That is what Angela Merkel said yesterday in Brussels:
The European Union should make a binding commitment to reduce greenhouse gas emissions by 20% in relation to 1990 values and to increase by 20% the share of renewable energies. That is the goal Federal Chancellor Angela Merkel has set her sights on. At the end of the first working day of the European Council meeting in Brussels, she appeared confident that on this point the Member States would reach agreement.
The Chancellor also made clear, however, that on the specifics more discussions were needed. "What we can achieve I will only be able to announce at the end of the Council."The atmosphere during the discussion in the evening, Angela Merkel noted in Brussels, had been very positive and constructive. The debate had been a very serious one, since the goal was highly ambitious. "We want the EU to make a binding commitment to this goal," she pointed out.
"It is important that we can tell the G8 members that Europe has made a real commitment. That gives us a measure of credibility," the Council President emphasized. There are two goals at stake, she noted.
The first concerned the share of renewable energies, meaning wind, water, sun and biomass. "Nuclear energy," she made clear, "does not fall into this category."
The second concerned the overall reduction of greenhouse gas emissions by 20%. In this context nuclear energy could count as a low CO2 emitting energy source. This was an issue France in particular had raised.
Showing posts with label Energy. Show all posts
Showing posts with label Energy. Show all posts
Friday, March 09, 2007
Friday, February 09, 2007
Toward a Theory of Human Rights by Michael J Perry
This book does exactly what it claims: it attempts to develop a theory of human rights. Perry suggests that a theory of human rights should deal with three basic issues. First, the moral foundation of human rights. Second, the normative relationship between the morality and the law of human rights. Third, the institutional arrangements that best protect human rights.
To each of these three issues Perry offers very stimulating, and conspicuously controversial, treatment. He argues that the moral foundation of human rights can be defined in terms of the principle of dignity and inviolability of each human being. The trouble is, Perry argues, that secular people cannot offer a proper justification of dignity and inviolability. The only sound rationale is religious.
Once the foundation established, the following step is to explain in what way the morality of human rights influences the law of human rights. This is inextricably linked to the two claims of inherent dignity and inviolabililty. In legal terms, it means that those who commit to that morality will have to do all they can to enact laws that do not violate human beings, and refrain from relying on laws that do violate human beings.
Perry takes three areas to illustrate his claims. Death penalty, Abortion, and Same sex unions. Not afraid of challenging conventional understanding, he argues that his morality of human rights requires that death penalty be abolished. It requires that the pre-viability abortions be banned; and that same sex unions be recognised.
All this, however, is not as straightforward as it looks in normative terms. For, the institutional perspective nuances the general picture in many ways. The main question is to know what role should the courts play. Perry argues that the US system of judicial review coupled with judicial supremacy, gives excessive powers to courts. In other words, he disapproves of judicial ‘ultimacy,’ the fact that the US supreme court has the last word on the most controversial issues. Instead, he favours something close to the Canadian system, that he deems a system of judicial ‘penultimacy.’ The Supreme Court expresses itself on controversial issues, but the parliament can, if it wants, overrule the court’s decision thanks to the Canadian ‘notwithstanding clause.’ Perry presents this solution as an elegant compromise that conciliate judicial review with democratic participation. He says the same for the UK HRA 1998.
In the US, judicial ultimacy is not likely to be removed. To mitigate its effect, Perry suggests that court should adopt a deferential attitude along the lines proposed by James Bradley Thayer. Roughly, thayerian deference requires courts to apply the rule of the clear mistake—that is, interference only when the statute is clearly wrong. Thayerian deference is not grounded on the belief that the legislative or the executive are better equipped to take hard decisions. Thayer believes instead that a non-deferential system of judicial ultimacy would render citizens less politically and morally awake. Institutions may make mistakes and the way to redress them is to fight political battles not to devolve all the power to review those decisions to courts.
How does this affect the treatment of the relevant issues from the US point of view? Death penalty violates the constitution, but the court should so rule only if it believes that the legislator has made a clear mistake. Pre-viability Abortion violates the constitution, but the same caveat applies. Finally, the ban on same sex unions is unconstititutional, but court should be deferential along the same lines.
Perry’s book is very welcome. He is right to insist from the beginning to the conclusion that the work on theories of human rights has just begun. His contribution will no doubt advance the debate because it focuses on central issues without seeking approval. His theses are clearly exposed and highly controversial. The debate can begin.
It should begin and take place globally. And here’s my first criticism to Perry’s book. As many Anglo-American scholars, he ignores almost entirely the debates in non-english speaking countries. Most of European countries have produced fine scholarship on these issues, and a lot of this material is also available in English. One example above all is Robert Alexy’s Theory of Constitutional Rights, translated in English and published by OUP.
This leads to a second point. One may argue that Perry draws a distinction between Human Rights and Constitutional Rights. He may then claim that theories have been produced on the latter but not on the former. Indeed, at the beginning he seems to concentrate on international human rights as opposed to domestic constitutional rights. But by the end of the book it is clear, that the morality of human rights he finds in the international arena should also apply domestically, say at the level of the US Supreme Court.
I would find such a distinction helpful as it could underline another major difference between international human rights and domestic constitutional rights. The latter are nowadays well protected precisely because of judicial review, while the former are far away from being effectively protected. This may also point to the fact that Perry’s criticism to judicial review is exaggerated. One may suggest, not so foolishly, that liberal democracies came to protect constitutional rights so robustly precisely because of judicial review. If anything, the UK example shows that during Thatcher’s government rights were not respected and judges had little weapons to fight back. Moreover, parliament was incapable to stand alone for the rights of the citizens. It is such an abuse that led the labour government to entrench rights and to protect them through judicial review.
Now Perry could say that the HRA does not introduce a system of judicial ultimacy, but only an elegant compromise between parliamentary sovereignty and judicial review. Whether that is an elegant compromise, I have many doubts. Whether it will work in the long run, it is another open issue. The HRA is in the eyes of many either too much or too little. It is too much in the very eyes of those who have entrenched it and then complained that it bound excessively the executive in its war against terrorism. Its too little in the eyes of many advocates who fought for a bill of rights, Lord Lester for example, and thought that the HRA could be a first step toward a fully entrenched and fully reviewable bill of rights.
The most controversial of all issue, however, is that of the foundation of rights. Many liberal philosophers, starting from Rawls and Habermas, have amply shown that our secular democracies have borrowed a lot from religious concepts. Dignity and inviolability of human beings may well be concepts of Christian origins, but our societies have translated those concepts to our secular frameworks. This is not to deny their Christian root, to the contrary. But liberal democracies, beyond translation, also made possible the effective protection of dignity and inviolability of human beings. This was not true of the period preceding the establishment of liberal democracies, which we could deem the age of the Res Publica Christiana. During those ages, dignity and inviolability of human beings might have been already strong Christian principles, but their violation in practice also was very common. We may say, therefore, that liberal democracies brought to a totally different stage those principles, and to a certain extent the Church is catching up with the recognition of the importance of the consequences that we may want those principles to have.
Thus, liberal democracies not only translated those principles, but they also transformed them into tools for the improvement of the society. Religion can claim part of merit, but it also has to acknowledge the intrinsic merits of liberalism, as far as the redefinition and concrete protection of those principles is concerned.
To engage with Perry’s book does not detract anything to its quality. To the contrary, the quest for a proper theory of human rights should probably start there.
To each of these three issues Perry offers very stimulating, and conspicuously controversial, treatment. He argues that the moral foundation of human rights can be defined in terms of the principle of dignity and inviolability of each human being. The trouble is, Perry argues, that secular people cannot offer a proper justification of dignity and inviolability. The only sound rationale is religious.
Once the foundation established, the following step is to explain in what way the morality of human rights influences the law of human rights. This is inextricably linked to the two claims of inherent dignity and inviolabililty. In legal terms, it means that those who commit to that morality will have to do all they can to enact laws that do not violate human beings, and refrain from relying on laws that do violate human beings.
