Constitutional Patriotism: Germany's Gain, Britain's Need


Guy Aitchison reviews Constitutional Patriotism by Jan-Werner Muller.

What used to be known as "Great Britain" is suffering an especially deep existential crisis. As is the case with many Western democracies, rapid globalisation and mass immigration have given a new urgency to age-old questions: Who are we?; How can we live together?; Who can belong? The paradox is a familiar one. Market driven globalisation has contributed to social atomisation and undermined traditional forms of community allegiance at the same time as it makes social solidarity more necessary to support the political cooperation globalisation itself demands (not to speak of economic redistribution).

In Britain the impact is greatly intensified by the legacy of a centuries old Union that built an Empire. Centrifugal forces unleashed by simultaneous devolution of power downwards to the nations, if not yet England, and upwards to the evolving supra-national authority of the EU have generated intense anxiety. This is now being projected onto immigration.

What should we do? For liberal nationalists, like philosopher David Miller, the answer is to cling to traditional cultural forms of national identity combined with an allegiance to liberal democratic institutions and values. For cosmopolitans like David Held, the challenges of climate change, nuclear proliferation and world poverty, demand solutions at the highest level, creating a need for new post-national forms of global governance.

Neither provides a satisfactory approach to problems of political allegiance and identity in diverse societies. Instead new principles are needed which avoid the dangers of exclusivity and moral partiality that are surely inherent in liberal nationalism, without making the unrealistic demands of cosmopolitans that individuals adopt the univeralist outlook and allegiances that only a handful now possess. Enter "constitutional patriotism", a concept developed lucidly and imaginatively in Jan-Werner Muller's new book, whose time may well have come.

Constitutional patriotism is not a new concept. Muller gives a precise account of its origins in the post-World War II German Federal Republic. Faced with the horrors of Germany's recent past and a political system imposed from outside, liberal intellectuals like Karl Jaspers and Dolf Sternberger set themselves the task of identifying new post-nationalist sources of identity and social cohesion. The concept of Verfassungspatriotismus was explicitly introduced by Steinberger on the occasion of the thirtieth birthday of the Federal Republic. He drew on a tradition of patriotism going back to Aristotle which, he claimed, had not been linked to the nation but to a "love of laws and common liberties". In its early form, constitutional patriotism was defensive and emphatically not about civic empowerment. The principles of "memory" and "militancy" which underpinned it called for the confrontation and repudiation of Germany's national past as well as legal checks on extremist parties of left and right hostile to its values. The idea was that a liberal democratic German identity would be reinforced by these negative contrasts.

The concept was taken up by Habermas in the 80s in a dispute with conservative historians who he believed were trying to "normalize" German identity, facilitating the return of conventional nationalism. Habermas's theory dropped the statist elements found in Sternberger, focusing instead on the rights and democratic procedures that underpinned the "public sphere", a space for open-ended discourse between free and equal citizens who would rework their collective identity though appeal to universal norms. By the 90s constitutional patriotism was seen by many as an attractive form of civic nationalism that could unite not only Germany, but other multicultural societies.

In the second part of the book Muller builds on this work to develop his own theory of constitutional patriotism. He distinguishes it from Habermas whilst engaging with two of the most prominent criticisms levelled against it. The first is the cosmopolitan critique, perhaps most succinctly put by Voltaire, who lamented "that to be a good patriot one must become the enemy of mankind". The liberal nationalist critique takes the opposite view that constitutional patriotism is too universalist; it is "patriotism for professors", great for the Oxford seminar room but lacking the kind of cultural "bite" needed to justify allegiance to a particular polity.

Muller engages thoughtfully with both criticisms and is honest about the limitations of the concept. Those who object to constitutional patriotism as dangerously particularist, he says, fairly, need to demonstrate what a politics that embodies the universal would look like. Democracy and human rights are necessarily embodied in the particular "constitutional culture" of a country. For Muller, our involvement in a history of understanding, revising and criticizing the political institutions and practices that make up this culture can generate strong emotional attachments which need not become close-minded or chauvinistic.

