National identity and law in the context of European integration: the case of Denmark

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Author: ANNE LISE KJÆR and LENE PALSBRO

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National identity and law in the context of European integration: the case of Denmark Anne Lise Kjær and Lene Palsbro Discourse Society 2008 19: 599 DOI: 10.1177/0957926508092245 The online version of this article can be found at: http://das.sagepub.com/content/19/5/599

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ARTICLE

Kjær and Palsbro: National identity and law in European integration 599

National identity and law in the context of European integration: the case of Denmark

ANNE LISE KJÆR U N IVERSITY OF COPEN HAGEN, DENMARK

LENE PALSBRO

Discourse & Society Copyright © 2008 SAGE Publications (Los Angeles, London, New Delhi and Singapore) www.sagepublications.com Vol 19(5): 599–627 10.1177/0957926508092245

UNIVERSITY OF ROSKILDE, DENMARK

Nationalistic discourse is often associated with the flag ABSTRACT waving of popular culture, political views of extremist right-wing parties or the routine rhetoric of ‘us’ versus ‘them’, pervading social life in general. However, nationalistic discourse is to be found even in academic writings by the professional elite of lawyers, who readily resort to ideological topoi of national identity and culture to support legal argument. Reporting from a comprehensive study on Danish academic and public debate on European human rights law, this article explores how the legal community of Denmark reacts emotionally and ideologically to legal integration in Europe. It is argued that the somewhat heated debate reflects points of instability within the social class of Danish jurists, who are engaged in a hegemonic struggle to construct or sustain positions of power within a national legal system under radical change. KEY WORDS:

Denmark, discursive macro-strategies, European integration, hegemonic struggle, human rights law, legal discourse, national identity, social change

Freedom of contract has its roots in Danish legal culture a long way back in history. (Danish law professor in the legal periodical Juristen 2002)1 So the judgement of the Supreme Court can be seen as a rapprochement with the European legal culture where Denmark is naturally at home. (Danish law professor in the legal periodical Ugeskrift for Retsvæsen 1997)


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Discourse & Society 19(5)

1. Setting the scene for studying national identity and law in Europe Europe today is a market place for rivalling identities. Even if Stuart Hall (1992) and Anthony Giddens (1990) are right when they claim that in late modernity hybrid social identities are common and that people identify themselves with local, national, European and even global levels of society, many social actors in the nation states of Europe are actively engaged in a sales talk aiming at promoting one specific identity over and above the others. This is evident from the constant struggle over the future of Europe witnessed in European Union (EU) debates in the member states. The political debates that accompany popular votes for or against EU treaties illustrate the emotional intensity involved. The frontiers are sharply drawn between Euro-sceptics and pan-Europeans. As pointed out in several works on nationalism and national identity in the past decades, the Europeanization of economics and politics in post-war Europe has given rise to a counter-modern reaction, seeking to protect national culture and tradition (see especially Beck, 1993). Since the rise of the modern nation in many European states during the nineteenth century, the national identity of their populations has been an uncontested fact of life, the objective existence and essence of which many people have taken for granted. The forces of European integration have changed that and have awakened in populations the slumbering feeling of having a national identity and a unique culture, which must be protected against foreign – European – influence. In a recent study (Kjær and Palsbro, 2004), we investigated an aspect of the identity discourse that had not previously been subject to analytical scrutiny, viz. nationalism in legal discourse. As part of a large-scale research project2 we studied debates in Danish newspapers and legal periodicals concerning the impact of European human rights law on the national legal system. In this article, we present the main results of our study. We focus in particular on lawyers’ discursive reactions to the changes that Danish law has undergone as a result of Denmark’s obligation to comply with the European Convention on Human Rights and with judgments passed by the European Court of Human Rights. Our work contributes to the body of research dealing with the discursive (re)construction of national identity, but adds some new perspectives. First, we highlight the fact that the (re)construction of national identity is accompanied by a competing discursive force, aiming at the construction of a European identity. Research has so far concentrated on the rise of nationalism vis-a-vis European integration. But our findings suggest that the social changes caused by the integration process trigger not only the voice of nationalism in the nation states of Europe, but also a voice of internationalism, invoking a specific European culture.3 The two conflicting identity discourses seem to be engaged in a hegemonic struggle, in which discourse moves of one party provoke responses from the other. Second, our investigation focuses on a topic that has been left unattended so far, viz. the relationship between nationalism and law in post-war Europe