Perry takes three areas to illustrate his claims. Death penalty, Abortion, and Same sex unions. Not afraid of challenging conventional understanding, he argues that his morality of human rights requires that death penalty be abolished. It requires that the pre-viability abortions be banned; and that same sex unions be recognised.
All this, however, is not as straightforward as it looks in normative terms. For, the institutional perspective nuances the general picture in many ways. The main question is to know what role should the courts play. Perry argues that the US system of judicial review coupled with judicial supremacy, gives excessive powers to courts. In other words, he disapproves of judicial ‘ultimacy,’ the fact that the US supreme court has the last word on the most controversial issues. Instead, he favours something close to the Canadian system, that he deems a system of judicial ‘penultimacy.’ The Supreme Court expresses itself on controversial issues, but the parliament can, if it wants, overrule the court’s decision thanks to the Canadian ‘notwithstanding clause.’ Perry presents this solution as an elegant compromise that conciliate judicial review with democratic participation. He says the same for the UK HRA 1998.
In the US, judicial ultimacy is not likely to be removed. To mitigate its effect, Perry suggests that court should adopt a deferential attitude along the lines proposed by James Bradley Thayer. Roughly, thayerian deference requires courts to apply the rule of the clear mistake—that is, interference only when the statute is clearly wrong. Thayerian deference is not grounded on the belief that the legislative or the executive are better equipped to take hard decisions. Thayer believes instead that a non-deferential system of judicial ultimacy would render citizens less politically and morally awake. Institutions may make mistakes and the way to redress them is to fight political battles not to devolve all the power to review those decisions to courts.
How does this affect the treatment of the relevant issues from the US point of view? Death penalty violates the constitution, but the court should so rule only if it believes that the legislator has made a clear mistake. Pre-viability Abortion violates the constitution, but the same caveat applies. Finally, the ban on same sex unions is unconstititutional, but court should be deferential along the same lines.
Perry’s book is very welcome. He is right to insist from the beginning to the conclusion that the work on theories of human rights has just begun. His contribution will no doubt advance the debate because it focuses on central issues without seeking approval. His theses are clearly exposed and highly controversial. The debate can begin.
It should begin and take place globally. And here’s my first criticism to Perry’s book. As many Anglo-American scholars, he ignores almost entirely the debates in non-english speaking countries. Most of European countries have produced fine scholarship on these issues, and a lot of this material is also available in English. One example above all is Robert Alexy’s Theory of Constitutional Rights, translated in English and published by OUP.
This leads to a second point. One may argue that Perry draws a distinction between Human Rights and Constitutional Rights. He may then claim that theories have been produced on the latter but not on the former. Indeed, at the beginning he seems to concentrate on international human rights as opposed to domestic constitutional rights. But by the end of the book it is clear, that the morality of human rights he finds in the international arena should also apply domestically, say at the level of the US Supreme Court.
I would find such a distinction helpful as it could underline another major difference between international human rights and domestic constitutional rights. The latter are nowadays well protected precisely because of judicial review, while the former are far away from being effectively protected. This may also point to the fact that Perry’s criticism to judicial review is exaggerated. One may suggest, not so foolishly, that liberal democracies came to protect constitutional rights so robustly precisely because of judicial review. If anything, the UK example shows that during Thatcher’s government rights were not respected and judges had little weapons to fight back. Moreover, parliament was incapable to stand alone for the rights of the citizens. It is such an abuse that led the labour government to entrench rights and to protect them through judicial review.
Now Perry could say that the HRA does not introduce a system of judicial ultimacy, but only an elegant compromise between parliamentary sovereignty and judicial review. Whether that is an elegant compromise, I have many doubts. Whether it will work in the long run, it is another open issue. The HRA is in the eyes of many either too much or too little. It is too much in the very eyes of those who have entrenched it and then complained that it bound excessively the executive in its war against terrorism. Its too little in the eyes of many advocates who fought for a bill of rights, Lord Lester for example, and thought that the HRA could be a first step toward a fully entrenched and fully reviewable bill of rights.
The most controversial of all issue, however, is that of the foundation of rights. Many liberal philosophers, starting from Rawls and Habermas, have amply shown that our secular democracies have borrowed a lot from religious concepts. Dignity and inviolability of human beings may well be concepts of Christian origins, but our societies have translated those concepts to our secular frameworks. This is not to deny their Christian root, to the contrary. But liberal democracies, beyond translation, also made possible the effective protection of dignity and inviolability of human beings. This was not true of the period preceding the establishment of liberal democracies, which we could deem the age of the Res Publica Christiana. During those ages, dignity and inviolability of human beings might have been already strong Christian principles, but their violation in practice also was very common. We may say, therefore, that liberal democracies brought to a totally different stage those principles, and to a certain extent the Church is catching up with the recognition of the importance of the consequences that we may want those principles to have.
Thus, liberal democracies not only translated those principles, but they also transformed them into tools for the improvement of the society. Religion can claim part of merit, but it also has to acknowledge the intrinsic merits of liberalism, as far as the redefinition and concrete protection of those principles is concerned.
To engage with Perry’s book does not detract anything to its quality. To the contrary, the quest for a proper theory of human rights should probably start there.
Tuesday, January 09, 2007
Constitutional Dilemmas for 2007 (and beyond)
Euthanasia, Same sex unions, the legal status of embryos; these are few of the most daunting ethical issues that are debated in Europe and America.
The risk of polarisation of societies on these issues is great. In short, many believe that you simply can't regulate life at its beginning or at its end. In reality, part of the society believes that god gives and takes life so human cannot decide at his place. Half of the society disagrees and believes that humans must intervene in order to say what is permissible and what is not.
Given that the substantive issue is so difficult to settle, many argue that we should agree on a procedure on how to decide. Again, there's a party that trust supreme courts to do this job, and another faction that believes that representative instituions (i.e. parliaments) should take the lead.
I think that both majority rule and judicial adjudication are unfit for the job. Both would produce more polarisation than reduce it. Courts cannot escape the problem: the scene is always set as a confrontation between two claims, and the court must decide between those two claims. There is little margin for mediation and reasonable compromise. Parliaments, on the other hand, cannot possibly hope to settle these issues by voting. This process would have the result to trigger a neverending parliamentary battle, where opposing parties would try to impose their preferred view anytime they come to power.
Perhaps a better compromise on how to deal with those problems could be a special procedure whereby MPs and various other specialists are brought together to work out a compromise (it would inevitably involve a sacrifice). No simple majority would be allowed, at best a qualified majority (say 2/3) in extreme cases where unrelenting disagreement cannot be placated in any other way.
This is the gist of my new book, Constitutional Dilemmas, forthcoming in June 2007.
The risk of polarisation of societies on these issues is great. In short, many believe that you simply can't regulate life at its beginning or at its end. In reality, part of the society believes that god gives and takes life so human cannot decide at his place. Half of the society disagrees and believes that humans must intervene in order to say what is permissible and what is not.
Given that the substantive issue is so difficult to settle, many argue that we should agree on a procedure on how to decide. Again, there's a party that trust supreme courts to do this job, and another faction that believes that representative instituions (i.e. parliaments) should take the lead.
I think that both majority rule and judicial adjudication are unfit for the job. Both would produce more polarisation than reduce it. Courts cannot escape the problem: the scene is always set as a confrontation between two claims, and the court must decide between those two claims. There is little margin for mediation and reasonable compromise. Parliaments, on the other hand, cannot possibly hope to settle these issues by voting. This process would have the result to trigger a neverending parliamentary battle, where opposing parties would try to impose their preferred view anytime they come to power.
Perhaps a better compromise on how to deal with those problems could be a special procedure whereby MPs and various other specialists are brought together to work out a compromise (it would inevitably involve a sacrifice). No simple majority would be allowed, at best a qualified majority (say 2/3) in extreme cases where unrelenting disagreement cannot be placated in any other way.
