The Tribalization of Europe

A Defence of our Liberal Values

Marlene Wind

• Publisher: Polity
• Year: 2020
• ISBN:
  9781509541690
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Globalizzazione

Tribalization is a global megatrend in today's world. The election of Donald Trump, the Brexit vote, populist movements like Catalan separatism – together with democratic backsliding in Central and Eastern Europe – are all examples of tribalization. Fuelled by anti-globalism and identity politics, tribalization is drawing up the drawbridge to the world. It is putting cultural differences before dialogue, collaboration and universal liberal values. But tribalism is a dangerous road to go down. With it, argues Marlene Wind, we have put democracy itself in danger. Tribalism is not just about being pro-nation, anti-EU and anti-global. It is in many instances a bigger and more fundamental movement that casts aside the liberal democratic principles we once held in common. At a time when former defenders of liberal values are increasingly silent or have even joined the growing chorus of tribalists, this book is a wakeup call. Drawing on a wide range of examples from the UK and the US to Spain, Hungary and Poland, Wind highlights the dangers of identity politics and calls on people to stand up for democracy and the rule of law.

Democracy Without Limits?

When the US ratified its constitution in 1788, checks and balances between the different branches of government were among its central tenets. American democracy was held in check by a strong Supreme Court that soon acquired the power to overrule Congress and even the President if either was in breach of the constitution, as established in the landmark Marbury v. Madison case of 1803. In Democracy in America (1831) Alexis de Tocqueville enthusiastically described how the judicial control of politicians had become one of the most important symbols of American democracy. It signaled that the constitution is always primary, that everyone is equal before the law, and that independent judges and courts are the principal defenders of the basic rules of democracy. Tocqueville described the judges as the true guardians of liberty and emphasized how Europeans too should assimilate the central role of the courts in the new American democracy. He warned against any attempt by “the people to reduce the power of the judiciary,” as he puts it: “I venture to predict that these innovations will have, sooner or later, disastrous results and it will be seen that an attack has been directed against not only the power of judges but against the democratic republic itself.”¹ Judges were able, Tocqueville argued, to actively protect the individual against the state by setting aside legislation that encroaches on individual liberties. The courts are not just “custodians of the law,” but a true “counter-majoritarian” force limiting the President as well as the majority in Congress when necessary. These principles were, however, unknown in most European countries at the time.

In Europe before the Second World War, most parliamentary systems had no significant and strong counter-majoritarian institutions. More or less unlimited majority rule was the norm on the continent, where democracy was still young. Even today, majority rule is perceived as intuitively more democratic in many places. Democracy, after all, means “rule by the people” in Greek. Especially in Britain and Scandinavia the idea that democracy has always and primarily been about “counting seats” and establishing a majority in parliament is to this day still maintained with great fondness. Accordingly, because it represents the “people,” parliament should preferably not be decisively restricted by unelected anti-majoritarian institutions, that is by courts with strong review powers. What consequences this has and has had, I will return to below. The point is that the protection of the individual and of minorities against the tyranny of the majority was not something that was of particular concern at that time.

Of course, it is not entirely true that the Europeans only after the Second World War adopted the important idea of limiting political power. Since the Magna Carta² it has been judged necessary to put in place mechanisms to protect people from abuse by their rulers. And yet it was only after the Second World War and the atrocities committed against Jews and other minorities by the Nazis that most Europeans saw a need to introduce serious checks on parliaments.

“Constitutionalism” entailing exactly this new instrument became the new buzzword in postwar Europe. The recognition of the need to “limit the power of the majority” has subsequently been named the “Nuremberg Moment.” Constitutional democracy, with its emphasis on protecting and promoting the new European constitutions and human rights, replaced most – but not all – majoritarian democracies in Europe. Constitutional democracy is more formally understood as institutionalizing a “form of liberal democracy where parliaments are counter-balanced by relatively strong judicial review mechanisms.”³ This new way of understanding democracy thus triumphed in the aftermath of the war as a reaction to the lack of judicial checks and protection of basic rights under the Weimar Republic. The German Nuremberg Laws, which deprived Jews and other ethnic minorities of a wide range of civil rights, were accepted by the parliamentary majority of the German Reichstag, which was not limited by a strong constitution and constitutional court that could (or would) have declared the laws void and against all human decency. The establishment of a strong German Constitutional Court after the war was in many ways a direct reaction to the weak republic, which had not been able to forestall the slaughter of millions of innocent people.

