Online research in philosophy

Questions of political identity and citizenship, raised by thecreation of the `new Europe', pose new questions that politicaltheorists need to consider. Reflection upon the circumstances ofthe new Europe could help them in their task of delineatingconceptual structures and investigating the character ofpolitical argument.Does it make sense to use concepts as `citizenship' and`identity' beyond the borders of the nation-state? What does itmean when we speak about `European Citizenship' and `EuropeanIdentity'?

An important strand of scholarship claims that creating a new European private law (such as the drafting of a Common Frame of Reference for European Private Law) should not primarily be the work of legal scholars, but of politicians and parliaments. Another view would purportedly lead to a lack of democratic legitimacy. This raises the more general question what should be the exact relationship between private law and (national) democracy. This contribution - written in the Festschrift for Anthony Ogus - argues that the relationship between European private law and democracy is often misunderstood. Legitimacy of private law cannot only be established through the national democratic institutions, but also in other ways. The Common Frame of Reference for European Private Law is an important example of this: as a non-binding instrument, it need not fulfill the same requirements as binding law. But also private law in the more traditional sense does not always have to be legitimised at the state level: the democratic functions of law can sometimes be provided by others than the State. The exact conditions under which this is the case still need to be explored.

This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice (ECJ) that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT (and related judgements of the ECJ) may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar.

Is there a ‘constitutional moment’in contemporary Europe? What if anything is the constitution of the European Union; what kind of polity is the Union? The suggestion offered is that there is a legally constituted order, and that a suitable term to apply to it is a ‘commonwealth’, comprising a commonwealth of ‘post-sovereign’ states. Is it a democratic commonwealth, and can it be? Is there sufficiently a demos or ‘people’ for democracy to be possible? If not democratic, what is it? Monarchy, oligarchy, or democracy, or a ‘mixed constitution’? Argued: there is a mixed constitution containing a reasonable element of democratic rule. The value of democracy is then explored in terms of individualistic versus holistic evaluation and instrumental versus intrinsic value. Subsidiarity can be considered in a similar light, suggestively in terms of forms of democracy appropriate to different levels of self-government. The conclusion is that there is no absolute democratic deficit in the European commonwealth.

Economic globalization has resulted in the transfer of national power to supranational actors and their supranational procedures and institutions. Concomitant with this trend is the ascendancy of the discourses of democracy and human rights that have given rise to the idea of cosmopolitan justice. These trends, in turn, have weakened statehood [ Entstaatlichung ], requiring theoretical envisioning and practical institutionalization of a supranational model of political association. Among the competing theories, in this article I will defend the Kantian project of constitutionalization of international law. In doing so, I take the doctrine of constitutional patriotism as an appropriate model of supranational political association in the European Union and defend it against the republican critique that rejects the idea as deficient. I argue that the European project of constitution-making can overcome the charges of democratic deficit and the lack of European demos by establishing the terms and conditions for democratic negotiation and institutionalizing shared practices of law-making. Key Words: constitutional patriotism • democratic deficit • the European Union • nation-state • supranational political community.

Is the project of liberal democracy dissociable from nationality? In this paper I outline and defend the main components of a recent and emerging answer to this question, which I term the "national pluralism" approach. I distinguish national pluralism from both national neutrality and liberal nationalism. In contrast to national neutrality, national pluralism holds that there is an important link between liberal democracy and nationality. In contrast to liberal nationalism, it pleads for pluralistic ways of accommodating multiple national identities within the same political community. Moreover, national pluralism accords no special standing to existing nations. If new national identities emerge, such as an overarching national identity in multinational states or a European national identity, then these should be accordingly recognized. In addition, it can be argued from within this approach that there are also non-identity reasons for pursuing nation-building practices at supranational levels.

Questions of political identity and citizenship, raised by the creation of the `new Europe', pose new questions that political theorists need to consider. Reflection upon the circumstances of the new Europe could help them in their task of delineating conceptual structures and investigating the character of political argument.Does it make sense to use concepts as `citizenship' and `identity' beyond the borders of the nation-state? What does it mean when we speak about `European Citizenship' and `European Identity'? It is argued that the pluralism that has led theorists to offer a conception of citizenship based upon principles of right, rather that the common good, applies even more strongly at the level of the European political order. Developing a contractarian theory of federation, an account of the basis of a European citizenship will be offered in which federalism emerges out of an overlapping consensus of European citizens on the terms of their political association. `European Citizenship' and `European Identity' are discussed in the context of the so-called `European Union', and not in the wider context of Europe `as a whole', or for that matter on an even broader `cosmopolitan' scale. However, the gist of the article is that arguments for concepts of `citizenship' and `identity' that go beyond borders of nation-states and that are applied to the `European Union', could have implications for an even wider application.Finally, and in conclusion, the (empirical) context will be elaborated in which the normative concept of shared liberal citizenship identity should be realized on a pan-national, European level.

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.