This is the gist of my new book, Constitutional Dilemmas, forthcoming in June 2007.
Friday, November 17, 2006
Justice for Hedgehogs
I am a fox, I don't like that (See I. Berlin, the Fox and the Hedgehog).
But for those of you who feel close to Hedgehogs, here is Dworkin's recent paper presented at the NYU Colloquium of Legal Philosophy.
This is likely to be the basis of Dworkin's next book, so have a happy preview!
But for those of you who feel close to Hedgehogs, here is Dworkin's recent paper presented at the NYU Colloquium of Legal Philosophy.
This is likely to be the basis of Dworkin's next book, so have a happy preview!
Monday, June 05, 2006
Constitutional Dilemmas
Law is meant to solve conflicts between competing claims. Constitutional Rights are normally considered to be a very efficient tool to achieve that aim.
What if, however, constitutional rights conflict one against another and it is impossible to compare their strength, or to rank them?
This is the object of my forthcoming book with OUP titled Constitutional Dilemmas. Conflict of Fundamental Legal Rights in Europe and the USA. You can learn more about it here
What if, however, constitutional rights conflict one against another and it is impossible to compare their strength, or to rank them?
This is the object of my forthcoming book with OUP titled Constitutional Dilemmas. Conflict of Fundamental Legal Rights in Europe and the USA. You can learn more about it here
Monday, February 06, 2006
Justice is served!
Almost exactly a year ago, I posted a short blog entitled "On the arbitrariness of rules and denials of natural justice", which focused upon the injustice of certain referreeing decisions in the France v. Scotland match in the Six Nations rugby union tournament.
I am delighted to be able to report that the rerun of this annual fixture, played yesterday, was officiated impeccably...
I am delighted to be able to report that the rerun of this annual fixture, played yesterday, was officiated impeccably...
Wednesday, December 14, 2005
European Legal Theory!
European Legal Theiry and Constitutionalism is probably the most exciting intellectual discipline nowadays. The many dilemmas revolving around European integration and European future have sparked an icredible mass of high quality literature.
To have an overview of this literature, have a look at the new issue of the Oxford Journal of Legal Studies. That issue published on-line today, contains a good review of Legal Theory and the European Union by Neil Walker. This issue, by the way, celebrates the 25th anniversary of the Oxford Journal.
This is a good occasion to reiterate the committment of this Blog to follow the most exciting legal and philosophical issues in America, in Europe and Beyond!!
To have an overview of this literature, have a look at the new issue of the Oxford Journal of Legal Studies. That issue published on-line today, contains a good review of Legal Theory and the European Union by Neil Walker. This issue, by the way, celebrates the 25th anniversary of the Oxford Journal.
This is a good occasion to reiterate the committment of this Blog to follow the most exciting legal and philosophical issues in America, in Europe and Beyond!!
Monday, March 28, 2005
Chirac and the European Constitution
Jacques Chirac, from Tokio, made his point on the European Constitution.
Not surprisingly his message does not concern the substance of the debate but only the form. As Raphael pointed out below, the President wishes to present the 'No' to the European Constitution as a tragedy.
This is not sufficient. French people, as well as European people, want to know why the 'No' would be a tragedy, and why the 'Yes' would make us all better off. Chirac has insisted that French people should concentrate on the role of this constitution for the future of Europe and that they should not see it as a chance to change the domestic government. However, given the polls, if the 'no' were to prevail, Chirac should consider this defeat as a personal one.
Not surprisingly his message does not concern the substance of the debate but only the form. As Raphael pointed out below, the President wishes to present the 'No' to the European Constitution as a tragedy.
This is not sufficient. French people, as well as European people, want to know why the 'No' would be a tragedy, and why the 'Yes' would make us all better off. Chirac has insisted that French people should concentrate on the role of this constitution for the future of Europe and that they should not see it as a chance to change the domestic government. However, given the polls, if the 'no' were to prevail, Chirac should consider this defeat as a personal one.
Friday, March 25, 2005
A "No" to the European Constitution coming from UMP
Check here for another argument for "no" in the French referendum, this time coming from the UMP member of the French National Assembly.
Wednesday, March 23, 2005
Would France's No to the European constitution be a tragedy ?
From a French perspective, there is a democratic deficit in the European Union for two reasons: there are not enough democratic procedures and they are used in undemocratic ways. The first aspect is well known: the elected institution - the European Parliament - has little political power compared with the Commission and the European Court of Justice. The second complaint is heard less frequently but that may be because, to a certain extent, it is specific to some European countries such as France. This unsatisfaction with the way European democratic process works is the topic of this post.
We are called to vote on European issues on two types of occasions: to elect our representatives in Parliament and to adopt Treaties that represent significant changes. I have no illusions about what democracy can be in today's world but the European political campaigns in France don't meet the standards of a modest and realist conception. Indeed, even if by a democratic procedure we mean a mechanism by which the voters are able to chose between different solutions to a common problem, the campaigns we are treated to cannot be called democratic. When we vote for our representatives, European issues are not dealt with and the elections are given the meaning of a test of the majority and the opposition's popularity. What is missing there are the solutions offered to the common problem: European politics. When we vote for a referendum, there is a common problem but what we lack is a plurality of solutions. Apart from the communist party and the nationalists all other significant political parties are always in favour of the Yes.
The political campaign in France for the referendum on the European constitution has started at the beginning of this year. It began in the oddest fashion inside the socialist party. Their leaders decided that the socialists needed to adopt a common position before entering the national debate. The campaign that they launched was one of the saddest I have ever witnessed. The official argument was that the socialist had to vote Yes, not because the constitution is a good text and a significant improvement, but because voting No would bring about a dangerous crisis. A crisis inside the party that would weaken it on the national scene, a crisis between the French socialists and other left-wing national parties in Europe that would result in a marginalization of the party on the European scene and finally a crisis between France and the rest of Europe. In other words, what was debated was not the constitution or what it represents, the socialist were not asked to have such a debate, it was impossible because given the consequences of the No, it was not even an option. The Constitution was almost never mentioned and all we heard about was this dangerous CRISIS. I don't know how they did it with this argument but the leaders of the party were able to convince a large majority of their militants, the Socialist party was to speak in one voice in favour of the Yes during the national campaign. When it began, the same depressing strategy was put into motion: all against the No to the referendum; Chirac and his opposition agreeing that any other solution would be a disaster for France and for Europe. If you are not a communist and not racist, you could not find in the political spectrum a way to express your disagreement with the adoption of this constitution. No one to represent that position, no arguments to defend it and not even any proponents of the Yes to disagree with you since the No was not an option in their minds. But, fortunately for democracy, the wind has changed. In all the left-wing parties, important politicians decided it was worth it to face a crisis between them and the leaders of their party and regained their freedom. Thus the campaign will not to take place between all the moderates for the Yes on one side and the radicals (communists and racists) in favour of the No, on the other. The opponents to the European constitution discuss the text, they put it into question, they confront it with conceptions of the world, of democracy and of economy. So the proponents of the Yes are forced to abandon their strategy of the threat of a crisis, they can no longer keep playing with the fears of the voters. Raffarin has understood that and it is what he meant when he said that in order to win against the No, the Yes needed the No. The No has liberated the Yes, it has forced it to change its strategy.
I don’t mean to say that the crisis that would be brought about by a refusal of the Constitution by France is not an issue. It certainly is. But it is in no case a sufficient argument to vote in favour of the European constitution. First of all, the plausibility of the prediction that a crisis would happen can be questioned. Secondly, we can have doubts about the efficiency of the argument to convince the voters. Who will vote for a constitution because it is presented as the most cautious solution? I know that in modern society comfort and safety are fundamental values but we can hope that they are not the most important ones in constitutional matters. Thirdly if there is a crisis it should be avoided only if the alternative is not worse. That is one of the questions: do we fear more an immediate crisis or a long standing unsatisfactory solution. Fourthly, as Lorenzo would say (about clashes of constitutional rights), tragedy is part of life, of our private life and of political life. Tragedies and crisis of this kind should not be avoided at all cost.
