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EUROPEANSOCIAL ANDPOLITICALRESEARCHAMULTIDISCIPLINARYUNDERGRADUATEJOURNALINEUROPEAN SOCIAL ANDPOLITICAL STUDIES

UNIVERSITYCOLLEGELONDON

ACADEMIC YEAR2006–2007NUMBER THIRTEEN

Editors

Nick Johnstone, Philippe Marlière

Editorial Board

Allen Abramson (Anthropology), Ingrid Boccardi (Laws), Wendy Carlin(Economics), Hugh Clout (Geography), John Dickie (Italian), ClaireColomb (Bartlett School of Planning), Sebastian Gardner(Philosophy), Mark Hewitson (German), Susanne Kuechler(Anthropology), Neill Lochery (Hebrew and Jewish Studies), PhilippeMarlière (French), Véronique Muñoz-Dardé (Philosophy), FlorianMussgnug (Italian), Nanneke Redclift (Anthropology), AlexanderSamson (Spanish), Peter Schröder (History), Andrew Shorten(Philosophy), Ulrich Tiedau (Dutch)

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Roland-François Lack

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EUROPEAN SOCIAL AND POLITICALRESEARCH

A multidisciplinary undergraduate journalin European Social and Political Studies

Academic Year 2006–2007Number Thirteen

Crise des banlieues: State, media and the imaginary in thenational press coverage of the French rioting of November2005Tristam Barrett

1

The incest tabooAlkistis Elliott-Graves

25

Verfassungspatriotismus: The key to understanding JürgenHabermas’s political thought?Beth Foley

50

The economic dimension of the public sphere: JacquesNecker’s public agenda in Compte rendu au roiFranz-Julius Morche

80

The role of law in optimising the legitimising effect of civilsociety involvement: The case study of EU anti-discrimination employment lawMilena Müller

104

European Social and Political Research, Vol. 13 (2006–2007)

1

Crise des banlieues:State, media and the imaginary in the nationalpress coverage of the French rioting ofNovember 2005

Tristam Barrett

Toute la vie des sociétés dans lesquelles règnent lesconditions modernes de production s’annonce comme uneimmense accumulation de spectacles. Tout ce qui étaitdirectement vécu s’est éloigné dans une représentation.

1

1. Introduction

‘Violents affrontements dans des cités de Seine-Saint-Denis.’2

Acouple of front-page column inches announced, on 28 October 2005,the rioting that over the next three weeks would explode into the ‘crisedes banlieues.’ The article appearing in Le Monde described ‘desaffrontements particulièrement violents’ between the fire brigade andthe police on one hand and ‘des bandes de jeunes rendus furieux parla mort de deux de leurs amis’ on the other.

3By 17 November, eleven

days into the riots, it seemed as if the French state itself has been‘interpellé’ [arrested]. Exponential violence was reported, not only inthe peri-urban conglomerations, but also in the ‘provinces’. WhereasJacques Chirac – expressing himself publicly for the first time duringthe crisis – declared ‘[L]a République est tout à fait déterminé à êtreplus forte que ceux qui veulent semer la violence et la peur’,

4

1G. Debord, La Société du Spectacle, Paris: Éditions Gallimard, 1992 [1967].

2[Violent clashes on the estates of Seine-Saint-Denis]; Le Monde, 29

October 2005. All translations are my own unless otherwise noted.3

[particularly violent clashes]; [gangs of youths enraged by the death of twoof their friends]. Ibid.4

[the Republic is absolutely determined to be stronger than those who wantto disseminate violence and fear]

Tristam Barrett Crise des banlieues: Press coverage of the French 2005 riots

2 European Social and Political Research, Vol. 13 (2006–2007)

Libération saw fit to herald ‘L’échec de l’intégration à la française’.5

With 1295 vehicles set ablaze, ‘le gouvernement semble impuissant’.6

A conclusion is nevertheless reached eighteen days into the riots,with the announcement of a state of emergency and the public re-appearance of the French President affirming that ‘il a pris ‘toutes lesmesures nécessaires’ sur la crise des banlieues.’

7Libération reports:

‘La France prend trois mois ferme’.8

Contemporary approaches to the media take it for granted that it is anessential element in the social construction of reality. From thisassumption, it is easy to theorise the media as a tool for theimposition of ideological messages upon society; be this within theearly ‘transmission’ approach pioneered in the USA or the FrankfurtSchool’s understanding of a mediated relationship between base andsuperstructure, the media are viewed as a site for the transmissionand reception of, and resistance to, dominant discourses. Thisapproach, however, renders the media invisible other than as amediator between social positions. If ‘media … are both mechanism(of representation) and source (of taken for granted frameworks forunderstanding the reality they represent)’,

9it is imperative to probe

the mechanisms whereby media institutions obtain and maintain theirstatus in the social construction of reality.

This is a task to which Nick Couldry has applied himself in areinterpretation of Pierre Bourdieu’s ‘theory of fields’ and further workon the symbolic power of the state. To Couldry, Bourdieu extends

5[the failure of the French style of integration]; cf. also ‘Le bûcher de

l’intégration à la française’, Libération, 9 November 2005.6

[the government seems impotent]7

[he has taken ‘all necessary measures regarding the crisis in thebanlieues’]; Le Monde, 12 November 2005.8

[France gets three months without parole], Libération, 16 November 2005.9

N. Couldry ‘Media, symbolic power and the limits of Bourdieu’s field theory’MEDIA@LSE Electronic Working Paper, No.2, 2003. URL (accessed 8January 2007):http://www.lse.ac.uk/collections/media@lse/mediaWorkingPapers/ewpNumber2.htm


European Social and Political Research, Vol. 13 (2006–2007) 3

Weber’s definition of the state to ‘a monopoly of legitimate physicaland symbolic violence’ – a move which requires a distinctionbetween:

(a) the level at which the state’s own power (its symbolicpower) is established, and (b) the field in which agentscompete for the ‘monopoly over the advantages attached to thestate’s monopoly’.

10

In this context, whilst actors may compete for positions within thevarious fields of social life, there are planes across which the statebears symbolic pre-eminence, legal and educational status, forexample. The state can thus be considered as a meta-field, ‘areference-point in social life … across all fields’

11

Theorising the power of the media requires a parallel move. Over andabove the workings of the journalistic field, the whole notion of mediaas a powerful force in the social construction of reality – a ‘legitimatecontroller of access to public existence’

12– entails a conceptualisation

of the media’s symbolic potency in terms similar to the state; as ameta-field.

This article interrogates the notion of ‘the media’ as a meta-fieldthrough a parallel discussion of the anthropological contribution tosuch an understanding of the state, and the media’s role within this. Inthis case study, the notions of state and media are both product andproducers of a particular French modernity. Yet how is thismaintained by those parties interested in its perpetuation? If, as thisarticle demonstrates, ‘the media’ claim their authority in the same wayas the state is reproduced, an analysis of the reporting of threeFrench reference newspapers – Libération, Le Figaro and Le Monde– in their coverage of the rioting that resounded throughout urbanFrance in October and November 2005 may shed light on the mannerin which this authority is claimed.

10Ibid.

11Ibid. Couldry refers here to P. Bourdieu, Language and Symbolic Power,

Cambridge: Polity Press, 1990.12

Ibid.



2. France, media and the imagined community

Not only has Benedict Anderson’s Imagined Communities invigoratedcontemporary understandings of the nation-state, but his reflectionson the origins of nationalism have also fuelled a debate over the placethe mass media hold as a tool for imagining this contemporary socialformation. Anderson’s achievement is to overcome the inadequaciesof a strictly functionalist approach to the nation-state which seesnationalism and the state as the product of the necessities ofindustrial society – standardised language, education, mobileworkforce.

13Similarly, he transcends the limitations of the classical

sociological canon and its conception of the state as ‘a humancommunity that (successfully) claims the monopoly of the legitimateuse of physical force within a given territory’.

14As a concept, the state

is not nearly so unproblematic as this definition implies, for whilst theauthority of its institutions is reproduced daily in the lives of itscitizens, the potency of the state as a signifier (to Bourdieu, itssymbolic force) for which the ultimate sacrifice may be made cannotbe understood as a ‘top-down’ concept, it is rather the product of acertain kind of imagining.

Anderson argues that only through the definition of the nation as, firstand foremost, an ‘imagined political community’ can one begin tounderstand its evocative grasp. ‘Nationality,’ he argues, ‘as well asnationalism are cultural artefacts of a particular kind’.

15To Anderson,

the nation-state, as a cultural artefact, is an imagining madenecessary by the radical changes which were precipitated by theEuropean advent of modernity. The disappearance of sacredcommunities, the shift to vernacular languages and the decline of the

13This approach is not validated by historical evidence, nor does it explain

the genesis of the notion of nation.14

M. Weber, ‘Politik als Beruf’ [‘Politics as Vocation’] in GesammeltePolitische Schriften, Munich, 1921, pp. 396-450. Translation available online(accessed 8 January 2007):http://www2.pfeiffer.edu/~lridener/DSS/Weber/polvoc.html15

B. Anderson, Imagined Communities: Reflections on the Origins andSpread of Nationalism, London: Verso, 1991, p.4.



ancien régime brought about not only a profound political vacuum, buta fundamental change in the apprehension of the world. Ultimately,however, the development of print-capital, argues Anderson,engendered an ‘awareness of being imbedded in secular, serialtime’

16and thus – allied with new technologies of statecraft, map and

census – produced a distinctly modern perception of time and space.More important than the political and economic ramifications ofstandardised languages, it was the very notion of ‘a sociologicalorganism moving calendrically through homogenous empty time’

17–

enabled by newspaper and novel – which created the type ofimaginings, and the ruptures, that made it at once possible andnecessary to imagine the nation-state as a narrator of identity.

18

If to Anderson, the role that the media have in the possibility of thisimagining is premised on their reorientation of our conceptions of timeand space, Arjun Appadurai equivocates, arguing that

print capitalism can be one important way in which groups whohave never been in face-to-face contact can begin to think ofthemselves as [national] …. But other forms of electroniccapitalism can have similar, and even more powerful effects,for they do not work only at the level of the nation-state.

19

To Appadurai, it is the possibilities opened up by the development ofmedia technologies that now transcend the imagined territoriality andsovereignty of the nation-state. Newspaper, television, film, radio andinternet, along with global flows in capital, ideas, technology, andpeople have decentred the nation-state as a concept to the point thatthe possibility of new imaginings which characterises postmodernity isconducing a ‘terminal crisis’ in the nation-state. These global flows

are thus the building blocks of what, extending BenedictAnderson, I would like to call ‘imagined worlds’, that is, the

16ibid., p.205.

17Ibid., p.26.

18ibid., p.205.

19A. Appadurai, Modernity at Large: Cultural Dimensions of Gobalization,

Minnesota: University of Minnesota Press, 1996.



multiple worlds which are constituted by historically situatedimaginations of persons and groups spread around the globe.

20

In arguing that the possibility offered by electronic media transformsthe field of mass mediation and permits the construction of imaginedworlds,

21Appadurai departs from a key element in Anderson’s

argument. To Anderson, it was the change in perception of time andspace brought about by modernity that engendered the need for suchnational imaginings, and it was the technologies of print-capital thatprovided the possibility of the nation qua imagining. Whilst massmedia may have ‘provided the technical means for ‘re-presenting’ thekind of imagined community that is a nation’,

22it was the

psychological gap opened up by modernity that needed to be filled.This is a subtle but key distinction; it is not the possibility of otherimaginings or other media that determines Anderson’s argument, butthe necessity for such an imagining.

Appadurai’s theory nevertheless highlights the duality necessary toany imagining. His analytical distinction between nation and state isone between a signifier (the nation), and the institution which claimsthis signifier (the state) in order to legitimate its practices. Theargument thus implies that it is other practices permitted by newmedia technologies which undermine the hyphenation of nation andstate. This presents an interesting vicissitude to Anderson’s theory,demonstrating in essence that the imagined community cannot existpurely as a function of the symbolic potency of the ‘imagining’, but it isnecessarily linked to praxis. The tension, to Appadurai is that ‘whilenations seek to capture or co-opt states and state power, statessimultaneously seek to capture and monopolize ideas aboutnationhood’.

23

20A. Appadurai, ‘Disjuncture and Difference in the Global Cultural Economy’

Theory, Culture & Society, Vol.7, 1990, pp.296-297.21

Appadurai, 1996.22

Anderson, p.2523

Appadurai, 1990, p.303.



However, Appadurai’s argument that praxis offered by media providean alternative vehicle for the imagination of the nation, one whichimpairs the ability of the nation-state to meaningfully contain itspopulations, risks only addressing one side of the coin. If the notion ofthe nation-state as the narrator of identity finds itself challenged byAppadurai’s thinking, in the French context, it is the notion that‘nation’ can be a cradle of identity at all which finds itself challenged;by the state. The example of France reveals that the state need notrepose on the signifier of nationhood, but the notion of state may havea symbolic power of its own.

In a lecture given to the Sorbonne in 1882, Ernest Renan declared onthe subject Qu’est-ce qu’une nation?, that for him, ‘tous les habitantsde la France sont des Français. L'idée d'une différence de races dansla population de la France … ne se présente à aucun degré.

24A

valuable exception thus presents itself to Appadurai’s assertion that‘there is a fundamental, and dangerous, idea behind the very idea ofthe modern nation-state, the idea of a “national ethnos”’.

25The notion

of a community bound by Appadurai’s ‘ethnic genius’ of primevalorigins is abhorrent to the French republican conception ofcitizenship:

C'est là une très grande erreur, qui, si elle devenait dominante,perdrait la civilisation européenne. Autant le principe desnations est juste et légitime, autant celui du droit primordial desraces est étroit et plein de danger pour le véritable progrès.

26

24[all the inhabitants of France are French. The idea of racial difference in the

population of France … cannot be found in any degree]; E. Renan, Qu'est-cequ'une nation? [What is a nation?] conference delivered on 11 March 1882 atSorbonne University. URL (accessed 8 January 2007):http://ourworld.compuserve.com/homepages/bib_lisieux/nation01.htm25

A. Appadurai, Fear of Small Numbers: An Essay on the Geography ofAnger, Durham, London: Duke University Press, 2006, p.3.26

[Therein lays a great error which if it became dominant, would be the ruin ofEuropean civilisation. Just as the principle of nations is just and legitimate, sothat of the primordial rights of races is narrow and full of danger for realprogress] Renan, op. cit.



Forged from the Enlightenment project of a state cast in socialcontract, French republicanism as a political ideal can be seen toembody, not nationalism, but statism. As such, this rationalist projecthas historically found itself well placed to defend itself against thevirulent national-romanticism of the late nineteenth and earlytwentieth centuries. As Maxim Silverman remarks, ‘[t]his concept ofthe nation triumphed over the other major model for the formation ofmodern nations, that of the concept of a predetermined communitybound by blood and heredity’.

27The universalist French context also

reveals itself as having significant consequences for Anderson’stheory of the modern reconceptualisation of space and time. Forwhilst spared the scourge of European nationalism, modernity, as anidée forte, implied nothing less than the sacrifice of historical time andplace at the altar of la république.

The student and general strikes of May 1968 paralysed France andbrought down an uncomprehending government. In a striking parallelwith Jacques Chirac’s admission in Le Monde concerning the anxietyof French youth today – ‘Je ne les comprends pas’

28– the events of

May 1968 were declared equally ‘incomprehensible’ by General deGaulle. Nevertheless, at their intellectual heart burned the shadowyfigure of Guy Debord; a thinker for whom the riots made perfectsense, and whose writings inflamed the territorial inscriptions of theParisian student uprising. Debord’s 1967 book La Société duSpectacle formed the rallying flag around which the reclaiming of thestreets from authoritarian modernity was orchestrated, and it hassince become a modern classic of the French canon, Debord himselfwrote in 1979 of his pride in being ‘a rare contemporary example ofsomeone who has written much without being immediately refuted byevents … I have no doubt that the confirmation all my theses

27M. Silverman, Deconstructing the Nation: Immigration, Race and

Citizenship in Modern France, London: Routledge, 1992, p.19.28

[‘I don’t understand it’]; Le Monde, 16 April 2005, cited in J.G. Shields,‘Political Representation in France: A crisis of democracy’, in ParliamentaryAffairs Vol.59(1). URL (accessed 23 January 2006):http://pa.oxfordjournals.org/cgi/content/full/59/1/118#RFN1



encounter ought to continue right until the end of the century andeven beyond’.

29

If the particular value of ethnography is to unpick and bring to light the‘ways in which people make sense of the world in everyday life’,

30La

Société du Spectacle can be seen as crystallising a moment ofcontemporary reflection on the media at the height of the imposition ofmodernity upon France. Debord’s writings reveal an understanding ofthe ramifications of such a potent idea as modernity when harnessedby the state, and bear witness to a similar orientation of le spectacleas the imaginary which underlies the contemporary conception of themedia. To Debord, there is an underlying displacement—physical,environmental, historical, and social—engendered by le spectacle:the origin of which ‘est la perte de l’unité du monde, et l’expansiongigantesque du spectacle moderne exprime la totalité de cetteperte’.

31

This sense of upheaval is echoed in the profound demographicchanges of post-war France to which he bore witness. Buoyed by astrong economy and massive postcolonial labour immigration, thegovernment of the 1950s and 1960s implemented the construction ofthe grands ensembles throughout France. With 400,000 units ofapartment block housing built each year during the 1960s – attaininga peak of 555,000 in 1975

32– the intensity of change as well as the

social costs were enormous. In Paris alone, what Debord saw as anattempt to ‘restructure society without community’

33led to the

displacement of 550,000 people to the banlieues as twenty-four percent of the surface area of the city was destroyed to make way for thisurbanisation of industrial society. The social demography of Paris

29A. Merrifield, Guy Debord, London: Reaktion Books, 2005, p.63.

30M. Hammersley & P. Atkinson, Ethnography: Principles in Practice (2nd

edn.), London: Routledge, 1995, p.2.31

[is the world’s loss of unity, and its massive expansion in the modern perioddemonstrates how total this loss has been] Debord, 1992 [1967], p.30.32

J. Ardagh, France in the New Century: Portrait of a changing society,London: Penguin, 2000, p.200.33

Debord, op. cit., 1995, p.123



changed as well; with a forty-four per cent decline in the working classpopulation and a fifty-one per cent increase in the cadressuperieurs.

34Debord’s understanding that everyday life was

becoming a ‘colonised sector’35

was shared by his contemporaries,36

and indeed, was not unfounded.

Paul Rabinow argues that France’s first comprehensive effort aturban planning took place under the leadership of Hubert Lyautey –the Governor-General of Morocco. The genesis of modern urbanismas a key component of the post-war restructuring of France can thusbe found in the colonial context where such ‘settings served aslaboratories for experimenting with the norms of the modern welfaresociety prior to their application at home’.

37The chimerical task for the

French administrators, architects and planners in these colonialchamps d’expérience

38was to evacuate the highly contested political

dimension from colonial relations and to subliminate their task intoone of social ordonnance. A conference in Paris was told ‘[w]e havequit the technical terrain to enter into the realm of social politics, ofwhich urbanism is one of the principal means of action.’

39Whilst the

early modernism of Lyautey and architects such as Prost (whoplanned Casablanca) recognised history as ‘the most important bondin modernity’,

40the reforms after the Second World War in France

34D. Pinder, Visions of the City, Edinburgh: Edinburgh University Press,

2005, p.137.35

Ibid., p. 13336

cf. H. Lefebvre (trans. S. Rabinowitz), Everyday Life in the Modern World,New York: Harper Torchbooks, 1971.37

P. Rabinow, ‘Representations are social facts: Modernity and Post-Modernity in Anthropology’, in J. Clifford & G. Marcus (eds.), Writing Culture:The Poetics and Politics of Ethnography, Berkeley, Los Angeles, CA:University of California Press, 1987.38

[experimental terrains] G. Wright ‘Tradition in the Service of Modernity:Architecture and Urbanism in French Colonial Policy, 1900-1930’, in TheJournal of Modern History, Vol. 59(2), 1987, pp.291-316.39

Wright, ibid.40

P. Rabinow, ‘France in Morocco: Technocosmopolitanism and MiddlingModernism’, in Assemblage (17), 1992, pp. 52-57.



were performed in a modernist vein that was ‘openly hostile to historyand regionalism’.

41The u-topian project was to construct society

according to principles that in their universality could literally allow‘no-place’. It is in this context that the city became a battleground forcompeting valorisations of space and place, time and history.

Debord’s theory of the spectacle unveils a similar critique to his tiradeagainst the modernist project: the threat of the image is that itevacuates historically specific experience in the name of the totality ofthe image, now conceived along the twin vectors of utopia anduchronia – i.e. the absence of both place and time. The spectacleitself becomes the ‘alpha and omega’

42of spectacular society. The

spectacle

ne peut être compris comme l’abus d’un monde de la vision, leproduit des techniques de diffusion massive des images. Il estbien plutot une Weltanschauung devenue effective,materiellement traduite. C’est une vision du monde qui s’estobjectivée.

43

In all its specific manifestations – ‘news or propaganda, advertising orthe actual consumption of entertainment’ – the spectacle is seen as‘the very heart of society’s real unreality’.

44

Cast in an Andersonian light, Debord’s writings give a specificallyFrench content to the national imagining and the symbolic power ofthe state: They underscore the need for an imagining superimposedupon a vacuous modern Weltanschauung and equally illustrate thelevel of investment by state institutions in the creation andmaintenance of such a Weltanschauung. Similarly, Debord’s

41Ibid.

42Debord, op. cit., 1992, p.27.

43[cannot be understood either as a deliberate distortion of the visual world or

as a product of the technology of the mass dissemination of images. It is farbetter viewed as a Weltanschauung that has been actualised, translated intothe material realm—a world view transformed into an objective force.] Ibid.,p.17 (trans. Debord, op. cit., 1995, p.19).44

Ibid., p.19ff.



discussion of the symbolic power of the spectacle may be equallyrevealing of the interest that media institutions have in perpetuatingsuch a notion as ‘the media’ and imbuing it with symbolic force, overthe production of reality.

3. Covering the coverage

Following the electrocution of the two youths which sparked the riots,tracing ‘les pas de Bouna et Zyed’

45was a major preoccupation of the

French press. Even as late as December 2005, Le Monde ran anarticle recounting ‘Le dernier jour de Bouna Traoré et Zyed Benna’.

46

Several more storylines emerged during the crise, which togetherserve to narrate the events of October and November 2005. From thearticles that appeared in France’s three national newspapers from 28October to the end of the rioting in mid-November 2005, three themesmay illustrate the ideological prise de position of the press during thiscrisis.

47

Firstly, the privileging of the ‘official’ in story lines affects the balanceof the coverage given to the crise des banlieues and thus refracts theprecise nature of the crisis through this lens. However, to indicate thatthe press coverage was preoccupied by the official does not mean tosay that the press uniformly supported the government, nor does itmean that an official view was hegemonic. Instead the notion of ‘state’took on many diffuse forms in the press, indicating a more profound

45[Bouna and Zyed’s paces] Libération, 31 October 2005.

46[The last day of Bouna Traoré and Zyed Benna] Le Monde, 8 December

2005.47

Additional to these three weeks of coverage, I undertook a textual analysisof a sample of articles drawn from two days of coverage (4 November and 8November 2005), omitting unauthored items such as the faits du jour andmaps. This enabled me to analyse a total of 85 articles according to twovectors of analysis, (1) orientation – official, local, international,editorial/comment – and (2) markers associated with the rioters. I was thusable to draw limited but systematic conclusions pertaining to the reporting ofand characterisation of the rioters. This also enabled me to avoid managingan unwieldy quantity of data (in excess of 600 articles).



embroilment of the media in the production of ‘state’ than as pureperpetuators of official discourse.

This calls for a more detailed analysis of the critical stance of thepress towards the state, also manifested by the playing out within thepages of the press of a conflict which ripped through the heart of thegovernment. This proved an acute crisis for the authority of the stateinstitutions, yet the press perpetuated the notion of ‘state’ in abstractterms throughout. The framing of these criticisms, it shall be argued,betrays the position of the press in relation to such a signifier.

Thirdly, the coverage did, in no small measure, offer a questionableportrayal of those involved in the riots. The descriptions of theprotagonists in the articles can certainly be viewed as ‘othering’: withkey markers of foreignness, immaturity, and inarticulacy pervadingthe press discourse. Yet it is also possible to see it in terms similar tothe press’s criticism of politicians – a denigration of transgression –and at the same time a means of legitimating the press as articulatorsin the public sphere.

There is ample literature on the reproduction of discourses on, forexample, racism, nationalism and national identification, as well asthe construction of minorities in the press.

48These accounts –

including those pertaining to la sociologie de la banlieue – do notshed light on why media institutions perpetuate these representations.I wish to address this by proposing a perspective that does not treatthe press as a transparent lens refracting the positions of dominantsocial groups, but instead views press discourse as revelatory of theposition of the press in relation to its own wider authority. Theargument that I advance is thus that (a) media institutions gain thesymbolic capital necessary to claim their role in the production of

48cf. M. Billig, Banal Nationalism, London: Sage, 1995; P. Braham ‘How the

media report race’ in T. Bennet, J. Curran & J. Woollacott, Culture, Societyand the Media, London: Routledge, 1982; S. McKay & J. Pittam,‘Determinants of Anglo-Australian Stereotypes of the Vietnamese in Australia’Australian Journal of Psychology, Vol.45(1), 1993, pp.17-23; T. van Dijk,Communicating racism: Ethnic prejudice in thought and talk, Newbury Park,CA: Sage, 1997.



social reality, not naturally, but through the creation of hegemony overan articulatory space, and (b) that this space is maintained through aregulation of the articulatory possibilities within this space, to someextent through its characterisation as a moral space, which provides ameans of disciplining those outside and within this moral order(professionals and profanes).

It is interesting to note that whilst Chirac did not appear at all in theinitial stages of the crisis, his televised address to the nation clearlymarked the end of the crisis. This echoes ‘perhaps the most dramaticmedia event in the Fifth Republic’: the total absence of President DeGaulle from the public eye during the social upheavals of 1968.

49His

return to the scene, recasting the spotlight on the General, enabledhim to master the situation and to bring the crisis to a close. Perhapsmost importantly, both incidents underline the media tendency toorientate towards the official, particularly in press coverage of socialunrest. The absence of the anticipated voice (i.e. Chirac’s) did not inany way undermine the perpetuation of the official in the pressdiscourse. Just over fifty per cent of articles sampled reportedspecifically on the actions and responses of official figures to thecrisis. This comprised government figures and police, fire brigade,and local mayors. A number of articles were concerned with foreignmedia coverage of the crise. Amounting to just 9.4 per cent, therewere fewer reports covering a local perspective of the banlieues thaneditorials expressing the paper’s own position.

An examination of the initial reporting may reveal the precise ways inwhich the official was employed. Initial misreporting of events,reflected confusion in the politicians’ and police accounts of the causeof the rioting. On 29 October, Le Monde précised that six youths hadbeen arrested ‘à la suite d’un vol dans un cabanon à Livry-Gargan.’

50

Nicolas Sarkozy was quoted declaring ‘La police ne poursuivait pasphysiquement’

51and the prefecture affirmed that ‘le lien n’est pas

49R. Kuhn, The Media in France, London: Routledge, 1995, p.67.

50[following a burglary of a construction shed at Livry-Gargan] Le Monde, 29

October 2005.51

[the police didn’t follow physically]



établi’52

between the attempted theft and the death of the two youths.These official perspectives were all cited in order to define what hadoccurred. However, the following Monday Libération found that therewere ‘plusieurs versions des faits’

53over the course of that Friday. It

quotedthe contradictory accounts of Sarkozy, de Villepin, Bonté (fromthe Prefecture), Sarkozy again, and François Molins (Procurator ofthe Parquet de Bobigny) asking itself ‘Pourquoi ils les ont coursescomme ça?!’

54Libération deplores the ‘‘bavure’ verbale’

55of the two

government figures under the headline ‘les dérapages de Villepin etSarkozy’

56and decries them for going ‘trop fort, trop vite, trop loin.’