The limits on majorities and governments after the Second World War were further buttressed by reciprocal commitments established through international treaties and conventions at the global and European level. This led to the Universal Declaration of Human Rights in 1948 and the adoption of the European Convention on Human Rights in 1950. It was thought urgent to develop a more binding set of rules beyond the state level to protect human rights after the war and the drastic failure of Woodrow Wilson’s League of Nations in the interwar period.⁴

The “constitutional revolution” was in other words a twofold phenomenon affecting individual countries and Europe as a whole, which had the additional aim of building up a bulwark against Communism. However, it took a long time before human rights became a part of the EU treaties. After the war and with the establishment of the Coal and Steel Community and later the Treaty of Rome, the work was divided: the Council of Europe (the intergovernmental body attached to the Convention and the Strasbourg Court) took care of human rights while the “EC” – the European Community – took care of economic cooperation. Of course the Community had its four freedoms and basic principles of national non-discrimination but these were, at least to begin with, mainly aimed at making the single “market” function as smoothly as possible. It was only gradually and much later that the EU – through the case law of the European Court of Justice and in the treaties (with the charter of fundamental rights) – developed its own human rights and rule of law principles.

After the Second World War the German national constitutional revolution soon spread beyond Germany, first to Italy and later to most other European states, which freed themselves from authoritarianism and adopted new constitutions.⁵ As Shapiro and Stone Sweet put it: “[T]he rights and review tandem [became] an essential, even obligatory, component of any move toward constitutional democracy” in Europe in these years.⁶

But the constitutional revolution in Europe did not stop there. After the breakup of the Soviet Union, the new democracies of Central and Eastern Europe abandoned Communism while acquiring basic counter-majoritarian institutions. Before the EU, with its Copenhagen criteria, association agreements, and admission criteria, demanded it, Poland and Hungary adopted constitutions that included strong courts and checks and balances. Thus, there was a clear desire to embrace constitutionalism – at least among the new elite who helped transform these societies into democracies. Of course, the wish to “become as in the West” as soon as possible, as Ivan Krastev has pointed out, was profound, but there was also the long-term objective of joining the EU. Interestingly, the impending enlargement was also one of the reasons why Western Europe and the EU began to focus on human rights in the EU treaties, which had otherwise – as mentioned above – had a very economic focus. Already in the 1990s, however, the German Constitutional Court had criticized, in several so-called “Solange” judgments, the fact that the EU Court had declared the primacy of EU law without at the same time having an emphasis on the protection of human rights in the treaties. This could, according to the German Constitutional Court, mean that the far-reaching human rights protection that had entered the German constitution after the Second World War risked being rejected by the EU’s top court, because the EU itself (and its treaties) did not guarantee the same human rights protection. This criticism that the EU was too focused on economics rather than values and human rights – along with the prospect of the inclusion of from eight to ten mainly post-Communist countries, most of which had fragile democratic traditions – was the primary reason for the EU to consider better safeguarding of human rights within the EU. The European Court of Justice therefore began to establish human rights in its case law. Later, the EU leaders introduced the “Charter of Fundamental Rights,” on top of the Copenhagen criteria, which, with the Lisbon Treaty in 2009, finally entered the EU treaties.

These new mechanisms had barely managed to consolidate by 2010, when especially Hungary was already taking an anti-liberal turn. In 2015, Poland followed suit when the conservative PiS government came to power. Politicians in both countries have sought to remove the constraints on their parliamentarian majorities in recent years through so-called judicial reforms, curbing the power of the court and appointing their cronies to the bench.⁷

It should perhaps be noted that the current Hungarian and Polish governments have not been alone in their (new) distaste for strong counter-majoritarian institutions. While most countries after the Second World War decided to adopt checks by strong judicial bodies, some important democratic players – up to today, and even in Western Europe – have been skeptical about this development. In Great Britain and Denmark, one frequently hears that unelected judges should not have the power to override the will of the majority, particularly in the transnational or European context.

The UK and Denmark have traditionally belonged in this category, having for long cultivated the idea of sovereignty in parliament, with the presumption that parliament is elevated above other branches of government.⁸ Both countries (like Sweden and Finland, where, until recently, judicial review has been directly banned in national constitutional laws) have rejected constitutional courts that actively and z...

Table of contents

• Cover
• Contents
• Title page
• Copyright page
• Preface
• Introduction
• Imagined Communities and Identity Politics
• Tribal Thinking and Dreams of Detachment
• Why Brexit is Just Another Kind of Tribalism
• The Tribal Shift in Central and Eastern Europe
• Who Cares About Democracy?
• Who Are The People?
• The Purpose of a Constitution
• Democracy Without Limits?
• Are Illiberal Democracies Democracies?
• Why Liberals Are Increasingly on the Defensive , but Shouldn't Be
• Concluding Remarks
• End User License Agreement