requirements could, for
example, be enacted by expanding Article 253 EC. A revised Article
253 EC could also refer to non-legislative acts and make more farreaching requirements to give reasons. However, it can be
questioned if such transparency requirements would be efficient
because they could potentially lead to judicial review, which could
slow down the law-making process. This is why soft transparency
requirements should be the preferred option.
67
See, for instance, K. Armstrong, ‘Rediscovering Civil Society: The
European Union and the White Paper on Governance’, European Law
Journal, Vol. 8, No 1, March 2002, p. 127.
68
De Schutter, op. cit. note 66 supra, p. 205.
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6. Conclusion
This article has argued that law could play a vital role in optimising the
legitimising effect of civil society involvement. In this context the
assumption was that civil society involvement can only have a
legitimising effect if it is legitimate itself. The evaluation of civil society
involvement in the area of EU anti-discrimination law found a number
of legitimacy problems. However, it was shown that law can solve
many of these legitimacy problems. Soft legalisation is generally the
most promising approach but judicial review and hard legalisation
should also be used in specific situations. This means that law could
have an enabling function for the legitimising effect of civil society
involvement: by increasing the legitimacy of civil society involvement
the legitimising potential of civil society involvement is increased.
But law could also directly improve the legitimising effect of civil
society involvement. Firstly, it could expand the deliberative potential
of civil society and with this deliberation in the EU. Secondly, it could
increase the representativeness of civil society involvement. This
could move civil society from the realm of the second-order condition
‘legitimacy of procedure’ into the realm of the first-order condition
‘legitimacy of consent’.
Some of the suggestions to improve the legitimacy and legitimising
effect of civil society involvement are case study specific. For
example, the suggestion to introduce judicial review and to review the
design of the institutionalised actors would not have to affect other
areas of EU law. This facilitates their implementation. However, most
other suggestions could not be limited to our case study but would
have to be implemented on a wider scale. But are the suggested
solutions applicable to EU law-making in general? The most important
suggestion was to extend soft legalisation in scope by applying it to
more forms of consultations and by including transparency
requirements. Many contributions to the recent Transparency Green
69
Paper show that such demands are also made by civil society
69
European Commission, European Transparency Initiative (Green Paper),
COM (2006) 194 final, 3 May 2006.
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Milena Müller
Law and optimising the legitimising effect of civil society involvement
70
organisation from many other policy areas. This means that the
analysis of this article is case study specific but that its results are
also applicable to EU law in general. Therefore, our case study is
relevant for EU law in general.
70
See, for instance, the contribution of BEUC to the Transparency Initiative.
BEUC, ‘BEUC / ANEC position on the European Transparency Initiative’.
URL (accedded 8 September 2007):
http://ec.europa.eu/transparency/eti/docs/contributions/141_C3_Ch1_BEUC.p
df
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