57

The conclusion is that contrary to Sarkozy’s allegations, there was infact ‘ni “cambriolage” ni “dégradation”’

58on the part of the dead

youths.

The police received very circumspect treatment at the hands of themedia, and their involvement took on a particular salience in thenewspaper coverage of the riots. Alec Hargreaves notes a pattern tothe sporadic urban violence that has been covered by the mediasince the 1980s:

An unarmed youth of immigrant origin involved or suspected ofinvolvement in petty crime (most commonly the theft of a motorvehicle) has been shot dead by a police officer, and this hasbeen followed by an outbreak of street violence by otheryouths.

59

Given the confusion over what the police had done in this case, thereporting that surrounded the police at once confirmed and probedthe reputation that the forces de l’ordre have for heavy-handed

52[the link isn’t established]

53[several versions of events] Libération, 31 October 2005.

54[Why did they chase them like that?!]

55[verbal ‘smudges’]

56[the slips of Villepin and Sarkozy]

57[too strong, to fast, too far]

58[neither a break-in nor vandalism]

59A. G. Hargreaves, Immigration, ‘race’ and ethnicity in contemporary

France, London, New York: Routledge, 1995, p.73.



policing in the so-called quartiers sensibles. Libération affirmed that‘L’animosité à l’égard des policiers est souvent confortée par laconception trop musculaire que certains d’entre eux font de leurmétier’

60and Le Monde highlighted in bold quotes that ‘Les

arrestations sont souvent musclées, et les jeunes se sententhumiliés.’

61On this basis a conditional recognition is offered to the

riots: ‘nous pouvons comprendre la colère de certains’; ‘[m]algré ledémenti du parquet, nombre de jeunes croient encore que les deuxadolescents électrocutés étaient poursuivis par la police’.

62

Not only does the legitimacy of the violence depend on it resultingfrom inappropriate police action, but as the police were vindicated bythe inquiry, the press decried the articulatory failings of thegovernment as a ‘machine à rumeurs [qui] a fonctionnée pourenflammer les esprits des jeunes habitants de Clichy-sous-Bois’.

63In

the wake of this ‘colère attisée par les déclarations erronées dugouvernement’,

64the press assumes a moral role.

When the Parquet de Bobigny exonerated the police of wrongdoing,the press became the locus of a dispute as much between parties asbetween members of the government. Not only were Sarkozy’s twomost provocative utterances – ‘racaille’ and ‘nettoyer au Kärcher’

65–

criticised by the Left, but Ministre pour l’égalité de la chance, AzouzBegag (UMP), attacked Sarkozy saying that ‘il ne faut pas dire auxjeunes qu’ils sont des racailles … il faut aller avec un volonté

60[Animosity towards the police is often reinforced by the overly muscular

conception that some of them have of their job] Libération, 30 October 2005.61

[Arrests are often strong-arm and the youths feel humiliated] Le Monde, 29October 2005.62

[We can understand the anger of some of them] Le Monde, 29 October2005; [In spite of the clearing up of the Parquet de Bobigny, a number ofyouths still believe that the two electrocuted teenagers were chased by thepolice] Le Figaro, 30 October 2005.63

[Rumour-mill which has served to inflame the spirits of the younginhabitants of Clichy-sous-Bois] Libération, 31 October 2005.64

[anger stirred up by the erroneous declarations of the government]65

[scum]; [clean up with a pressure-washer]



d’apaiser’.66

Former sociologist and the only minister of North Africanorigin in the cabinet, Begag was accoladed in the pages of the pressas ‘principal opposant à Nicolas Sarkozy’.

67Libération proferred a

front-page banner:

Sarkozy, retour de bâton … Le ministre Azouz Begag s’enprend à la méthode de son collègue de l’intérieur.’

68

To the press, ‘Azouz Begag fait entendre sa difference.69

Whereas it can be seen that the press made extensive use of officialsources, this does not necessarily conduce an analysis which regardsthe ‘problem [as] controlled by news framing and use of officialsources to demonise, marginalise and delegitimise the groups andtheir actions’.

70Whilst they may be important definers in the events, it

is difficult in this case to interpret the focus on the official as premisedon an unquestioning support for this perspective. Michael Stewart’sethnographic analysis of mulatśago

71– ‘true speech’ – may be a more

helpful model. The formalised space provided in ritual singing, inStewart’s analysis, ‘is an attempt to create an ideal communal worldwhere men can respect each other’. Yet the world of mulatśago onlygrotesquely relates to the ‘daily one of rivalry, squabbles, divisivespecificities and particularities’:

72

66[You can’t tell youths that they’re scum … you have to go in with a will to

soothe {the situation}] Le Monde, 1 November 2005.67

[main opponent of Nicolas Sarkozy] Le Monde, 2 November 2005.68

[Sarkozy, it blows up in his face … Minister Azouz Begag takes issue withthe method of his Interior Ministry colleague] Libération, 1 November 2005.69

[Makes his difference known] Le Figaro, 1 November 2005.70

S. G. Larson, Media & Minorities: The Politics of Race in News andEntertainment, Lanham, Oxford: Rowman & Littlefield, 2006, pp.147-148.71

[The main ceremonial form of gypsy life, in which men gather together, eat,drink and then sing about the trials, tribulations and joys of being one of thegypsy brothers. Editor.]72

M. Stewart, ‘”True Speech”: Song and the Moral Order of a HungarianVlach Gypsy Community’, in Man, Vol.24(1), 1989, pp.79-102.



How is it then that the Rom can accept as ‘truth’ these biasedand limited representations of reality? How is it that Rom songcomes to define what the life of the Rom is like for them?

73

Stewart’s question strikes an interesting parallel with the question withwhich Debord grapples throughout La Société du Spectacle.Stewart’s answer, however, focuses not on the representationsthemselves, but the context in which they are employed. The lyrics ofmulatśago acquire their defining force only within the heavilycircumscribed, normative space of Rom singing. In this light, thepress criticism of politicians becomes as comprehensible as that ofthe rioters. When Libération’s editorial castigates Sarkozy for ‘parlersans savoir’

74in exonerating the police a priori of all responsibility, it is

thus casting judgement over who has the right to speak in the mediasphere, and claiming the newspaper’s own authority in this matter.

Similarly to Stewart, Fred Myers and David Brenneis argue that ‘thecreation and maintenance of communicative contexts is the creation,however fleeting, of a political order.’

75During the crise the press

were able to claim a political function through creating andlegitimating ‘the media’ – the press in particular – as such acommunicative context. Indeed the crisis element of the crise desbanlieues may have permitted the press even further to establish thisfunction as it increasingly assumed a voice of moral authority. Thepreponderance of official voices within the reporting of the riots, notonly enabled state institutions to assure the status quo, but itreinforced the press as a key component of the maintenance of thispolitical context.

In spite of the clearly critical stance that the press took to thegovernment and the police from the start, the state appeared indiffuse form through the ordering voice of the mayors. Claude Dillain

73Ibid.

74[speaking without knowing] Libération, 30 October 2005.

75D.L. Brenneis & F.R. Myers (eds.), Dangerous Words: Language and

Politics in the Pacific, London, New York: New York University Press, 1984,p. 25.



the socialist mayor of Clichy-sous-Bois was interviewed in Le Mondeimmediately subsequent to the first night of rioting. In the interview, heassured that the events ‘ne traduisent pas une dégradation de lasituation dans sa ville’

76and in another article he told the interviewer

that ‘[m]anifestement, des individus, qui ne sont pas de Clichy-sous-Bois, ont trouvé un prétexte pour commettre des actes devandalisme.’

77Whatever the crisis being played out in the upper

echelons of the government, the mayors are revealed as upholders ofRepublican order. A cluster of articles allude to the mayors as ‘enpremière ligne dans la bataille de la banlieue.’ In their attempt to‘raisonner les jeunes’

78on the front lines – mediating between the

political and the local – the presence of the mayors is in directcounterpoint with that of the youths in the banlieues. They offer eithera narrative foil of authority in the face of the wild intrepidity of therioters or a dramatic irony: ‘A Asnières, c’est le maire qui chauffe lesnuits.’

79The clarity of the press’s focus on such official figures

contrasts strongly with the dramatic, often impressionistic coverage ofthe violences. Detailed portrayal of police and fire-brigade strategies(‘Pompiers, façon légions romans’

80) and citizens in ‘rondes de nuit’

81

are juxtaposed with lists of authorless destructions which, in eachnewspaper, represent a running tally of the dégats incurred during thecrisis. Libération lists:

691 véhicules incendiés, des bâtiments publics et descommerces pris pour cibles, 1000 policiers mobilisés, 143

76[don’t translate into a deterioration of the situation in his town] Le Monde,

29 October 2005.77

[Clearly, individuals who aren’t from Clichy-sous-Bois have fond a pretextto commit acts of vandalism]78

[reason with the youths]79

[In Asniers, it’s the mayor who heats up the nights] Libération, 8 November2005.80

[Firemen, organised like Roman legions] Libération, 29-30 November 2005.81

[on night patrols]



interpellations, 43 comparutions, 17 incinérations, 4 tirsd’armes à feu.

82

The burnt-out cars, bins, schools, post-offices and buses, along withpolice injuries are counted without reference to the perpetrators. Theshadowy presence of hooded youths is merely implied; menacing theinterstices of the text.

Given the contrast between the sharp-focus portrayal of such figuresas the mayors and the blurred, indistinct portrayal of the violence, it isthe articulation of the mayors which bears descriptive authority: whenrioters are described direct quotes are used. In this context a torrentof chaotic images are employed. Vandales, visage masqué, bandes[qui] donnent l’exemple aux jeunes, voyoutocratie, voyous andbandes de voyous, casseurs, actes délictueux et gratuits

83are easy

currency in this economy of images and are further nuanced with aproliferation of markers indicating foreignness: l’implication desmusulmanes, étrangers,, refus de s’intégrer, rebelles, des islamistesqui essaient de récupérer le mouvement.

84Furthermore, the idea that

the youths may be manipulated by a hardened core which ischaracterised by its criminality or Otherness, contributes to theeffective denial of a voice to the rioters in the press:

Le maire dit vouloir isoler le noyau dur;85

la plupart se laissent entraîner et … certains sont peut-êtremanipulés par des gens qui ne sont pas d’Aulnay;

86

82[691 vehicles set ablaze, public and commercial buildings targeted, 1,000

police mobilised, 143 arrests, 43 appearances before a court, 17incinerations, 4 gunshots]83

[vandals, faces masked, gangs setting an example for the young,‘mobocracy,’ hoodlums, gangs of hoodlums, vandals, unlawful and gratuitousacts]84

[Muslims implicated, foreigners, refusal to integrate, rebels, Islamists whoare trying to rehabilitate the movement]85

[The mayor says he wants to isolate the hard core]



Ce sont pas tous des voyous. Certains viennent juste pours’amuser. Au lieu de jouer à la Playstation, ils tapent le CRS.Dans quelques jours, ceux-là reprendront une vie normale.

87

All three examples carry the unwavering voice of a mayor, who asguardian of Republican order does not get swept up in the commotionof events. Not only does this undermine any possibility of the riotingbeing legitimate, it also devoices the rioters: If those implicated areeither hardened criminals or have just let themselves get carriedaway, what meaning can one read into the violence?

88

The comments of Eric Raoult – UMP Mayor of Raincy in Seine-Saint-Denis – published in Le Monde, are also indicative of the morepejorative construction of the rioters which emerged in the press. Hisclaim that now it’s time to ‘mettre les mômes au dodo’

89is not only

indicative of his stance towards the rioting, but finds broad support inthe tone of articles which further reinforce the juvenile portrayal of therioters, accompanied by repeated injunctions to parents to takecontrol of their children.

90A question of public order is domesticated

within the strong symbolism of parenthood. With a host of diminutivesemployed to portray the rioters – jeunes, jeunes de 10-12 ans,mineurs, gamins, gamins qui mettent le feu, calmer les esprits

91– the

86[Most of them are letting themselves get led astray and … some are

perhaps manipulated by people who aren’t from Aulnay]87

[They are not all hoodlums. Some of them come just for the fun of it.Instead of playing on their Playstation, they beat up the riot police. In a fewdays they’ll get back to normal life]88

This was a sentiment echoed in certain sociological analyses of the rioting,see e.g. M. Wievorka, ‘Violence in France’, 2005. Available online (January30 2007): http://riotsfrance.ssrc.org/Wieviorka/89

[Put the babies to bed]90

There is a certain irony in this appeal considering the sympathies that theparents—themselves ‘issus d’immigration’—may have had towards the youthrevolt. This argument is made in S. Beaud & M. Pialoux, ‘La « racaille » et les« vrais jeunes »: critique d’une vision binaire du monde des cités’ in C. Autainet al., Banlieues, lendemains de révolte, 2006.91

[youths, youths from 10-12 years old, minors, kids, kids who set fires, calmthe spirits]



parents are called upon to take control of the situation: ‘il n’y a qu’euxqui peuvent tenir leurs enfants.’

92The issue is thus condensed into

one of poor parenting and family breakdown and devoices theprotagonists by attaching them to apron-strings instead of regardingtheir actions as having either a political dimension or politicalrepercussions. Le Monde’s article of 4 November encapsulates theludicrousness of such a discourse when it quotes the Director of theDepartment of Public Security, Jacques Méric:

On est face à des problèmes de société profonds, une grandepaupérisation, des citoyens qui veulent la paix publique etd’autres qui brûlent les voitures de leurs voisins.

93

Given the highly critical nature of the press’s coverage of the politicalelements in the rioting, the fact that the media not only bought in tothis discourse but perpetuated it is surprising, and calls for someattempt at explanation. An account which sees the media in terms ofits allegiance to political power-holders would prove inadequateconsidering the highly critical dimension to the press coveragealready discussed. Similarly, to analyse it in terms of the economicsof journalism – as a sensationalistic device aimed at increasingsales

94– would simplify the nuanced portrayal of the youths involved

in the rioting. Instead, it may be fruitful to return to the idea of themaintenance of an articulatory space. The coincidence of the crisiswith the profound criticism levelled at the state in the press indicatesnot only that media institutions have considerable autonomy from thepolitical process, even as they may repose on the state at a symboliclevel, to the point of reproducing it

95but that their symbolic efficacy

relies upon them successfully claiming a monopolistic space of

92[Only they {the parents} can rein in their children]

93[We are faced with deep running social problems, a great pauperisation,

citizens who want public peace and others who burn their neighbours’ cars]Le Monde, 4 November 2005.94

See for example E. Néveu, Sociologie des Mouvements Sociaux, Paris: LaDécouverte, 2004.95

cf. Y. Navaro-Yashin, Faces of the State: Secularism and Public Life inTurkey, Princeton, NJ: Princeton University Press, 2002, p.171.



articulation. In mulatśago, one is only accorded a voice if one singsappropriately; in distinguishing between those with a right to a voiceand the perturbing babble of those without, the national press wereable to establish their purview as guardians of this hallowedarticulatory space.

4. Conclusion

One year after the rioting which struck the peri-urban conglomerationssurrounding Paris and other parts of France, an article in Le Mondeleft little doubt of the media’s role in producing social reality. Aconference united journalists and other media professionals in aninterrogation of the reporting of the 2005 crise des banlieues.

96The

question addressed was: ‘What has changed in the way in which themedia ‘cover’ this reality of French society?’ Even more importantthan the questions posed and the answers offered by this article arethe assumptions that such a probe implies. The journalists involved inthe event were very keen to assert their political independence, notwanting ‘se laisser instrumentaliser, surtout en cette periodepréélectorale’.

97However, in this search for an objectivity which seeks

independently to reproduce ‘la realité de ce qu’on découvre sur leterrain’

98the unquestioned presupposition in this discourse is that ‘the

media’ do in fact have a determining role in constituting social reality.

This attitude is not just one of journalists; it has reached the heart ofcontemporary popular and academic understandings of the media.Yet as the state’s pre-eminence as a foundation of social life isassured by its perpetuation of notion of ‘the state’ as an imagining, sothe institutions of the media exert a very real violence in themaintenance of their role as legitimate public articulators. This isachieved, through the embroilment of media institutions in thereproduction of the state, whilst at the same time creating a distinctspace, characterised in moral terms and opposed to the inarticulacyof the disordered mob, and even the hasty politician.

96‘Banlieue, terra incognita’, Le Monde, 22 October 2006.

97[let themselves be used, especially in this pre-election period]

98[the reality of what happens on the ground]



In studying the media, this article, has confined itself to analysing thereporting of three French newspapers during the 2005 crise desbanlieues. Perhaps though, it is the uniting of these three papersunder the banner of a transcendent notion, ‘media’, which is the mostpowerful means by which traditional media institutions acquire theirsymbolic potency; in the same way as the very creating and enactingof the idea of ‘the state’ guarantees this particular form of imagining.This view, however, does not take into account the impact of thedevelopment of ‘electronic media’ upon this media imaginary. WhilstAppadurai’s theory places great importance on the development ofelectronic media – whose ability to transcend national boundaries,Appadurai argues, allow for alternative imaginings to the nation-state– this article has sought to demonstrate to the contrary; that the verynotion of ‘the media’ is itself an imagining. The development of newmedia – blogs, websites and Internet forums brings with it ademocratising potential, for example, to publicly articulate theperspectives of the banlieusards, without recourse to the traditionalgatekeepers of this space. In light of the myriad communicativetechnologies to which the modern world now has access, the mediaimaginary faces redefinition. The notion of ‘the media’ is, now morethan ever, an unstable guarantor of traditional media institutions’ role‘at the heart of society’s real unreality.’

99

99G. Debord, 1995, p.19.


25

The incest taboo

Alkistis Elliott-Graves

1. Introduction

One of the great philosophical debates which is still important today isthe debate concerning nature and culture. Which of the two is moreimportant? Which of the two ultimately shapes human nature? Itseems that scientists, social scientists, teenagers’ magazines,cookery books, indeed almost everyone has their own idea about howfar humans are influenced by their genetic makeup and how much isleft to cultural conditioning. The debate itself however, is verysignificant philosophically, because of its far-reaching implications.One’s position on this debate greatly influences one’s perception ofother important philosophical questions, such as: what it means to behuman, to what extent human action is free as opposed to pre-determined, what, if anything makes humans stand out from the restof the animal order. These questions then give rise to moral positionsconcerning for example, human and animal rights, fairness, justice,tolerance, economic policy, education, and so on. The list is endless.

Many scientists and social scientists have dealt either directly orindirectly with the nature versus culture debate and its implications.One such account, though indirect in its approach, is neverthelesstruly interesting. This is Claude Lévi-Strauss’s explanation of thephenomenon of the incest taboo as the bridge between nature andculture, which occurs in the introductory chapters of the ElementaryStructures of Kinship. Here, Lévi-Strauss gives the incest taboo aunique place among all phenomena concerning humans, because itbelongs at once to both the natural and cultural domains. His work iscontroversial in many ways and though some of his points may beviewed as overstated or extreme, the overall work is still considered aclassic and essential reading for anyone studying the subject.

In this essay, I will examine Lévi-Strauss’s conception and analysis ofthe incest taboo from a philosophical perspective, i.e. by focusing on

Alkistis Elliott-Graves The incest taboo


the ideas and situations which influenced Lévi-Strauss, together withtheir implications. The first part will be an analysis of Lévi-Strauss’sdefinition of the incest taboo and its implications for the nature versusculture debate. I will then argue that Lévi-Strauss’s seeminglyextreme position that culture overrules nature is based on a deeprejection of anti-rationalism, fuelled by his philosophical and historicalcontext rather than an absolute rejection of the natural sciences. Thiswill be shown through an analysis of the evolution of Lévi-Strauss’sown ideas. Ultimately, I will attempt to show that if a theory of theincest taboo which focuses on its pre-social origins can be at leastconceptually combined with Lévi-Strauss’s own theory, then the viewthat nature and culture are in radical opposition, must be revised oreven rejected outright.

2. Lévi-Strauss’s theory of the incest taboo: a brief summary

It is possible to define the incest taboo in many ways and on manydifferent levels. In fact, many of the problems which arise indiscussions of the phenomenon stem from its definitions and theconnotations which each of these involve. Lévi-Strauss’s theory of theincest taboo is very complex, and at first glance can even seemcontradictory. According to Lévi-Strauss, the incest taboo is auniversal rule existent in all societies which prohibits marriage andsexual relations between specific kin members. Together withexogamy, the rule which prescribes possible marriage and/or sexualpartners, it is the basis of the system of kinship which in turn is thestructure on which society is based.

1However, this concept of a

‘universal rule’ is paradoxical. This can be seen when one takes intoaccount Lévi-Strauss’s conception of Nature and Culture. Both theseconcepts do not have clear definitions in Lévi-Strauss’s writings, norare their interpretations constant. Still, there are a few characteristicsof the two orders which seem to stand out. Nature’s maincharacteristics are universality, spontaneity and the absence of rules,whereas if a phenomenon is particular, non-spontaneous and

1C. Lévi-Strauss, The Elementary Structures of Kinship, London, 1969, pp. 8-

9, 46.



governed by rules, then it must belong to the domain of Culture.2

Infact, the ‘surest criterion for distinguishing a natural from a culturalprocess’ is the presence or absence of rules.

3Therefore the incest

taboo must be a cultural phenomenon, as it is a rule and morespecifically, a particular rule, which is expressed differently in eachsociety. On the other hand it is at the same time universal, as it existsin all societies, and thus must also belong to the domain of nature.

4

There can be no objection to this, Lévi-Strauss states, as it is obviousfrom empirical observation (anthropological research) that the incesttaboo is universally present, while its cultural aspect is asserted by itsvery definition.

5

Lévi-Strauss dissolves this paradox by giving the incest taboo aunique place among all socio-biological phenomena, indeed amongall phenomena that can be characterized as human. He states that asit is the only exception in this categorization of phenomena, it mustrepresent the transition from a state of Nature to a state of Culture.

6

Lévi-Strauss famously asks in the first chapter of the ElementaryStructures: ‘Where does nature end and culture begin?’

7It is easy to

see where culture begins; anywhere there is a rule. Yet with theincest taboo also comes the ‘end of sovereignty of nature over man’.

8

Thus the prohibition of incest marks the passage form nature toculture.

9This passage however does not result in a complete loss of

nature’s influence on humans, just that the universal naturalspontaneity and instinct become coded, modeled and governed

2F. Korn, Elementary Structures Reconsidered: Lévi-Strauss on Kinship,

London, 1973, p. 10.3

Lévi-Strauss, 1969, p. 8.4

Ibid.5

Ibid., p. 9.6

H. Gardner, The Quest for Mind: Jean Piaget, Claude Levi-Strauss, and theStructuralist Movement, New York: Knopf, 1973, p. 125.7

Lévi-Strauss, 1969, p. 4.8

Ibid., p. 25.9

R. Deliège, Levi-Strauss Today: an Introduction to Structural Anthropology(trans. N. Scott), London: Berg, 2004, p. 58.



according to specific rules. Therefore although nature still is part ofthe equation, culture superimposes its influence on the end result.

10

The above analysis is however a simplification of Lévi-Strauss’stheory, even though he himself expresses it thus in the first chaptersof the Elementary Structures. There is another concept, another rulewhich precedes the incest taboo and is located in the unconscious ofall humans. This is the theory of reciprocity, which is based on Lévi-Strauss’s analysis and interpretation of the work of Marcel Mauss. InEssai sur le don. Forme et raison de l’échange dans le sociétésarchaïques, Mauss states that the basis of society is the need for theexchange of gifts.

11The giving of a gift includes the obligation to

reciprocate which is the foundation of the ‘rousseaunian’ socialcontract and so the relation between the individual and society isformed.

12It would be impossible to do justice to Mauss’s work in this

essay, therefore the analysis will only focus on Lévi-Strauss’sinterpretation of Mauss. For Mauss, the relation of gift exchange is thebasis for the social contract and thus for society itself. For Lévi-Strauss however, it is not that exchange occurs in order for the gift tobe given in return, but vice versa, i.e. that gifts are given in order tosecure exchange.

13The focus is different between the two thinkers.

Lévi-Strauss views gift giving as a means for exchange, while forMauss it was the actual gift and its symbols which was moreimportant than generalized exchange.

This may seem like a small change yet its significance is immense.The actual gift is just an example of exchange, and is of minimalimportance in itself. It is now possible for Lévi-Strauss to formulate histheory of kinship as another example of the manifestation ofreciprocity. In terms of kinship, the elementary parts of the exchangeare women, who are exchanged between families. Yet in order for this

10Lévi-Strauss, 1969, p. 25.

11M. Godelier, The Enigma of the Gift (trans. N. Scott), Chicago, IL:

University of Chicago Press, 1999 p. 1.12

S. Clarke, The Foundations of Structuralism, Sussex: Harvester, 1981, p.44.13

Ibid.



to occur, the incest taboo must exist so that no claim can be madefrom the men in one family over their own women.

14This does not

mean that the incest taboo becomes less important; it is still universal.It is the first manifestation of the theory of reciprocity into anempirically observable phenomenon. Thus, even though it is thetheory of reciprocity which is the actual transition from nature toculture, the incest taboo is the first universal manifestation of thistransition. Its universality also proves that the theory of reciprocityfrom which it derives must also necessarily be universal. Thus Lévi-Strauss can now explain how the theory of reciprocity originates in theunconscious without having to do the same for the incest taboo. It isenough to show that the incest taboo is a product of the theory ofreciprocity, and this he has done by showing that the exchange ofwomen is the fundamental social relation.

15

However, there still exists the problem of the apparent oppositionbetween nature and culture and the difficulty of understanding therelation between them. Even though the incest taboo is the bridgebetween them, Lévi-Strauss often states and implies that they are atodds. In the Elementary Structures he states that the phenomenoncan only be examined from a cultural, i.e. anthropological/sociologicalperspective, while the natural sciences cannot provide insight into itsworkings. He does not deny the natural aspect of the taboo but alsoattacks those who would explain the prohibition of incest as a purelycultural or natural phenomenon by affirming that both these extremistexplanations lead to contradiction. Nor is it a ‘composite mixture’ ofnature and culture, but a transition, a transformation of one into theother.

16Still, he denies that the study of biology, genetics or

evolutionary theory could help with its explanation. He states:

14Ibid. p. 68-69.

15Ibid. p. 68.

16Lévi-Strauss, 1969, p. 24.



even if the incest prohibition has its roots in nature it is only inthe way it affects us as a social rule that it can be fullygrasped.

17

It can thus be deduced that on one hand Lévi-Strauss does not wantto deny completely the role of nature in the prohibition of incest, yet atthe same time he wants to assert the importance of culture overnature.

Lévi-Strauss gives little justification of these statements. He does,however, state explicitly in the Elementary Structures that ‘a viciouscircle’ develops if one looks for a natural explanation for the origin ofinstitutional rules, which by his definition are culture, as they cannotbe established without language

18. (He does not, however, give any

further analysis of this point). It seems to be taken for granted by Lévi-Strauss that language is what distinguishes humans from the animalorder and as soon as it exists, society and culture also exist.

19

Language is also a manifestation of reciprocity, given that there mustnecessarily exist at least two individuals exchanging symbolicinformation. I will return to this point in section 5. It is now time toexamine why Lévi-Strauss conceived of and defined the incest tabooand its implications for nature and culture in this particular way.

3. Why does Lévi-Strauss assert culture’s importance overnature in the explanation of the incest taboo?Intellectual context, theoretical aims and conception of socialanthropology

There are many reasons which pushed Lévi-Strauss to thiscontroversial theory and to the remarkable statement that the incesttaboo can gain nothing from explanation which focuses on its naturalaspect. The motivation is a combination of factors which range from

17Ibid. p. 29.

18Ibid. p. 8.

19Lévi-Strauss, in R. Kearny, Modern Movements in European Philosophy:

Phenomenology, Critical Theory, Structuralism, Manchester: ManchesterUniversity Press, 1994, p. 255.



the philosophical trends during the time Lévi-Strauss was writing tothe fact that at this stage his theory was far from complete.