and the role that law and legal institutions play in constructing nationalism and national identity in media discourse. Third, by including texts written by legal professionals, we broaden the empirical basis applied in other studies. In most other works on the topic of national identity, the focus has been on the sentiments of the general population and right-wing political groups, and the text genres that have been investigated most thoroughly are political speeches and newspaper articles. There is a large body of research which, inspired by Anderson (1991[1983]) and Billig (1995), deals with the media’s construction of national identity in different settings, for example, Archard (1993), Bishop and Jaworski (2003), Brookes (1999), Hardt-Mautner (1995), Higgins (2004) and Law (2001). Consider moreover Condor (2000), who analyses the identity management in English people’s talk about ‘this country’, and Galasinska (2006), who examines post-communist nationality talk in Poland. An interesting text genre is finally the stand-up comedy analysed by Tsang and Wong (2004) in their work on the shaping of a common Hong Kong identity. A comprehensive Austrian research project (De Cillia et al., 1999; Wodak et al., 1999) takes into account a greater variety of text corpora, ‘i.e. political speeches, newspaper articles, posters and brochures, interviews and group discussions’, in order to ‘provide a detailed picture of Austrian identity in public and quasiprivate settings of various degrees of formality’ (De Cillia et al., 1999: 157). But, once again, the focus is on political discourse and its recontextualization in the media and in the discourse of the general population. The inclusion of legal texts in our study reveals that national identity is constructed, deconstructed and reconstructed also in the professional discourse of lawyers, even when they write expert articles in legal periodicals meant only for the internal debate of jurists commenting on topics of law. Thus, contrary to the prevailing assumption that national elites are liable to share a rational pro-European attitude towards Europe and Europeanization, and that there is ‘a growing chasm between the discourse of the elites actively shaping European politics and the lay discourse of the electorate’ (Hardt-Mautner, 1995: 199), we argue that national elites are not as homogeneously favourable towards integration as presumed. The strong opposition to a European constitution evidenced by the popular votes in France and the Netherlands in the spring of 2005 and in Ireland in 2008 shows that there is indeed a conflict between European politicians and European citizens. However, the expression of nationalism is not confined to the general public or to right-wing political parties, but is evidenced even in the discourse of the powerful elite of national lawyers. The design of our study was greatly inspired by De Cillia et al. (1999) and Wodak et al. (1999), but in contrast to their work our analysis is concerned with the construction of national identity in a more indirect way. The texts that we have analysed all treat matters of law and legal integration. In order to understand the relevance of those topics for the study of national identity, one will have to consider in some detail the relationship between law, lawyers and the nation state. Thus, in the following, we start out by giving an introduction to the role that law played in the construction of the modern European nation states during the nineteenth century. Next, we give an overview of the theoretical assumptions on which our investigation is based, and present the empirical


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data of our study. Then we summarize our empirical findings, analysing elucidating examples of the marked ideological and emotional dimensions of the texts that we have studied. Finally, in the conclusion, we present possible explanations to what we consider to be the most intriguing result of our empirical analysis: the emotionality evident in the professional discourse of lawyers. Danish legal actors seem to react to Europeanization of law with extraordinarily strong sentiment and ideological bias.

