We-R

2i/2022: MSCA-IF Global - We-R: Illusions of eternity: the Constitution as a lieu de mémoire and the problem of collective remembrance in the Western Balkans

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  • Project duration: June 2021 - June 2024
  • Project status:
    Approval by the Scientific Committee
  • Funding:
    Excellence Science (Horizon 2020 /EU funding /Project)
  • Total project budget: €82,633.00

We-R focuses on the complex relationship between collective memory and national identity by introducing a ground-breaking perspective: the study of the Constitution as a lieu de mémoire. The aims of the project are to understand how and to what extent contemporary Constitutions may be used as tools for bringing the past in the present, as well as to analyze the ways in which configurations of collective memory and identity through the Basic Law of the Land can obstruct reconciliation and democratization processes in culturally heterogeneous societies. In addressing this topic, We-R uses the Western Balkans as a case study, and an interdisciplinary approach that puts into dialogue legal studies (comparative constitutional law), nationalism studies and memory studies. We-R’s pivotal goals are to develop a new theory of constitutional interpretation, and an innovative practical strategy for dealing with the legacy of violent conflicts and non-democratic past, especially in post conflict and deeply divided societies. The Global Fellowship will be carried out in the ongoing phase at the Harriman Institute at Columbia University (24 months), and in the return phase at the Institute for Comparative Federalism at Eurac Research (12 months). 


1. Research problem definition and research questions 

Collective memory is traditionally considered as an essential component of national identity (Halbwachs, 1980). In nationalism studies, it has become a commonplace to consider nations as imagined communities (Anderson, 1991), and collective memory helps people to imagine they are part of the same nation. The importance of memory resides in its powerful integrative potential; it creates the common “We” identity by distinguishing it from otherness, thus binding the nation together by providing for a sense of unity, cohesion, and common destiny (Calhoun, 1993). Memory studies has further underlined that collective memory never reflects historical facts and truth; on the contrary, it represents a mythologized version of nation’s past, and is thus often associated to invention of traditions, fabrication of history and historical revisionism (Hobsbawm, 1983). What has to be remembered and how and what has to be forgotten from official national memory is always a result of a selective process, decided by people in power through memory politics, and constantly transmitted within the society through immaterial and material lieux de mémoire (places of memory i.e. places in which nations deposit their memories of past glorious and dramatic events) (Nora, 1984), such as foundational myths and symbols, museums, memorials, commemorations, memory laws, etc. The Constitution forms an important part of memorialization processes (Snyman, 1998). However, little theoretical and comparative attention has been paid to the role of Constitutions in the creation of collective memory and national identity. 

The vast majority of contemporary Constitutions are not only legal and political documents, but also socio-cultural declarations, and in this latter dimension they represent an instrument of nation-building. Constitutions (although to a varying degree) create and define the nation: for example, the constitutional term “We the People” is a symbolic representation of unity which does not exist in reality but is bind together through the Constitution by relying on collective memory: national symbols (national flag, anthem, oaths, mottos) and very often founding myths (e.g. ancient past, fight for independence, suffering caused by the 20th-century totalitarianism). By choosing particular interpretations of the past, Constitutions make deep political choices. They close the rank of the ‘We’ and decide who belongs and who does not belong to the nation, as well as what is legitimate to think as official national history. In doing this, Constitutions answer to three fundamental questions: who are we? what binds us together?, and  whose is the state?. These issues are not merely aesthetical, but may have deep legal, political and societal salience especially in post-conflict divided societies in ways we do not fully understand yet. Post-conflict societies notoriously represent difficult cases for the integrative potential of memory. Frequently, in these cases the legacy of non-democratic-past (nationalist violence, ethnic hatred, historical exclusions, etc.) creates deep divisions, and contribute to the rise of nationalism and renewal of ethnic tensions, rather than ameliorate them. The troubling aspects in such situations is that collective memory is very often mediated though an exclusive and exclusionary nationalistic interpretations of history. 

By linking the Constitution to memory and identity, We-R opens an unexplored area of research: 

  1. What is the role of Constitutions in forging and promoting collective memory and identity? What happens when formally democratic Constitutions contain nationalistic founding myths and symbols? 
  2. Does this create constitutional openness for a continues resurgence of dormant nationalistic and non-democratic ideologies within societies? How and to what extent nationalistic constitutional memory affects the legal sphere, memory politics and societal representations of remembrance? 
  3. Much more importantlyis there any way in which the hold of nationalistic narratives can be resisted in the Constitution? In other words, is there a possibility to help democratization through memory works? 

We-R will tackle these questions by filtering them through the lens of post-conflict societies marked by deep cleavages. In this sense, the Western Balkans (intended as the successor states of the former Yugoslavia, including Slovenia, Croatia, Bosnia-Herzegovina, Serbia, Montenegro, Macedonia, and Kosovo) represents an ideal case study. Over the past few years democratization and reconciliation processes have been replaced all over the region with a significant resurgence of ethnic nationalism and historical revisionism. The Yugoslav Wars of the 1990s, the divisive legacy of communism, and the unresolved trauma of World War II continue to represent highly disputed terrains both nationality and regionally. This is culminating in the denial of the Srebrenica genocide, glorification of war criminals, erasure of anti-fascist values from the public space, and rehabilitation of WWII fascist national regimes/movements, as well as in forgetting of women’s and ethnic minorities’ war memories. Memory struggles in the Western Balkans are made evident through renaming of streets, commemorations, and are present in political discourse, historiography, textbooks, documentaries, football culture, Wikipedia, and even in the legislation. 