All people who live in a certain historical period are to a greater orlesser extent influenced by their environment and surroundings. Thephilosophical, literary and scientific trends help shape the way peoplethink, even what they choose to study. Lévi-Strauss was noexception. When the first edition of The Elementary Structures ofKinship was published in 1949 social anthropology was a relativelyyoung science. If his work was to become influential, Lévi-Straussknew that he had to first create a niche for his discipline and underlineits importance, in order to accentuate its diversity from otherdisciplines such as zoology and mainstream sociology.

20The human

species was said to differ from animals only in terms of degree, andthat degree was culture. An example of this can be seen in Lévi-Strauss’s attack on the Westermark-Ellis theory of incest aversion,which states that there is a natural, biological aversion towardsincest.

21(This theory will be explained further in section 4.) This

naturalistic explanation was to a large extent reductionist, and wastherefore regarded as inadequate by Lévi-Strauss as he searched fora more complicated explanation which took into account all of thevariables of his theory.

On the other hand, Lévi-Strauss would not want to express ideas tooclosely related to sociology or psychology. Thus he had to be carefulin underlining that the role of nature is not obliterated completely, inthe way that many social scientists of his time tended to do. Thereforeculture would not be part of nature, nor would it be the opposite ofnature, but it would transform nature into something higher and thusworthy of specific research.

22In fact, Lévi-Strauss does not break free

completely from previous sociological theories such as that proposedby Durkheim, yet makes significant changes to fit his ownexplanation. It has been suggested by some of his critics that Lévi-

20Mepham, in D. Robey (ed.), Structuralism: an Introduction, Oxford:

Clarendon, 1973, p. 111.21

Lévi-Strauss, 1969, p. 16-18.22

Robey, 1973, p. 112.



Strauss diverged from Durkheim but then later on in his life returnedto some of Durkheim’s viewpoints. In the Elementary Structures,however, the divergence is apparent.

23Lévi-Strauss keeps the idea of

functionalist explanation yet asserts that it cannot stand on its own. Ifit is to make any sense, it must be rooted in the individual psychologyand not in the collective consciousness.

24This is a very important

philosophical point, as by providing a functional underpinning forsocial structure in the individual, he could eliminate Durkheim’sappeal to a metaphysical logic of evolution.

25Functional explanation

is not causal, i.e. a phenomenon is not explained by how it has comeabout, but by its function, its purpose, and thus the temporal order ofcause and effect is inverted.

26One way of providing a functional

explanation within the temporal framework is to combine it withevolutionary theory. Thus, as the origins of social structure cannot beexplained in terms of human actions (given that, according tofunctionalists, society superimposes itself on the individual), agenetic, evolutionary explanation is given whereby the selectivepressures of evolution dictate how both society and humans comeinto being and act.

27(This is very simplistic view of Durkheimian

functionalism, which serves purely to show the similarities anddifferences with Lévi-Strauss’s own work.) The implication is that allsocieties in the world today are arranged on a type of evolutionaryscale from the most primitive to the most advanced.

28

Even if this claim is a somewhat extreme version of evolutionaryreductionism, it is easy to see why Lévi-Strauss would reject such anexplanation. This extreme biological reductionism does not leave anyspace for free individual action, or more importantly for Lévi-Strauss,

23Moravia, Sergio La Ragione Nascosta. Scienza e Filosofia nel Pensiero di

Claude Lévi-Strauss, Firenze: Sansoni, 1969, pp. 155-168.24

Clarke, 1981, p. 47.25

Ibid. p. 39.26

The author acknowledges the lectures given by Professor SebastianGardner for having explained this idea to her.27

Clarke, 1981, p. 48-49.28

Ibid. p. 49.



the individual unconscious as the basis of society. Lévi-Strauss wasattempting, through his account of the unconscious, to give a rationalexplanation for the basis of society, and in order to do so he had to goagainst this simplistic view of evolution. In fact, it is biologicalreductionism itself which caused the greatest gap between Lévi-Strauss and Durkheim. (This will become more apparent from theanalysis in the following sections.)

The historical context is also important. In the late 1940s, the worldwas just picking itself up from the horrors of the Second World War.Evolutionary thinking had been used in a very negative way, the ideasof Social Darwinism attesting that human races were diverse and thatsome were biologically superior to others. Lévi-Strauss, as ananthropologist, was striving to show exactly the opposite; that allhumans were biologically similar and that any cultural differences didnot show advancement or regression, simply different ways of doingessentially the same thing. Thus, for example, the contents of theincest taboo may be different in each society yet the important thing isthat the incest taboo exists everywhere. In 1959 Lévi-Strauss wrote‘Race and History’, a paper which condemns the ‘ethnocentricattitude’ that existed in the Western world at the time and did notallow for cultural differences, dismissed anything non-Western asprimitive.

29Thus Lévi-Strauss used an almost relativist argument in

order to show how much he feared the misinterpretation ofevolutionary theory and biological reductionism.

At the same time, he was an important part of the structuralistmovement, which became very popular during his lifetime. Some ofthe basic concepts of structuralism would logically lead to his ideasconcerning nature and culture, described above: for example, hisbelief that structures, especially in their elementary forms, are thebasis of human life. These structures are not consciously conceivedby humans and then put into practice, but exist as entities in their ownright.

30Thus, when examining a social phenomenon, it is more

29Lévi-Strauss, 1952, p.21.

30G. Gutting, in E. Craig (ed.), Routledge Encyclopedia of Philosophy,

London: Routledge, 1998. URL: http://www.rep.routledge.com



important to analyze these structures (an expression of culture) andtheir relationships with the individuals in whose unconscious theyexist, rather than the natural or biological characteristics of theseindividuals. As a structuralist, Lévi-Strauss also advocates a type ofdeterminism which again results in the importance of culture overnatural instinct. ‘L’esprit humain’ –loosely translated as ‘the humanmind’ – is determined by the laws that govern the structures ofsociety.

31The unconscious, which is the same for ‘primitive’ peoples

and those who live in more complex societies provides the point ofcontact between the social and the individual mind, yet it is neverreduced to ‘a matter of individual psychologism’.

32Thus again, the

natural individual impulse must be contained within the greaterstructure.

However, in many ways Lévi-Strauss’s writings diverge fromstructuralism. Many of his commentators write that identifying hiswork and structuralism as identical is a great error, which leads to amisinterpretation of his ideas.

33Others agree that Lévi-Strauss’s

ideas do contain some basic structuralist ideas, but say that the bulkof his work goes beyond the frame imposed by structuralism.

34In fact,

in the Elementary Structures he places a lot more weight onindividualism than is generally apparent in mainstream structuralism.

Another motive that drove Lévi-Strauss to this conclusion concerningnature and culture is the following. As noted in the introduction, thenature versus culture debate in terms of the incest prohibition appearsmostly in the preface and introductory chapters of The ElementaryStructures. This is because it is used only as an introduction andframework for his elaborate theory of how kinship systems work. Thushe stresses the importance of incest prohibition as the basis ofsociety itself in order to ‘justify’ the focus of his book. Then, throughhis brief discussion he argues (whether successfully or not) that any

31P. Pettit, The Concept of Structuralism: A Critical Analysis, Berkeley, CA:

University of California Press, 1975, p. 77.32

Clarke, 1981, p. 212.33

Dyson-Hudson, in Robey, 1973, p. 218.34

D. Sperber, p. 25.



explanation of this phenomenon must focus on its cultural aspect. Hecan then proceed with the in-depth analysis of his theory, whichexplains kinship systems solely in terms of their cultural and socialcharacteristics.

Lévi-Strauss does not differentiate between the origins of the incesttaboo and the taboo itself. Still, his analysis of how the incest tabootransforms nature into culture and the eminence of culture after thatimplies a historical progress from one time period or era into another.This strikes the reader as a distinction which needs to be made if theanalysis is to make sense. It comes to a point where, he states,

there only, but there finally culture can and must, under pain ofnot existing, firmly declare ‘Me first,’ and tell Nature, ‘You go nofurther’.

35

It is almost as if he is imagining an ‘Age of Nature’ ending and an‘Age of Culture’ beginning. Therefore one could interpret the naturalaspect as important in the origins of the incest taboo, while thecultural aspect as essential to its evolution ever since. If this is thecase, and Lévi-Strauss is deliberately leaving the origins of the incesttaboo out of his analysis, then one could understand why he goes toso much effort to explain why the incest taboo has these twoconflicting aspects, but then rejects the first. If it is only in the originsthat nature is important, then Lévi-Strauss’s has provided ajustification for his insistence that culture is the only aspect importantto his own study.

Whatever his reasons may have been, the result of this was a deeprejection, one could say even fear, of evolutionary thinking andexplanation, which stayed with Lévi-Strauss even though he revisedhis own theory later on in his life. As will be shown more extensivelyin the following sections, this rejection stemmed mostly from theresidual contempt for biological reductionism rather than a rejection ofevolutionary theory itself.

35Lévi-Strauss in Korn, 1973, p. 10.



4. The later development of Lévi-Strauss’s theory and itsimplications

As the discussion in the previous section has highlighted, when tryingto get to grips with Lévi-Strauss’s work, it is often quite difficult tounderstand what exactly he means. Indeed sometimes he comesacross as ambiguous, even contradictory. And it is not only detailswhich seem to change but central definitions which oscillate betweenvarious meanings. Some of Lévi-Strauss’s commentators interpretthis simply as resulting from his style of writing. For some it is thisartistic way in which he expresses himself which is part of the geniusof his work.

36For his critics however, this ambiguity undermines his

argument. His use of ‘poetics’, i.e. a reliance on metaphors, has beencriticized as drawing away the reader from the argument in question.A parallel criticism is that this inconsistency throughout his works(especially the inconsistency of definitions) and his use of technicalterms renders his analysis incomprehensible to the reader and thusdetracts from its intellectual value.

37

Even though there may be some truth, however exaggerated, in thesecriticisms, the underlying reason for the inconsistencies is simply thatLévi-Strauss’s theory evolved throughout his lifetime. The ElementaryStructures of Kinship was originally Lévi-Strauss’s doctoral thesis andwhen writing it his ideas were not yet fully formed. Indeed, in thepreface to the second edition of the Elementary Structures, written in1967, he reassesses his position dramatically. He states explicitly:

As to the basic problems raised in the introduction, many newfacts and the development of my own thought mean thatnowadays I would no longer express myself in the same way.

38

The preface to the second edition is probably the key text whichshows the evolution of his theory and is central to its understanding.

36Sperber in Sturrock, 1971, p. 21.

37Korn, 1973, pp. 142, 144.

38Lévi-Strauss, 1969, p. xxviii.



The most important change is demonstrated by the new definitions ofnature and culture. Culture is

the synthetic duplication of mechanisms already in existence[in nature] but which the animal kingdom shows only indisjointed form and dispersed variously among its members – aduplication, moreover, permitted by the emergence of certaincerebral structures which themselves belong to nature.

39

This means that culture is what makes humans human, and eventhough animals do have behavioural patterns that can in some sensebe interpreted as examples of culture – tool-making, communication,social structure etc. – humans are the only species whichsystematically combine all their characteristics given by nature andtransform them into culture. Humans thus still differ from otheranimals, yet to a much smaller extent than was previously suggested.It is the natural characteristics which exist in all animals to differentdegrees, which can be used to form culture or aspects of it. However,there is no teleological reason, on Lévi-Strauss’s account, whichshows that it must necessarily be so. The implications of thestatement quoted above are far-reaching and the answer to thefamous question ‘Where does nature and Culture begin’ raised in thesecond section takes on a whole new meaning.

Nature and culture are no longer to be viewed as diametricallyopposed. Before, the idea was that the incest taboo, as amanifestation of the theory of reciprocity, was the mediator betweenthose two orders. Now, however, ‘the contrast between nature andculture would be neither a primeval fact, nor a concrete aspect ofuniversal order’.

40In other words, nature and culture are not a thesis

and antithesis, but just two not-easily distinguishable aspects in theessence of humanity. In fact, Lévi-Strauss explicitly states that inorder to understand culture, one must ‘trace it back to its source’ andseek out its ‘loose ends in other animal and even vegetable

39Ibid p. xxx.

40Ibid p. xxix.



families’.41

This is effectively an admission that evolution has playedan important role in the origins of culture. Moreover, he evenacknowledges the fact that culture neither necessarily superimposesitself over nature, nor ‘irreducible to it’.

42The Lévi-Strauss of 1967 has

thus virtually obliterated the contrast between nature and culture.

However, he continues to believe that there is no room for ‘biologicalcausation’ in the explanation of the prohibition of incest within theframework of social anthropology. The question one therefore needsto consider is, why does Lévi-Strauss still deny the importance ofbiology in the explanation of a phenomenon which he himself hasadmitted originates in nature? The answer can be found againthrough the examination of the social and intellectual context in whichLévi-Strauss was writing. It seems that Lévi-Strauss was not againstbiological explanations in general, but was adamantly against acertain type of biological explanation, evolutionary reductionism.

I now want to introduce the hypothesis that Lévi-Strauss was not atodds with biology as such but with the notion of reductive explanation.Application of this notion could lead to extreme biologicalreductionism, as shown in the previous section. Lévi-Strauss rejectedall sorts of reductionism, not just the reductionism found inevolutionary and genetic analysis. In the same way he believed thathumans are more than the sum of their genes and societies morethan the sum of their subjects, he did not reduce the unconscious toindividual psychology.

43He rejected psychological reductionism as

much as he rejected any other type of reductionism and theirrationalism that he believed usually went with it.

It may seem that there is a contradiction here. On the one hand Lévi-Strauss rejects reductionism, yet, on the other hand, he himselfreduces reciprocity to the unconscious and culture to nature. There isa subtle difference, however. Lévi-Strauss’s reductionism has acertain limit and does not seek irrational explanations, whereas it

41Ibid p. xxx.

42Ibid.

43Clarke, 1981, p. 212.



seems that he thinks that social, psychological and biologicalreductionism are extreme forms of reductionism, which verge on theirrational and are thus counter-intuitive. Though this point cannot beirrefutably proven, it is probably safe to say without further analysisthat this rejection of extreme reductionism would have, among otherfactors, led to his dismissal of genetic and evolutionary explanations.

It is now widely accepted, however, that biological explanations –evolutionary explanations included – do not have to be reductionist.Even though it has often been the case in the past that evolution isthe classic example of reductionism, it is now widely believed that thisis a very simplistic interpretation of evolution, indeed amisinterpretation. Natural scientists affirm that evolution is not a linearprocess, as interpreted in the past, but much more complex. It isdriven simultaneously by many factors, many of which are nowknown, some of which can be rationally inferred, which have resultedin the immense biodiversity which we see today. Although genes areimportant as the smallest units of evolution, one cannot explain everysingle process of evolution, natural and cultural, solely in terms ofgenes. This means that although more complex than previouslythought, evolution is also a lot more sophisticated and evolutionaryanalyses are not irrational. Evolution does not explain individuals byreducing them to the interactions of their genes, but allows for otherfactors, including cultural ones, to influence their behaviour.

5. Theorising the pre-cultural incest taboo

5.1. Some theories which explain the absence of incest with little orno reference to culture

As shown in the third section, Lévi-Strauss states in the preface to thesecond edition of the Elementary Structures that due to ‘many newfacts’ especially from the field of genetics, he would not expresshimself in the same way if he were to rewrite the book.

44However the

phrase ‘many new facts’ is an understatement for the huge boom ofresearch in the natural sciences since 1947. The focus of some of this

44Lévi-Strauss, 1969, pp. xxviii-xxix.



new research has been the incest taboo and its position as alandmark for the origin of culture. In this section I will examine someof the most important theories and their findings, focusing especiallyon an evolutionary explanation of the origin of society, and the pre-social explanation of incest aversion.

By the time Lévi-Strauss was writing the first edition of the ElementaryStructures, Edvard Westermark had long since published his theory ofbiological incest aversion. This stated that children growing uptogether will either develop an instinctive revulsion of sexual relationsfor one another or will simply become indifferent to each other aspotential sexual partners.

45This theory also has newer evidence

which supports it. Studies of kibbutz systems in Israel and ‘minormarriages’ in China also seem to show an inherent incest aversion forchildren who grow up together as brother and sister.

46These studies

demonstrate that it is not necessarily only the existence of a taboowhich makes people feel aversion towards their siblings, butconversely that the taboo could have evolved from this naturalaversion. Furthermore, there is additional evidence in the animalworld which supports Westermark’s theory.

A surprisingly large number of animal species do not commit incest,ranging from insects, prairie deer mice and geese to chimpanzees.

47

Although the existence of these occurrences does not prove beyondall doubt that there is some sort of conscious or unconscious naturalmechanism which inhibits desire for incestuous reproduction, it doessupport the theory that the incest taboo is something more than apurely cultural phenomenon and that studying its natural aspect couldprovide answers to the riddle it poses.

45Westermark in D. Aberle (ed.), ‘The Incest Taboo and the Mating Patterns

of Animals’, American Anthropologist, New Series, Vol. 65 No 2 (Apr. 1963),p. 260.46

D. Spain, ‘Taboo or not Taboo: Is that the Question?’, in Ethos, Vol. 16,No.3 (Sept. 1988), p. 285.47

Roscoe, 1994, pp. 49-76.



It has been proposed that aversion to incest has evolved because ofits deleterious effects on offspring. We know that incestuous relationsrun a much higher risk of resulting in dead or mutated offspring.

48

Close inbreeding is therefore dangerous for the particular population.This however does not explain the origin and persistence of the incesttaboo. Deleterious effects do not always occur as a result ofinbreeding; there are many other factors which are importantsimultaneously.

49Moreover, the danger decreases dramatically if the

individuals are not within the nuclear family, i.e. between second, thirdcousins and so on.

50The incest prohibitions around the world,

however, do not reflect this. It is very often the case that one set ofcousins – for example on the patrilineal side – are encouraged to getmarried, yet marriage with the same cousin on the matrilineal sidewould be considered incest.

51The degree of relation is exactly the

same and has the same chances of producing dead or ill offspring,but the cultural incest prohibition views them differently. This showsthat we cannot take for granted the idea that primitive peoples tookthe possible deleterious effects of inbreeding into account when theincest taboo came into existence. In fact, if Lévi-Strauss is right insaying that the incest taboo has its roots in the unconscious, it seemsimprobable that the connection between inbreeding and geneticdepression was made. Even if it was made, then it could only haveoccurred after the incest taboo already existed and at most, couldhave given the incest taboo greater credibility.

5.2. The pre-cultural basis of the incest taboo as an explanation of itsorigin: Seymour Parker’s interpretation

There are many theories which differentiate between the natural andcultural aspect of the incest taboo, but focus on its origin, i.e. itsnatural aspect. One such theory is developed by Seymour Parker in‘The pre-cultural basis of the incest taboo: toward a biosocial

48Aberle, 1963, p. 256.

49R. Bixler, Ray, ‘Incest avoidance as a function of Environment and

Heredity’, in Current Anthropology, Vol. 22, No. 6 (Dec. 1981), p. 641.50

Brown, 1991, p. 123.51

Lévi-Strauss, 1969, p. xxxii.



theory’.52

In it, Parker states that even though reducing the culturalphenomenon of the universal incest taboo to instinctive need is not anadequate explanation, this does not mean that there is no biologicalbasis for the incest taboo.

53That is, he distinguishes between the

origins of the incest taboo and its eventual cultural importance as arule. Although incest may have some sort of function in society, itsorigins, he believes, are genetic. He does allow for the fact thatcultural factors added ‘new selective advantages’ but that they did soto a ‘pre-existing propensity towards incest avoidance’.

54. The idea is

that the incest taboo became very important as a culturalphenomenon, yet it did so by reinforcing natural, instinctive humanpropensities. He states that incest avoidance is not a sufficientcondition for the existence of the incest taboo, and nor is it anecessary condition; yet he is adamant that it was a facilitatingcondition.

55In terms of evolutionary probability however, a facilitating

condition is so important that no theory can afford to dismiss italtogether.

Parker’s theory attempts to answer the question ‘When did the humanway of life become peculiarly “human”?’

56This question bears striking

resemblance to Lévi-Strauss’s own question about where nature endsand culture begins if viewed from a certain viewpoint. I will return tothis point in the next section. Parker gathers evidence aboutprehistoric life and formulates a hypothesis for the emergence ofincest prohibitions based on systems of alliances.

57Very briefly, the

idea is that the hunting of large game results in population dispersalwhere social life is based on hunting family groups. Scarcity ofresources forces alliances between family groups which arecemented with marriage between members of different groups. Incest

52S. Parker, ‘The precultural basis of the incest taboo: toward a biosocial

theory’, in American Anthropologist, New Series, Vol. 78 No.2 (Jan. 1976),pp. 285-305.53

Ibid p. 286.54

Ibid. p.287.55

Ibid. p. 299.56

Ibid. p. 298.57

Laughlin, 1974, quoted in Parker, ibid., p. 298.



prohibitions reinforce this by prohibiting marriage with the women ofthe family group, thus enabling individuals to seek spouses outsidethe family group.

This, however, is quite similar to Lévi-Strauss’s own explanation ofexogamy in terms of alliances between family groups. According toLévi-Strauss, when something is scarce, it takes on the properties ofan ‘economic good’.

58Incest prohibition alone ‘freezes’ women within

the family group, making them scarce, and with the rules of exogamythis action is annulled. Thus alliances between family groups worktogether with the rules of exogamy to make sure that potentialspouses can be found when necessary.

The importance of the existence of these theories does not stem fromthe plausibility of their content. In fact, I am in no position to be able todetermine their validity. However, they have aspects which arecompatible, or even in some cases strikingly similar to Lévi-Strauss’sown theory, even though their focus and objectives are different. Thusone can examine if these theories are at least conceptually consistentwith some of Lévi-Strauss’s fundamental ideas. This will be the focusof the next section.

6. Is it conceptually possible to combine Lévi-Strauss’s theorywith other evolution-oriented theories of the incest taboo?

As shown in sections 3 and 4, Lévi-Strauss did not think highly ofevolutionary or biological explanations of the incest taboo. Eventhough he revised his own theory in later life and admitted that he hadtreated discoveries in the field of genetics too lightly, he still statedthat the importance of the incest taboo was to be found in its culturalaspect. However, in section 5 it was shown that many theories whichprovide an evolutionary explanation for these phenomena are notalways diametrically opposed to Lévi-Strauss’s own theory. Moreover,many of the scientists writing these papers quote Lévi-Strauss anduse his theory as a point of reference from which to proceed. Thepurpose of this section is to examine whether at least some of these

58Korn, 1973, p. 13.



evolutionary explanations are theoretically compatible with Lévi-Strauss’s own discussion of the incest taboo. In order for this tooccur, it is necessary for Lévi-Strauss’s warnings about theevolutionary explanation of the incest taboo to be ignored. After all, itwas shown in section 3 that his warnings stemmed from his rejectionof extreme reductionism, not evolution itself.

The first important premise for the argument is that Lévi-Strauss didnot reject evolution as the explanation of biological features. Indeed, itwould be rather absurd if he did, because of the accumulatedevidence which supports Darwin’s theory for the evolution of species.In terms of anatomical and biological characteristics, Lévi-Straussagreed that humans, like all other animals, have the genes and formsthey do today because of environmental and natural selectionpressures. However, many scientists today believe that behaviouralpatterns can also evolve, and more importantly, that aspects of thisevolution are brought about by similar selection pressures as thosewhich control the evolution of genes and forms. In fact, it has alsobeen suggested that some genes can even influence behaviouralpatterns. For example, very complex behavioural patterns of courtshiphave evolved in many animal species which take place beforereproduction can occur. It is also a frequent occurrence that younganimals observe and copy their parents’ behaviour for finding andcatching food.

Changes in behavioural patterns also occur in humans, and it is ofteneasy to see how they evolve. Some of these changes occur within alifetime; for example, infants’ behaviour changes as they grow intoadults. In addition, the study of history shows that within a fewgenerations, behavioural patterns can change dramatically; forexample, people can espouse a new religion which changes theirwhole outlook towards life. Alternatively, sudden changes in theenvironment, such as a plague, can upset normal modes of behaviourand result in new patterns. After all, one cannot deny that culturesdiffer from each other and from those cultures existent in the past.The natural, easy explanation for this is that each culture has evolved



into a pattern that suits it best, and enhances its chances of survival.This, however is bad evolutionary thinking.

59Cultures do not know

what is good or bad for them, nor is their evolution predetermined.There is no perfect final state which a culture must reach and whichall cultures aspire. There exist also countless examples ofbehavioural patterns in various societies that actually undermine thesurvival of the individual and the society. It is not clear for example,how civil wars or smoking can help the survival of the individual or thegroup to which he/she belongs, nor how these phenomena can beexplained in terms of natural selection. In fact, to do so would be toprovide the reductionist type of explanation against which Lévi-Strauss warned.

Still, as stated in section 5, evolutionary explanations do not have tobe reductionist, yet they are equipped with the ability to take intoaccount many other factors beside natural selection pressures.Seymour Parker’s theory is just one example of the many theorieswhich provide a bridge between incest aversion and the manifestationof the incest taboo. It is of particular importance here because of itsclose connection to Lévi-Strauss’s ideas, but it is by no means theonly important work. If it is proven that these two theories are notincompatible, but that one can follow on from the other, then animportant connection will have been established. Even if later onParker’s theory is proven wrong, then there will still be the possibilitythat another compatible theory can be formed to take its place.

As stated in the previous section, Parker – like Lévi-Strauss –explains the cultural manifestation of the incest taboo in terms ofalliances between families, where the biological tendency of incestaversion becomes a cultural way of life, which is then perpetuatedand reinforced by various cultural rules.

60This, according to Parker, is

the origin of the cultural aspect of the incest taboo. This theory alsogives extra support to the idea that incest prohibition is universal(because of the way it originates) but the rules governing it differ from

59R. Dawkins,The Selfish Gene (30th anniversary edn.), Oxford:

Oxford University Press, 2006, pp. 3-4.60

Parker, 1976, p. 299.



culture to culture, because they evolve in different ways depending ondifferences in each natural and cultural environment.

However, there still remains a problem if these theories are to becompatible with each other. This is the problem of the so-called ‘bigbang’ theory for the emergence of culture. The problem is that on theone hand Lévi-Strauss states that language and therefore culturecould only have come about all at once, but on the other handevolutionary explanations of behavioural patterns show that evencultural phenomena evolve over a period of time. This problem isdissolved, however, if one looks closely at the evolutionists’ conceptof a period of time. The evolutionary timescale is very different to thatused for practical purposes in everyday life. This is because theevolutionary timescale starts billions of years ago, in order to take intoaccount the formation of the planet and everything from then untilnow. Therefore if the timescale is billions of years, 30,000 years (thetime in which it is believed that culture came into existence) is truly ablink. Any evolution within this timeframe is really an explosion, a ‘bigbang’. In terms of human a human timescale, it still is thousands ofgenerations. With this in mind, it is at least conceivable that Lévi-Strauss’s theory can be reinterpreted and extended to fit thisevolutionary timescale. The main point here is that what Lévi-Straussexplains as the workings of incest prohibition, its manifestation ofreciprocity, and the role of the unconscious do not have to change.The only factor which needs to be revised is the timeframe in whichall this occurs.

In addition, the existence of a timeless unconscious does notundermine this analysis. If humans are not conscious of the culturalchanges that are occurring around them, but merely externalising andvocalising concerns which pre-exist in their unconscious, then it doesnot matter if it takes a second or 30,000 years for a culturalphenomenon to be ‘fully formed’. In fact, one cannot say that theincest taboo, or any other cultural phenomenon for that matter, is fullyformed, as it is constantly evolving even in our time. This is apparentin Western societies, where the prohibition of incest concerns onlyclosely related individuals, while ‘moral’ sanctions for incest are



applied less strictly or not at all if the incest relationship occursbetween consenting adults.

Subsequently, it seems that at least on a conceptual level, Lévi-Strauss’s theory can be combined with others in order to produce afuller explanation of the incest taboo, and through it the origin ofculture itself. The practical examination of this combination is acomplex, empirical matter. What should be retained is the idea thatinterdisciplinary analysis can result in an explanation more fruitfulthan one confined to a single field of study. Socio-biologists havestarted down this path and although not every single paper publishedis necessarily valid or useful, the idea of combining materials andmethods is, I think, a way of expanding mental horizons and couldresult in great explanatory success.