2. The role of law in constructing national identity European integration is commonly thought of as a political and economic project, but the making of Europe is to a considerable degree obtained through law. It is a well-known fact that the EU consists of political institutions that are furnished with the capacity of passing laws with validity throughout the member states. Some may also be aware of the fact that the sole competence of interpreting those laws lies with the European Court of Justice, which has actively contributed to further European integration in periods when the political institutions of the EU and the governments of the member states were reluctant to do so (Rasmussen, 1986; Weiler, 1994). What may be less well known are the integrative forces resulting from the European Convention on Human Rights, signed, ratified and incorporated by most European countries, and driven ahead by the dynamic jurisprudence of the European Court of Human Rights (in this respect, see e.g. Madsen, 2007). In sum, these processes of European legal integration involve considerable changes to the national legal systems in Europe. National parliaments and national law courts must accept that law is increasingly made and developed outside their realm, in the centres of Europe in Brussels, Luxembourg and Strasbourg, and that European law is increasingly superseding national law, even within the confines of the nation state. Hence, the topic of legal integration and the reactions of national lawyers is an interesting focus to choose if one wants to study the meeting and possible conflict of the European and the national levels of society and the relationship between European and national identity. 2.1 THE ROLE OF LAW IN THE MAKING OF THE MODERN NATION STATES When studying the relationship between law and national identity, the metaphor of ‘legal transplants’ commonly applied by experts on comparative law to describe ‘foreign’ legal rules adopted by domestic law, is revealing. National legal rules are seen as a ‘body of laws’, as it is sometimes actually called, and legal rules and concepts stemming from a foreign legal system – a foreign body of laws – cannot easily be ‘transplanted’ into the national legal ‘body’. The ‘legal transplant’ will hardly ever interact successfully with other elements in the ‘legal organism’; the most likely reaction will be one of ‘irritation’, perhaps even rejection (Teubner, 1998). The image of national law as a living body is no new invention – it dates back to the natural law thinking of the Enlightenment and penetrated romantic discourse in Europe of the nineteenth century. Great influence emanated from the legal thinking of the French philosopher Montesquieu who in his classic



book De l’Ésprit des Lois from 1748 introduced the notion of ‘the spirit of the law’, i.e. the dependency of law on the physical, cultural and political factors characteristic of a country and its people. Because of this environmental dependency of law, it is in Montesquieu’s opinion only in the most exceptional of cases that the laws of one country may serve those of another country.4 A similar conception of the relationship between law and nation was developed by the German law professor Von Savigny who in his historical theory of law applied Herder’s idea of Volksgeist, claiming that law had evolved and, indeed, had to evolve naturally and in harmony with the national spirit and consciousness of the people (Von Savigny, 1814). In recent years, the ideas of nineteenthcentury legal philosophy has been applied by the comparative lawyer Pierre Legrand in his critique of the political and scientific endeavour to harmonize the national legal systems of Europe; see for example the following statement of the interdependency of national belonging and legal thinking in Legrand (1999: 74): An English judge is not only a judge; she is also English. In fact, she was English long before she became a judge. As a result, it is only to be expected that the law she makes should be a reflection of her culture.

As argued by Jacobson (2002), ideas about the relationship between law and national identity seem to have played a major part in the making of the modern nation states. In the nationalistic discourse of Europe in the nineteenth century the conception of national spirits of law was helpful in the construction and invention of the nation state, just like notions of national languages, cultures, traditions and histories (Harty, 2002). Thus, it is no coincidence that at that time many European nations were equipped with constitutions, defining the fundamental principles of law and government of the nation state.5 Even today, the constitution of a country is sometimes highlighted as a national symbol on par with the Crown, the currency and the flag.6 2.2 THE ROLE OF LAW IN EUROPEAN NATION STATES TODAY In the consciousness of people, the laws and legal institutions of their country play a significant part in their identification with the nation. This follows from recent surveys conducted in Denmark and other European countries on the basis of questionnaires developed by the International Social Survey Programme (ISSP) on the subjects of national identity (2003) and citizenship (2004).7 According to the Danish survey, 90 percent of the respondents were of the opinion that ‘for being truly Danish it is important to respect Danish political institutions and laws’. Similarly, 78 percent of the respondents stated that they were ‘proud of the way democracy works’ in Denmark.8 Thus, it is not surprising that there is evidence of people reacting emotionally to the possible threat to the survival of the Danish legal system caused by the ongoing process of European integration. Such pride of national democracy is not confined to Denmark. In British antiEuropean discourse nationalistic reactions to European integration are triggered by the democratic deficit of the EU. Thus, in a comment on the Maastricht Treaty,


