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It is here that we reach the deepest aspect of this case for in it we can read the specific contribution of this jurisprudence to the discourse of multiculturalism and pluralism in our societies.
The deepest (implicit) claim of the European Court's in this jurisprudence goes to the issue of values and the conflict among them. The claim is that in Hauer-like situations the Community legal order can do no better or worse than its national counterparts. It inevitably falls to a Court to make that fundamental balance for the Community legal order. But clearly the European Court, when fleshing out the bland language of General Interest and Proportionality should try and give expression to a constitutional ethos which derives from its controlling texts -- not the constitution of one Member State but of all of them. Just as in the geographical-political sense the Community constitutes a polity different from its Member States with a general interest which must include Bavaria and Sicily, so too its constitutional ethos should reflect the various Member State constitutions as well as the Union's own founding Treaties. It is a new polity the constitutional ethos of which must give expression to, or at least take account of, a multiplicity of traditions.
The implicit claim of the European Court is that in the field of Community law a Community law choice will have to be struck which derives from the specificity of the Community. The Court is calling on its national counterparts to accept that it, the European Court, will do, has to do, within the Community legal order what they, national courts, do, have to do, within the national realms. It is not about high or low standards. It is a call to acknowledge the Community and Union as a polity with its own separate identity and constitutional sensibilities which has to define its own fundamental balances -- its own core values even if these cannot be dissociated entirely from the context from which the Community is situated. The Community is its Member States and their citizens. The Community is, too, an autonomous identity. If you find this multiplicity hard to grasp, turn to two thousand years of profound Christian theological reflection on the Trinity.
This gives us an interesting final tentative thought on the broader issue of multiculturalism.
The appeal of multiculturalism as an idea and movement is in its invitation to a pluralist, ever richer understanding and acceptance of human potentialities within the polity. The Tower of Babel dispersal is conceived by multiculturalism as a blessing rather than a punishment. But often embedded in the multicultural political agenda is dangerous contradiction. The call for a pluralist multicultural society in which the diversity of different groupings has to be acknowledged and celebrated is all too frequently, for obvious political reasons, associated with a stifling conformism within each group comprising the multicultural polity. A conformism which privileges one aspect of individual identity (race or ethnicity, or gender et cetera) -- that aspect which is constitutive of the group claiming multi-cultural recognition -- and which would have each individual define himself or herself in terms of that identity aspect.
With numbing regularity the translation of the multi-dimensional vision of society is, in the arena of political praxis, achieved at the expense of a forced, one dimensional vision of the individual within that society -- multicultural society composed of monocultural individuals.
If we go back now to my interpretation of the human rights issue in Europe I would suggest that it is possible to construe it as an interesting way of addressing this problem, remembering at all times that human rights are but a small fragment of a much broader legal discourse and that law is but a fragment of a much broader human discourse. My claim is not that the legal human rights discourse as such actually results in truly appreciable concrete results but that it is illustrative of a way of thinking, that it charts a direction for dealing with the problem.
We should first read the solution of the human rights issue as a recognition of the cultural diversity which exists in the polity which has to be respected when making European choices. But note, critical in this construct is that it is a two way process:
Legal production is, indeed, conscious of the multicultural soil from which this production is nourished. This soil bears fruit in the shape of the European Human Right norm (and the reconstructed multicultural societal value which it reflects) which, in the field of application of European law, now can be plucked by individuals in the Member States.
Legal consumption of the norm by individuals is a way individuals will be receiving and experiencing choices informed by a wider cultural context to the ones they are accustomed to. They may be, yes, educated in the practices and sensibilities of tolerance and intolerance each time they are confronted with a norm that is different to those they normally know. Recall, of course, that the differences can play out both to their advantage and disadvantage. Some will react favourably, with tolerance. Others unfavourably with intolerance. Some might celebrate the Brave New World. Other might yearn back to the comfort of the familiar. None can be unaware of the new context to which they belong.
In this sense, then, we have a vision of a society with multicultural sensibilities which is not only reflective but also constitutive of individuals with multicultural sensibilities.
But one can go even deeper than that. Another element that is critical in the European human rights construct is that the European human rights apparatus does not replace the national ones (in the Member States) or the Transnational one (European Convention of Human Rights). It coexists alongside them in the sphere of application of Community law which overlaps only partially the national and European Convention transnational spheres.
Implicit in this reading of the European situation is the recognition of the multiple identity of the individual. This, of course, is trite stuff but worth repeating. The individual has simultaneous belongingness (French, European, et cetera) which means that the I is not a Frenchman living in Europe, but an I which is French and European in the same way that someone is simultaneously Male and Buddhist and a Sex Pistols lover. Implicit in this reading is an I which has a multiple identity defined by diverse things as gender, religion, personal history and the like each of which brings with them not only cultural sensibilities but also their own claims for loyalty and corresponding, and oft conflicting, sets of values. That there can be conflict between the sets of values is not simply banal -- it is a necessary reflection of the complexes and conflicts which exist within each individual. Choice have, from time to time, to be made between the pull of conflicting values and loyalties. And often one such element will come to dominate the sense of personal identity. Whatever the choice, how much better that it is made as a result of the internal conflict and eventual, conscious or subconscious, deliberative choice. And whatever element turns out to dominate, nationality, or religion, or gender -- it is much better that it is tempered by the conflict of competing claims and values. In this way Multiculturalism become internalized, true part of the self.
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