7. Conclusion: Is the Nature Culture debate necessary?

The opposition between nature and culture has been a central themein this essay. Importance and power has oscillated between the twoorders for a very long time resulting in the ingraining of this idea ofopposition in many people’s minds. Nowadays however, thelegitimacy of the debate itself is being questioned. There has been anincreasing tendency to view nature and culture as interrelated andworking together in terms of their effects on the human environment.Many natural and social scientists now think that everything thatoccurs in humans is a result of a combination of heredity and theeffects of the environment, and thus any explanation must take intoaccount both natural and cultural factors.

61

There is however a problem with this idea. Not everything in humannature is the result of combination of environment and heredity. Thereis a distinction between natural and cultural phenomena which cannotbe simply eliminated. For example, one would be hard-pressed to findgenetic reasons for one person’s preference for one particular balletproduction over another. Conversely, it would be absurd to seek a

61S. Pinker, ‘Why nature & nurture won’t go away’, in Dedalus, Nov. 2004.



cure for genetic disorders such as Down’s syndrome or haemophiliain the cultural sphere.

There seems to be no simple way out of this debate. Not evencombining the two extreme theories always provides good answers.In addition, every time a particular theory is proven unsatisfactory, thedebate seems to spring up again anew. Still, a very important pointhas been made with the combination of the ‘extreme nature’ and‘extreme culture’ theories. Even though it is not always the case thatboth nature and culture influence human phenomena, very often bothdo and moreover, it is not usually easy to say whose influence ismore obvious and important. Lévi-Strauss’s account of the incesttaboo greatly reflects this. He himself, who was so adamant in thebeginning that nature’s importance as an explanatory mechanism wasobliterated by the advent of culture, later acknowledged that thingsare not so simple, and that culture is a lot more easily reducible tonature than was previously thought.

This is a very important shift in ideology, which was to have farreaching effects. The important difference is that nature and cultureare no longer viewed as diametrically opposed. As shown in section4, with a few sentences, Lévi-Strauss effectively eliminated thenature-culture debate; he was not alone. His shift in ideology wasmirrored by many natural and social scientists to great success. Thisis, I think, one of the most important changes of ideology of our time,because the destruction of the idea that natural and cultural factorsare independent and necessarily work against each other, hasallowed both the natural and social sciences to make huge leapsforward. It has also allowed for the emergence of new disciplineswhich would have been unthought-of if nature and culture were atodds, for example socio-biology, evolutionary anthropology, etc. Itseems as though both the natural and social sciences do not feel theneed to seek answers in extremist theories any more. It seems to beunderstood now that even if something cannot be explained by acombination of natural and cultural theories, this is not because theyare at odds; it is usually because on one hand there is no time for thecultural aspects to have any influence, as with the case of hereditary



diseases, or on the other hand, there is no space for the naturalfactors to influence, as in the case with the artistic preference.

It now seems rather counter-intuitive to say that overall, nature ismore important than culture or vice versa. After all, ‘human nature’,and maybe even some animal ‘natures’, are the way they arebecause of both natural and cultural phenomena: they have bothnatural and cultural aspects to them.

The ultimate aim of this essay has been to show the limitations whicha theory can encounter if nature and culture are defined in particularways, especially if they are viewed as opposites; at the same time,the aim has also been to show that as soon as nature and culture arenot viewed as opposites, many of the original limitations of the theorydisappear, and more importantly it can now, at least in theory, becombined with other theories and thus provide more satisfyingexplanations of the phenomenon being examined. Lévi-Strauss’stheory was particularly interesting for many reasons. Firstly the verytopic of the incest taboo and its universality is simply fascinating.Secondly, the connections Lévi-Strauss makes are not alwaysexpected, yet sometimes provide insight into the workings of humannature. They are intellectually stimulating, pushing the reader’s ownmind to examine the issues at hand. Examination of his theory ofincest sparked my interest in the extremely complex nature ofhumanity and alerted me to the importance of the nature versusculture debate. Interestingly, with the analysis of the theory, it seemedobvious that Lévi-Strauss was writing at a time very different to ourown (at least in terms of scientific research), and that my owneducation (and interest in evolution) greatly affected my interpretationof it. It seems that we are all products of our time to some extent, andit is possible that being a product of this time may require thisdissolution of the debate between nature and culture.


50

Verfassungspatriotismus:The key to understanding Jürgen Habermas’spolitical thought?

Beth Foley

1. Introduction

In The Seduction of Culture in German History, Wolf Lepenies hasrecently argued that the German Sonderweg is characterised by aconflict between culture and an idea of civilisation grounded inpolitical participation. He claims that it was the peculiarly Germanicnotion that progressive, democratic politics constituted the greatestthreat to the German Kulturstaat that had given rise to the disastrouspolitical experiment of the Third Reich.

1Though Lepenies makes no

mention of Jürgen Habermas, Germany’s leading contemporarysocial theorist, Habermas can readily be located within the frame ofhis thesis. Since his first major work in 1962 examining theimportance of the public sphere, Habermas has systematically arguedthe case for the ‘civil-isation’ of German thought – and thereforestands opposed to the elitist, anti-Enlightenment, Romantic flight ofinwardness that characterized the German Kulturstaat. Habermas’sline of inquiry has culminated in his development of the concept ofVerfassungspatriotismus (constitutional patriotism) – the need tomodernise our understanding of collective allegiance and to moveaway from notions of the Volk, land and tradition to embrace respectfor the universal values of freedom and equality implicit in modernideas of constitutional democracy.

This article uses the concept of constitutional patriotism to cast lighton the nature and significance of Habermas’s work. Constitutionalpatriotism, I argue, provides the bridge that brings his philosophicalwork on discourse theory and communicative reason into alignment

1Wolf Lepenies, The Seduction of Culture in German History, Princeton:

Princeton University Press, 2006.

Beth Foley Verfassungspatriotismus and Habermas’s political thought


with his commitment to certain political values. Since the concept isapplied not only to state his position in specifically German debatesbut also to inform his argument about European and global affairs, italso helps to identify the distinctive contribution Habermas makes tocontemporary social and political thought.

After briefly situating Habermas’s social philosophy in the tradition ofGerman idealism and critical thought, I explain the connectionbetween the development of his theory and his political commitmentsin stages. I first consider his intervention in the Historikerstreit, fromwhich the idea of constitutional patriotism as an alternative identity forGermany emerges. This constitutional orientation is then developedmore systematically by Habermas in the late 1980s in his major workon constitutional theory, Between Facts and Norms. From the co-originality thesis that he presents in that work, the key principlesunderpinning his concept of constitutional patriotism can beexplicated. While this concept is initially invoked as part of aspecifically German debate, Habermas subsequently applied it tonewly emerging political arenas. If the concept expresses universalvalues, can it be located beyond the constitutional arrangements ofthe nation-state? Habermas takes up this challenge of what he termsthe ‘post-national constellation’, first in the context of debates over theEuropean constitution and then, most recently, at the global level.

My objective in taking this evolutionary approach is to subjectHabermas’s concept of constitutional patriotism to ‘a genealogicalcritique’.

2Although constitutional patriotism presents itself as being

expressive of a universal morality, the problems it is designed toaddress can be traced back to the exceptional circumstances ofHabermas’s native West Germany in the post-war period. At theircore, these concern the construction of national identity and itsattempt to reconcile universally-couched political values with loyalty toa particular cultural community. Yet the particular cultural communityin which Habermas is situated has been uniquely and indeliblytarnished by the unspeakable form this national loyalty has taken. As

2See J. Müller, ‘On the Origins of Constitutional Patriotism’ in Contemporary

Political Theory, Vol. 5, 2006, p. 279.



such, Habermas’s attempt at re-defining identity becomes one thatseeks not so much to strike a balance between particularism anduniversalism as to eradicate all connections to a disgraced culturalcommunity.

The balance between universal and particular becomes both arecurrent theme in the Habermasian project, a continuous point ofcontention, and a challenge he does not successfully resolve. In hisportrayal of the dangers associated with national and culturalaffiliations, Habermas tends to neglect the positive elements of theinteraction between universal norms and particular affiliations whichconstitute political identity. I therefore propose an alternativeconception of constitutional patriotism and suggest that, although itsorigins are culturally specific, in its reworked formulation Habermas’sconcept is able to retain its value as insightful critique of modernpolitical existence.

2. Strukturwandel: The course of Habermas’s political and socialtheory

The idea that society, as well as an individual, is capable of ‘learning’,and that the progression of human reason is the catalyst for socialdevelopment, is widely held in German philosophy.

3Habermas’s

thought is rooted in this German tradition through his education withinthe Frankfurt School and from his close reading of Marx.

4While often

perceived to work within the Marxist tradition, Habermas makes twoimportant departures. The first is over Marx’s perception of ‘rational’historical development. Reason, for Habermas, can also act as acoercive construct – ‘Enlightenment destroys itself’ – and rationality isin fact the cause of both the emergence and the current crisis ofmodern capitalism.

5Accordingly, human autonomy is being stifled by

3C. Turner, ‘Jürgen Habermas: European or German?’ in European Journal

of Political Theory, Vol. 3, No. 3, p.303.4

R. Bernstein, The Restructuring of Social and Political Theory, Philadelphia,PA: University of Pennsylvania Press, 1978, Part IV ‘The Critical Theory ofSociety’.5

See J. Habermas, Legitimation Crisis, Boston: Beacon, 1975, Pt.II.



the seemingly unstoppable growth of ‘rationality’, evident inmechanised capitalist production. The second divergence isdeveloped through his contributions to social theory that led to the1981 publication, The Theory of Communicative Action (TCA).

In TCA, Habermas argues that modern critiques of the role ofrationality (Weber, Durkheim and Parsons) mistakenly treatedrationality as a uniform concept, centred on ‘instrumental’ rationality.

6

Habermas’s social theory thus focused on a second form of rationality– ‘communicative rationality’ – which had been overlooked in modernthought. He argued that the evolution of modern society had beenspurred on by that society’s collective reflection on the range ofvalues to which it is committed,

7and that for a traditional society to

take the kinds of decisions needed to transform itself into a capitaliststate, communicative interaction was in fact the key to technologicalgrowth. Only communicative debate on the essence of fundamentalvalues could lead to the mutual understanding and rational consensusupon which modern nation states are based.

Yet Habermas also observed that the modern world’s ever-expandingcapacity for material production and the subsequent escalation ofbureaucracy – features of society he terms the System – had givenrise to a ‘colonisation of the lifeworld’ – the realm of the informal,culturally and socially rooted interactions of daily life.

8The

replacement of traditional communicative practices with monetaryexchanges and administrative procedures causes the breakdown ofinterpersonal relationships characteristic of advanced capitalism:

this increasing system complexity … not only outflankstraditional forms of life, it attacks the communicativeinfrastructure of largely rationalized lifeworlds.

9

6See esp Habermas The Theory of Communicative Action, Vol.1, London:

Heinemann, 1984, Section IV, 2.7

J. Braaten, Habermas’ Critical Theory of Society, Albany, NY: StateUniversity of New York Press, 1991, pp. 80-81.8

J. Habermas, The Theory of Communicative Action, Vol. 1, pp.196, 367-73.9

Ibid. p.375.



Although this critique follows the lines of Weber’s argument,Habermas acknowledges that the evaluative sphere of the lifeworldhas in fact played a crucial role in its own colonisation, in that suchdevelopments were actively supported and demanded by moderncitizens. With a massive growth in material production, people beganto call for a systemised authority which could oversee and combat thenegative effects of this growth. The rapid expansion of the welfarestate in the twentieth century saw an individual’s life no longer definedsimply by moral norms but by political institutions and laws. This isexamined in detail in Strukturwandel der Öffentlichkeit,

10the central

theme of which is the need to re-introduce communicative action intomodern democracies. We should seek to return political autonomy tothe realm of the lifeworld, he argues, where debates are ‘driven by thesearch for the better argument rather than strategic power’.

11

A great deal of criticism has been levelled at the Habermasianphilosophical project. Although this criticism comes from variousdirections, its general thrust is its lack of scope for diversity andparticularity within communicative rationality. The idea that discourseethics will ever be able to establish a politics grounded in rationalconsensus has met with a great deal of scepticism. Hutchings, forexample, points out that communicative rationality ignores themasculine bias within the idea of a public sphere, and favours theparticular Western ideal of rationality: ‘the “weak transcendentalism”of Habermas’s discourse ethics presupposes a great deal about whatmorality must mean’.

12Rummens also portrays this conception of

morality as intrinsically linked to post-traditional societies:

Deliberative democracy is based not on the universalpresuppositions of rationality, but on the moral presuppositions

10Habermas, ibid., Section III: ‘Politische Funktionen der Öffentlichkeit’.

11T. Diez and J. Steans, ‘A Useful Dialogue? Habermas and International

Relations’, in Review of International Studies, 2005, Vol. 31, p.133/12

K. Hutchings, ‘Speaking and Hearing: Habermasian Discourse Ethics,Feminism and IR’, in Review of International Studies, 2005, Vol. 31, p. 165.



of the typically modern practice of validating action normswithout having recourse to traditional sources of authority.

13

This questionable potential of Habermas’s aim to transcend theparticular and establish a rational, universally-acceptable basis formodern society is a central problem to which I return with respect tohis later political writings. But to place the development of his theoryin context, we must first assess Habermas’s early contributions to hisnative West German political culture.

3. Habermas and the Historikerstreit

The Historikerstreit, a specific debate which erupted amongst WestGerman historians during the late 1980s, was the moment at whichHabermas made his first serious contribution to public debate. Thisdispute, in the form of numerous articles in the mainstream press,followed controversial commemorations set to mark the fortiethanniversary of the end of the Second World War, but later expandedinto wider German debates over ways to define a modern political andcultural identity, in the wake of their calamitous twentieth centuryhistory. It was in response to this unique set of circumstances thatHabermas first began to elaborate the idea of constitutional patriotismas an identity better suited to a ‘post-national’ world.

To appreciate Habermas’s contribution, it is necessary briefly toexplain the national circumstances that generated this debate. Thedispute centred on demands from the German right – led by HelmutKohl – for a stronger sense of national identity and unity, necessarilyaccompanied by a more positive image of the past. Only with a more‘normal’ sense of political identity could Germany gain an equalfooting with other western nations. Several prominent West Germanhistorians spoke out in support of Kohl’s agenda, accusing the left ofrefusing to allow the past, as Ernst Nolte put it, to ‘pass on’. They

13S. Rummens, ‘Debate: The Co-originality of Private and Public Autonomy

in Deliberative Democracy’, in Journal of Political Philosophy, Vol. 14, No. 4,2006, p. 481.



were challenged by left-wing historians, led by Habermas butincluding Jürgen Kocka, Hans Mommsen and Martin Broszat.

While the debate was fiercely polemical, there was a significant pointof consensus. Nolte’s appeal for a more ‘normal’ sense of nationalidentity and Habermas’s claim that denouncing Nazi crimes shouldprovide an impetus for the German people to disassociate from‘particularist’ national sentiment both take a normative view of history.Past events and their interpretation provide appropriate locations forSinngebung – the giving of meaning.

14As Stürmer put it:

wer aber meint, dass alles dies auf Politik und Zukunft keineWirkung habe, der ignoriert, dass in geschichtslosem Land dieZukunft gewinnt, wer die Errinerung füllt, die Begriffe prägt unddie Vergangenheit deutet.

15

The debate was therefore not focused on the question of whethernational identity could be separated from its historical origins, but onwhether and how far these origins should be subject to criticalassessment. Habermas’s line – that critical scrutiny of collectivehistorical consciousness was vital in modern democracies – providesa significant insight on the interdependency of particular and universalelements that constitute political identity, an idea to which we mustreturn.

Habermas treats this re-assessment of recent history and thesubsequent calls for a renewed sense of national purpose assignifying a dangerous trend. In attempting to relativise the scale ofNazi crimes, these historians were, he claimed, detracting from theincredible progress made by German post-war political culture: ‘Dievorbehaltlose Öffnung der Bundesrepublik gegenüber der politischen

14S. Brockmann, ‘The Politics of German History’, in History and Theory, Vol.

29, No. 2, p.186.15

M. Stürmer ‘Geschichte in geschichtslosem Land’, cited in Historikerstreit:Die Dokumentation der Kontroverse, München: R. Piper, 1987, p.36.[‘Whoever believes that all this has no effect on politics or the future ignoresthe fact that, in a country without history, the future belongs to those who givesubstance to memory, shape concepts and interpret the past.’]



Kultur des Westens ist die größte intellektuelle Leistung unsererNachkriegszeit.’

16Having grown up in the shadow of Europe’s darkest

nationalist experiment, Habermas’s political theory is marked by theawareness of the need for both Germans and Europeans to redefinetheir sense of national identity.

17Only by truly renouncing Nazi

Germany’s doctrine of national and racial superiority and regarding1945 as the Stunde Null from which a new society must beconstructed, could West Germany fully anchor itself in the liberal,democratic political culture of the West. To achieve this, he arguesthat the German people would have to relinquish national andpatriotic sentiment and adopt a modern and unconventional form ofidentity: ’wer die Deutschen zu einer konventionellen Form ihrernationalen Identität zurückrufen will, zerstört die einzige verläßlicheBasis unserer Bindung an den Westen’.

18Habermas’s proposals for

this identity came to characterise much of his later political theory.

The notion he began to advance during the Historikerstreit was that ofVerfassungspatriotismus or ‘constitutional patriotism’ – ‘der einzigePatriotismus, der uns dem Westen nicht entfremdet’.

19With earlier

national identities based on ideas of racial and cultural unity renderedillegitimate, a new sense of collective identity would be required, onewhich found its roots in the universal, rather than the aggressivelyparticularist. A post-national identity should draw instead on theuniversal constitutional principles of Western liberal democracy. For

16Habermas, ‘Eine Art Schadensabwicklung’ in ibid., p. 75 [‘The unreserved

acceptance in West Germany of the political culture of the West is thegreatest intellectual achievement of our post-war era.’]17

See Habermas, Die postnationale Konstellation, Frankfurt am Main:Suhrkamp, 1998, esp. ‘Aus Katastrophe lernen? Ein zeitdiagnostischerRückblick auf das kurze 20. Jahrhundert’.18

Ibid. p. 76 [‘Those who want to see Germans return to a conventional formof their national identity are destroying the only reliable basis of ourconnection to the West.’]19

Ibid. p.75 [‘the only form of patriotism that does not alienate us from theWest’] This idea has also been developed by theorists such as DolfSternberger; see Verfassungspatriotismus, Frankfurt am Main: Insel-Verl.:1990.



Habermas, true democracies should be striving for a political identitybased on the active and open engagement of their citizens, thusreintroducing the lifeworld’s element of communicative consensus intothe overarching ‘system’ of the state. In an interview with theFrankfurter Rundschau, Habermas stated that there could be ‘noconstitutional state without a radical democracy’.

20A deliberative

public sphere encourages open debate, which would lead to rationalconsensus on the form constitutional principles should take.

The concept of post-national identity subsequently became a hallmarkof Habermas’s political commentary. His proposals would take onincreasing significance during the years following the Historikerstreit,as two major events – the fall of the Berlin Wall in 1989 and thesigning of the Maastricht Treaty on European Union in 1992 – broughtthe future scope and role of nation states into the spotlight. Habermasargued against the Wiedervereinigung; as a unified and fullyindependent sovereign state, Germany was in danger of recovering amore ‘normal’ sense of patriotic pride, which could lead to anationalist resurgence. To avoid this scenario, Habermas highlightedthe need for an appropriate and meaningful orientation for the identityof the new German nation. In his recent work, Habermas has come toregard the European project as the key transition through which post-national identity can be forged.

In seeking integration into the West and the European alliance,Habermas argues that the German people should take the lessons oftheir history and use them wisely in their construction of a ‘post-national’ identity: ‘Eine in Überzeugungen verankerte Bindung anuniversalistische Verfassungsprinzipien hat sich leider in derKulturnation der Deutschen erst nach – und durch – Auschwitz bildenkönne’.

21This view adds a certain irony to his later proposals since,

20J. Habermas, interview with the Frankfurter Rundschau, 12 June 1993,

cited in A Berlin Republic: Writings on Germany, Cambridge: Polity, 1998, p.74.21

Ibid. p. 75 [‘Unfortunately, the German nation has been able to establish aconvincing connection to universal constitutional principles only after – andthrough – Auschwitz.’]



although he accepts that the particular Sonderweg of German historydoes and should inform current political action, the form of identity hesupports is one which actively seeks to rid itself of the particular andto embrace the abstract and universal. Before advancing thisargument further, the key elements of the constitutional theory thatHabermas favours to substantiate this identity must first be sketched.

4. Faktizität und Geltung: The constitutional theory of Habermas

Several of the hallmarks of the Historikerstreit returned to the fore asHabermas began in the late 1980s to develop a specific constitutionaltheory upon which constitutional patriotism could be based. Itsrecurring theme is the enduring tension between universal andparticular that Habermas seeks to overcome: specifically, thathistorical origins retain a powerful normative force within a nation’sconstitution, thereby introducing an incongruity between a particularnational history and the broad-based, universalised foundations ofconstitutional patriotism. Habermas’s attempt to overcome thistension attracted much scepticism and, with respect to hisconstitutional project, this is taken up by Dieter Grimm, whochallenges the Habermasian model and thus the basis ofconstitutional patriotism itself.

At the heart of Habermas’s debate with Grimm lie their radicallydifferent perspectives on the nature of constitutionalism: whether aconstitution is a document or a culture, and whether it is a‘prescriptive’ or ‘descriptive’ concept. For Habermas, the idea of anation’s ‘constitution’ goes far beyond any single legal document. Itrefers instead to a nation’s political culture in the broader sense. Theconstitutional patriot therefore identifies with a set of politicalprinciples, rather than with specific outcomes or policies. Habermasclaims that in a healthy democracy the constitution should provide theappropriate channels through which civil society can exerciseinfluence over national policies and laws. Grimm, however, arguesthat the American and French revolutions – which ‘violently overthrewancestral rule and established a new order on the basis of rationalplanning and legal codification’ – shifted constitutionalism ‘from a



descriptive to a prescriptive concept’.22

Primacy became ‘anindispensable element of constitutionalism’; only by preceding thepolitical order could a constitution limit state power ‘not only for thebenefit of a privileged group, but generally’. This prescriptive model ofthe constitution has implications for the potential force ofconstitutionalism beyond the nation state, which will be examined inthe next section. Here, it would first be pertinent to assess how farHabermas succeeds in his attempts to incorporate the prescriptive,‘binding’ elements of constitutionalism highlighted by Grimm withoutcompromising his faith in the constitution’s potential as a means ofpolitical emancipation.

In his major work on this subject, Between Facts and Norms (1992;BFN), Habermas returns to these tensions between freedom anddomination that characterise his general theory of modern society.The objective of BFN is to overcome a fundamental dilemma withinWestern political thought:

according to the classical conception, the laws of a republicexpress the unrestricted will of the united citizens.…Theprinciple of the constitutional exercise of power, on the otherhand, appears to set limits on the people’s sovereign self-determination.

23

To do this Habermas seeks to develop a ‘discourse theory’ of law anddemocracy, centred on the idea that ‘human rights and the principle ofpopular sovereignty still constitute the sole ideas that can justifymodern law’.

24The task for discourse theory is to demonstrate ‘how

popular sovereignty and human rights go hand-in-hand’. We do so bygrasping what Habermas calls ‘the co-originality of civic and privateautonomy’.

25

22D. Grimm, ‘The Constitution in the Process of Denationalization’ in

Constellations, Vol.12, No.4, 2005, p. 448.23

Habermas, Time of Transitions, Cambridge: Polity, 2006, p. 113.24

Ibid. p.99.25

Ibid. p.127.



Habermas’s solution – the co-originality thesis – contends that, ratherthan opposing one another, the principles of popular sovereignty andhuman rights are in fact mutually dependent. According to ourconception of democracy, one cannot exist without the other: the idealof popular sovereignty stems from a basic respect for our rights toautonomy (freedoms of belief, speech, association, family life etc)while the very implementation of the human right to autonomydemands popular sovereignty. Constitutional law goes on to form thefundamental component of modern democracy:

Political power can develop only through a legal code, and itis…constituted in the form of basic rights.

26

The co-originality thesis therefore argues that the constitution formsthe basis of democracy’s reconciliation of the tensions between publicand private autonomy. This conclusion raises two important points,both of which pose obstacles to Habermas’s aim of extendingconstitutionalism beyond the nation state and which will be discussedfurther in the next section. The first is that, in line with Grimm, itultimately ascribes a prescriptive role for the constitution, assuming itmust constitute a polity, and this raises questions about the potentialof constitutionalism when applied to heteronomous bodies such asthe European Union. The second is raised by Ferrara, who arguesthat co-originality can only apply to the genesis of the constitution. Forlater generations the paradox is not avoided; it returns in that ‘thedemocratic self-determination of these citizens is constrained byrights that they did not by any means reciprocally grant oneanother’.

27Habermas’s response to this problem is in fact rather

difficult to reconcile with the idea of a universal constitutionalpatriotism. Arguing along similar lines to Rawls,

28Habermas contends

that the acceptance of this paradox is not a problem if modern

26Ibid, p.134.

27A. Ferrara, ‘Of Boats and Principles: Reflections on Habermas’

Constitutional Democracy’, in Political Theory, Vol. 29, No. 6, p. 784.28

See J. Habermas, ‘Reconciliation through the Public Use of Reason;Remarks on John Rawls’s Political Liberalism’, in Journal of Philosophy,Vol.92, No.3 (1995), p. 109.



citizens are able to identify with and place themselves in the positionsof their ancestors. Here Habermas returns to the notion of the ‘self-reinforcing, spiral-like historical learning process’

29discussed in

section 2. Having considered their situation, modern citizens are likelyto accept that they are part of a shared political project, a learningprocess which began with their forebears but continues into thepresent.

The ultimate goal of Habermas’s social and constitutional theory isthe reconciliation of the ‘inevitable cleavage between ego-identityderived from universal structures and collective identity bound up witha particular community’.

30Yet the idea of co-originality portrays the

relationship between facts and norms as one marked by a complexcombination of conflict and interdependence. In seeking to linkrespect for universal norms with a more concrete connection to aparticular cultural learning process, the co-originality thesisdemonstrates that the modern state cannot be shaped only ‘by theabstract normative core of law and politics itself; identification mustreach beyond the normative and toward the factical to obtain itsnecessary supplement of particularity’.

31

This conclusion necessarily brings the grounding of constitutionalpatriotism into contention. Political identity must provide a means ofuniting cultural self-understanding and universal norms. Butconstitutional patriotism is a doctrine that demands the renunciation ofthe ‘particular’ and the embrace of the abstract, post-national‘universal’. In this respect, Habermas’s constitutional theory appearsto contradict the very form of political identity it is supposed to uphold.

This inherent contradiction may go far in explaining currentchallenges to the theory of constitutional patriotism. Habermas hasconsistently endorsed Germany as the pioneer of a modern, post-national identity; the ‘supranational’ European project has received

29Ferrara, op. cit., p. 784.

30P. Markell, .Making Affect Safe for Democracy?: On “Constitutional

Patriotism”’, in Political Theory, Vol. 28, No.1, p.41.31

Ibid. p. 50.



consistent support from German politicians and intellectuals,particularly in its constitutional ambitions.

32Yet the current stagnation

of the European Constitution has produced serious questions overwhat Europe should stand for in a rapidly shifting economic andpolitical environment. In recent years, Habermas has become heavilyinvolved with such questions, as he attempts to fashion a Europeanidentity grounded in constitutional patriotism.

5. Die postnationale Konstellation: Habermas and the EuropeanConstitution

In debates over the future of European political integration and thedrafting of a European Constitution, Habermas’s line has consistentlybeen to argue that constitutional patriotism provides the best meansto mould diverse national traditions into a cohesive ‘European’identity. He claims that the European Union should encompass morethan the instrumental goal of competing in a global market. Instead, a‘European way of life’, in the sense of a shared Europeancommitment to democratic society, is central to the idea of aEuropean Constitution. The parallel with his analysis of systemintegration and social integration in BFN is evident.

