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Chancellor of Justice's speech at the International Summer School of the University of Tallinn "Constitutional patriotism to become a unifying identity?" in Tallinn

Indrek Teder's speech "Constitutional patriotism to become a unifying identity?"  at the International Summer School of the University of Tallinn on the 26th of July 2010.

 

When raising a question whether constitutional patriotism can be the identity of people, another question arises: do the provisions of the constitution (incl. fundamental rights and freedoms) dominate the national feelings and values that are hard or impossible to define. A rational answer is that the law and, thus, the constitution must prevail. However, reality does not always prove that.

 
Identity issues have always been, and are today, under discussion and debates. Of course, identity is quite a personal issue; it cannot, or at least should not, be directed by force or violence. Identity can also change through a person’s life – the empire-minded have become nationalists (and vice versa) and radically different periods are distinguished in the style of the artist Pablo Picasso.
 
What unites people and what separates them and sparks conflicts between them? It is not only rational considerations, but there is or may be also something not clearly defined that people perceive as a uniting factor – an identity. First of all, nationality can be brought out as an important component of identity. However, where does the nationality originate from and what does it mean? Is it ethnic origin or does it involve also culture, language or something else that we cannot put our finger on? It is probably easier to define religion as a carrier of identity, but this would be already a separate topic. For example, in the Jewish identity, religion has become more important than the language.
 
In the European Union, we probably cannot yet (though we should in the future) rely on the European identity. Right now, it is rather the identities of the Member States that prevail. One of the most important obstacles is probably the absence of a single language and, hence, a common political forum. We do identify ourselves also as Europeans, although, while keeping our fingers crossed primarily for ‘our’ team, if any, at the Football World Cup. Nationality – national identity still prevails. However, it is likely that this World Cup there were more European football fans who were in favour of one or another team during the championships because "they are from Europe“. Whether this is necessarily a sign of an emerging European identity is another question.
 
In the historical context, nationalism also relates to (in addition to all positive) clear violence towards other nations. The values of justice have unfortunately failed to provide sufficient protection against violence and have been several times adapted for serving the interests of nationalism. For example, even for universal human rights, the so-called regional approach is accepted. It probably means that the right is subjected to regional and national interests. In Tunisia, the Arab countries adopted the “Arab Charter on Human Rights” in 2004. The referred document underlines the specificity of Arab nationality and its link to Islam. This approach is a separate topic and maybe such an approach is right? I am not critical about such a regional document, but it inevitably provides an additional legal basis or semblance for confronting the general principles of human rights about the equality of all people. The right has constantly found itself in the service of nationalism and the nationalism may not express only the nationality, but an ethnic meaning is clearly prevailing.
 
Is the ethnic national identity our common value? Does a good Estonian citizen, an Estonian in a political sense, have to assimilate into ethnic Estonians one way or another? I would prefer our common national value to be the constitution – it contains human- and citizen-centred principles. It would be hard to argue against that. Being the admirers of the law, we are probably also constitutional patriots.
 
The idea of the referred constitutional patriotism emerged from the thoughts of the professor of international law, Lauri Mälksoo (Constitutional patriotism – right also for Estonia? A Report by the Konrad Adenauer Foundation and the Law Faculty of the University of Tartu on 15.05.2009 and the sovereignty of Estonia 1988-2008).
 
The idea of constitutional patriotism is nothing new. Jürgen Habermas, a leading philosopher in the second half of the 20th century, has made the idea of constitutional patriotism visible all over the world. Dolf Sternberger, who worked as a professor of political science in Heidelberg, is regarded as the one who coined the term. In a very simplified sense, the main idea of constitutional patriotism is that the constitution comes before nationality as an ideological unifier. Constitutional patriotism as an idea was used in Germany about twenty years ago and is probably not very topical today (or is it?). It has been argued that constitutional patriotism as an idea is too elitist and emotionless. It does not provide emotions for identity.
 
Still, constitutional patriotism also involves a clear and simple idea – you can rely on the law, and the rules based on the law (constitution) are equal and unifying for everybody. Thus, constitutional patriotism as an idea should not be written off yet. It could be discussed again regarding the development of the European Union – the entry into force of the Lisbon Agreement. Besides, the importance of this idea cannot be underestimated in the historical development of Germany. It can be generalized that the formation of patriotism through the constitution, and not only through nationalism has made Germany a more easily accepted and a friendlier neighbour in Europe. This, in turn, has made peaceful union of Europe possible. Since the peaceful unification of Europe has also been in Germany’s interest, we have a paradox: less ethnic nationalism and more constitutional patriotism has been very much in Germany’s interest. Current reality in Europe shows that societies must make rational decisions. Budget cuts in many Europe’s countries are vivid examples. Simple subjective truth is that neither an individual nor the whole society can live long so that expenditures exceed revenues. This truth is emotionally difficult to accept because everybody wants a good life and no one wants to pay invoices. This emotional and populist attitude is not sustainable. Sustainable is a rational attitude towards the society as a whole.
Rational is the idea of constitutional patriotism - law (constitution), above all, and integrater of the society.
 