We are called to vote on European issues on two types of occasions: to elect our representatives in Parliament and to adopt Treaties that represent significant changes. I have no illusions about what democracy can be in today's world but the European political campaigns in France don't meet the standards of a modest and realist conception. Indeed, even if by a democratic procedure we mean a mechanism by which the voters are able to chose between different solutions to a common problem, the campaigns we are treated to cannot be called democratic. When we vote for our representatives, European issues are not dealt with and the elections are given the meaning of a test of the majority and the opposition's popularity. What is missing there are the solutions offered to the common problem: European politics. When we vote for a referendum, there is a common problem but what we lack is a plurality of solutions. Apart from the communist party and the nationalists all other significant political parties are always in favour of the Yes.
The political campaign in France for the referendum on the European constitution has started at the beginning of this year. It began in the oddest fashion inside the socialist party. Their leaders decided that the socialists needed to adopt a common position before entering the national debate. The campaign that they launched was one of the saddest I have ever witnessed. The official argument was that the socialist had to vote Yes, not because the constitution is a good text and a significant improvement, but because voting No would bring about a dangerous crisis. A crisis inside the party that would weaken it on the national scene, a crisis between the French socialists and other left-wing national parties in Europe that would result in a marginalization of the party on the European scene and finally a crisis between France and the rest of Europe. In other words, what was debated was not the constitution or what it represents, the socialist were not asked to have such a debate, it was impossible because given the consequences of the No, it was not even an option. The Constitution was almost never mentioned and all we heard about was this dangerous CRISIS. I don't know how they did it with this argument but the leaders of the party were able to convince a large majority of their militants, the Socialist party was to speak in one voice in favour of the Yes during the national campaign. When it began, the same depressing strategy was put into motion: all against the No to the referendum; Chirac and his opposition agreeing that any other solution would be a disaster for France and for Europe. If you are not a communist and not racist, you could not find in the political spectrum a way to express your disagreement with the adoption of this constitution. No one to represent that position, no arguments to defend it and not even any proponents of the Yes to disagree with you since the No was not an option in their minds. But, fortunately for democracy, the wind has changed. In all the left-wing parties, important politicians decided it was worth it to face a crisis between them and the leaders of their party and regained their freedom. Thus the campaign will not to take place between all the moderates for the Yes on one side and the radicals (communists and racists) in favour of the No, on the other. The opponents to the European constitution discuss the text, they put it into question, they confront it with conceptions of the world, of democracy and of economy. So the proponents of the Yes are forced to abandon their strategy of the threat of a crisis, they can no longer keep playing with the fears of the voters. Raffarin has understood that and it is what he meant when he said that in order to win against the No, the Yes needed the No. The No has liberated the Yes, it has forced it to change its strategy.
I don’t mean to say that the crisis that would be brought about by a refusal of the Constitution by France is not an issue. It certainly is. But it is in no case a sufficient argument to vote in favour of the European constitution. First of all, the plausibility of the prediction that a crisis would happen can be questioned. Secondly, we can have doubts about the efficiency of the argument to convince the voters. Who will vote for a constitution because it is presented as the most cautious solution? I know that in modern society comfort and safety are fundamental values but we can hope that they are not the most important ones in constitutional matters. Thirdly if there is a crisis it should be avoided only if the alternative is not worse. That is one of the questions: do we fear more an immediate crisis or a long standing unsatisfactory solution. Fourthly, as Lorenzo would say (about clashes of constitutional rights), tragedy is part of life, of our private life and of political life. Tragedies and crisis of this kind should not be avoided at all cost.
France and the European Constitution, again
For an argument in favour of No to the European constitution see here
Friday, March 18, 2005
France and the European Constitution
The lengthy process that is leading us to the ratification of the European Constitution may still reserve a number of surprises. We all have our eyes on the UK--Blair is not in an easy position-- but the unexpected result may come from France, something which would be more than welcome on the other side of the eurotunnel.
France, which will hold its referendum on 29 may 2005, is now facing a harsh political debate on the European Constitution. The Socialist party is split, and it seems that the rest of the population suddenly realised that the Constitution has an exaggerated liberal-economic component. This is completely false, the EuConst does not add anything new on this point, but the polarised debate seems to attract attention on this feature as being at odd with domestic values. The debate from now until May will be harsh and dirty. The truth is that, at last, the European Constitution is bringing some European politics at the domestic level.
UPDATES
On 21 March, a new poll confirms that the transversal party against the ratification of the European Consitution is growing. More worringly, the European Constitution is now discussed along with the issue of the accession of Turkey to the Union. This is not promising . A Yes to the Eu-Const will not entail a Yes to the accession of Turkey. The two problems have separate consequences, thus they'd better be kept separate.
France, which will hold its referendum on 29 may 2005, is now facing a harsh political debate on the European Constitution. The Socialist party is split, and it seems that the rest of the population suddenly realised that the Constitution has an exaggerated liberal-economic component. This is completely false, the EuConst does not add anything new on this point, but the polarised debate seems to attract attention on this feature as being at odd with domestic values. The debate from now until May will be harsh and dirty. The truth is that, at last, the European Constitution is bringing some European politics at the domestic level.
UPDATES
On 21 March, a new poll confirms that the transversal party against the ratification of the European Consitution is growing. More worringly, the European Constitution is now discussed along with the issue of the accession of Turkey to the Union. This is not promising . A Yes to the Eu-Const will not entail a Yes to the accession of Turkey. The two problems have separate consequences, thus they'd better be kept separate.
Tuesday, February 22, 2005
Bush in Europe: Towards a Genuine Rapprochement?
Bush’s visit to Europe is being seen by many as an attempt to repair relations after the low point of the Iraqi conflict. Certainly, his tone thus far, in particular in the speech he gave in Brussels yesterday, has been conciliatory; and, for the most part, well received by the European politicians, press and public. Certainly, there seems to be no question this time of either punishing the French or Ignoring the Germans (although the Italians very nearly fell into this latter category, with only last-minute action by Rome ensuring that Berlusconi was on the list of European leaders chosen to "lecture" Bush on a variety of subjects; see here). The Russians, however, will, it seems, still be forgiven: despite some strong remarks earlier concerning Putin's democratic credentials, it is assumed that, when the two leaders meet tomorrow in Bratislava in Slovakia, the emphasis here also will be on healing rifts and building friendly relations.
Bush has been quite clear about the purpose of his visit: yesterday's speech was absolutely full of references to the "transatlantic alliance" and the need for Europe and America to cooperate in the face of complex global challenges. In one of the most striking passages, he stated that "No temporary debate, no passing disagreement of governments, no power on earth will ever divide us". But can we really refer to the disagreements, primarily but not exclusively over the Iraq war, as simple passing disagreements amongst temporary governments, to be offset by the essental, eternal, fundamental agreement on the values of civilised humanity? Can words like these really repair the damage done?
Certainly, there are a number of factors that have combined to make this an opportune time for an attempt of this sort, as the perceived success of Secretary of State Rice's visit to Europe last month demonstrates. The Iraqi elections are widely regarded to have been a success, contributing to a significant diffusion of tension in the area that would likely have been the most vexed otherwise. Moreover, there are signs that the death of Arafat has opened some doors in terms of the peace process between Israel and Palastine, another area of frequent transatlantic disagreement. Lastly, relations between France and the US, which was undoubtedly the most bitter diplomatic battlefield during the war, have certainly been improved by the project of the jointly-sponsored Security Council resolution calling for the withdrawal of Syria from Lebanon (a topic that has, of course, become all the more pressing since the assasination of Hariri last week). At no point since the intervention in Iraq has the reality of the international sphere been more favourable to transatlantic rapprochement.