33

The victory in 1945 of the Western ‘legally constituted’ nations overthe ‘naturalistic’, cultural identities favoured by Central and EastEuropean nation states revealed that

32See in particular the speech by Foreign Minister Fischer at the Humboldt

University, 12 May 2000: ‘Vom Staatenverbund zur Föderation – Gedankenüber die Finalität der europäischen Integration’ [‘From Confederacy toFederation –Thoughts on the finality of European integration’]. URL:http://www.auswaertiges-amt.de/diplo/de/Infoservice/Presse/Reden/Archiv/2000/000512-EuropaeischeIntegration.html33

See above.



only a non-naturalistic concept of the nation can be combinedseamlessly with the universalistic self-understanding of thedemocratic constitutional state.

34

Habermas makes frequent reference to the idea of a ‘Europeanpeople’ emerging from the catastrophe of their common twentiethcentury experience to embrace this European ideal ofconstitutionalism. If the constitutional project is to be viewed as aprogressive ‘learning process’,

35then the task of re-directing the

project should fall to the collective will of the people. With the newlydemocratic nations of Europe now granted the opportunity to guidetheir country’s post-war political development, Habermas hailed thesubsequent advent of the European Union as decisive proof thatEuropeans had learned to renounce the national particularities thathad inflicted such destruction and suffering and were now committedto channelling their individual constitutional projects towards acommon goal.

Despite the innovative political and social transformation representedby the European Union, the project has so far proved unable toescape the drawbacks associated with Habermas’s analysis of thepolitical tendencies of post-traditional societies. Arguing that the‘Brussels bureaucracy’ has stifled the emergence of a sense ofcommon European citizenship, Habermas argues that any furthersystemisation within European welfare states and the Europeanproject itself can, and should, be socially controlled.

36He claims that

the obsolete nation state can play no role in the debate on theformation of a new social identity. The only means by which citizenswill forge a post-national identity is in performing a more active role ina constitutionally-defined European public sphere.

37

34J. Habermas, The Inclusion of the Other: Studies in Political Theory,

Cambridge: Polity, 1999, p.115.35

On society's capacity for learning see above: text at n.3.36

J. Habermas, ‘Why Europe Needs a Constitution’ in New Left Review, Vol.11 (Sep-Oct 2001), p. 14.37

Habermas, supra. See ‘Does Europe Need a Constitution?’ pp. 155-161.



Habermas’s staunch advocacy of this need to deepen politicalintegration in order to gain true political substance – in the form of aEuropean Constitution – has attracted much attention, as well ascriticism. The attempt to extend those ideas of post-national identityand constitutional patriotism advocated for Germans in the 1980sonto the general European level is well illustrated in his 2001 article‘Why Europe Needs a Constitution’, in which he claims that the ideaof Europe stretches beyond the limits of ‘a mere market’.

38Whilst

accepting that the peoples of Europe currently have little sense ofthemselves as ‘Europeans’ and that national affinities still prevail inthe political arena, Habermas argues that the formation of a Europeanidentity is both necessary and feasible. To demonstrate this, heexamines the formation of nation states themselves, describing theprocess by which civil solidarity and national identity were created as‘highly artificial’: ‘a solidarity among strangers’.

39He argues that the

obstacles preventing this solidarity from emerging on the Europeanlevel are merely ‘the opacity of the decision-making processes at theEuropean level, and the lack of opportunity for any participation inthem’.

40This causes ‘mutual distrust’ among the citizens of Europe,

who feel they have no control over Europe-wide policies which affecttheir nations. A more inclusive, pro-active political centre would allowEuropeans the opportunity to participate that they need to feelcomfortable with the deepening of European integration, and wouldgive rise to a party system transcending national boundaries.The‘legitimation of shared values’ should form the central goal ofEuropean integration.

41

Habermas stresses the necessity of this transition. Nationalgovernments are simply no longer in a position to successfully assertthese values in the face of the onslaught of deregulated, globalmarkets. Europe’s defining common features – the welfare state anda society open to social, political and cultural inclusion – are now at

38Habermas, supra.

39Ibid., p.16.

40Ibid. p.14.

41Ibid. p.8.



stake. Habermas argues that ‘threats to this form of life, and thedesire to preserve it, are spurs to a vision of Europe capable ofresponding inventively to current challenges’.

42Only a powerful and

self-confident European Union would allow European nations to ‘gettheir voices heard in an international concert that is at presentdominated by a vision quite different from ours’.

43

Before turning to criticisms of Habermas’s European project, it mightfirst be helpful to consider his most recent attempts to locate hisconstitutional theory in a global framework. For the fact is that thecomposition of this ‘international concert’ has recently become amatter of heightened significance. After the terrorist attacks on theUnited States of September 11, 2001, questions about the nature andpurpose of an international order have again been placed on theagenda, only this time at the global, rather than the European level. Inhis most recent responses to the unilateral military action being takenby the US in Iraq, Habermas argues that the type of internationalorder currently unfolding provides an even greater incentive forEuropeans to rally behind a common political vision which could actas a counterweight to American hegemony. Der gespaltene Westendetails the ideological fault-line dividing the Western powers. Whilethe ‘Anglo-American’ contingent are ’mit dem normativen Zielzufrieden, die eigene liberale Ordnung auch andernorts…zuverbreiten’, Europeans are prepared to use armed intervention only’um die Schere zwischen Effektivität und Legitimation zu schließen,um so auf dem Wege zum voll institutionalisierten Weltbürgerrechtvoranzukommen.’

44

42Ibid. p. 9.

43Ibid. p. 12.

44J. Habermas, Der gespaltene Westen, Frankfurt am Main: Suhrkamp,

2004, p.35. [‘... are satisfied with the normative goal of propagating their ownliberal order internationally.’ ‘… to close the gap between effectiveness andlegitimacy, and so progress towards fully institutionalised cosmopolitan law.’]See also Habermas, Time of Transitions, op.cit., p. 26: As long as humanrights are ‘weakly institutionalised at the global level, the boundary betweenlaw and morality can easily become blurred’.



Habermas argues that since European nations have been the first torecognise the limitations of national sovereignty, they should take theinitiative in promoting the first attempt at global governance throughthe United Nations. While accepting that, on a conventional reading,the UN Charter was not designed as a global constitution, he claimsthat – in its inclusive character, its commitment to peace and humanrights, and its ability to threaten prosecution and sanctions – there isscope for such an interpretation. Habermas thus aims to movebeyond classical international law towards a Kantian, ‘cosmopolitanorder’.

45

The extension of his argument to the global stage, however,highlights many of its limitations. It might be noted, for example, thatKant himself explicitly dismissed the idea of a ‘world republic’, arguingit would serve only to produce a ‘soulless despotism’.

46Here lies a

veiled reference to the dangers of proclaiming moral consensus;Western political theorists have come to acknowledge that, in certaincases, ‘to invite different groups to transcend their particularity…is toissue a summons to submit to the hegemonic culture’.

47Habermas

has, to some degree, accepted the potential of particularity, andconcedes

dass die ’Völker’ unabhängiger Staaten, die ihre Souveranitätzugunsten einer Bundesregierung einschränken, ihre kulturelleEigenart und Identität nicht verlieren müssen.

48

45J. Habermas, supra, p. 121: ‘Kant folgt der Analogie zu einer solchen

“staatsbürgerlichen Verfassung” um die allgemeine Idee der “weltbürgerlichenVerfassung“.’ [‘Kant uses the analogy of a civil constitution to lend concretecontent to the general idea of a cosmopolitan constitution.’]46

I. Kant, ‘Perpetual Peace: A Philosophical Sketch’ in Kant, PoliticalWritings, ed. H. Reiss, Cambridge: Cambridge University Press, 1991, p.113.47

A. Linklater, The Transformation of Political Community: EthicalFoundations of the Post-Westphalian Era, Columbia: University of SouthCarolina Press, 1998, p. 187.48

Habermas, supra, p. 127: ‘that the “peoples” of independent states whorestrict their sovereignty for the sake of a federal government, need not losesight of their culture’s distinctive identity.’



However, he continues to insist that

die Anerkennung von Differenzen – die gegenseitigeAnerkennung des Anderen in seiner Andersheit – kann zumMerkmal einer gemeinsamen Identität werden.

49

Returning to a continuous theme in his work, Habermas highlights theneed ‘to understand the precarious transition from classical powerpolitics to a cosmopolitan order…as a learning process to bemastered collectively’.

50This questionable potential of universal

principles and politics based on consensus has been highlighted bythe numerous critics of constitutional patriotism, as will now bediscussed.

6 Der gespaltene Westen: Challenges to and criticisms ofVerfassungspatriotismus

Many of Habermas’s detractors argue that there are good reasonswhy constitutional patriotism has not found the resonance expectedamongst modern, cosmopolitan societies. But it should be noted thatcritics of the Habermasian project divide into two categories: thosewho argue that his version of constitutionalism is overly based in theabstract realm of universality, and those who claim that, despite itscomprehensive ambitions, this project is the product of particular andunique national circumstances.

Grimm’s criticisms fall into the first category. He argues that if weaccept ‘primacy’ as the central aspect of a constitution – whichHabermas’s constitutional theory implicitly acknowledges – theEuropean Union as it stands cannot be made the focus of aconstitutional order. Grimm claims that the distinction Habermasmakes between the Staat – a hierarchical organisation primarily forthe exercise of political power – and the Konstitution – ‘eine

49Ibid. p. 48: ‘the recognition of difference – the mutual recognition of others

in their otherness – can become a distinguishing feature of collective identity.’50

Habermas, ‘Eine Art Schadensabwicklung’, p.30.



horizontale Vergesellschaftung von Bürgern’51

– is non-existent. Theprimacy of the constitution, Grimm argues, defines its role inconstituting a single polity. The ‘missing elements’ needed totransform the EU Treaty into a Constitution thus require a transition toEuropean statehood. While some may approve of such a shift, Grimmpoints out that this involves ‘abandoning constitutive elements of thepresent basic order’,

52since the Union has always defined itself as a

political entity distinct from a nation state - as heteronomously, ratherthan autonomously determined. Grimm does not treat Europeanstatehood as a beneficial arrangement, arguing that a European Statewould lack ‘the mediatory structures from which the democraticprocess lives’.

53In this criticism, diversity and difference are again

portrayed not as a threat to consensus and unity, but as an importantcounter-weight.

Although Habermas, in responding to Grimm, argued that the EUmight in fact benefit from a move towards federalism,

54Grimm’s

suspicions about the prospect of European statehood appear to bewidely shared. The debates on the proposed EU Constitutionexposed widely differing interpretations of the European project,rooted in Europe’s diverse and contrasting political cultures. Thisculminated in the rejection of the draft Constitution by two traditionallypro-European member states, France and the Netherlands. Sincethen, the plurality of national agendas has brought the entire projectto a standstill, with, for example, the Poles demanding somereference in the preamble to Europe’s Christian origins and thisproving unacceptable to the staunchly republican culture of theFrench. Ultimately, Germany emerged as one of the few Europeannations supportive of the Constitution. Such evident lack of mutual

51Habermas, ‘Why Europe Needs a Constitution’, p. 130: ‘a horizontal

association of citizens’.52

D. Grimm, ‘Does Europe Need a Constitution?’ in European Law Journal,Vol. 1, No.3: 1995, p. 298.53

Ibid. p. 299.54

J. Habermas, The Inclusion of the Other, p. 161: [On European identity]‘perhaps German federalism … might not be the worst model’.



understanding in Europe raises questions not so much of its universalelements, but of the particularistic origins of the Habermasian project.

Habermas himself is now prepared to concede that

the trend towards … ‘post-national’ self-understanding of thepolitical community may have been more pronounced in theFederal Republic of Germany than in other European nations,given its peculiar situation and the fact that it had, after all,been deprived of fundamental sovereignty rights.

55

It is becoming increasingly obvious that the apparently ‘commonlearning process’ of the twentieth-century has proved unable totranscend Europe’s diverse national and historical consciousnesses.Most recently, this was demonstrated in the inability of the EU tocome up with a clear foreign policy agenda in the face of worseningconflict in the Middle East in the summer of 2006. As France, with itsformer colonial ties to Lebanon, attempted to rally the EU to call for aceasefire, Germany – owing to the sensitivity of its relationship withIsrael – sided with Britain to reject the plan. The disappointment andfrustration with this deadlock was summed up by Nicholas Watt:

The clear stance adopted by Germany provided a tellingillustration of how - once again - the contrasting histories ofEurope’s key powers are leading them to adopt vastly differentapproaches to the Middle East crisis. European romantics, whodream of the day when the EU will forge a common foreignpolicy, will once again have to come to terms with the reality ofdeep divisions.

56

This growing scepticism surrounding the European project reflects onthe universal ideals of constitutional patriotism in general. The fact isthat the renunciation of nationhood and the adoption of a commonpolitical project which could one day lead to some form of a federalEurope are goals rooted in a specifically West German experience.West Germany’s position as part of a divided nation whose national

55Ibid. p. 119.

56N. Watt, ‘New European Movements’, in The Guardian, 3 August 2006.



tradition had been wholly discredited posed unique challenges in thedefinition of any kind of national identity, creating a ‘mistrust ofnationhood’ amongst post-war West German intellectuals.

57Thus, the

original formulation of constitutional patriotism proposed by DolfSternberger was specifically tailored for this divided nation: ‘nunerhebt sich die Frage … worauf sich denn der Patriotismus imdeutschen Fall beziehen solle oder beziehen könne’.

58Adopting

constitutional patriotism allowed some of these obstacles to beovercome: ‘Insoweit könnten wir…ohne innere Beschädigung undohne Gewissensbelastigung … zum Patriotismus zurückkehren.’

59

Such trends reflect critically on Habermas’s proposals for a Europeanconstitutional patriotism. Turner points out that Habermas’s Europeanobjectives ‘draw heavily on the solutions he has offered in the past tothe specific problems of post-war Germany’.

60This observation

touches on the key reason for the apparent inability of Habermas andmany other pro-European German academics and politicians to findsupport for their ideas on the wider European stage: their ideas are atonce universally defined yet nationally oriented. This results in twomajor drawbacks. One is the over-simplification of the EU as auniform polity shaped by common historical experience. The other isa fruitless attempt to split political identity from its cultural roots. Giventhat, as discussed in section 4, Habermas acknowledges thatconstitutional principles are both formed and re-formed by particularnational cultures, this appears a near-impossible division to make.

In this sense, the idea of constitutional patriotism does not representthe radical break from the ‘particularist, nationalistic policies’ whichhad blighted Germany’s twentieth century history: it is in fact acontinuation of entrenched peculiarities within German political

57Ibid. p. 297.

58D. Sternberger, Schriften: Verfassungspatriotismus, Frankfurt-am-Main:

Insel-Verl., 1990, p.7: ‘now the question arises as to what patriotism relates toor can relate to in the German case’ [emphasis added].59

Ibid. p.7: ‘In this respect we can return to patriotism without internaldamage or a heavy conscience’.60

Turner, supra n.3, p. 294.



culture. In his essay on ‘The European Nation State’, Habermasaccepted that Germany had previously belonged to the group of‘belated nations’ which had turned to pre-political, cultural ties as thebasis of their national unity. This is the point Lepenies expoundswhen arguing that ‘an intellectual attitude can be observed throughoutGerman history: the overrating of culture at the expense of politics’.

61

As nationalist aggression boiled over during the twentieth century,Germany’s political and intellectual elite saw themselves engaged in awar to defend not only Germanic culture, but high culture in Europeas a whole.

62Karl-Heinz Bohrer goes so far as to portray this

universalising of German national concerns as a distinct culturalphenomenon. He claims that, throughout the 19

thand 20

thcenturies,

Germany has long tried to ‘project’ herself onto the Europeancanvas.

63

A ‘universalising’ of the German experience might also be evident inHabermas’s proposal of German federalism as a model for a federalEurope.

64This argument is clearly advocating the widespread

application of a federal system that emerged from a very particular setof historical circumstances. Other European nations can similarlyclaim that their diverse political cultures, although products of differenthistorical patterns and trends, have no less to offer the integrationprocess.

Habermas’s over-simplified depiction of a common European politicalculture also leads to the tendency to portray Europe as ‘culturally

61W. Lepenies, The Seduction of Culture in German History, Princeton, NJ:

Princeton University Press, 2006, p. 8.62

Ibid. p. 44. Lepenies cites the French writer Alphonse de Chateaubriant,who ‘justified his collaboration with Nazi Germany as a confession of faith in aunified Europe’.63

K. Bohrer, ‘Why we are not a nation and why we should become one’, inNew German Critique, Vol. 52 (1991).64

Habermas, The Inclusion of the Other, Cambridge: Polity Press, 2002,p.161: ‘European identity can in any case mean nothing other than unitywithin national diversity. And perhaps German federalism … might not be theworst model.’



homogenous vis-à-vis its external others’.65

The claim that Europeancountries should band closer together to push for the‘constitutionalisation’ of international law has given rise to aconception of European identity that increasingly relies on therepudiation of American goals. Der gespaltene Westen urges the EU‘im Hinblick auf die universalistische Ausgestaltung derinternationalen Ordnung gegen die USA einen konkurrierendenEntwurf zur Geltung zu bringen’ and to offer ‘ein politischesGegenwicht gegen den hegemonialen Unilateralismus’.

66But a

European identity focused on a clash with the Anglo-American ‘other’is, according to Kumm, an ‘immature identity’: ’for its stability, itfocuses on something external to it’.

67Kumm thus joins Turner in

urging Habermas to look beyond the abstract norms of a constitution,since constitutional principles remain inextricably bound up withculture and ‘citizens appropriate them and interpret them in thecontext of their particular history and in the light of their own ethicaland political commitments’.

68

The root problem appears to be that the oft-cited ‘learning process’ ofthe twentieth century has in reality been unable to foster universalgoals and principles. But the real questions are whether universalgoals and principles can ever be defined, and whether they evershould be. Habermas is a vocal critic of American unilateralism andattempts to foist their political values onto countries that remainunreceptive to them. His response stresses

dass sich nicht-westliche Kulturen den universalistischenGehalt der Menschenrechte aus ihren eigenen Ressourcen

65Turner, supra n.3, p. 305.

66Habermas, Der gespaltene Westen, Frankfurt am Main: Suhrkamp, 2004,

p. 53: ‘to bring a competing project to bear against the US with particularregard to the universalistic arrangement of the international order’ and to offer‘a political counterweight to hegemonic unilateralism’.67

M. Kumm, ‘The Idea of Thick Constitutional Patriotism and its Implicationsfor the Role and Structure of European Legal History’, in German LawJournal, Vol. 6, No. 2, 2005, p. 322.68

Ibid. p. 321.



und in einer Lesart aneignen müssen, die zu lokalenErfahrungen und Interessen eine überzeugende Verbindungherstellt.

69

Yet the substance of this ‘convincing connection to local experience’remains a crucial obstacle. Non-Western cultures display a radicallydifferent perspective on the meaning of human rights. Religious lawsand cultural practices often contradict Western, liberal democraticprinciples. The fact remains that international law laid out toguarantee human rights is inextricably linked to the Western model ofliberal democracy. How then can a global constitution to defend theseideals gain the support of those with no cultural affiliation to them?Would a European push to enforce such a constitution, against thewill of certain states, not amount to the hegemony Habermas sodeplores in the United States, this time in legal rather than militaryform?

These internal tensions between ‘particularist’ cultural identities andthe ‘universal’ principles of constitutional patriotism have proved acontinuous obstacle to its adoption. If, as Habermas states, we acceptconstitutional principles largely on the basis of an affinity with theideas of ancestors who engineered its creation, the framing of aconstitution becomes not the birth of a democratic state but theproduct of a pre-existing, organically rooted political culture. Ferrarathen poses the question:

if the normative is totally agent-relative then by virtue of whatshould a situated historical learning process … bear anysignificance for any other political community differentlysituated?

70

Habermas himself adheres to the thesis that ‘each national culturedevelops a distinctive interpretation of those constitutional principles

69Habermas, The Inclusion of the Other, p. 40: ‘that non-Western cultures

must appropriate the universalistic content of human rights with their ownresources and in their own interpretation, which establishes a convincingconnection to local experiences and interests’.70

Ferrara, op. cit., p. 789.



… in the light of its own national history’.71

In attempting to distinguisha common political identity from its diverse cultural roots, Habermas’sconstitutional patriotism fails to find an adequate grounding for hisvision of a united Europe within a united world.

Habermas defines the nation state as “an abstract, legally mediatedsolidarity between strangers and sees no reason why this processcannot be extended into the European arena.

72Turner responds that

the true achievements of the European Enlightenment consisted ‘notin the provision of normative blueprints for a European state but in anopenness to and interest in the peculiarities of distinct Europeannational cultures’ and claims that any successful form of Europeanidentity must take account of this diversity.

73Although his alternative

vision of a basis for European identity remains rather abstract,Turner’s suggestion of the need for a renewed look at what it meansto be European, and at what our political identity consists of, issignificant. It highlights the idea that ‘particular’ identities are not anantiquated idea that we should work to transcend, but provide animportant means of offsetting the hegemony of universalism. It is onthis basis that we should examine alternative visions of constitutionalpatriotism and its purposes.

7. Conclusion: The past, present and future ofVerfassungspatriotismus

This discussion of the genesis and development of Habermas’sconcept of constitutional patriotism has highlighted a number oftensions and inconsistencies, including the particular problem that hisideal of a post-national identity has been unable to find muchresonance on either the European or the international level. There is,however, no doubting the importance of the problems that underpinhis proposals: many political commentators addressing the topicalthemes of globalisation, racial tensions in multiethnic societies andthe waves of migration taking place in the twenty-first century world

71Habermas, Time of Transitions, p. 118.

72See ibid.; ‘Does Europe Need a Constitution?’ pp. 155-161.

73Turner, op. cit. p.296.



have recognised the need to foster some alternative form of politicalidentity which will be compatible with a more universalised set ofcultural norms.

74Habermas’s analysis of the challenges of late-

modernity and his call for an innovative response to them is pertinent.Are we able to develop some alternative vision of constitutionalpatriotism which may be better suited to our self-understanding in apost-conventional world?

Lepenies’ arguments highlight the troubled relationship betweencultural loyalties and democratic politics in German historicaldevelopment. It is precisely this tension which led Habermas toconclude that the only solution involves transcendence of nationalparticularities and consensual commitment to democratic politics. Butit is the absence of any point of cultural reference that makesconstitutional patriotism so problematic as a proposed solution. Somenotion of ‘political culture’ is essential in tying the individual citizen tothe polity; as Canovan puts it, ’a state is unlikely to be powerfulenough to demonstrate the liberal democratic virtues that can attractconstitutional patriotism unless it is very widely recognised by itspopulation as our state rather than someone else’s.’

75Since this

statement is, in effect, his own co-originality thesis, Habermas wouldsurely accept this. But, in admitting a role for the particular, are we nottacitly accepting the fallacies and intolerance too often associatedwith ethno-cultural affinities? As Markell says of political culture,

its facticity lends it the particularity it needs to become thefocus of an ‘imagined community’ of passionate identification;yet, at the same time, political culture is neither as unified andcoherent as our representations of it suggest, nor as purelyexpressive of universal principles as we believe.

76

74See for example Linklater, op. cit.; D. Held, Democracy and Global Order:

From the Modern State to Cosmopolitan Governance, Cambridge: Polity,1995; A. Giddens (ed.), The Global Third Way Debate, Cambridge: Polity,2001.75

M. Canovan, ‘Patriotism Is Not Enough’, in British Journal of PoliticalScience, Vol. 30, No. 3 (Jul. 2000), p. 423.76

Markell, op. cit., p. 52.



In other words, an affinity towards ‘our own’ political culturenecessarily involves a misrepresentation of that culture, accompaniedby the political risks associated with nationalism.

This seemingly intractable situation may in fact offer a key to thesolution. European citizens now seem conscious of the limitations ofthe particularist tenets of nationalism while remaining sceptical of theuniversally framed ideals constitutional patriotism. Indeed, moderndemocratic culture is itself marked by this very awareness and a trulymature political identity lies in its resistance to a single ideology.

77As

Maurizio Viroli puts it, a modern republican polity is both diverse andself-critical:

To see the right sort of patriotism grow, we need not strengthenhomogeneity and oneness but work to strengthen the practiceand the culture of citizenship … We need … more citizenswilling and capable of mobilizing when one or more citizens arevictims of injustice or discrimination, when unfair laws arepassed or constitutional principles are violated.

78

The public discourse Habermas reveres may not lead to consensus,but this becomes its strength. Only with open and widespread debatealong both cultural and political lines can the communities ofEuropean nation states continue to be ‘re-imagined’ into forms bettersuited to the modern situation.

Ironically, this alternative form of constitutional patriotism has alreadybeen acknowledged by Habermas through his comments onGermany’s response to the wave of racially-motivated attacks thatswept the country in the wake of re-unification in the early 1990s. Inthe face of the government’s inability to respond decisively andeffectively to the crisis, thousands of demonstrators took to the streetsto demand that their leaders act to protect those under attack. In anarticle in Die Zeit, Habermas lauded these protestors “defending the

77Ibid. p.41.

78M. Viroli, For Love of Country: An Essay on Patriotism and Nationalism,

Oxford: Oxford University Press, 1997, pp. 184-185.



standards of civic intercourse” as true constitutional patriots.79

Thecomplexities of this ‘double-coding of citizenship’ – that ‘the legalstatus defined in terms of civil rights also implies membership in aculturally defined community’ – do not escape him,

80especially since

his position during the Historikerstreit also invokes this complexity;there he argued that national traditions, when subjected to criticalscrutiny, have a crucial role to play in the continual process ofdefinition and re-definition which characterises national politicalculture.

The awareness of the interdependence of cultural particularities andpolitical norms, and the benefits of this interdependence, has notalways been evident in Habermas’s advocacy of constitutionalpatriotism. This irregularity is best explained by reference to theunique historical background and national circumstances which gaverise to his use of the concept. In many ways, therefore, Habermasremains closely tied to those national particularities he aims totranscend. But this by no means detracts from the insight and validityof his arguments. As an earlier German philosopher once argued:

To comprehend what is, this is the task of philosophy, becausewhat is, is reason. It is just as absurd to fancy that a philosophycan transcend its contemporary world as it is to fancy that anindividual can overleap his own age ... If his theory really goesbeyond the world as it is and builds an ideal one as it ought tobe, that world exists indeed, but only in his opinions, anunsubstantial element where anything … can be built.

81

Constitutional patriotism can be viewed, then, not as a means oferadicating particularity, but of harnessing its potential to subject theuniversal tendencies of political theory to scrutiny, to ‘comprehendwhat is’. Once we recognise this, Habermas can be acknowledged tohave made a major contribution to the tradition. As he is ever willing

79Habermas, ‚Die zweite Lebenslüge der Bundesrepublik: Wir sind wieder

“Normal’ geworden” in Die Zeit, 11 Dezember 1992, pp. 48-52.80

Habermas, Time of Transitions, p. 113.81

G. W. F. Hegel, Philosophy of Right, ed. T. M. Knox, Oxford: Clarendon,1952, p. 11.



to point out, Germans carry the past burdens of their culturalcommunity with them. In recognition of this fact, they must remainaware of the perpetual lack of equivalence between universal normsand national political culture.


80

The economic dimension of the public sphere:Jacques Necker’s public agenda in Compterendu au roi

Franz-Julius Morche

IN MEMORIAM: Fritz Junkermann (1982–2003)

The aim of this article is to investigate the public dimension ofJacques Necker’s 1781 account Compte rendu au roi (hereafterCompte rendu). As a political figure, Necker was aware of the growinginfluence of public opinion on state matters, which he theorised in Del’administration des finances de la France, 1784 (hereafter Del’administration); since the Crown’s deficit-funding strategy was basedon borrowing from private investors, Necker devoted a critical portionof his political efforts to the restoration of external credit (créditpublic). Without doubt, the Compte Rendu constitutes a strikingexample of the political implementation of public awareness andinfluences the evolving public sphere, while creating economicadvantages from its existence. Listing all government spendingdepartments and putting taxation policies up to debate, it adds apublic dimension to fiscal policy, which thereby becomes publicpolicy.