This strikes me as both plausible and desirable. A suitable example in this country might be the affection felt towards Magna Carta, at least in England. Its principles of trial by a jury of one's equals and no arbitrary detention, as well as its achievement of checking despotism by agreement have formed a reference point for countless historical struggles for liberty and against arbitrary power. For Muller, historical events and symbols, like Magna Carta, need not reinforce narrow ethnic concerns, as in the "rights of freeborn Englishmen". Instead the broader principles they represent, in this case a univeralist commitment to due process, should be continually contested and reinterpreted to form the basis of much larger narratives of inclusion.

Liberal nationalists might object that such attachments aren't enough to legitimate redistributive welfare policies which require the mutual reciprocity and trust only a shared culture provides. Appeals to these instinctively felt obligations are on display every day in the rhetorical claims of presidential candidates, for example, that "No American should have to go without healthcare". Certain thinkers who take this view have even adopted the term constitutional patriotism, giving it a particularist twist. In a recent blog exchange with Robert Bellah, Canadian philosopher Charles Taylor argues that constitutional patriotism may well be "the only game in town", yet an ethnic component is unavoidable both to support welfare redistribution and a country's armed forces. For Muller, however, there is nothing intuitive about the claim that a shared culture is needed to support redistribution. Although he disagrees with Habermas's view that constitutional patriotism is a plank for the welfare state, he points out that movements for social justice hardly ever rely on nationalist rhetoric and that the duties we owe to fellow citizens can be derived from cooperation in a joint political project. I suspect Muller is right on this point. It is something to be borne in mind as Britain embarks on its own "national conversation" on our identity and constitutional future.

The government recently announced it is time to "find a way to express who we believe ourselves to be in a way that is inclusive and commands broad support." For constitutional patriots, "inclusive" would mean that any statement of values, aimed at pinning down an elusive "Britishness", should contain strictly political and not cultural values. It should not be about assimilating "them" to "us" or else we risk reifying a contested "national culture" in a way that excludes minorities and immigrants. Citizenship classes, in turn, should confidently promote these political values and not focus on our supposed "way of life". A robust statement could provide the shared framework within which the cultural exchange and collective learning that flow from immigration can take place. After a statement of values is agreed upon, the next thing to suggest itself is that citizens should give themselves a modern constitution which is, in Tom Paine's words, "visible" i.e. written down. This would allow claims to be made and shared values appealed to. It would also articulate Britain's understanding of itself in the 21st century as a diverse and tolerant country and a liberal "rights-based democracy".

One drawback of Muller's theory, which he openly acknowledges, is that unlike conventional nationalism, constitutional patriotism has almost nothing to say on the drawing of political boundaries. It is parasitic on existing political territories which have evolved to serve national groupings. The political dynamics unleashed since devolution in the UK provide a ready illustration. Take the Scot Nats. They do not argue for independence on the basis that a new constitutional regime will more perfectly realize universal principles of democracy and human rights (although some might). Instead they argue that the people of Scotland, as a historic nation, have the right to self-determination. This throws up some interesting questions. For some commentators the real aim of Brown's reform agenda is to stop at all costs the break up of Britain by tying its citizens to the same antiquated state with a re-jigged constitutional identity. Could this be the case of a cynical constitutional patriotism being deployed to placate the threat of liberal nationalism? Either way Muller's theory has difficulty in accounting for movements in favour of self-determination and it cannot provide a theory to support them.

He is on more familiar territory when discussing the role constitutional patriotism might play in the EU. Much ink has been spilt over, what Joseph Weiler has dubbed, Europe's "no-demos" problem: the absence of a broadly shared European identity and purpose. It is widely accepted that the founding principles of "Peace and Prosperity" no longer provide a basis for facing new challenges of expansion and minority integration. Muller's contribution is to suggest that Europe focus on the peculiarities of its own constitutionalism, understood as an "ongoing project of political struggle and deliberation involving the subordination of raw sovereignty to law". Although he doesn't go for the kind of radical vison Habermas set out prior to the drawing up of the EU Treaty, he is eloquent and persuasive on how Sternberger's "memory" and "militancy" might work to forge a genuinely trans-national political identity.

Eurosceptics in the UK would, of course, balk at such a thought. But the true brilliance of Muller's work is that it provides an attractive theoretical framework and set of principles to approach questions of identity and allegiance in any context. It is especially relevant to all complex modern societies undergoing dramatic change and, in the case of our own, it couldn't be timelier.

(Jan-Werner Muller, Princeton 2007, 147pp)