It is, however, not quite as simple as to suggest that we can now look forawrd to an era of transatlantic harmony in international affairs. As many commentators have noted, several real divisions remain; and the fragile sense of goodwill engendered by the fortuitous coincidence of several pieces of good news on the global front may not, will not last forever. In this sense, to argue, as Bush did, that the problems were mere transitory glitches, essentially unimportant when compared to our shared values, is as ultimately reductive and utterly unhelpful as it is to argue that Europe and America are hopelessly and eternally divided. Neither position can help us in furthering our understanding of what has happened, or what is likely to happen, on the international level. As one Guardian article has noted (here: ignore the analogy between Bush in Europe and Nixon in China at the beginning, which is stretched to say the least, and there are many interesting points in it), major issues such as climate change, the EU's relationship with China, and, perhaps most importantly, the correct way to deal with Iran (and its now ally, Syria), still exist; in terms of the latter, while both sides are "committed" to diplomacy at present, there can be little doubt that the Americans are deeply sceptical of its potential for success - and preparing for the possibility of military action in this area. If that should happen, the much-trumpeted goodwill and conciliation of the last few days will be very quickly forgotten. The EU-US rapprochement that we are currently witnessing still depends, very much, on the unlikely continuation of the recent good news on the international front in the areas that I have mentioned. It is, unfortunately, likely to be just as transitory.
Tuesday, February 15, 2005
The Great Debate on the European Constitution
The 25 European member states are engaging in the preliminary debates on the European Constitution. Some countries have already ratified the text (Hungary, Lituania and Slovenia). Some others will do it very soon (Italy). But there are also countries that will face dramatic choices, such as the United Kingdom. For those interested in domestic debates on the ratification of the European Constitution, have a look here.
Wednesday, January 26, 2005
EU Law on the Web
Duke Law School features a EU Law Web Log that should be a favorite of all serious EU law types. We encourage everyone to check it out.
Tuesday, January 25, 2005
Europe vs. America, Vol. II
At the urging of my co-blogger Lorenzo Zucca, the Assembly is now addressing an issue at the core of the mission of this blog: transatlantic political tension. The impetus of this discussion is a recent article in the New York Review of Books assessing several books addressing the US and EU economies and political differences among friends.
I feel that I should start by saying that it is only with the comfort of friendship that such discussions hold the possibility of change and persuasion. In the absence of history and affection, the quarrels of the US and EU would remain devices of pure political posturing.
The NYRB article mentioned above, written by Tony Judt, is the type of article that purports to overturn stereotypes, but in the end, only ends up reinforcing the cultural biases that initially created the stereotypes being protested. Judt starts:
Really? Such an analogy rings an unconvincing tone that American coffee is all the same (because it is found everywhere) and its only redeeming quality is its size, which, it is implied, is valueless. Similarly, under Judt's analogy, Italian espresso does not fulfill the need and desire of its patrons, but demonstrates Italian "indifference to the consumer and ignorance of the market." The inadequacy of this analogy to demonstrate anything substantive is symbolic of Judt's failure to understand why a discussion between Europe and the US is necessary.
As Lorenzo noted in his previous post, it is a futile exercise to debate which model is superior. (Personally I enjoy both my tasteless American bottomless mug of coffee as well as my inefficient Italian espresso.) Such an argument attempts to convert the unconvertable and projects the basis for building each model onto the other. Instead, the focus should be on an understanding of the language and principles that will enable the EU-US relationship to prosper. Clearly, an extensive assessment of such principles deserves much more than a simple blog post, but allow me to proffer both sides of a similar principle to both sides: (1) the EU needs to understand that international relations can never be fully replaced by international law; and (2) the US must understand that it will not be the hegemenous superpower in perpetuity.
The UN, EU and US have all demonstrated no ability to insulate themselves from the ravages of world politics. Ambitious structures and promises such as the ICC and claims that the world will not tolerate genocide are lofty ideals that have not and most likely cannot be backed in the near future with matching political will. The repeated violation of lofty ideals only tarnishes their value and robs the supranational polities of their lifeblood: legitimacy. International relations theory should be embraced and studied to enable scholars and state actors to pursue avenues where cooperation is possible and avoid catastrophe where it is not.
The flip side of this understanding should be the US, even its current state of substantial hard power, cannot dictate the use of other nations' soft power. There are limitations on power which are not transcended by treats and threats. US power is constantly in a state of flux dependent on the actions of itself and others in any given context, and it must learn to prioritize and utilize its power without being unduly angered by the projection of power by other states against its interest.
I feel that I should start by saying that it is only with the comfort of friendship that such discussions hold the possibility of change and persuasion. In the absence of history and affection, the quarrels of the US and EU would remain devices of pure political posturing.
The NYRB article mentioned above, written by Tony Judt, is the type of article that purports to overturn stereotypes, but in the end, only ends up reinforcing the cultural biases that initially created the stereotypes being protested. Judt starts:
Consider a mug of American coffee. It is found everywhere. It can be made by anyone. It is cheap—and refills are free. Being largely without flavor it can be
diluted to taste. What it lacks in allure it makes up in size. It is the most democratic method ever devised for introducing caffeine into human beings. Now take a cup of Italian espresso. It requires expensive equipment. Price-to-volume ratio is outrageous, suggesting indifference to the consumer and ignorance of the market. The aesthetic satisfaction accessory to the beverage far outweighs its metabolic impact. It is not a drink; it is an artifact.
Really? Such an analogy rings an unconvincing tone that American coffee is all the same (because it is found everywhere) and its only redeeming quality is its size, which, it is implied, is valueless. Similarly, under Judt's analogy, Italian espresso does not fulfill the need and desire of its patrons, but demonstrates Italian "indifference to the consumer and ignorance of the market." The inadequacy of this analogy to demonstrate anything substantive is symbolic of Judt's failure to understand why a discussion between Europe and the US is necessary.
As Lorenzo noted in his previous post, it is a futile exercise to debate which model is superior. (Personally I enjoy both my tasteless American bottomless mug of coffee as well as my inefficient Italian espresso.) Such an argument attempts to convert the unconvertable and projects the basis for building each model onto the other. Instead, the focus should be on an understanding of the language and principles that will enable the EU-US relationship to prosper. Clearly, an extensive assessment of such principles deserves much more than a simple blog post, but allow me to proffer both sides of a similar principle to both sides: (1) the EU needs to understand that international relations can never be fully replaced by international law; and (2) the US must understand that it will not be the hegemenous superpower in perpetuity.
The UN, EU and US have all demonstrated no ability to insulate themselves from the ravages of world politics. Ambitious structures and promises such as the ICC and claims that the world will not tolerate genocide are lofty ideals that have not and most likely cannot be backed in the near future with matching political will. The repeated violation of lofty ideals only tarnishes their value and robs the supranational polities of their lifeblood: legitimacy. International relations theory should be embraced and studied to enable scholars and state actors to pursue avenues where cooperation is possible and avoid catastrophe where it is not.
The flip side of this understanding should be the US, even its current state of substantial hard power, cannot dictate the use of other nations' soft power. There are limitations on power which are not transcended by treats and threats. US power is constantly in a state of flux dependent on the actions of itself and others in any given context, and it must learn to prioritize and utilize its power without being unduly angered by the projection of power by other states against its interest.
Europe vs. America?
There is a growing literature on both sides of the Atlantic on whether the European model is superior to the American one. Tony Judt, in the New York Review of Books, reviews three of these books in an open and engaging way. His main conclusion is that Europe is indeed providing a framework that better grasps the future of the world. This would be the case because Europe is trying to build bonds between human beings beyond the national boundaries, which characterised the updated National model. His review is worth reading because it doesn't caricature the strenghts and the weaknesses on both sides. He takes them seriously and balance them in a very elegant way.
Even if I do think that Europe offers an interesting model, I nevertheless disagree with his main point. The reason is that I do not agree with the main question to start with. I do not think it is meaningful to ask whether a model is superior to another. There is no right answer in this case, nor should there be any. The way I see Atlantic relationships is different. There should be competition between the two models; the two can coexist, and must cooperate. European identity, if it will ever emerge such a thing, will be shaped in relation to American Identity.