The crucial question is whether this reorientation in economic policymaking should be regarded as a mere consequence of thetransformation of the public in eighteenth century France, or whethereconomic policies as exemplified by the Compte Rendu also helpedto partly trigger this very process. Moreover, regressive fiscal andadministrative policies by Necker’s successors following his firstministry raise concern about potential links between the negligence ofthe public sphere and state breakdown; the return to ‘reactionary’fiscal policy caused a series of undesirable developments, of which

Franz-Julius Morche The economic dimension of the public sphere


the deficit financing with fiat money was only the peak.1

In this regard,the Compte rendu offers very specific insights to the connectionbetween the public sphere and Ancien Régime economic policy, andthus to the relevance of a crucial sociological concept to an importantpart of French economic history. It exemplifies not only a newapproach to economic policy, but also, in combination with Necker’sexplicit theory of public opinion, an unprecedented political conceptionof the public sphere.

The discussion will proceed as follows: first, I will give an overview ofhistorical insights to the economic accuracy of the Compte rendu,Necker’s political intentions and the social structure of his audience(section 1). Second, I will expose the key aspects of the Compterendu and show how Necker’s fiscal policy conceptions give rise to anew notion of the public (section 2). Third, I will examine the extent towhich Necker’s consideration of the public sphere is in line with histheoretical treatment of public opinion in De l’administration, therebyapplying modern theories of the public sphere, notably that ofHabermas (1990), which will help to clarify this ambiguous term andits specific meaning in relation to Necker’s policy conceptions (section3). And, fourth, I will demonstrate how the processes oftransformation and segmentation enable the formulation of a specificpublic sphere segment, the economic public sphere, which can begeneralised by methods of Comparative Historical Analysis (CHA). Itwill be shown that the state breakdown of 1788 can be attributed tothe negligence of the economic public sphere by Necker’ssuccessors.

1. A preliminary remark: The Compte rendu and the French statefinances of 1781

Any examination of a historical document dealing with a conceptualdetail such as its public potential will have to include a priorassessment of three other core attributes of increasing complexity,namely its accuracy, its purpose, and its audience. In case of

1E. N. White, ‘Was There a Solution to the Ancien Régime’s Fiscal

Dilemma?’, Journal of Economic History, Vol. 49, No. 3 (Sep. 1989), p. 567.



Necker’s Compte Rendu, all of these criteria have been subject torigorous debate among historians, with the result that the controversyis still greater than it needed to be. This is particularly so for theaccuracy of the numbers given in Necker’s account. Clarifyingcommon misconceptions regarding Necker’s political intentions willhelp to demonstrate why the public sphere is a key concept within hisstrategy, and how exactly public considerations interact with theadministrative elements in the Compte rendu.

Accuracy

The image of Necker as a political charlatan harks back to his tenureas director of the French East India Company and was essentiallyfostered by revolutionary pamphlets and nineteenth century literature.Pamphlets by Marat, Mirabeau and others opposed Necker onpolitical rather than economic grounds, each of them embracing moreradical social change that differed from Necker’s ideal of aconstitutional monarchy. However, since the political struggle wasfought with economic rhetoric, the notion of Necker having cooked thefigures or in other ways betrayed both the Crown and its investorswas widely accepted by historians of the nineteenth century.

2Fiscal

2Gustave de Molinari, editor of the 15-volume Les principaux économistes,

despite giving an interesting and neutral account of Necker’s careereventually describes him as ‘pauvre économiste; sa conduite, au début de laRévolution française, quoique fort honorable, prouve … qu’il n’y avait pas enlui l’étoffe d’un grand ministre; c’était un habile financier de second ordre etun philanthrope honnête, rien de plus!’ [‘poor economist; his conduct at thebeginning of the Revolution, although very honourable, proves that he did notpossess the qualities of a great minister; he was an able financier of secondorder and a respectable philanthropist, nothing more!’]: G. de Molinari,Collection des principaux économistes 15: Mélanges d’économie politique,Paris: Chez Guillaumin et Ce Librairies, 1848 ; Bibliothèque Nationale deFrance, III-592 p.; in-8° [R- 55379], p. 209. For an objective assessment ofNecker’s life and work, the curious historian is best advised to chance uponTollendal’s article in the Biographie universelle (Biographie universelle,ancienne et moderne, […] rédigé par une société de gens de lettres et desavants, TOME TRENTE-UNIÈME, A Paris, chez L. G. Michaud, Libraire-Éditeur, 1821 ; Bibliothèque Nationale de France [030.5 MICH b31].



historian Charles Gomel, in his 1893 volume on the financial causesof the French revolution, wrote the decisive lines that becameprominently featured in mainstream twentieth century literature,branding the balance sheets of the Compte rendu as ‘absolutelyfalse’;

3an assessment which, as Harris notes, ‘passed into many

historical works of the twentieth century.’4

Although Gomel alsoregrets the reestablishment of the old venal financial aristocracyfollowing Necker’s dismissal,

5the misunderstanding evoked by him

and many other serious historians in the nineteenth and twentiethcenturies

6is simply based on the false assumption that the Compte

rendu was intended as an extraordinary budget report that wouldinclude the war expenditures. However, due to Necker’s achievementof financing the war entirely by new borrowing, his aim was to presentan account of the revenue and expenditure of the ordinary fiscalyear.

7An account of both ordinary and extraordinary government

finances would have had to include the extraordinary income as well,which would have stirred public debate into a direction contrary to

3Quoted in R. D. Harris, Necker – Reform Statesman of the Ancien Régime,

Berkeley: University of California Press, 1979, p. 220.4

Ibid., p. 2265

‘Bref, la Révolution française eût été moins passionnée et moins tragique, siNecker … n’était pas tombé en 1781 du pouvoir, et le roi … lui en avaitconservé la direction’ [In short, the French Revolution would have been lesssevere and less tragic if Necker … had not fallen from power in 1781, if theking had preserved his directorship] : Charles Gomel, Les causes financièresde la Révolution française – Les ministères de Turgot et de Necker, Paris:Librairie Guillaumin et Cie, 1892; Universitätsbibliothek Heidelberg, B 7366-6 ::1892, p. 536. However, Gomel remains critical of Necker’s taxationpolicies, condemning his decision to rely on external credit rather thantaxation adjustments. ‘Mais précisement parce qu’il avait commis cette faute,il était le seul homme qui fût peut-être en mesure de la réparer’ [But preciselybecause he had committed this mistake, he was the only one possibly able torectify it] (ibid., p. 535).6

This includes eminent names such as Marion, Lavisse, and Luethy.7

White,1989, p. 558.



what Necker hoped to trigger.8

For the key message of the Compterendu is that, as for the ordinary year 1781, there was no persistentpeacetime deficit. This is what Necker intended to highlight and whathe had striven to achieve since taking office in 1776.

9There is no

sound evidence that Necker tried to conceal the extraordinary costs ofthe war, since those are explicitly mentioned on the balance sheet.

10

Furthermore, it is doubtful whether even an account of both ordinaryand extraordinary expenses would have shown a deficit at all.Necker’s successor Joly de Fleury, in his ‘Situation of the finances forthe year 1783’, finds no overall deficit.

11This is not surprising

considering that financial policies since the partial bankruptcy of 1770had sought not only to optimize administrative efficiency, but also todevote utmost attention to public credit.

12

Purpose and audience

The purpose of the first ever publication of the French state financesis arguably the most intrinsically difficult question. By purpose, wedifferentiate its political intention from its hermeneutic pertinence. Asoutlined above, the political intention can be identified as offering anoverview of the ordinary workings of the state finances. However, thiscannot solely account for the contents of the historical interpretation,since, from a historical perspective, any parameters potentiallyresponsible for social change need to be scrutinised. Thehermeneutic pertinence of the Compte rendu can be derived from itshistorical ramifications, which consists chiefly of contributions towardsthe institutionalisation of processes of transformation andsegmentation (the details of which are set forth in section 3). One ofthe key results of this combined process undoubtedly is the discursiveinvolvement of a particular component of the public sphere, the

8Ibid.; White notes that Necker ‘has been condemned by most historians’ for

his debt policy.9

Ibid.; the ordinary deficit was eliminated in 1778.10

Compte rendu, p. 112.11

Harris, 1979, p. 222.12

[It was the duty of my station to give the greatest attention to it] Compterendu, p. 17).



audience, which also constitutes the greatest conceptual difficulty forour case study. Though formerly addressed to the King, the Compterendu presented current government operations in the interest oftransparency and hence targeted investors into governmentsecurities. The courtship of financial investors is, of course, not per sea novelty; however, the information on which investment decisionsare supposed to be based is now – at least in Paris – available toeveryone with the ability to read, whether capable of providinginvestments or not. Put in slightly different terms, the audience is nowinvolved, by means of critical reasoning, in the running of a socialsystem that formerly was a mere system of representation. Thedifficulty in conceptually reconstructing this process lies in thequestion about the components of the audience. In this respect, theCompte rendu indeed proves a challenge to theories of the publicsphere, as it impacts the bourgeois société civile that is still formallysubjugated to an absolutist monarch. Prior to its publication, the socialboundaries between different estates begin to blur; critical discourserelevant to state affairs first develops as an aristocratic inclinationtowards the cognitive structure of bourgeois intellectuality. Thearistocratic salon and bourgeois intellectual discourse, eventually theformation of clubs politically enhance the transformation of theaudience.

13In terms of economic discourse, physiocratic ideas

function as an intellectual precursor; in 1774, the appointment ofTurgot as controller general marks, as Habermas notes, theassignment of a crucial ‘exponent of public opinion.’

14However, as

Habermas also emphasises, it is Necker’s Compte rendu that firstsystemises the discursive demand of this new, and indeed stillrudimentary, politically functioning public.

2. The Compte rendu au roi: some key aspects

The essential link between fiscal distress and the necessity ofadministrative reform constitutes Necker’s foremost concern in the

13For example Alary’s ‘Club de l’Entresol’, see J. Habermas, Strukturwandel

der Öffentlichkeit – Untersuchungen zu einer Kategorie der bürgerlichenGesellschaft, Frankfurt am Main: Suhrkamp, 1990, p. 135.14

Ibid., pp. 135-136.



Compte Rendu. Regardless of how the supposed state surplus oughtto be interpreted, it is evident that Necker was aware of the enormousfiscal difficulties facing the Crown during his first term in office. In thiscontext, his plea for a reform of the vingtième may serve as anindicator of his determination to modify the taxation system for thesake of both fiscal relief and social welfare. Also, the criticalassessment of the taille as ‘grievous’

15and his suggestions for a

reconsideration of economic privileges of the Second Estate16

illustrate the urgency for fiscal reform.17

The underlying desire of political reform (and, of course, itsimplementation) represents a paradigm shift away from absolutistconceptions to the notion of the state as a public institution. Thepublic sphere which the Compte Rendu exemplifies, and to which itappeals, is therefore predominantly political and – to a necessaryextent – critical of the absolutist system. By dedicating a chapter tothe ‘Expenses of the King’s household’,

18Necker shows that the royal

expenditures are indeed a matter of public interest. Equally striking isNecker’s concern with the public as a political entity which includes aconception of public benefit that operates both on macro- and micro-sociological levels (i.e. to the benefit of public institutions as well asthe individual citizen).

Part I of the Compte rendu gives an overview of the current state ofthe finances, including ‘all the operations which relate to the Royal

15Compte rendu, p. 67.

16Necker is in favour of the clergy being exempt from taxation, and he

generally praises their conduct of state office. See Compte rendu, pp. 79-81.17

Taille: fix land and poll tax; vingtième (‘the twentieth’): direct income taxpayable by everybody regardless of rank. Introduced in 1749 as a temporarycomplement to the dixième in order to levy the costs of the war of theAustrian succession, it was extended by a second vingtième in 1756 and athird in 1760. In 1780, Necker was granted permission by the Paris Parlementfor a further extension of the second vingtième.18

Compte Rendu, Part II, Chapter 8; ‘All money-matters should be referred tothe minister of your household and the minister of your Majesty’s finances’,Compte rendu, p. 44.



Treasury, and to Public Credit.’19

Part II lists reform policies that haveimproved the efficiency of the financial administration. Part III, towhich I will devote particular attention, contains ‘an account of thosegeneral dispositions which have had for their object only the welfareof your [Majesty’s] People, and the prosperity of the State.’

20This

indeed is the actual sensation, the conceptual novelty of the Compterendu which demonstrates its critical relevance to the transformation,segmentation and institutionalisation of the public sphere.

Fiscal policy and administrative reform

Necker’s popularity was grounded primarily on his consistent strategyof financing the French participation in the American War ofIndependence purely by borrowing.

21Consequently, the tax policies

discussed in Part III indicate no intention to increase either ordinary orextraordinary taxes. Rather, he proposes mechanisms to render theexisting taxation system more efficient. As indicated above, thisrelates primarily to vingtième and taille; but most importantly, hediscusses the success of a key administrative reform of his ministry,which is the establishment of administrations provinciales (provincialadministrations). In this context, it is worth noting that the Compterendu does not represent a plea for radical reform in the sense of acomplete overhaul of the existing fiscal regime. It contains moderatereform projects and policy proposals, small gradual degrees ofinstitutional change that overall advance the notion of publicinvolvement.

Despite the particular importance of Part III with respect to the publicsphere, public considerations also play a role in the two previouschapters. In Part I, relevant sections are on public credit, theaccounting method and the operations of the discounting bank; Part IIcontains, amongst others, Necker’s reflections on pensions, theabolition of the receivers general, and the expenses of the king’s

19Ibid., p. 4.

20Ibid., p. 5.

21L. Burnand, Necker et l’opinion publique, Paris: Honoré Champion, 2004,

p. 21.



household.22

By referring to state funding from private investors as‘public credit’ (‘Crédit public), Necker stresses that, in order to attainthe ability to finance state deficits with private investments, the statefinances need to be considered a public interest as opposed tomerely a royal authority.

The issues of public credit and pensions are closely interrelated andhence play complementary roles in Necker’s fiscal policy making. Themaximisation of public credit requires a solid degree of transparencyof government finances, to which the Compte rendu is intended tocontribute, and which is, in Necker’s view, best generated by theEnglish model. ‘But another cause of the great credit of England, is,indubitably, the public notoriety to which the state of her finances issubmitted.’

23Necker’s concern for the pensions issue represents a

strategic complement to this maximisation, which is the reduction ofgovernment expenditures – expenditures that have stirred the interestof the particular part of society which corresponds to the audience inthe formerly representative public. Both expenditures on and theentitlement to pensions were considerably reduced during Necker’stenure, the latter being, of course, correlated with Necker’s consistentactions against a venal financial aristocracy.

In the Compte rendu, Necker does not, in fact, lay out a proper theoryof taxation (this is done in De l’administration in 1784). However, hedemonstrates how administrative reforms have facilitated taxoperations; he also presents ideas for further improvement within the

22It is worth noting that, during his first ministry, Necker extended the assets

of the discounting bank (Caisse d’Escompte, a precursor of the Banque deFrance) by 12 million livres: Molinari, 1848, p. 206.23

Compte rendu, p. 2; Necker goes on to remark: ‘In France the state of theFinances has constantly been made a matter of mystery; or, if is wassometimes spoken of, it was in the preambles of Edicts, and always at themoment when there was occasions to borrow: but those insinuations, toooften repeated to be always true, must necessarily have lost their authority;and experienced men no longer credit them, but under the security (if I maybe allowed the expression) of the moral character of the Minister of Finances.It is of moment to fix this confidence upon a more solid basis’, Compte rendu,p. 3.



particular fiscal circumstances of high war expenditures, which heregards as a main impediment of administrative reform and to whichhe remains accordingly critical.

All those well-concerted plans would have been easily carriedout (into execution) had not so many savings andimprovements been wasted by the inevitable expenses of thewar: This is always, and at every instant, the painful reflection Iam forced to make.

24

But despite the fiscal constraints, Necker’s first ministry yields animpressive record of administrative reform which, from a historicalperspective, appears much more significant than most contemporaryand nineteenth century critics could have imagined. Continuing thework of his predecessors Terray and Turgot, Necker achieved aconsiderable reduction of the number of treasurers in the spendingdepartments and the royal households.

25The collection of taxes was

centralised under the binding authority of the ministry of finance,stripping the hitherto dominating profit-oriented General Farm off twobranches of the tax administration and reducing the number ofGeneral Farmers from 60 to 40.

26Apart from the savings incurred by

the reduction of venal offices, these procedures furthered statetransparency and allowed for the establishment of the aforementionedprovincial administrations. This key reform project served the interestsof both the financial administration and an extended public byreducing the impact of individual interests and appealing to publicreasoning.

27Necker discusses the positive impact of the first three

administrations of this kind, in Rouergue, Berri and Moulin,

24Compte rendu, p. 70 (italics original).

25The details of these reforms can be found in J. F. Bosher, French Finances

1770-1795 – From Business to Bureaucracy, Cambridge: CambridgeUniversity Press, 1970, chapter 8.26

Ibid., p. 147; The ferme générale, the main profit-oriented tax collectionbody of the Ancien Régime, saw its influence reduced, in the course ofNecker’s reforms, to the collection of direct taxes.27

Compte rendu, p. 77.



emphasising in particular a plan for the suppression of the corvée28

adopted by the assembly of Berri and the attempts to ‘prevent thearbitrary imposition of the Taille’

29by the assembly of Moulin.

The success of Necker’s deficit-funding is well-illustrated by hiscommitment to tax relief which can be deduced from his discussion oftaille and gabelle (salt tax). Necker advocates legal control over theimposition of the taille to prevent its disproportionate increase due toadministrative ambiguities.

30In addition to being the ‘most grievous’

tax to the rural population, Necker regards the taille as ‘only amomentary and inadequate resource’

31and consequently proposes

its re-assessment. This relates both to the abolition of inequalitiesbetween provinces and to individual repartition by means ofestablishing land quotas which would function by individualdeclarations and thus ensure justice in taxation being ‘ascertained bythe most simple and powerful motive – that of personal interest.’

32

Thus, similar to the provincial administrations, this measure seeks toinstall public control over the fiscal system.

A novel conception: the public sphere

The most striking evidence of the new notion of public interest ishowever given in Part III, which is primarily concerned with welfareeconomics. This also relates to fiscal policy: Necker advocates amore balanced share of the tax burden and criticises the taxexemptions of the aristocracy.

33The critical attitude towards

aristocratic principles extends to the hereditary financial aristocracywhich is portrayed as incompetent and inactive; in contrast, the

28The corvée, a feudal tax payable as labour, in the 1770s and 80s often

commuted into a money payment; was among the first elements of theAncien Régime taxation system to become abolished by the revolutionaryNational Assembly in 1789.29

Compte rendu, p. 82.30

Ibid., p. 67.31

Ibid., p. 68.32

Ibid., p. 69.33

„Thus it ever happens, that every exception and favour proves, at one time,an injustice done to society at large”, ibid., p. 65.



comité contentieux is cited as an example of favourableadministrative reform.

34

Public interest must not be confused with any contemporaryconnotations, since the corresponding public sphere is a sociallyrestricted entity. In this context, the term ‘public credit’ is worth asecond look; it is of particular hermeneutic importance, preciselybecause the process of transformation is also one of words

35that

need to be contextualised: ‘Public’ necessarily invokes a notion ofexclusion stemming from the separation of social spheres (combined,as already mentioned above and further developed in section 3, witha complementary process of segmentation). Public credit refers tofinancial resources provided by members of a separate, exclusivesphere which Habermas identifies as bourgeois. This can be derivedfrom the economic issues that essentially constitute the principalregulations of administration

which, having no immediate relation to the increasing of theroyal revenues, concern the happiness of [your Majesty’s]subjects alone.

36

and to which Necker devotes particular attention in the interest of thebourgeois sphere. These issues are wide-ranging and include, forexample, a plea against salt tax discrimination between differentprovinces. This in turn is closely linked to an overhaul of the tollsystem by which Necker hopes to facilitate internal commerce

34A ‘committee of magistrates appointed to examine that multitude of

contentious causes’: ibid., p. 60; essentially a body which controls thespending departments.35

Although public/ publique derives from the Latin publicus, ‘off the state/property of the state’, its ancient meaning is given by the verb pūblicō -āre, ‘tocollect/ to confiscate’: A. Walde, Lateinisches etymologisches Wörterbuch, 3.Aufl., ed. J. B. Hofmann, Heidelberg: C. Winter, 1954, p. 338. Thecontemporary connotation as ‘place open to all persons’ and derivatives suchas public office, public opinion are contextualised in the early modern period:R. K. Barnhart and S. Steinmetz, (ed.), Chambers dictionary of etymology,Edinburgh: Chambers, 1999, p. 859.36

Compte Rendu, p. 58 (italics original).



effectively; state regulations of the manufacturing sector which,enhanced by crucial foreign direct investments, is seen as the primesource of innovation and economic progress;

37and even the

improvement of hospitals and prisons, although illustrating agenuinely philanthropic effort, is discussed from a fiscal perspective.

38

These observations strongly suggest a purpose of information and ofappeal to an opinionated audience. However, the systematic appealto public opinion as the cognitive structure of the new audiencerequires a conception of its nature, which was laid out in Necker’s Del’administration (1784); this is examined in the next section. I will thengo on to show that there is indeed a structural coherence betweenpublic opinion and the public sphere, which verifies the historicalprocess of transformation and offers strong evidence for the politicallyintended purpose of the Compte rendu as a public documentdesigned for the information of financial investors.

3. Necker and public opinion

Necker’s conception of public opinion

Necker’s theory of public opinion, as described in De l’administration,attaches a macro-sociological quality to the notion of public sphere.With respect to the optimal conduct of the financial administrator,public opinion fulfils the role of a ‘social spirit’ (‘L’esprit de société’)that determines the reputation of the political elite.

According to Necker, public opinion developed historically amidst adecline in absolutist power. During the reign of Louis XIV, all elementsof social reputation and reward in the French society were bound tothe grandeur of the King, and the system of dependence that his rulebrought about came to serve as a benchmark for subsequent culturaland political orientations. That is, the state model of Louis XIVprovided a method of interpretation and judgment that wouldgradually extend to a wider social circle and consequently increasethe political relevance of public opinion. The erosion of absolutist

37Ibid., pp. 96-99.

38Ibid., p. 104.



power embodied by enlightened monarchs further strengthens thispolitical relevance, either by benevolence or weakness of the prince.

39

For these reasons, Necker regards the observed extension of politicalinfluence as a typically French phenomenon, the extent of whichbeing difficult to fathom for foreigners. The French nation is embodiedby an intellectually homogenous society with public opinion (aspolitical mainstream) preventing the rise of a ‘multiplicity of opinions’(‘multiplicité des opinions’) and isolating political deviators. Thepolitical mainstream provides a structural order to society byinstituting hierarchical attributes and a social consensus(‘consideration, les égards, l’estime et la renommée’

40) whose

regulating character also serves as a normative orientation. Publicopinion thus institutes a pattern of social values.

Since public opinion functions as a mediator of many kinds ofdiscursive systems (social reward, consent, values), the functioning ofthese systems is essentially at risk in case of its negligence. Thepolitical responsibility of the sovereign and his administrationtherefore consists of mediating the social balance that public opinionis supposed to assure; i.e. politics acts as the last resort of regulatingsociety (in terms of the social systems mentioned above) and mayintervene if public opinion is being ignored.

The necessary consideration of public opinion on the part of thepolitical actors is particularly crucial in the domain of financialadministration. Necker regards the negligence of public opinion as asource of corruption: The abandonment of public opinion as a moralguideline would lead to the administrator’s attempt to increase hisreputation by other means; it hence is an indicator of his proneness toignore the bien public.

However, any negligence of public opinion does trigger politicalramifications for the political actors, with those inciting it being

39De l’administration des finances de la France. Par M. Necker [Texte

imprimé], (S. l.) 1784, Bibliothèque Nationale de France, 3 vol. in-8° [LF76- 7(J)], vol. I, p. li.40

Ibid., liii.



exposed to public resentment. The administrator serving particularinterests as opposed to the bien public ceases to be a homme publicand consequently loses his wrongfully acquired reputation with hisoffice. In that sense, public opinion is not merely a moral guideline,but also a political orientation offering advice to the political actor.

Institutionalising the public: the structural coherence of public opinionand public sphere

In Necker’s conception, the public sphere clearly acts as a frameworkin which discourse and political antagonisms give rise to publicopinion. There is, in fact, a dialectic relationship between themorphological structure of the public sphere and the varieties of itspolitical appearance. The Compte rendu, as we shall see, helped tocreate a particular segment of the public sphere and essentiallyfosters its development; De l’administration, in contrast, appeals tothe critical reasoning of its members.

While Necker’s own conception of public opinion surely is aremarkable early insight to both functioning and social impact of thisnew phenomenon, contemporary social research enables us to defineits meaning in a more categorical fashion. With respect to theadequate classification of the public sphere, Habermas’s theory oftransformation lends itself well to the evaluation of the observationsmade by Necker in the Compte rendu (1); in order to link the processof transformation to the related phenomenon of public opinion, it canin turn be segmented as acting in different separate and autonomouspublics (2).

Habermas’s Transformation is based on gradual institutional change.The feudal ‘representative’ public causes the early capitalism of thelate middle ages, institutionalising new forms of commerce and tradetools (‘finanzkapitalistische Techniken’). Economic change andinstitutional and technical progress in turn necessitate communicativemediation provided by private correspondence and early forms of‘news-trade’ (‘Nachrichtenhandel’) which, however, lacks publicity atthis early stage. In seventeenth century Europe (i.e. England as aprecursor), a censored press develops as an instrument ofgovernmental proclamation; the bourgeois society, already existing as



a social, but not as a political entity, functions as an audience of therepresentative system, but with increasing significance.

41The

interplay of state representation and its (still) subjected audiencecauses a growing centralisation of the representative public sphere.European absolutism creates a new form of representation, which isthe exclusive public of the courts.

In the course of the process of transformation, the bourgeois societyis to become politically relevant by deducing from its inherent propertyof judgment a related sphere of political reasoning (‘politischesRäsonnement der Öffentlichkeit’). Thus the bourgeois public spherehas become a political reality, yet it needs to be institutionalised inorder to gain lasting political significance. For Habermas, Necker’spublication of the state finances illustrates this evolved politicalreasoning, and Necker himself was aware of the enormoussignificance of the Compte rendu.

42

One rather useful scheme of segmentation is that of Yeric and Toddwho identify three basic forms of the ‘public’: the single-issue public,which is instituted by a common concern among a given group ofindividuals; the ‘organisational public’ shaped by organised groupsthat are motivated by a particular interest; and the ‘ideological public’

41Habermas exemplifies the increasing political relevance of the ‘subjects’

with the ‘Verordnungen des Landesherrn zum Besten der Untertanen’[Decrees of the Sovereign to the benefit of the subjects] in Prussia and agovernmental newspaper in Electoral Palatinate ‘zum Dienste der Handlungund des gemeinen Mannes’ [in the service of commerce and the commonman]:Habermas, 1990, pp. 79-80.42

As he wrote in De l’administration (xciii): ‘le Compte rendu a introduit, s’ilm’est permis de le dire, comme une nouvelle ère dans les finances: lescalculs, les spéculations des prêteurs se rapportent à cette époque, & l’on nepeut plus s’abandonner avec exagération aux idées sombres & auxsentiments craintifs qu’une longue obscurité doit nécessairement faire naître’[the Compte rendu has opened, if I am allowed to say so, the doors to a newera of the public finances: the calculations and speculations of the creditorsdepend on it, and it is impossible to surrender oneself without exaggerationsto the clouded thoughts and misgivings that has necessarily been broughtabout by a long-enduring ambiguity].



which gives rise to political debate based on ideological differences.43

Apart from the organisational public, which is a rather recentphenomenon, these segments of the public sphere can be deducedfrom Necker’s writings. The Compte rendu thereby serves as anindicator of a ‘common concern’ (the state finances) that is of interestto a ‘single-issue public’ (creditors to the Crown); complementarily,political opposition to Necker’s ideas provides the ideological element.Based on the theory of segmentation, the Compte rendu can beregarded as a political trigger of an economic dimension of the publicsphere.