Constitutional patriotism as an idea for Estonia could be discussed as an idea in the context of the Estonian reality and constitution. Is Estonia only a nation-state and how do we consider the Estonian nation, the preservation of which along with its language and culture must all the time be guaranteed by the state according to the preamble of the Constitution?
 
In my opinion, the principle – The Republic of Estonia is based on freedom, justice and law – included in the preamble of the Constitution of Estonia is most important. Thus, according to the Constitution, Estonia is primarily the country of freedom where justice and law are secondary to freedom. This principle should be considered for the whole constitution.
 
The citizens’ bond with their country and their political identity should be rational and based on reasoned political values and no longer on irrational national feelings and passions. There are two main orientations in the preamble of the Constitution of Estonia. First, Herder-like ethnic national, based on which one of the objectives of the Republic of Estonia is “the preservation of the Estonian nation and culture through times”. Personally, I like this one too. However, the problem here could be that it may not provide all the fellow Estonians with the sufficient connection and source of support for their identity regarding Estonia – eternal nationhood of Estonia. This means a connection with the Constitution, the following of which we expect from all the fellow citizens. The Kantian republican orientation is also important in our Constitution, emphasizing the freedom, rights and equality of citizens. When quoting the preamble of our constitution, the Kantian universal idea is expressed in the sentence according to which Estonia is based on “freedom, justice and law“(Estonia is a constitutional country). I also like this orientation. The constitutional sustainability of Estonia may, among other things, depend on how well and successfully we can give substance to the idea of the preamble of the constitution, according to which the state of Estonia is based on “freedom, justice and law“.
 
It is clear that the emotional arguments about Estonia’s 700-year-long serfdom period and 50-year-long Soviet occupation are not the only bases of our self-determination and perception and we do not need to strictly hold on to the national romanticism of the 19th century. Estonia, by its character, is an innovative community that is and lives in the future. Of course, one cannot forget or deny the history or the events that have taken place.
 
The goals of the eternal nationhood in Estonia established in the preamble of the Constitution of Estonia - to ensure the preservation of the Estonian nation, language and culture through times – are a superior and realistic goal, that must be supported at all times with the right and appropriate constitutional resources.
During the 18 years following the restoration of the Republic of Estonia, we have often preferred the ethnic nation-centred thinking. In fact, it is human and natural as the Republic of Estonia was founded in 1918 and the legal state authority was restored in 1991 despite the resistance of the imperial forces. The imperial forces have still not stopped working against the Estonian nationhood. In that sense, the nation-centred thinking or practice provides the last means of defence against ideological attacks. Also, such thinking is widespread in the world. But the nation-centred thinking also involves the risk of a too narrow perspective.
The citizens’ bond with their country and their political identity should be rational and based on justified values, and no longer on irrational national feelings and passions.
 
In my annual speech to the Estonian Riigikogu in 2009, I emphasized the following aspects. It seems to me as if the Estonian national thinking and philosophy need a new gear to be switched on. The old gear still in use has served the interests of Estonia very well, but keeping the same speed may lead to a risk that our state machine “breaks down”. We can keep going on a sustainable track only if we change the gear. A change of gear would not mean that the old one was wrong. Our principles of nationhood and implementation policy so far have been correct and constitutional. We might conditionally call this change of gear a smooth switchover from the ethnic nation-centred thinking to citizen-centred thinking. I believe the signs of such a positive change of gear already exist in reality. It would mean the selection of the measure or the gear appropriate at a particular stage of development. The manifestation of the creation of the Estonian nationhood was a manifestation for all the nations in Estonia.
 
Constitutional patriotism also means full loyalty of the Estonian people to the Constitution and constitutional order. And this is not, nor can it be formal loyalty.
(As of 17 September 2009, according to the Citizenship and Migration Board, the following residents lived in Estonia on the basis of a valid residence permit or the right of residence: 106212 undetermined persons without citizenship among whom 2312 were aged under 15 and 103900 aged over 15 and 114063 citizens of other countries.
 
As of 17 July 2010, according to the Police and Border Guard Board, the following residents lived in Estonia on the basis of a valid residence permit or the right of residence: 102698  undetermined persons without citizenship among whom 1995 were aged under 15 and 100703 aged over 15. As of 1 January 2010, citizens of other countries were 107838.)
 
It is perhaps inappropriate to talk about patriotism (and, of course, constitutional patriotism) for persons without citizenship. There are many undetermined persons without citizenship in Estonia. The state of Estonia together with its institutions has done a very good job in this field. This is also demonstrated by a constantly decreasing number of the persons without citizenship. It can be assumed that part of the persons without citizenship is loyal to Estonia simply due to the fact that they did not take the citizenship in another country. But it is time we took a step forward. I am not talking about the simplification of the requirements (incl. the requirements of the Estonian language) established for acquiring the Estonian citizenship – they are simple enough. Also, no change is needed in our principles of citizenship. In 2008, an integration plan was approved by the Government where also a vision of decreasing the number of undetermined persons without citizenship is provided for 2013.
 