The two models should compete in order to give a choice to those who want to emigrate and still do not know where their future will be better. Hopefully, China and India will soon join this competition so that the range of choices we have will be consequently augmented.
Beyond competition in order to trigger improvement, America and Europe have common duties towards the rest of the world. It is not sufficient to create 'regional paradises' which attract the poor of all the other countries. We have to help construing a future of their own for poor countries. We have this responsibility, and as long as we fail to meet this responsibility, we cannot accept the practice of banning people at our borders without a proper justification.
America, from the European perspective, is a friend. Maybe it is even more than that, it is part of our family, a sister. We accept it with all its strengths and weaknesses. We want America to improve because we love it, and we hope that America, too, wants Europe to grow healthy and strong, and become a serious competitor in the common struggle to improve the well-being of all human beings.
Even if I do think that Europe offers an interesting model, I nevertheless disagree with his main point. The reason is that I do not agree with the main question to start with. I do not think it is meaningful to ask whether a model is superior to another. There is no right answer in this case, nor should there be any. The way I see Atlantic relationships is different. There should be competition between the two models; the two can coexist, and must cooperate. European identity, if it will ever emerge such a thing, will be shaped in relation to American Identity.
The two models should compete in order to give a choice to those who want to emigrate and still do not know where their future will be better. Hopefully, China and India will soon join this competition so that the range of choices we have will be consequently augmented.
Beyond competition in order to trigger improvement, America and Europe have common duties towards the rest of the world. It is not sufficient to create 'regional paradises' which attract the poor of all the other countries. We have to help construing a future of their own for poor countries. We have this responsibility, and as long as we fail to meet this responsibility, we cannot accept the practice of banning people at our borders without a proper justification.
America, from the European perspective, is a friend. Maybe it is even more than that, it is part of our family, a sister. We accept it with all its strengths and weaknesses. We want America to improve because we love it, and we hope that America, too, wants Europe to grow healthy and strong, and become a serious competitor in the common struggle to improve the well-being of all human beings.
Wednesday, January 19, 2005
Private and Public Morals in the EU: A Third Post on Buttiglione
I wanted to add something to the two previous posts by Srdjan and Lorenzo by considering a little more closely Buttiglione's "Kantian" defence - his claim that, in a nutshell, although he viewed homosexuality as a sin, he would put his private morals to one side in the exercise of his public function. I must confess to finding Buttiglione's recourse to this defence a little confusing on a number of counts; I do not, however, agree with Lorenzo's point that he used it in a disingenuous manner, or that his previous conduct in the public sphere somehow meant that it could no longer apply to him.
The defence is summed up by Kant in his minor but signifcant essay "What is Enlightenment" in 1784 (see here for one of the numerous translations available on the web). In it, he inverts what we would now look upon as the normal definitions of public and private use of reason (or morality), but the general sense of what he is saying, and why Buttiglione felt it was relevant to him, seem clear. Allow me to quote, at some length, the most relevant section of the essay:
The public use of one's reason must always be free, and it alone can bring about enlightenment among mankind; the private use of reason may, however, often be very narrowly restricted, without otherwise hindering the progress of enlightenment. By the public use of one's own reason I understand the use that anyone as a scholar makes of reason before the entire literate world. I call the private use of reason that which a person may make in a civic post or office that has been entrusted to him. Now in many affairs conducted in the interests of a community, a certain mechanism is required by means of which some of its members must conduct themselves in an entirely passive manner so that through an artificial unanimity the government may guide them toward public ends, or at least prevent them from destroying such ends. Here one certainly must not argue, instead one must obey. However, insofar as this part of the machine also regards himself as a member of the community as a whole, or even of the world community, and as a consequence addresses the public in the role of a scholar, in the proper sense of that term, he can most certainly argue, without thereby harming the affairs for which as a passive member he is partly responsible. Thus it would be disastrous if an officer on duty who was given a command by his superior were to question the appropriateness or utility of the order. He must obey. But as a scholar he cannot be justly constrained from making comments about errors in military service, or from placing them before the public for its judgment. The citizen cannot refuse to pay the taxes imposed on him; indeed, impertinent criticism of such levies, when they should be paid by him, can be punished as a scandal (since it can lead to widespread insubordination). But the same person does not act contrary to civic duty when, as a scholar, he publicly expresses his thoughts regarding the impropriety or even injustice of such taxes. Likewise a pastor is bound to instruct his catecumens and congregation in accordance with the symbol of the church he serves, for he was appointed on that condition. But as a scholar he has complete freedom, indeed even the calling, to impart to the public all of his carefully considered and well-intentioned thoughts concerning mistaken aspects of that symbol, as well as his suggestions for the better arrangement of religious and church matters. Nothing in this can weigh on his conscience. What he teaches in consequence of his office as a servant of the church he sets out as something with regard to which he has no discretion to teach in accord with his own lights; rather, he offers it under the direction and in the name of another. He will say, "Our church teaches this or that and these are the demonstrations it uses." He thereby extracts for his congregation all practical uses from precepts to which he would not himself subscribe with complete conviction, but whose presentation he can nonetheless undertake, since it is not entirely impossible that truth lies hidden in them, and, in any case, nothing contrary to the very nature of religion is to be found in them. If he believed he could find anything of the latter sort in them, he could not in good conscience serve in his position; he would have to resign.
The reason, then why I don't see Buttiglione's use of this argument as disingenuous, at least in the sense used by Lorenzo, is that, according to Kant, his actions as a scholar should be unfettered (to the extent, at least, that they are carefully considered and well-intentioned). It therefore does not matter what he has done in the past in general, only his actions when performing some civic function assigned to him. Likewise, I am unconvinced by the suggestion that the Papal magisterium is "public" in the relevant sense; the fact that it is widespread and in the publci domain does not mean that it cannot, does not form part of the private majority of a great many people.
Buttiglione was, then, for me, was not in some way "barred" from invoking this distinction. Despite the fact that it was drawn first by Kant, however, this cannot be the end of the matter. Buttiglione's reference to Kant does seem strange if we consider it in the broader context of what he is trying to defend: the non-negotiable categorisation of a widespread way of life as fundamentally wrong, on the basis of what someone else (the Pope) has said. This strikes me as the very antithesis of Kantian enlightenment/maturity, the project upon which the distinction is founded, and thus introduces an ironic note, at the very least, to Buttiglione's pleadings.
Secondly, although the public/private (or private/public) distinction is indeed central to many of the freedoms that we hold dear, I would suggest that no-one could seriously argue that it must be absolute. There is, as always, a question of where to draw the line. Would we allow an openly racist politician to become Commisioner for Justice and Home Affairs (an important brief)? I strongly suspect not; and yet I have difficult in seeing any morally significant difference between those who think blacks are inferior and those who think that homosexuals are an abomination. Certainly, within the ethical framework as developed in the EU, in which discrimination on the grounds of race or sexual orientation are both banned, there is none. It is thus, to my mind, quite correct that the democratically elected European Parliament chooses where to draw that particular line.
Thirdly, and relatedly, Kant's argument makes no reference to the fact that these official duties are not somehow self-executing. Within the field of human rights and discrimination in particular, political leaders are constantly called upon to make judgements that entail often a very wide degree of discretion. To this end, it seems right and proper that Buttiglione made clear his opinions on these sensitive issues; I for one am keen to know the directions in which those in positions of power (and whom, theoretically at least, are accountable to me) are going to exercise their discretion. It is also, however, as i have just argued, perfectly right and proper that the Parliament decided that this was unacceptable. In this sense at least, both are to be applauded.