Although Habermas’s conception of public opinion has been muchcontested, its strong analytical coherence to the notion oftransformation is highly useful to the present context. What shall bedemonstrated here is that, in France, both public sphere and publicopinion developed in the course of the eighteenth century and that,with respect to the financial administration, it took on a particular andsegmented form that is of interest to economic historians. Habermas’stheory is applicable to the discussion, despite many reasonableobjections, precisely because he is concerned with a bourgeois publicsphere and hardly with a ‘Marxist’ postbourgeois public sphere.

44

However, the bourgeois element must not be misunderstood as apolitical proposition (though it may serve as a social classification)

43J. L. Yeric and J. R. Todd, Public Opinion – The Visible Politics, 2nd edn.,

Itasca (Ill.): F. E. Peacock Publishers, 1989, p. 3ff.44

See P. U. Hohendahl, ‘The Public Sphere: Models and Boundaries’, in: C.Calhoun, (ed.), Habermas and the Public Sphere, Cambridge, MA.: MITPress, 1992, pp. 99-108; this distinction is indeed of high significance, for itprevents Habermas’s approach being interpreted ideologically. Thetransformation theory is certainly not a Marxist ‘class struggle’ approach, as,with respect to eighteenth century France, ‘the apparent simplicity of thedistinction between privileged and unprivileged is misleading’: C. Lucas,Nobles, Bourgeois, and The Origins of the French Revolution, in Kates, Gary(ed.), The French Revolution – Recent Debates & New Controversies,London and New York: Routledge, 1998, pp. 44-70, esp. p. 48. Even for theunderstanding of the revolution, ‘sphere’ is much more insightful a conceptthan ‘class’ (see section 4).



and it certainly is not intended as a classificatory scheme able toaccount for the variety and complexity of modern public phenomena.The bourgeois public sphere is a preliminary, but decisive episode inthe process of transformation by incremental degrees, and this veryfact has been recognised even by Habermas’s critics. Baker extendsthis notion by pointing to the vast degree of congruence between theEnglish and French cases. Although denying the importance of thebourgeois element (though his contestation seems to be based onsemantics rather than a conceptual disagreement), he convincinglypoints to the link between public opinion and ‘a crisis in absoluteauthority.’

45As seen above, this is precisely the observation made by

Necker, writing in 1784. Thus the parallel processes of transformationand segmentation give rise to a new form of bourgeois publicity and arelated segment, its economic dimension, which, like thetransformation itself, relies on institutional change. With respect to theCompte rendu, institutional change is not an a priori process; itspublication would not have been imaginable without the prior processof transformation. Thus it is part of the very institutionalisation that ittriggers.

Is this structural coherence immanent in the Compte rendu?

It is no coincidence that Necker’s explicit theoretical treatment ofpublic opinion would appear three years after the publication of theCompte rendu. His own conception of public opinion as stemmingfrom the existence of public institutions (i.e. an institutionalised publicsphere) chronologically occurs after the transformation of the publicsphere. Necker’s public sphere is driven by a social consensusproviding structural order to society – this structural order is

45K. M. Baker, ‘Defining the Public Sphere in Eighteenth-Century France:

Variations on a Theme by Habermas’, in Calhoun, op. cit., pp. 181-211, esp.p. 192; the vast degree of congruence between C17 England and C18 Franceis among the key insights provided by CHA approaches to revolutionarytheory (see J. A. Goldstone, ‘Comparative Historical Analysis and KnowledgeAccumulation in the Study of Revolutions’, in R. Mahoney (ed.), ComparativeHistorical Analysis in the Social Sciences, Cambridge: Cambridge UniversityPress, 2003, pp. 41-90).



institutionalisation and institutional change. Public opinion is thereflection on the process of institutionalisation and constituted bycritical reasoning. This logical deduction – institutionalising the(transformed) public in order to gain critical reflection – is to a greatextent immanent in the Compte rendu; in fact, it is its main purpose, inthe hermeneutic-historical sense.

The analysis indicates that the Compte rendu appeals to a new publicframework, one that has evolved from the purely representative publicthrough processes of transformation and segmentation. From ahistorical perspective, the Compte rendu verifies both theories. Thepublication of the state finances launches the involvement of theaudience (‘everybody with the ability to read’) and furthers itsstructural transformation, while the details of the contents allow for theformation of a particular segment, the single-issue financial public.Based on this pattern, the Compte rendu can be regarded as havingestablished an economic dimension of the public sphere in eighteenthcentury France; or, for the sake of semantic aesthetics, an economicpublic sphere.

46

4. A political characterisation of the economic public sphere

In order to explain the specific contents of the economic publicsphere, it is worth summarising, at this point, the core findings thathave been established so far. We have seen that both thehermeneutic-historical purpose and the addressed audience of theCompte rendu differ from their previous social roles in the absolutistrepresentative system. The transformation of the audience, andhence of the public sphere, is boosted by the publication of the statefinances which is designed to satisfy specific economic interests ofthe new bourgeois public. The relationship between state andbourgeois public is a reciprocal one and is instituted by the newlyconceptualised phenomenon of public opinion, the esprit social of the

46Economic public sphere, of course, is itself a preliminary term; in

contemporary societies the eighteenth century economic public sphere mayhave evolved into further segments, each accounting for different publiceconomic phenomena.



public sphere. Hence public life in eighteenth century France isessentially preconditioned by a reorientation in economic policymaking, as exemplified by Necker’s writings. The evolution of thebourgeois public sphere is an important preliminary step towards apublic modernity and, in addition to the process of transformation,characterised by a parallel process of segmentation. An example of aparticular segment of the transformed public sphere is its economicdimension. In the introduction, I have already hinted towards thepolitical relevance of this important aspect of social change, andsection 3 was largely devoted to the theoretical fundamentals of thetransformation process. Now, it remains to be shown which specificeconomic parameters revealed by the above analysis determine thepolitical contents of the economic public sphere.

Key contents of the economic public sphere

Looking at the economic parameters deduced by the previousanalysis, two essential mechanisms characterise the transformedpublic sphere (used interchangeably for ‘bourgeois’ public sphere)with respect to its political pertinence. One is determined thematicallyand given by the political nature of the core theme of fiscal policy. Theother is instituted by the process of segmentation, which gives rise toan intriguing historical development: the publication of the stateaffairs, which is grounded in a political decision, enhances thecreation of a spherical segment of society. The extraordinariness ofthis occurrence cannot be emphasised too strongly. One way to graspthis historical singularity is to think of it in terms of nouvelle histoiremethodology, in particular, Braudel’s concept of time differentials(‘temps multiples’).

47The political decision of publishing the state

finances happens within a short-run chronosophic framework (‘tempsdes événements’), whereas evolution and transformation of the publicsphere are long-term propositions (‘temps des structures’, ‘la longuedurée’). Hence the process of segmentation is a multidimensionalinteraction of time structures, as it relates to both the political decisionand the long-term processes: a particular historical event very

47F. Braudel, Écrits sur l’Histoire, Paris: Flammarion, 1969, pp. 11-85.



specifically impacts and shapes a long-term societal development.One might also gain the necessary sensitivity by contemplating thecomplexity of modern social spheres. That contemporary societiesare spherical is a key proposition of social theory, yet it seems difficultto attribute the formation of public segments to single historicalevents.

48However, this is precisely what can be observed for the

formation of a single-issue public of financial investors – the economicpublic sphere – in eighteenth century France. The Compte rendufortifies the development of a public sphere segment, which helps usunderstanding how public transformation worked; it is a literature ofsuch an immense socio-economic impact that it allows us to deducefrom it three core properties of the economic public sphere, asfollows.

The process of transformation induces fiscal policy to become apublic institution, the government to become a public economic agent.As shown in section 3, the transformed bourgeois public remains,although socially widened, an exclusive sphere of restricted access.This is due partly to its preliminary nature and partly to thesegmentation of public awareness: governmental taxation andspending policies serve the interest of the bourgeois public, but theinvolvement in state affairs is bound to the spherical segment ofpotential investors. However, the modern conception of the publicresponsibility of governments is grounded in this transformation,

48The modern notion of social spheres is independent of the concept of

class. That is, spherical distinctions are mostly based on intellectualorientation (regarding economics, politics, science, arts) and not necessarilycorrelated with class divisions. However, the historical development ofsocietal segmentation begins with .small differences which marked out onesocial group from another in everyday life – notably dress and accent – andthe more palpable divisions of residence, lifestyle, and even seating inchurch.: R. A. Houston, Social Change in the Age of Enlightenment:Edinburgh, 1660-1760, Oxford: Clarendon, 1994, p. 56. Houston’s case studyon early modern Edinburgh provides valuable insight to how ‘bourgeois’spheres in Habermas’s sense may have evolved – certainly not inconsequence of a particular event.



which despite its social restriction represents a sphericalenlargement.

Second, the notion of public benefit must condition any conception ofthe public sphere as an economic entity. This can be deduced fromour discussion of the reciprocity of the relationship between the stateand the bourgeois public. The economic dimension of the bourgeoispublic sphere develops as a system of exchange of benefits, with thegovernment satisfying the investors’ quest for transparency in order toincrease its ability to borrow. In doing so, government policy does notonly help maximising investor utility, but also sustaining andmodernising the economic institutions of the representative system(taxation, commerce, toll, etc.). Hence it benefits the bourgeois publicsphere as a whole. The exclusiveness of this system of reciprocalbenefit is given by the fact that access to state benefits is to a greatextent correlated with property. As Hicks notes, the modern welfarestate and its concept of unconditional benefit is a result ofindustrialisation;

49the bourgeois public sphere, however, is by its very

nature pre-industrial and pre-democratic.

Third, political reform is central to the economic efficiency of publicinstitutions. The notion of reform is used in a pre-revolutionary senseof gradual adaptation which enables the institutionalisation of publicawareness. Necker’s incremental reform proposals andimplementations foster the notion of the public, as revealed inparticular by the discussion of the provincial administrations which‘teach the love and knowledge of the public good.’

50

Economic public sphere: some evidence for validity

It is perhaps easiest to demonstrate the validity of the concept bypointing to the severe consequences of its political negligence.Harking back to the accuracy of the Compte rendu, the state

49Even the development of the modern welfare state is of a coercive nature,

essentially resulting from the occurrence of organised labour and the increasein workers’ bargaining power: J. Hicks, A Theory of Economic History, Oxford:Oxford University Press, 1969, chapter IX.50

Compte rendu, p. 81.



breakdown of the late 1780s can – at least partially – be attributed topolitical ignorance regarding the economic public sphere. Thisproposition is based on the observations summarised in section 1 onthe preventability of the state breakdown; interestingly, it can also bederived from CHA insights that establish a pattern of congruencebetween seventeenth century England and eighteenth centuryFrance. Analysing the English state breakdown, Goldstone notes that‘for any early modern state the chief cost was the expenditure for war,an activity that could only rarely be avoided.’

51The war costs certainly

also represent a major fiscal challenge in the French case, which isrepeatedly mentioned in the Compte rendu; however, Goldstone findsyet another historical parallel: in both cases, strong population growthwas the core reason for high inflation and thus for fiscal distress,

52a

relationship which he captures in the following equation:

Long-term price pressure in nth decade after the base period =

n

i

BXk ie0

)(,

where iX is the inflation rate in the ith decade after a given base

period, k is a positive constant, and B is the growth rate of staterevenues without extraordinary measures such as the retraction of

elite privileges or the imposition of new taxes. If B < iX then inflation

will grow at a rate higher than the growth rate of state revenues,

leaving )( BX i positive with the impact of inflation growing

exponentially over time. If B > iX then )( BX i will be negative and

the fiscal situation will improve since fiscal growth exceeds inflation.53

The economic dimension of the public sphere significantly factors into this model. What Goldstone’s findings essentially reveal is that the

51J. A. Goldstone, Revolution and Rebellion in the Early Modern World,

Berkeley and Los Angeles: University of California Press, 1991, p. 103.52

Ibid., p. 89ff.53

Ibid., p. 103.



fiscal stability of the early modern states depended to a great extenton their ability to increase ordinary with extraordinary revenues, i.e.by borrowing. This depended on the public transparency of theirfinances. Hence the importance that is attached to the economicpublic sphere is among the most crucial determinants of the variableB in Goldstone’s equation. This notion offers strong evidence for thelink between the negligence of the (economic) public sphere andfiscal breakdown; thus it reveals that the concept, as defined by thethree key parameters mentioned above, is a valid one in the historicalcontext of pre-revolutionary France. With respect to the notion ofgradual reform, it can be concluded that the Compte rendu representsNecker’s most substantial contribution to political change. The end ofthe government’s ability to finance its deficits by borrowing in the mid-1780s must therefore be attributed to the abandonment of Necker’sreform policies (and those of his congenial predecessors Terray andTurgot) starting with the ministry of his successor Jean-François Jolyde Fleury and most prominently pursued by Alexandre de Calonne.


104

The role of law in optimising the legitimisingeffect of civil society involvement:The case study of EU anti-discriminationemployment law

Milena Müller

Since the end of the 1990s the European Community institutions haveincreasingly emphasised the integral role of civil society for Europeangovernance.

1However, on the other hand, it has become obvious that

civil society involvement itself tends to suffer from legitimacyproblems. This is why the starting point of this article is that civilsociety involvement can only be assumed to have a legitimising effectif it is legitimate itself.

The following sections will analyse how the legitimacy of civil societyinvolvement can be improved and how this can optimise thelegitimising effect of civil society involvement. The main focus will beon the following three aspects. Firstly, this article will concentrate onthe contact between civil society and the European Commissionbecause civil society has a stronger relationship with the Commissionthan with any other EU institution. Secondly, a legal perspective willbe applied by focusing on the involvement of civil society in the law-making process only. Furthermore, it is significant that the mainhypothesis has a legal focus. This article will assume that law canoptimise the legitimising effect of civil society involvement. Thirdly, Iwill focus on a specific case study. I have chosen this case studybecause discrimination law traditionally suffers from legitimacyproblems. Despite the wide acceptance that discrimination should notbe tolerated in our society, it is still controversial whether legalregulation is the right method to fight discrimination. I assume that the

1See, for instance, European Commission, European Governance (White

Paper), COM (2001) 428, 25 July 2001.

Milena Müller Law and optimising the legitimising effect of civil society involvement


legitimacy of law-making should be of the highest priority in areaswhere the legislation itself is contentious.

1. A working definition of legitimacy

Attempts to explain the sudden interest in civil society lead us to theheart of the question how legitimacy should be defined.

2Broadly, it

can be distinguished between subjective and objective definitions oflegitimacy. Weber emphasises in his concept of Legitimitätsglaube[belief in legitimacy] that legitimacy has a subjective dimension.Beetham summarises that this means that ‘legitimacy derives frompeople’s belief in legitimacy’.

3On the other hand, proponents of

objective definitions of legitimacy argue that legitimacy has to bejudged according to objective standards. Such an objective definitionshall be the starting point for my working definition of legitimacy. Itshall be assumed that a polity, institution, process or outcome can beregarded as legitimate when it meets certain criteria for legitimacy.

4

Underlying normative principles determine which criteria are requiredfor legitimacy. For example, the principle of parliamentary democracyhas strongly shaped the conception of legitimacy in Westerndemocracies. It should be noted that the criteria for legitimacy canchange or can be interpreted in different ways because the underlyingnormative principles can change. Put differently, we are presentedwith legitimacy paradigms which can change over time. This viewimplies that this article adopts a subjective objective definition oflegitimacy.

The sudden attribution of a legitimising potential to civil society is astrong indication that the prevailing legitimacy paradigm has recently

2The scope of this article does not allow for a detailed discussion of different

concepts of legitimacy. The aim of this section is only to develop a workingdefinition of legitimacy.3

D. Beetham, The legitimation of power, London: Macmillan, 1991, p. 8.4

See, for instance, K. A. Strike, ‘Liberty, Democracy, and Community:Legitimacy in Public Education’, Yearbook of the National Society for theStudy of Education, Vol. 102, No 1, April 2003, pp. 37–56.



changed in the EU. This new legitimacy paradigm assumes that civilsociety involvement can foster legitimacy.

Changing legitimacy paradigms in the EU

My working definition of legitimacy assumes that a legitimacyparadigm is based on a set of normative criteria. The following sectionwill explain which normative criteria have shaped different legitimacyparadigms in the history of the EU. These criteria will be calledlegitimacy conditions hereafter.

5

Since their early days, the European Communities have been justifiedin terms of legitimacy. The legitimacy conditions on which thesejustifications have been based can be broadly divided into conditionsrelating to input legitimacy and output legitimacy. Central inputlegitimacy conditions have been ever since the 1950s ‘legitimacy aslegal validity’

6and ‘legitimacy as consent’

7. ‘Legitimacy as legal

validity’ implies that a polity, its institutions and its outcomes have tocomply with the legal rules on which they are based. ‘Legitimacy asconsent’ demands that a polity and its outcomes have to be based onpublic consent. The legitimacy paradigm, which prevailed in the earlydays of the Communities, suggested that this consent should bederived from intergovernmental structures. Since the early days of theCommunities, the central output legitimacy condition has been‘legitimacy as good outcomes’. This condition emphasises thatsuccessful results in policy areas can justify intervention.

While ‘legitimacy as consent’ and ‘legitimacy as legal validity’ canconceptualised as ‘first-order legitimacy conditions’, ‘legitimacy asgood outcomes’ is a ‘second-order legitimacy condition’. First-orderconditions can be defined as conditions that are required by legal

5Beetham, op. cit. note 3 supra, pp. 90-97 and p. 182. The following analysis

draws on Beetham’s analysis of legitimacy and Parkinson’s interpretationthereof. This means that Beetham’s and Parkinson’s conceptual frameworksand terms will be used to develop a slightly different model of legitimacy.6

Ibid., p.4.7

J. Parkinson, ‘Legitimacy Problems in Deliberative Democracy’, PoliticalStudies, Vol. 51, No 1, March 2003, p. 182.



rules or that are axiomatic in our political system. An indication for theimportance of ‘legitimacy as consent’ and ‘legitimacy as legal validity’is that both conditions are regularly reviewed by courts.

8‘Legitimacy

as good outcomes’ can generally not be regarded as required by legalrules. Courts do not tend to review outcomes according to thequestion if they are good or successful, which is often a matter ofpolitical persuasion, but if they are constitutional. This means thatthey review the legal validity of outcomes and not the quality ofoutcomes.

Towards the end of the 1970s the first great change of legitimacyparadigm took place. At this time there was a growing realisation thatindirect consent to the Communities through intergovernmentalstructures is not enough and that consent should be derived from adirectly elected European Parliament (EP). Since the early 1990s awide consensus has emerged that the mere existence of the EP is notenough. This is why the role of the EP was further increased, forexample, through the introduction of the co-decision procedure.However, these reforms could not entirely solve the EU legitimacydeficit.

9

The concept of ‘good governance’ offers new approaches to the EUlegitimacy deficit. Smismans summarises that this implies abroadening of the legitimacy debate because the concept ofgovernance looks at processes and actors that are ‘neglected by thetraditional focus on the core institutions of ‘government’, namelyparliament, executive, administration, and party politics.’

10

The increasing popularity of the concept of ‘good governance’ is anindication that another legitimacy paradigm change has taken place.A possible conceptualisation of this change is that a new legitimacy

8See, for instance, Brunner v The European Union Treaty [1994] 1 CMLR 57

and Case C-65/93 Parliament v. Council [1995] ECR I-643.9

S. Smismans, Law, Legitimacy and European Governance: FunctionalParticipation in Social Regulation, Oxford: Oxford University Press, 2004, p.16.10

Ibid., p. 25.



condition has been added to the existing legitimacy conditions. Thenormative criteria of good governance form the basis for this newlegitimacy condition, which shall be called ‘legitimacy as procedure’,and which is also a form of input legitimacy. ‘Legitimacy as procedure’puts emphasis on transparency, consultation of stakeholders,representativeness, deliberation and effectiveness in the law-makingprocess. These aspects shall be called ‘procedural norms’ below.‘Legitimacy as procedure’ can be regarded as a second-orderlegitimacy condition because, while its requirements become moreand more accepted, it is not as axiomatic as first-order legitimacyconditions.

‘Good governance’ puts emphasis on civil society involvement as aprocedural norm because such involvement can provide expertise.

11

However, two recent democratic theories assign a much more centralrole to civil society in EU law-making. Expressed in terms of ourlegitimacy model these theories argue that civil society involvementmight be an additional consent mechanism and contribute to‘legitimacy as consent’. The central idea of associative democracy

12is

that parliamentary democracy, which is based on the classical ideal ofterritorial representation, does not represent citizens in a sufficientway. It is argued that associations can offer an alternative form ofrepresentation. At this point it is important to note that the EUinstitutions do not assume that civil society involvement can be asubstitute for traditional forms of representative democracy. This iswhy ‘the guiding principle for the Commission is … to give interestedparties a voice, but not a vote’.

13However, at the moment consent is

usually conceptualised in form of a vote. Deliberative democracyargues that there can be alternative mechanisms for consent.

11S. Smismans, ‘European Civil Society: Shaped by Discourses and

Institutional Interests’, European Law Journal, Vol. 9, No 4, September 2003,p. 486.12

See, in general, J. Cohen and J. Rogers, 'Secondary Associations andDemocratic Governance', in J. Rogers (ed.), Associations and Democracy,London: Verso, 1995, pp. 7–98.13

European Commission, op. cit. note 3 supra, p.5.



This section has shown that civil society has a legitimising potentialbecause it can be a procedural norm and because it can be analternative consent mechanism. The distinction between these twofunctions begs the question when civil society involvement should beregarded as a procedural norm and when as a consent mechanism.The answer to this question is a matter of degree. As shown above,consent must be interpreted as public consent. This means that civilsociety involvement only has the potential of being a consentmechanism when it is sufficiently representative. If this criterion is notfulfilled, civil society involvement should be regarded as expert adviceand be categorised as a procedural norm.

2. Civil society involvement in law-making: the case of EU anti-discrimination employment law

For the following analysis some background information on our casestudy is required. This section will address this issue.

2.1. EU anti-discrimination employment law: a short overview ofimportant recent measures2.1.1. Hard law

After the insertion of Article 13 EC, which gave the EU thecompetence to legislate on more grounds than just genderdiscrimination, the Commission enacted the Racial EqualityDirective

14and the Employment Framework Directive

15. Against the

background of these new directives, the large acquis of genderequality directives was considered to be too limited.

16For this reasons

14Council Directive (EC) 2000/43 on implementing the principle of equal

treatment between persons irrespective of racial or ethnic origin [2000] OJL180/22.15

Council Directive (EC) 2000/78 establishing a general framework for equaltreatment in employment and occupation [2000] OJ L303/16.16

M. Bell, ‘Beyond European Labour Law? Reflections on the EU RacialEquality Directive’, European Law Journal, Vol. 8, No 3, September 2002, p.394.



the acquis was recently reformed by the Reform Directive17

and theRecast Directive.

18Both of these directives are based on Article

141(2) EC.

2.1.2. Soft law

Since 1982, a series of action programmes has accompanied genderequality directives.

19Also, the recent anti-discrimination directives

have from the start been accompanied by the First Community ActionProgramme to combat discrimination (2001-2006).

20In 2006 the

Community Programme for Employment and Social Solidarity -PROGRESS

21(hereafter PROGRESS) merged several action

programmes, including those in the areas of gender equality and anti-discrimination law. Currently, action programmes are based on Article13(2) EC.

Besides measures which were specifically enacted in the area of anti-discrimination and gender equality law, three general instrumentsshould be mentioned, which are partly concerned with the area of ourcase study. The EES is a recent soft law instrument, which is among

17Directive of the European Parliament and of the Council (EC) 2002/73

amending Council Directive 76/207/EEC on the implementation of theprinciple of equal treatment for men and women as regards access toemployment, vocational training and promotion, and working conditions[2002] OJ L269/15.18

European Commission, Proposal for a Directive of the EuropeanParliament and of the Council on the implementation of the principle of equalopportunities and equal treatment of men and women in matters ofemployment and occupation (recast version), COM (2004) 0279 final, 21 April2004.19

From 2001-2006 this was the prolonged 5th

Action Programme. SeeCouncil Decision (EC) 2001/51 establishing a Programme relating to theCommunity framework strategy on gender equality (2001-2005) [2000] OJL17/22.20

Council Decision (EC) 2000/750 establishing a Community actionprogramme to combat discrimination (2001-2006) [2000] OJ L 303/23.21

European Commission, Proposal for a Decision of the European Parliamentand of the Council establishing a Community Programme for Employmentand Social Solidarity – PROGRESS, COM (2004) 488 final, 14 July 2004.



others aimed at promoting gender equality and social inclusion.22

EESinstruments are in particular based on Article 128(2) EC. Also, theSocial Policy Agendas contribute to the strategic design of the EUanti-discrimination and gender equality policies. Finally, equality ismainstreamed in the European Social Fund. A recent example of thisis the EQUAL initiative.

23This initiative is based on Article 13(2) EC.

Recently, a more strategic approach to gender equality and anti-discrimination policy has been chosen. In 2001, the first FrameworkStrategy for Gender Equality (2001-2005) (‘the First Gender EqualityFramework Strategy’) was enacted

24. The successor of the First

Gender Equality Framework Strategy is the Roadmap for equalitybetween women and men 2006-2010 (hereafter Roadmap).

25

In 2005, this strategic approach was extended to general anti-discrimination law. Based on the recent Equality and Non-Discrimination Green Paper (hereafter Green Paper) and thefollowing wide-scale public web-consultation

26, the Framework

Strategy on non-discrimination and equal opportunities for all(hereafter First Anti-Discrimination Framework Strategy) wasenacted

27. The First Anti-Discrimination Framework Strategy is

22See, for instance, European Commission, Taking stock of five years of the

European employment strategy (Communication), COM (2002) 416 final, 17July 2002.23

European Commission, Guidelines for Community Initiative Programmes(CIPs) for which the Member States are invited to submit proposals forsupport under the EQUAL initiative (Communication), COM 1999 (476) final,13 October 1999; European Commission, Guidelines for the second round ofthe Community Initiative EQUAL (Communication), COM (2003) 840 final, 30December 2003.24

European Commission , Towards a community framework strategy ongender equality (Communication), COM (2000) 335 final, 7 June 2000.25

European Commission , A Roadmap for equality between women and men2006-2010 (Communication), COM (2006) 0092 final, 1 March 2006.26

European Commission, Equality and non-discrimination in an enlargedEuropean Union (Green Paper), COM (2004) 379, 3 June 2004.27

European Commission, Non-discrimination and equal opportunities for all -A framework strategy’ (Communication), COM (2005) 224 final, 1 June 2005.



accompanied by the European Year of Equal Opportunities for All(2007) (hereafter European Year 2007)

28, which is based on Article

13(2) EC.

2.2. The legal framework for civil society involvement

This section will introduce the distinction between institutionalised andnon-institutionalised civil society involvement. This distinction will beused throughout this article because, as will be shown below, thereare very distinct legitimacy problems concerning each form ofinvolvement. This article will take a pragmatic approach to definingcivil society by using the Commission’s definition of civil society. TheCommission defines civil society as NGOs, CBOs and the socialpartners.

29

2.2.1. Non-institutionalised civil society involvement

Since 1999, when the Treaty of Amsterdam came into force, theProtocol on the application of the principles of subsidiarity andproportionality annexed to the Treaty of Amsterdam (the ‘Subsidiarityand Proportionality Protocol’) requires that ‘the Commission should ...consult widely before proposing legislation and, wherever appropriate,publish consultation documents’.

30

This Subsidiarity and Proportionality Protocol has beencomplemented since 2003 by the General Principles and MinimumStandards for consultation of interested parties by the Commission(‘Consultation Standards’). These standards establish ‘soft’ guidelinesfor consultations of interested parties, including civil society, by theCommission.