2. State-of-the-art and novelties

Up to date, the link between Constitutions, memory and identity has been rarely explored. Pierre Nora in its seminal work on liuex de mémoire (1984) represents the first author who claimed that every Constitution is a place of memory, without offering however further explanations. Hannah Arendt (1964) identified an ethical dimension of the Constitution that creates the We-identity, and on the basis of such premise some authors have argued (Snyman, 1998; Du Plessis 2000; van Marle, 2016) that Constitutions have the same function of monuments, memorials and archives in molding the politics of memory, as the function of constitutional documents is to trace only particular aspects and interpretations of nation’s past. All of these writings are primarily about the role of the Constitution as a tool of reconciliation. Furthermore, nationalism studies (primarily focused on the origins of nations), and the more recent memory studies (focused on memory politics, places of memory and societal representations of remembrance) do not consider the link between memory, identity and the legal sphere, while comparative constitutional law has focused only recently  on memory laws (Belavusau, Gliszczynska-Grabias, 2017). Similarly, the Balkan studies are primarily focused on the dissolution of Yugoslavia, national identities, collective memory, memory politics, historical narratives and textbooks, and provides a critical approach to the concept of Balkan nationalism (as specific brand of ethnic nationalism). Finally, some solutions aimed at containing ethnic nationalism have been already developed in constitutional theory, nationalism studies, and Balkan studies, such as constitutional patriotism, militant democracy, civic nationalism, or revealing through literature the false beliefs contained in Western Balkans nationalist collective memory.

With respect to the existing literature We-R introduces several important novelties: 

  1. it completely reverses the perspective which sees the Constitution as an instrument of reconciliation, and introduces a new theoretical study of the Constitution as tool for creating regimes of exclusions and ethnic divisions;  
  2. represents the first existing study which explores the main components of memory (founding myths and symbols) contained in Constitutions, and by using the Western Balkans as case study shows the ways in which nationalistic interpretations of history can be incorporated in constitutional documents. To this end, We-R uses an innovative interdisciplinary approach. By relying on terms, and concepts already defined in nationalism studies and memory studies, it elevates the nationalistic memory-making to the constitutional level and examines the impact of the nationalistic constitutional memory on legislation, politics and society;

3.     rejects as possible solutions for containing (ethnic) nationalism those already proposed in the literature (civic nationalism, militant democracy, constitutional patriotism, etc.) as it presumes that such solutions are not applicable once nationalistic memory has been constitutionalized, thus launching a new innovative practical strategy for dealing with the past in post-conflict deeply divided societies. 

3. Objectives

We-R has both scientific and practical objectives: 

O1 (scientific) – development of a new theory of constitutional interpretation. By using Western Balkans Constitutions as case studies, this theory will advanced that present-day states are not necessary defined through scientific constitutional theories (constitutional patriotism or civic nationalism) but that they can defined themselves by positioning founding myths and symbols at the basis of their Constitutions. It will further assume that the constitutionalization of founding myths and symbols produces a surplus of meaning within formally democratic Constitutions that should become an object of constitutional interpretations as it can be used to justify: a) the creation at constitutional level of regimes of exclusions; b) legitimization of constitutional memory to operate as official national history; c) legitimization of the existence of present-day nation-states defined primarily in terms of ethnic homogeneity. In developing this theory, We-R will introduce in comparative public law a new concept: emotional constitutionalism.

O2 (scientific) – establish the extent to which emotional constitutionalism is preventing democratization and reconciliation in the Western Balkans. This includes three sub-objectives: a) definition of the illiberal legislative/case law framework on collective memory and identity; b) definition of the level of ethnic intolerance in politics; c) definition of the level of hate speech in society. 

O3 (practical) – elaboration of Practical Guidelines of Democratic Memory Construction (DeMeCon) – a highly innovative series of guidelines of good practices and recommendations for a democratic memory construction, developed from the bad practices of the Western Balkans, with a great potential to be practically implemented.

4. Methodology 

We-R is based on an innovative multimethod approach which combines comparative law methodology and empirical research: critical political discourse analysis and social media research (by using the multimodal discourse analysis, including audiovisual analysis, and analysis of tags, video statics, descriptions and comments.). In particular, the empirical analysis will be used to examine the impact of constitutional memory on memory politics and societal representations of remembrance. The empirical research will be subsequently integrated into the comparative law method.

5. Overview of the action 

In a nutshell, We-R represents a pioneering endeavor to identify the role of Constitutions in forging memory and identity in the Western Balkans, and examine how exclusive ethno-centric constitutional narratives exercise their influence over legislation, politics and society. In doing this, We-R will elaborate a new theory of constitutional interpretation, establish the level to which nationalistic constitutional memory is preventing democratization and reconciliation in the Western Balkans and elaborate DeMeCon – a highly innovative strategy for dealing with the past in post-conflict divided societies.

Publications
Lecture Series "Law and Memory"
Pistan C (2021)
Presentation/Speech

Conference: Lecture Series "Law and Memory" | Online event via Microsoft Teams | 25.10.2021 - 22.11.2021

More information: https://www.we-ue-jmp.com

Genocidial Sexual Violence. ICTY, Prosecutor c. Radislav Krstic (case no. IT-98-33 of 2 August 2001)
Pistan C (2021)
Presentation/Speech

Conference: Observatorio Internacional de Derechos Humanos “Sexual Violence against Women in International Criminal and Human Rights Case Law”, Academia Interamericana de Derechos Humanos, Autonomous University of Coahuila, Mexico | Zoom event | 6.10.2021 - 8.9.2021

Call it by its right name: Criminalizing genocide denial in Bosnia and Herzegovina
Pistan C (2021)
Internet

More information: https://verfassungsblog.de/call-it-by-its-right-name/

https://doi.org/10.17176/20210823-233037-0

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Harriman Institute, COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK
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