Lastly, Kant himself made it clear that this public/private distinction was not applicable in all situations: consider the last few lines of the passage quoted above. It strikes me as incredible that someone with beliefs as strong and deeply-rooted as Buttiglione on the issue of homosexuality would feel that his duties as Commissioner for Justice, in which he would be responsible for the facilitation and even encouragement of a practice that he viewed as morally reprehensible,"could in good conscience serve in his position". In which case, the Kantian response is clear. He must resign. Buttiglione, however, anticipated this objection; he noted in a letter to Barroso that he didn't expect any conflict to arise, but, if it were to, then he would ask to be exonerated from making the judgement in question, and to be substituted by one of his colleagues. This, however, strikes me as unacceptable for a number of reasons. Firstly, as inaccurate: how could conflicts not arise, not just regularly, but constantly? Not that we expect him to be dealing with a different particular case of homophobic discrimination every day, but rather that, in executing his functions, he will be responsible for the creation of law and the development of an ethos that will undoubtedly impact upon issues of sexual orientation discrimination. Secondly, if the first is rejected, it must be so on the grounds that he will have a wide range of discretion to apply European legal standards in a manner that does not conflict with his conscience; in which case, I refer back to my argument of the previous paragraph. Thirdly, as impractical: who should decide? Buttiglione? Barroso? Those affected by the decision? Any such arrangement would risk leaving the commissioner as something of a lame duck - a fact not lost on MEPs in rejecting Barroso's proposal to take certain sensitive decisions away from Buttiglione's remit.
My take on the whole affair, then, is as follows: I'm glad that Buttiglione made his views on these matters clear, and I'm glad that the European Parliament rejected him and them. It is not difficult, nor dishonest, to characterise this as a victory for democracy, at least in part; although it would be superficial to trumpet that to the exclusion of all other important factors. Perhaps most significantly, it strikes me as a timely reminder of just how misleading the discourse of tolerance is - and how often it can slip into hypocrisy on both sides: Buttiglione is accused of being intolerant of homosexuals, and then complains in return that others are intolerant of him. Best, I think, to recall that when we say "I accept you because I am tolerant", what we mean is "I accept you because you are tolerable". The important aim of increasing the range of the tolerable must always, if it is to be honest, be accompanied by the difficult task of delimiting the boundaries of the intolerable.
The defence is summed up by Kant in his minor but signifcant essay "What is Enlightenment" in 1784 (see here for one of the numerous translations available on the web). In it, he inverts what we would now look upon as the normal definitions of public and private use of reason (or morality), but the general sense of what he is saying, and why Buttiglione felt it was relevant to him, seem clear. Allow me to quote, at some length, the most relevant section of the essay:
The public use of one's reason must always be free, and it alone can bring about enlightenment among mankind; the private use of reason may, however, often be very narrowly restricted, without otherwise hindering the progress of enlightenment. By the public use of one's own reason I understand the use that anyone as a scholar makes of reason before the entire literate world. I call the private use of reason that which a person may make in a civic post or office that has been entrusted to him. Now in many affairs conducted in the interests of a community, a certain mechanism is required by means of which some of its members must conduct themselves in an entirely passive manner so that through an artificial unanimity the government may guide them toward public ends, or at least prevent them from destroying such ends. Here one certainly must not argue, instead one must obey. However, insofar as this part of the machine also regards himself as a member of the community as a whole, or even of the world community, and as a consequence addresses the public in the role of a scholar, in the proper sense of that term, he can most certainly argue, without thereby harming the affairs for which as a passive member he is partly responsible. Thus it would be disastrous if an officer on duty who was given a command by his superior were to question the appropriateness or utility of the order. He must obey. But as a scholar he cannot be justly constrained from making comments about errors in military service, or from placing them before the public for its judgment. The citizen cannot refuse to pay the taxes imposed on him; indeed, impertinent criticism of such levies, when they should be paid by him, can be punished as a scandal (since it can lead to widespread insubordination). But the same person does not act contrary to civic duty when, as a scholar, he publicly expresses his thoughts regarding the impropriety or even injustice of such taxes. Likewise a pastor is bound to instruct his catecumens and congregation in accordance with the symbol of the church he serves, for he was appointed on that condition. But as a scholar he has complete freedom, indeed even the calling, to impart to the public all of his carefully considered and well-intentioned thoughts concerning mistaken aspects of that symbol, as well as his suggestions for the better arrangement of religious and church matters. Nothing in this can weigh on his conscience. What he teaches in consequence of his office as a servant of the church he sets out as something with regard to which he has no discretion to teach in accord with his own lights; rather, he offers it under the direction and in the name of another. He will say, "Our church teaches this or that and these are the demonstrations it uses." He thereby extracts for his congregation all practical uses from precepts to which he would not himself subscribe with complete conviction, but whose presentation he can nonetheless undertake, since it is not entirely impossible that truth lies hidden in them, and, in any case, nothing contrary to the very nature of religion is to be found in them. If he believed he could find anything of the latter sort in them, he could not in good conscience serve in his position; he would have to resign.
The reason, then why I don't see Buttiglione's use of this argument as disingenuous, at least in the sense used by Lorenzo, is that, according to Kant, his actions as a scholar should be unfettered (to the extent, at least, that they are carefully considered and well-intentioned). It therefore does not matter what he has done in the past in general, only his actions when performing some civic function assigned to him. Likewise, I am unconvinced by the suggestion that the Papal magisterium is "public" in the relevant sense; the fact that it is widespread and in the publci domain does not mean that it cannot, does not form part of the private majority of a great many people.
Buttiglione was, then, for me, was not in some way "barred" from invoking this distinction. Despite the fact that it was drawn first by Kant, however, this cannot be the end of the matter. Buttiglione's reference to Kant does seem strange if we consider it in the broader context of what he is trying to defend: the non-negotiable categorisation of a widespread way of life as fundamentally wrong, on the basis of what someone else (the Pope) has said. This strikes me as the very antithesis of Kantian enlightenment/maturity, the project upon which the distinction is founded, and thus introduces an ironic note, at the very least, to Buttiglione's pleadings.
Secondly, although the public/private (or private/public) distinction is indeed central to many of the freedoms that we hold dear, I would suggest that no-one could seriously argue that it must be absolute. There is, as always, a question of where to draw the line. Would we allow an openly racist politician to become Commisioner for Justice and Home Affairs (an important brief)? I strongly suspect not; and yet I have difficult in seeing any morally significant difference between those who think blacks are inferior and those who think that homosexuals are an abomination. Certainly, within the ethical framework as developed in the EU, in which discrimination on the grounds of race or sexual orientation are both banned, there is none. It is thus, to my mind, quite correct that the democratically elected European Parliament chooses where to draw that particular line.
Thirdly, and relatedly, Kant's argument makes no reference to the fact that these official duties are not somehow self-executing. Within the field of human rights and discrimination in particular, political leaders are constantly called upon to make judgements that entail often a very wide degree of discretion. To this end, it seems right and proper that Buttiglione made clear his opinions on these sensitive issues; I for one am keen to know the directions in which those in positions of power (and whom, theoretically at least, are accountable to me) are going to exercise their discretion. It is also, however, as i have just argued, perfectly right and proper that the Parliament decided that this was unacceptable. In this sense at least, both are to be applauded.
Lastly, Kant himself made it clear that this public/private distinction was not applicable in all situations: consider the last few lines of the passage quoted above. It strikes me as incredible that someone with beliefs as strong and deeply-rooted as Buttiglione on the issue of homosexuality would feel that his duties as Commissioner for Justice, in which he would be responsible for the facilitation and even encouragement of a practice that he viewed as morally reprehensible,"could in good conscience serve in his position". In which case, the Kantian response is clear. He must resign. Buttiglione, however, anticipated this objection; he noted in a letter to Barroso that he didn't expect any conflict to arise, but, if it were to, then he would ask to be exonerated from making the judgement in question, and to be substituted by one of his colleagues. This, however, strikes me as unacceptable for a number of reasons. Firstly, as inaccurate: how could conflicts not arise, not just regularly, but constantly? Not that we expect him to be dealing with a different particular case of homophobic discrimination every day, but rather that, in executing his functions, he will be responsible for the creation of law and the development of an ethos that will undoubtedly impact upon issues of sexual orientation discrimination. Secondly, if the first is rejected, it must be so on the grounds that he will have a wide range of discretion to apply European legal standards in a manner that does not conflict with his conscience; in which case, I refer back to my argument of the previous paragraph. Thirdly, as impractical: who should decide? Buttiglione? Barroso? Those affected by the decision? Any such arrangement would risk leaving the commissioner as something of a lame duck - a fact not lost on MEPs in rejecting Barroso's proposal to take certain sensitive decisions away from Buttiglione's remit.