31The Consultation Standards are, in the first place,

applied to initiatives that are also subject to extended impact

28European Commission, Proposal for a Decision of the European

Parliament and the Council on the European Year of Equal Opportunities forAll (2007) Towards a Just Society Brussels, COM (2005) 225 final, 1 June2005.29

Parkinson, op. cit. note 7 supra, p.183.30

See the Protocol (N° 7) on the application of the principles of subsidiarityand proportionality annexed to the Treaty of Amsterdam OJ C340/105.31

European Commission, op. cit. note 3 supra.



assessments. They are explicitly non-legally binding and do not applyto the EESC, comitology, expert committees or the European socialdialogue.

32

2.2.2. Institutionalised civil society involvement

The provisions concerned with institutionalised civil societyinvolvement are much more specifically linked to the area of anti-discrimination and gender equality law.

The Treaty articles 137 (1) EC and 137(2) EC, 141 EC and 128 (2)EC state that the European Economic and Social Committee (EESC)has to be consulted for any legislative proposal based on thesearticles. Concerning proposals based on all other Treaty articles ofour case study, the EESC may be consulted optionally. Furthermore,the EESC can give own-initiative opinions on proposals. In addition,two expert committees are important institutionalised actors.

33Firstly,

the Advisory Committee on Equal Opportunities for men and women(hereafter AC) helps the Commission to formulate and implementgender equality measures.

34Among the 40 members of the

committees there are ten representatives of the European socialpartners.

35Furthermore, two representatives of the European Women

Lobby are admitted as observers. Secondly, the ESF Committee isrelevant when analysing civil society involvement in our case study.Besides representatives of national governments there arerepresentatives of the social partners from each Member State in theESF. It is significant that there are no strict legal requirements toconsult the two committees.

36

32Smismans, op. cit. note 9 supra, pp. 454-455.

33European Commission, ‘Register of Expert Groups’. URL (accessed 8

September 2007): http://ec.europa.eu/transparency/regexpert34

The Advisory Committee was established under Council Decision (EEC)82/43 relating to the setting up of an Advisory Committee on EqualOpportunities for Women and Men [1981] OJ L20/35 and was amended byCouncil Decision (EC) 95/420.35

Council Decision 95/430/ EC, Article 2.1.36

See, for instance, Case C-84/94, United Kingdom of Great Britain andNorthern Ireland v Council of the European Union, [1996] ECR I-6755.



Article 138 EC states that the Commission has to consult the socialpartners on the possible direction of Community action for initiativesin the area of social policy. If the outcome of this consultation is thatthe initiative should proceed, a second consultation with the socialpartners on the content of a proposal takes place.

37

2.2.3. Other relevant provisions

Article 253 EC provides that the Regulations, Directives andDecisions ‘shall state the reasons on which they are based and shallrefer to any proposal or opinions which were required to be obtainedpursuant to the Treaty’. In our case study this means that requiredopinions of the EESC have to be mentioned.

2.3. Forms of civil society involvement

This short summary is not aiming at being comprehensive but willonly give a broad description of the most important forms of civilsociety involvement that took place in our case study.

2.3.1. General tendencies

There is a general tendency for recent civil society consultations to beconducted as ‘cluster consultations’. This means that only oneconsultation is held in connection with several measures. Examplesare the Green Paper, which was used as consultation for the FirstAnti-Discrimination Framework Strategy and the European Year2007.

38Furthermore, the consultations for the First Community Action

37C. Barnard, EC Employment Law, Oxford: Oxford University Press, 2000,

p. 87.38

See, European Commission, Proposal for a Decision of the EuropeanParliament and the Council on the European Year of Equal Opportunities forAll (2007) Towards a Just Society Brussels, COM (2005) 225 final, 1 June2005, p. 7 and European Commission, Non-discrimination and equalopportunities for all - A framework strategy (Communication), COM (2005)224 final, 1 June 2005, pp. 3-4.



Programme to combat discrimination, the Racial Equality Directiveand the Employment Framework Directive were held together.

39

2.3.2. Non-institutionalised involvement

Non-institutionalised forms of involvement took place in the form ofinformal ad hoc consultations, structured consultations andconsultations governed by the Subsidiarity and ProportionalityProtocol and/ or the Consultation Standards.

While most non-institutionalised involvement for soft law measureswas informal, hard law consultations had to be conducted in line withthe Subsidiarity and Proportionality Protocol and later with theConsultation Standards. Under the Consultation Standardsconsultations were conducted as open web-consultations. TheConsultation Standards were only applied to one soft law instrument,which is the Green Paper.

In the mid-1990s a more structured form of informal consultations forboth hard and soft law measures was introduced in the form of half-yearly meetings between the Commission and the Social Platform.

2.3.3. Institutionalised involvement

No significant difference concerning institutionalised civil societyinvolvement can be found between hard and soft law. The EESC hadto be consulted, was optionally consulted or gave an own-initiativeopinion concerning all recent measures of our case study apart fromthe First Gender Framework Strategy. The AC was consulted for allrecent soft and hard law measures apart from the First GenderFramework Strategy. There is no public information available in whichcases consultations with the ESF Committee took place.

So far, no Article 138 consultations of the social partners have takenplace for measures in the area of our case study because theCommission assumes that such consultations are not required forinitiatives and proposals not based on Article 137 EC.

39European Commission, ‘Communication on certain Community measures

to combat discrimination’, COM (1999) 564, 25 November 1999, pp.6-7.



3. An analytical framework for analysing the legitimacy of civilsociety involvement

When discussing the legitimising effect of civil society involvement theassumption has to be made that civil society involvement only has thepotential of increasing the legitimacy of law-making if it is itselflegitimate. Legitimacy of civil society involvement can be measured insimilar terms as legitimacy of legal measures. This means that eventhough our level of analysis is different here from the workingdefinition of legitimacy above, our analytical indicators are similar.

3.1. Input legitimacy3.1.1. Legitimacy as legal validity

Legal validity is an essential principle of the rule of law. It implies inthis context that the Commission abides by the rules governing civilsociety involvement. As shown in the section concerning the legalframework for civil society involvement, these rules can includerequirements to consult civil society and rules, for example,concerning transparency and representativeness.

3.1.2. Legitimacy as procedure40

(a) Transparency

Transparency implies in the context of this research topic that detailedinformation about participants, agendas, minutes and outcomes ofcivil society involvement is being made available.

Transparency has an ex ante and an ex post role for legitimacy.41

Concerning our case study ex ante transparency ensures that allinterested parties can find out about future civil society involvement,which will enable them to participate in it. Ex post transparency allowsfor scrutiny and accountability of past civil society involvement.

40It is important to note that due to the limited scope of this paper only

selected procedural requirements will be analysed here. This choice is basedon Smismans’ analysis of functional participation because his analysis is verycoherent and meaningful.41

Smismans, op. cit. note 9 supra, pp. 233-234.



Transparency can be achieved either through a right to access toinformation or through publicity.

42

(b) Deliberation

Deliberative democratic theories assume that rational, public debatecan legitimise law- and policymaking and be a form of consentmechanism.

(c) Representativeness

Representativeness is the essential requirement of representativedemocracy. Traditionally, representativeness was associated withforms of parliamentary democracy. However, it should also be appliedto civil society involvement because it can contribute to the fairnessand quality of such involvement.

(d) Effectiveness

The White Paper on governance identifies effectiveness as animportant principle of good governance. In the sense of the WhitePaper, effectiveness means that civil society involvement isconducted in a time-efficient manner.

3.2. Output legitimacy

Concerning our case study the central output legitimacy condition is‘legitimacy as influence’. Civil society involvement could be conductedaccording to all existing legal and procedural rules, but if it had noinfluence it could not be assumed to be legitimate.

43Indicators for the

potential influence of civil society involvement are if consultations aremeasure-specific and if there is an obligation of the Commission totake consultations into account. Furthermore, influence depends onthe point during the law-making process at which civil society

42Ibid. , p.234-244.

43Ibid., p. 165.



involvement takes place because it can be assumed that involvementin the drafting process is more efficient than post-draft involvement.

44

4. The legitimacy of civil society involvement in recent EU anti-discrimination employment law

4.1. Input legitimacy4.1.1. Legal validity

The requirement to hold consultations was met in all casesconcerning the Consultation standards, the Subsidiarity andProportionality Protocol and the consultations of the EESC. TheEESC was even consulted in most cases were consultations are onlyoptional.

However, there is uncertainty if the obligation under Article 138 EC toconsult the social partners also applies to initiatives and proposalsbased on Article 141 EC and Article 13 EC. The Commission believesthat only initiatives and based on Article 137 EC of the Treaty requirethe consultation of the social partners.

45BUSINESSEUROPE insists

that also Article 141 requires formal consultation of the social partnersin accordance with Article 138 of the Treaty. The legal uncertaintysurrounding this issue has a negative impact on legitimacy.

4.1.2. Legitimacy as procedure / Legitimacy as legal validity

(a) Transparency

In our case study it can be found that unstructured informalconsultations are least transparent. Informal consultations aresometimes mentioned in the proposals for legislation but these

44Ibid.; Extensive interviews would have to be conducted to measure the

actual influence of civil society involvement effectively. However, this isbeyond the scope of this paper.45

European Commission, ‘Bipartite Social Dialogue at European level’. URL(accessed 8 September 2007):http://ec.europa.eu/employment_social/social_dialogue/bipartite_en.htm



proposals do not contain detailed information46

. In most casesinformal consultations are not mentioned at all in proposals. Forexample, there is no public information available that the SocialPlatform and the Social Partners were consulted for the EQUALdirective. This information was only available through an access todocuments request.

47

The structured consultations with the Social Platform are moretransparent than unstructured consultations but still suffer fromtransparency problems. The agendas for these consultations arepublished online and the consultations are sometimes mentioned inlegislative proposals. However, other documents such as minutes areonly available via access to documents requests.

The consultations with the ESF Committee are not transparent either.In many cases no information is published that consultations with theESF Committee took place. For example, the ESF Committee wasconsulted for the EQUAL guidelines. However, this information wasonly available through an access to documents request.

48

The transparency of the AC is not sufficient either. Even though theopinions of the AC are published online, no further information suchas minutes is available.

49

The consultations of our case study, which are governed by theSubsidiarity and Proportionality Protocol, were published.

50However,

46See, for instance, European Commission, Proposal for a Directive of the

European Parliament and of the Council on the implementation of theprinciple of equal opportunities and equal treatment of men and women inmatters of employment and occupation (recast version), COM (2004) 0279final, 21 April 2004, p.4.47

An access to documents request was made on 19 September 2006 anddocuments were received on 10 October 2006.48

Ibid.49

See,http://ec.europa.eu/employment_social/gender_equality/gender_mainstreaming/gender/advcom_en.html.50

See, European Commission, op. cit. note 66 supra, p.4-5 and EuropeanCommission, op. cit. note 53 supra, pp.6-7.



contrary to the guidelines of the Subsidiarity and ProportionalityProtocol no consultation documents were published.

On the other hand, consultations under the Consultation Standardshave the potential of being very transparent because there is arequirement to publish all consultation documents, contributions ofparticipants and reactions of the Commission online. However, thepublicity requirements are not always met. For example in the case ofthe Recast directive not all contributions can be found on theInternet.

51

Also, the EESC is a transparent committee because it has clear rulesof procedure, its hearings are public and all of its opinions arepublished in the OJ. The Commission draws up quarterly reports onhow the opinions of the EESC were taken into account.

So, what do these results mean concerning the legitimacy of civilsociety involvement? The requirements to publish consultationdocuments under the Subsidiarity and Proportionality Protocol, theConsultation Standards and the Transparency rules of the EESC are(soft) legal requirements. This means that they have to be met so thatthe first-order condition ‘legitimacy as legal validity’ is fulfilled.Informal and structured consultations and consultations of the AC andthe ESF on the other hand should be transparent to comply with theprocedural norm but are not legally required to be so. Our analysisshows that the first-order legitimacy condition ‘legitimacy as legalvalidity’ is met in more cases than the second-order legitimacycondition ‘legitimacy as procedure’.

(b) Representativeness

All forms of civil society involvement in our case study, apart fromopen web-consultations, suffer from representativeness problems.

Concerning our case study it can be criticised that the EESC hasrepresentatives from the national social partners, but no

51European Commission, ‘Open consultations’. URL (accessed 8 September

2007): http://ec.europa.eu/employment_social/consultation_en.html



representatives from functional groups linked specifically todiscrimination and diversity such as women or ethnic minority groups.It is important that also other functional groups than management andlabour should be represented because, traditionally, female workersand workers of ethnic minorities are under-represented in many tradeunion associations. The EESC tries to compensate for this problemby holding hearings with non-represented groups. However,Smismans points out that these hearings are by far not conducted forevery opinion.

52

The representativeness of the AC and ESF committee can becriticised, even though they are essential forums for the Europeanand national social dialogue. Comparable to the case of the EESC,the focus on the social partners leads to legitimacy problems. In theAC, observers of the women lobby and other organisations can beadmitted in addition to the other members. However, due to thelimited role of observers, this cannot fully compensate for the lack ofrepresentativeness. Furthermore, it is unfortunate that the two forumsconcentrate on either the national or the European social partners.

Also non-institutionalised forms of civil society involvement suffer fromrepresentativeness problems. Even though the Subsidiarity andProportionality Protocol requires consultations to take regional andlocal dimensions into account, if appropriate, most consultationsconcerning our case study do not even take account of nationaldimensions. In practice, it can be seen that the Commissionconcentrates its consultation activities on Brussels-based umbrellagroups.

53

Informal consultations are not subject to regulations which groupsshould be consulted. In practice also here a concentration on

52Smismans, op. cit. note 9 supra, p. 164.

53European Parliament, ‘Replies to the Commissioner Designate’s

questionnaire’ (Vladimir Spidla’s reply to the specific part of the EuropeanParliament Hearings of the Commissioners Designate). URL (accessed 8September 2007):http://www.europarl.europa.eu/hearings/commission/2004_comm/pdf/speca_spidla_en.pdf.



European umbrella groups can be found, which leads to an under-representation of national and specific interests. The same problemalso applies to structured consultations with the Social Platformbecause these consultations are focused on one umbrella group only.

So, what does this analysis imply for legitimacy? The Subsidiarity andProportionality Protocol includes a legal requirement to consult widelyand to take local and regional dimensions into account. TheConsultation Standards prescribe that ‘the Commission should ensurethat relevant parties have an opportunity to express their opinions’.

54

In these two cases representativeness is legally required. In all othercases representativeness is a procedural norm. Currently, neitherlegitimacy condition is sufficiently fulfilled. These representativenessproblems have important consequences for whether civil societyinvolvement has a procedural or a consent function in our case study.As ‘legitimacy of consent’ requires public consent, the consentfunction in our case study is limited.

4.1.3. Legitimacy as procedure

(a) Deliberation

It is difficult to measure deliberation. Institutionalised civil societyinvolvement can be assumed to be more deliberative than non-institutionalised involvement because institutionalised civil societyinvolvement encourages discussions within civil society and with theCommission. This is different for most forms of non-institutionalisedcivil society involvement where only discussion with the Commissiontakes place. The deliberative potential of web-based openconsultations under the Consultation Standards is limited becauseweb-based consultations are mostly based on the limitedcorrespondence between Commission and individual civil societygroups.

54European Commission, Towards a reinforced culture of consultation and

dialogue - General principles and minimum standards for consultation ofinterested parties by the Commission (Communication), COM (2002) 704final, 11 December 2002, p. 19.



(b) Effectiveness

Currently, there do not seem to be any problems with time-effectiveness of civil society in our case study. However,effectiveness is often put forward as a reason against expandingprocedural or legal requirements for consultation, which means thatdifferent criteria for legitimacy can be in conflict with each other.

4.2. Output legitimacy

It is difficult to measure the influence of civil society involvement. Asoutlined above, measure-specific consultations and consultations,where the Commission is required to give reasons for decisions, canbe expected to be more influential than other consultations.Therefore, recent cluster consultations would be expected to havehad less influence than recent measure-specific consultations. Also,consultations governed by the Consultation Standards can beexpected to be more influential because the Consultation Standardsrequire the Commission to acknowledge contributions and to givefeedback.

However, it is difficult to assess if these expectations are met inreality. Smismans shows that informal consultations might have moreinfluence than, for example, consultations of the EESC and theAdvisory Committee.

55Many commentators doubt the influence of the

EESC because the opinions of the EESC are too vague and becausethe EESC intervenes too late, after a measure has been drafted.

56

However, the quarterly reports of the Commission show that theopinions of the EESC in our case study were at least considered. Butwhen scrutinised in more detail, the reports show that the influence ofthe EESC was rather limited, partly because opinions of the EESChave been largely favourable.

57


56Ibid., p. 165.

57This is the result of a review of the quarterly reviews concerning Actions

undertaken by the Commission on the Opinions adopted by the EESCpresented by the Commission concerning our case study. URL (accessed 8September 2007): http://eesc.europa.eu/documents/follow-up/index_en.asp



5. The role of law in optimising the legitimacy and legitimisingeffect of civil society involvement

This section shall make constructive proposals how law can solvethese legitimacy problems while maintaining an acceptable level oftime-efficiency.

5.1. Judicial review under the current legal framework

The legitimacy of civil society involvement would be improved if thecompliance with the legal rules governing civil society involvementwas increased. However, currently, most problems with complianceconcern either procedural norms or soft rules, which are not legallybinding. Even though soft rules might be ‘justiciable as a source ofsoft law’,

58it is unlikely that the CFI or ECJ would review civil society

involvement. This is because the ECJ has generally been unwilling toreview civil society involvement in the past.

59Furthermore, the

Consultations Standards explicitly state that judicial review of themmust be avoided.

However, concerning one specific question, namely the interpretationof Article 138 EC, judicial review could help. If the Court clarified ifArticle 138 EC also applied to legislation under Article 141 EC legaluncertainty could be reduced.

5.2. Soft legalisation

Soft legalisation is a preferred tool of the Commission because itprecludes judicial review and is thus regarded as time-efficient. Sofar, good practical experiences have been made with soft legalisationin the area of our case study. The above analysis has shown thatconsultations governed by the Consultation Standards are moretransparent and representative than many other forms of civil societyinvolvement.

Therefore, one suggestion to improve the legitimacy of civil societyinvolvement in our case study would be to extend the Consultation


59Ibid.



Standards to institutionalised consultations, informal consultationsand structured consultations for both hard and soft law. It could beargued that a legalisation of civil society involvement concerning themaking of soft law would be problematic because one of the mainadvantages of soft law is its faster and much more flexible law-makingprocess.

60However, this should not be a reason for leaving civil

society involvement in the making of soft law unregulated. Manyaspects of soft legalisation such as transparency requirements shouldnot be regarded as a burden to time-efficient law-making. It is truethat it could be argued that the procedure of open web-consultations,which is currently often applied, is too time-intensive for soft-lawmeasures. However, this problem could be solved by introducinglegalisation specifically tailored to law-making procedure of soft law.

In the course of an extension of soft-law legalisation it would besensible to review the Consultation Standards. Revised softlegalisation should specify that civil society involvement should bemeasure-specific to improve the influence of civil society. Also, softlegalisation should put even more emphasis on transparency than thisis currently the case. Rules should require the Commission to publishdetails of all consultations and to include consultation documents.This should include publishing information on the consulted parties,the composition of committees and minutes of meetings.

61Such a

step would not only increase transparency and accountability but alsoencourage deliberation because civil society groups could alsocomment on other contributions. Furthermore, the Commissionshould be required to provide detailed explanations of how these

60A. Peters and I. Pagotto, ‘Soft Law as a New Mode of Governance: A Legal

Perspective’ NewGov 04/D11, 2005, p. 24. URL (accessed 8 September2007): http://www.eu-newgov.org/database/DELIV/D04D11_Soft_Law_as_a_NMG-Legal_Perspective.pdf.61

See, for instance, for such a demand: The Social Platform, ‘EuropeanTransparency Initiative: Response of the Social Platform Final Contribution,September 2006.’. URL (accessed 8 September 2007):http://ec.europa.eu/transparency/eti/docs/contributions/151_C3_Ch3_Social_Platform.pdf.



consultations were taken into account. This would not only increasethe transparency of civil society involvement but also increase theinfluence of civil society.

While it would be straightforward to introduce a duty to consultinstitutionalised civil society, it is often unclear which form arequirement to consult non-institutionalised civil society should take.Based on the results of the proceeding sections the Commissionshould at least be required to undertake consultations with all relevantand interested parties and not just European umbrella groups.

The suggested changes would transform currently existing proceduralnorms into soft legal rules. To be legitimate all forms of civil societyinvolvement would then have to be legally valid and not justprocedurally correct. Experience has shown that legal requirementsare better observed than procedural norms. If this was also to apply inthis case, input legitimacy could be expected to increase. Also theoutput legitimacy of civil society involvement could be indirectlyincreased by these changes because the influence of civil societycould be expected to be greater.

If soft legalisation led to increased representativeness, this could alsobe the basis for a stronger consent function of civil societyinvolvement. Currently, the function of civil society involvement ismostly to contribute to the second-order condition ‘legitimacy asprocedure’. If the representativeness of civil society involvement wasgreater, it could be expected to contribute to the first-order legitimacycondition ‘legitimacy as consent’.

5.3. Hard legalisation

It has been shown above that the Consultations Standards are notalways observed in practice. Therefore, it could be argued thatlegally-binding hard rules backed up by the possibility judicial reviewshould be introduced.

62




5.3.1. New committees

Smismans shows that law can only promote deliberation to a limitedextent.

63I agree with his analysis in so far as deliberation is a

dynamic process, which cannot be prescribed by legal rules.However, as outlined above, committees offer more potential fordeliberation because they encourage discussion betweenCommission and civil society and within civil society than for exampleweb-consultations.

In all areas of anti-discrimination and gender equality lawconsultations take place with the EESC, many financial instrumentsare discussed in the ESF committee and gender equality lawmeasures are discussed in the AC. This shows that there are alreadya number of deliberative forums in the area of our case study.However, concerning general anti-discrimination law there is currentlyno specific Advisory Committee. Therefore, it could be suggested toextend the tasks of the existent AC to general anti-discrimination lawor to establish a new AC for this area. An argument against such asuggestion would be that not another committee should be added tothe overabundance of already existing committees. However, aCommittee that fulfils the legitimacy conditions outlined above shouldbe regarded as a benefit rather than a burden.

5.3.2. A changed composition of committees

As pointed out above, the AC, the ESF committee and the EESCsuffer from representation problems because non-socio-economicgroups of civil society are strongly underrepresented in those forums.A solution to this would be to change the composition of the AdvisoryCommittees and the EESC to include more different functional groupsin the committees. This would mean a move away from the strongfocus on socio-economic groups.

A changed composition of committees could strongly increase therepresentativeness of civil society involvement. This would begenerally positive for the legitimacy of civil society involvement.

63Ibid., p. 217.



Furthermore, it would be a way to strengthen the consent function ofcivil society involvement.

5.3.3. A right to be heard

Two different rights to be heard could be introduced. Firstly, therecould be a right to be heard of every civil society group. Secondly,there could be a right to be heard of committees. In terms of ourlegitimacy model a right to be heard could be expected to increasethe consent potential of civil society and the output legitimacy of civilsociety involvement by increasing the influence of civil society.

So far, no such right exists for civil society, even though several civilsociety groups have demanded that civil society involvement shouldbe enshrined in a Treaty article.

64

However, many problems are associated with the realisation of suchrights. Currently, some civil society groups do not have internaldemocratic structures, and it is not clear if they have a mandate torepresent the interests that they claim to represent. This is a problembecause only groups that adhere to high standards of democracyshould have a guaranteed right to be involved.

Thus, a hard right to be consulted would have to lead to quality-basedaccreditation of civil society groups. However, it is not clear if such anaccreditation would be sensible. Currently, the Commission, manycivil society organisations and many academic commentators areagainst an accreditation.

65It is especially questionable what the

criteria for a quality-based accreditation should be. Mostcommentators who are in favour of a quality-based accreditationargue that civil society would have to fulfil certain representativenessstandards.

66But it is not clear how representativeness should be

64See, for instance, Social Platform, ‘A call for a formal recognition of the role

of NGOs at the EU level’. URL (accessed 22 January 2007):http://www.socialplatform.org/code/en/camp.asp?page=321.65

See, for instance, European Commission, op. cit. note 54 supra.66

See, for instance, O. De Schutter, ‘Europe in Search of its Civil Society’,European Law Journal, Vol. 8, No 2, June 2002, pp. 198-217.



defined.67

Furthermore, De Schutter points out thatrepresentativeness should not be the only selection criteria for civilsociety involvement. He shows that representativeness requirementsmight be obstacles to participation of valuable parties.

68

A right to be heard backed up by judicial review would be likely tolead to a locus standi of civil society groups, which could increasejudicial review of civil society involvement. Furthermore, already theprocess of civil society accreditation could be expected to lead toefficiency problems. Legal action from groups who claim to have theright to be accredited or those who claim that quality standardsthreaten their independence could be expected. Therefore, theintroduction of a right to be heard for non-institutionalised civil societyinvolvement seems problematic.

A right to be heard of institutionalised civil society is less contentiousbecause there would not be the problem of accreditation.

5.3.4. Transparency requirements

As shown above, transparency requirements could assist in ensuringthat procedural requirements are met. This could increase thelegitimacy and legitimising potential of civil society involvement. Hardtransparency requirements would be the same as those outlinedabove concerning soft legalisation and would include the requirementto publish consultation documents and to give reasons howconsultations were taken into account. These requirements could, forexample, be enacted by expanding Article 253 EC. A revised Article253 EC could also refer to non-legislative acts and make more far-reaching requirements to give reasons. However, it can bequestioned if such transparency requirements would be efficientbecause they could potentially lead to judicial review, which couldslow down the law-making process. This is why soft transparencyrequirements should be the preferred option.

67See, for instance, K. Armstrong, ‘Rediscovering Civil Society: The

European Union and the White Paper on Governance’, European LawJournal, Vol. 8, No 1, March 2002, p. 127.68

De Schutter, op. cit. note 66 supra, p. 205.



6. Conclusion

This article has argued that law could play a vital role in optimising thelegitimising effect of civil society involvement. In this context theassumption was that civil society involvement can only have alegitimising effect if it is legitimate itself. The evaluation of civil societyinvolvement in the area of EU anti-discrimination law found a numberof legitimacy problems. However, it was shown that law can solvemany of these legitimacy problems. Soft legalisation is generally themost promising approach but judicial review and hard legalisationshould also be used in specific situations. This means that law couldhave an enabling function for the legitimising effect of civil societyinvolvement: by increasing the legitimacy of civil society involvementthe legitimising potential of civil society involvement is increased.

But law could also directly improve the legitimising effect of civilsociety involvement. Firstly, it could expand the deliberative potentialof civil society and with this deliberation in the EU. Secondly, it couldincrease the representativeness of civil society involvement. Thiscould move civil society from the realm of the second-order condition‘legitimacy of procedure’ into the realm of the first-order condition‘legitimacy of consent’.

Some of the suggestions to improve the legitimacy and legitimisingeffect of civil society involvement are case study specific. Forexample, the suggestion to introduce judicial review and to review thedesign of the institutionalised actors would not have to affect otherareas of EU law. This facilitates their implementation. However, mostother suggestions could not be limited to our case study but wouldhave to be implemented on a wider scale. But are the suggestedsolutions applicable to EU law-making in general? The most importantsuggestion was to extend soft legalisation in scope by applying it tomore forms of consultations and by including transparencyrequirements. Many contributions to the recent Transparency GreenPaper

69show that such demands are also made by civil society

69European Commission, European Transparency Initiative (Green Paper),

COM (2006) 194 final, 3 May 2006.



organisation from many other policy areas.70

This means that theanalysis of this article is case study specific but that its results arealso applicable to EU law in general. Therefore, our case study isrelevant for EU law in general.

70See, for instance, the contribution of BEUC to the Transparency Initiative.

BEUC, ‘BEUC / ANEC position on the European Transparency Initiative’.URL (accedded 8 September 2007):http://ec.europa.eu/transparency/eti/docs/contributions/141_C3_Ch1_BEUC.pdf

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