It might be assumed that a certain number of persons without citizenship do not apply for the Estonian citizenship on principle as they must submit an application for that, it means ask the country (in short, the stereotype is as follows: I live in the country, I am loyal to it and pay taxes, so why should I ask). At the same time, no doubt the loyal persons are necessary for the country also as citizens. In order to start the discussion in the society on the fate of such persons, we could begin with a simpler issue – regulation on acquiring the Estonian citizenship for the minors. On the basis of the law in force, a minor (aged under 15) whose parents are both without citizenship may acquire the Estonian citizenship in the form of naturalization if applied for by his/her parents. In the speech of annual overview of the Chancellor of Justice in the Riigikogu last autumn I suggested another idea for discussion in the Estonian society. The minors (aged under 15) of the parents without citizenship and with a valid residence permit should be granted the Estonian citizenship in the form of naturalization, provided that the parents are not against it. Thereby, I would like to highlight that it is the acquisition of the citizenship by naturalization, not by birth. This step would be positive both for starting a discussion and as a real act demonstrating that Estonia takes all its fellow countrymen seriously. Of course, one might ask that if the existing rules ensure the smooth operation and the number of children without citizenship decreases, why such a proposal. But the question is about the attitude and public declaration. Through such an act, the state declares that it values all the children and all the fellow countrymen. It would also be based on the interests of a child.
 
National relations cannot and must not be considered, so to speak, black and white. The increasing number of loyal citizens and the development of loyalty in our national life represent the implementation of the provisions established in the preamble of the Constitution in the interests of all Estonian citizens, also the preservation of the Estonian language and culture.
 
The most solid basis for the formation of loyalty is a clear differentiation from an authoritarian and imperial alternative. Big countries may offer fancy parades and apparent victories, but they also have ongoing and essential problems with the provision of rights. Estonia can be made a better home for all the Estonian fellow countrymen by an attempt of taking the idea of equality of all citizens, arising from the state based on the rule of law, with heart, sincerely and seriously.
Indeed, such an idea gave rise to broad discussion (which was also my purpose) in the society, but it has not brought forth the required changes in the legal system. Still, it would have been naive of me to expect immediate changes following the proposal of the idea. An open discussion on such a sensitive topic (the topic is more complicated due to the recent past of Estonia – the bloody occupation by the Soviet Union and the deportation of Estonians from Estonia and settling of non-residents in Estonia) as a nation and national relations in itself is a big value.
 
Considering our hope for justice and aspirations towards a more legitimate society, the law is a unifier of people – Estonian constitutional patriotism for all the Estonian residents. Such patriotism can be more easily formed when we prioritize in our constitutional philosophy the Kantian idea of the equality of all citizens in exercising their freedom (of course, within the limits established by the constitution). My purpose and ideal is that the Estonian citizens are also humans who would not too easily use the argument of nationality when dealing with socio-economic and political issues. It is quite often the case that speaking of national identity does not allow speaking of actual issues – who will receive resources and how many and whether such distribution of resources is fair. The arguments based on the constitution and related to the rights make it easier to focus on the main issues.
 
In the 1990s, Samuel Huntigton, the now deceased political scientist from Harvard, wrote ominously that upon the collapse of the USSR, the communists may have become nationalists overnight, but the Armenians could not become the Azerbaijanis and vice versa. It might be right, but overestimation of the national basis could easily evolve into an endless bloody conflict that is continuously attempted to be suppressed. There are numerous examples, the national conflict taking place in Kyrgyzstan is only one of many. In fact, Huntington’s pessimism should be proved wrong – the failure of Armenia and Azerbaijan to be open societies; these countries have let the distrust between each other become so strong that it is hard to imagine a loyal citizen belonging to one ethnos but having the citizenship of another country (if I remember correctly, then after Eurovision 2009 a write-up was published that the Personal Protection Service in Armenia had clarified the names of those persons who had dared to vote for the song presented by Azerbaijan).
 
Differentiation and confrontation based on the nationalities has been and is very common in the whole world. Still, should we clearly define a nationality? One can try but has to admit there is no clear definition accepted by everybody. We could define the nationality as belonging to the citizenship of a particular country (legally understandable to me). However, the nationality has always been related to an ethnic origin, language, culture and something else. Despite the confusing definition of the nationality, it is used often and with the assumption that it creates the same recognitions among the addressees: we know it when we see it. It reminds me of a saying by Potter Stewart (1915-1985), the judge of the US Supreme Court, who had to provide the definition of pornography and who wrote: “I cannot define it but I know it when I see it [1]“
 
To sum it up, the idea of constitutional patriotism does not mean that something is attempted to be taken away from somebody or artificially added to somebody. Rather, the question is how one becomes an Estonian in a sense of political nationality? Is it possible to become an Estonian while, as regards the same language and culture, remaining attached to, for example, Russian culture? The concept of constitutional patriotism provides better opportunities for that.
 
Thank you for your attention!


[1]Seethe US Supreme Court, Jacobellis v Ohio (1964). Lauri Mälkooo uses the provided reference in his article “Estonian sovereignty in 1988-2008“ in the context of defining the concept of sovereignty, but it is also appropriate for the nationality.