My take on the whole affair, then, is as follows: I'm glad that Buttiglione made his views on these matters clear, and I'm glad that the European Parliament rejected him and them. It is not difficult, nor dishonest, to characterise this as a victory for democracy, at least in part; although it would be superficial to trumpet that to the exclusion of all other important factors. Perhaps most significantly, it strikes me as a timely reminder of just how misleading the discourse of tolerance is - and how often it can slip into hypocrisy on both sides: Buttiglione is accused of being intolerant of homosexuals, and then complains in return that others are intolerant of him. Best, I think, to recall that when we say "I accept you because I am tolerant", what we mean is "I accept you because you are tolerable". The important aim of increasing the range of the tolerable must always, if it is to be honest, be accompanied by the difficult task of delimiting the boundaries of the intolerable.
Tuesday, January 18, 2005
An Inquisition against Catholics?
As pointed out in the previous post by Srdjan (see below for an overview of the problem), Europe is facing a dilemma:
Can Europeans expressing papal orthodoxy aim at the highest European offices? There are two problems here. First, can we meaningful distinguish here between private morality and public concerns? Second, are christian values banned from the European public sphere?
The case we are treating is Rocco Buttiglione's, the president of a catholic party, and a member of Berlusconi's government. He claimed that his religious views on homosexuality and marriages were private and, therefore, could not impinge on his job as European commissioner for Justice and Home Affairs. The problem is that that job involves crucial policy choices on discrimination based on gender and sex. Can Buttiglione still be evenhanded despite what he thinks and says?
My answer is no. The reason is that, in this case at least, Buttiglione's private views are just a transposition of the Papal magisterium, a very widely spread public view on matters of morality. Moreover, Buttiglione's suggestion that his private views should not count is disingenous. His life displays a long list of public pronouncements and actions directed at discriminating against gays and women. The burden of proof is on his part! Why should he stop discriminating now that he has been offered a post in the European Commission? On the contrary, his agenda becomes even more visible, and more public, and could be implemented in an even more effective way.
The second problem is of a different genre. The identity of Europe in terms of Christian values has been debated at various times, including in the project of a Constitution for Europe. Buttiglione's rejection and the rejection of inserting a reference to christian values in the European Constitution do not mean that Europe is claiming a rigid separation between State and Churches. I think that most Europeans still agree that Christian values are part of our roots. But many Europeans also agree that the Catholic Church cannot have the monopoly of the interpretation of those Christian values. The Catholic interpretation is an important one, but by no means exclusive. It is a very strong interpretation because it is centralised: it speaks with one voice, which is the voice of the Pope. In this sense, Catholic orthodoxy is more powerful than any other christian doctrine. Thus, it is problematic to entrench christian values because it would have amounted to giving even a more central position to the Roman Church. And this is not desirable necessary. They already have a strong voice, we don't want to strengthen it under the pretext that we are only recognising our common roots, that is, christian values.
As a consequence, Christian values are not banned from the European polity. On the contrary, every christian, not only catholics, and every non christian, must have a say about European identity.
To go back to the central question, a catholic can indeed become a high officer of the European Union. The outgoing President, Romano Prodi, is a Devout Catholic after all. But there are some conditions. First, papal orthodoxy on issues of homosexuality and marriage is not a matter of private morality. It is very public and it aims to lobby the society on issues of homosexulaity and the role of the woman in a society. Papal orthodoxy on those issues leads to discrimination, there is little to be hidden about it. Europe cannot afford it. Second, Catholic candidates are not victims of a "liberal crusade against religious values" or of "an inquisition against Catholics." Let's not be fooled. Certain interpretations of Christian values are very tolerant and pluralist and can only be welcome and cherished as deeply Europeans. Others interpretations of Christian values, including Papal interpretation of what christian values means for homosexuality, are not tolerant and not pluralist. People holding those views cannot become European public officers, let alone commissioner for Justice. Their freedom of conscience and expression is nonetheless untouched. As private persons, they can think and express what they want. But they can't pretend that the same standards are going to be applied to them as public officers. Europe, today, does not want to be ruled by officers who hold discriminating views against homosexuality. And they can't pretend that we believe them when they say that what they think is not going to influence what they do. Unless they believe they are Gods.
Can Europeans expressing papal orthodoxy aim at the highest European offices? There are two problems here. First, can we meaningful distinguish here between private morality and public concerns? Second, are christian values banned from the European public sphere?
The case we are treating is Rocco Buttiglione's, the president of a catholic party, and a member of Berlusconi's government. He claimed that his religious views on homosexuality and marriages were private and, therefore, could not impinge on his job as European commissioner for Justice and Home Affairs. The problem is that that job involves crucial policy choices on discrimination based on gender and sex. Can Buttiglione still be evenhanded despite what he thinks and says?
My answer is no. The reason is that, in this case at least, Buttiglione's private views are just a transposition of the Papal magisterium, a very widely spread public view on matters of morality. Moreover, Buttiglione's suggestion that his private views should not count is disingenous. His life displays a long list of public pronouncements and actions directed at discriminating against gays and women. The burden of proof is on his part! Why should he stop discriminating now that he has been offered a post in the European Commission? On the contrary, his agenda becomes even more visible, and more public, and could be implemented in an even more effective way.
The second problem is of a different genre. The identity of Europe in terms of Christian values has been debated at various times, including in the project of a Constitution for Europe. Buttiglione's rejection and the rejection of inserting a reference to christian values in the European Constitution do not mean that Europe is claiming a rigid separation between State and Churches. I think that most Europeans still agree that Christian values are part of our roots. But many Europeans also agree that the Catholic Church cannot have the monopoly of the interpretation of those Christian values. The Catholic interpretation is an important one, but by no means exclusive. It is a very strong interpretation because it is centralised: it speaks with one voice, which is the voice of the Pope. In this sense, Catholic orthodoxy is more powerful than any other christian doctrine. Thus, it is problematic to entrench christian values because it would have amounted to giving even a more central position to the Roman Church. And this is not desirable necessary. They already have a strong voice, we don't want to strengthen it under the pretext that we are only recognising our common roots, that is, christian values.
As a consequence, Christian values are not banned from the European polity. On the contrary, every christian, not only catholics, and every non christian, must have a say about European identity.
To go back to the central question, a catholic can indeed become a high officer of the European Union. The outgoing President, Romano Prodi, is a Devout Catholic after all. But there are some conditions. First, papal orthodoxy on issues of homosexuality and marriage is not a matter of private morality. It is very public and it aims to lobby the society on issues of homosexulaity and the role of the woman in a society. Papal orthodoxy on those issues leads to discrimination, there is little to be hidden about it. Europe cannot afford it. Second, Catholic candidates are not victims of a "liberal crusade against religious values" or of "an inquisition against Catholics." Let's not be fooled. Certain interpretations of Christian values are very tolerant and pluralist and can only be welcome and cherished as deeply Europeans. Others interpretations of Christian values, including Papal interpretation of what christian values means for homosexuality, are not tolerant and not pluralist. People holding those views cannot become European public officers, let alone commissioner for Justice. Their freedom of conscience and expression is nonetheless untouched. As private persons, they can think and express what they want. But they can't pretend that the same standards are going to be applied to them as public officers. Europe, today, does not want to be ruled by officers who hold discriminating views against homosexuality. And they can't pretend that we believe them when they say that what they think is not going to influence what they do. Unless they believe they are Gods.
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