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analysed in Hardt-Mautner (1995), the tabloid the Sun claims that ‘if the treaty gets the go-ahead’, the British would have ‘less say in what laws we can pass and we would hand more power to unelected Brussels bureaucrats’ (bold type added).9 The anti-European discourse on the home page of FREE BRITAIN (Teubert, 2002) reveals an identical discourse theme, provoked by the feeling of loosing national democratic control: ‘[The European Union is] a one way road to a single European state run by a bureaucratic dictatorship’ (bold type added).10 Interestingly, the examples from the popular British anti-European campaign are surprisingly similar to examples that we have identified in Danish legal texts on European human rights, as evidenced by the following text samples drawn from legal periodicals and written by legal professionals (bold type added): However, without any democratic mandate the European Court of Human Rights is steadily eating its way into areas that traditionally belong to democratically elected representatives. (Danish law professor in the legal periodical Juristen 2001) However, the most epoch-making thing about the convention is that it is left to an international, technocratic panel of judges without any popular mandate to apply and interpret intensively the fundamental rights of the convention [. . .]. (Danish judge in the legal periodical Ugeskrift for Retsvæsen 1995)

Nevertheless, the specific role that law and legal institutions play in constructing national identity is hardly explored in discourse studies. One exception is the analysis of the British attitude to Europe in Hardt-Mautner (1995), in which the importance of a sovereign parliament is mentioned: a sovereign state must have a legal system of its own, of which the parliament and the people are in charge. If the sovereignty of a national parliament is conveyed to institutions outside the national borders, this is seen as a threat to national identity. ‘[P]arliaments [like currencies and borders] are far more than economic and political technicalities. In the public domain they are symbols of nationhood, and for the individual they function as symbols of national identity’ (Hardt-Mautner, 1995: 179). But, this is not a major theme in Hardt-Mautner’s analysis. In other research areas, the relationship between law and the nation state has been on the agenda, albeit from other theoretical perspectives. Thus, as referred to earlier, the legal historians Harty (2002) and Jacobson (2002) have analysed the roles of lawyers in the making of Europe’s modern nation states in the nineteenth century, and Madsen (2004, 2007), in sociological analyses of what he calls the ‘boomerang’ effect of European human rights law on national legal systems, has scrutinized the key position of international legal elites in the shaping of the European Court of Human Rights as a kind of European Supreme Court. In addition, legal professionals’ special relationship with the nation state is analysed by Shaw (2005) in a sociological analysis of the impact that European harmonization and globalization have on the professional identity of German lawyers.



As elucidated by Jacobson (2002), the discursive conventions of nineteenthcentury lawyers were not only helpful in constructing the nation states. Their discourse also worked the other way around and bounced favourably back on the professional society of lawyers, who found themselves in new and stronger positions of social power. The nation states’ need for constructing a unique nationality of law gave rise to the construction of a unique nationality of legal systems, thus establishing tight conceptual and social bonds between nation, nation state, national legal institutions and national lawyers. Thus, if Jacobson’s thesis is true, the explicit relationship between law and national identity on which the modern nation states were founded, may explain the implicit and explicit nationalism of contemporary Danish legal writing. But except for this study, the key position of national lawyers in the anti-modern, nationalistic discourse in post-war Europe has not been investigated at all.

3. Theoretical framework and model of analysis: a constructionist point of departure 3.1 SOCIAL ANALYSIS The theory of nationality on which we base our analysis is a modernistic theory. Thus, we assume that modern nations are not ‘out there’ as brute facts that exist independently of what people think and say about them. In that respect we are inspired by the notion of ‘imagined communities’ of Benedict Anderson (1991 [1983]). This does not mean that we take a strong constructionist position, rejecting that nations have any existence outside the minds of people imagining them. It would be absurd to assert that nations are not real, especially in the case of an old nation like Denmark which existed also in pre-modern times, long before the invention of the modern nation states and the ideology of nationalism (Smith, 2001/2003). In fact, people act and react to nations as to any other fact of life; they are even legally defined in terms of their belonging to them as citizens of different nationalities. Moreover, a great many national institutions have been established as the concrete outcome of the discourse about them, national parliaments and law courts being some of the more tangible results. But, basically, we presume that nations have come into being only because they have been set up in the discourse of actors institutionalizing them as facts of life. In particular, we regard the specific ‘identity’ of a nation – the peculiar traditions and ways of doing, saying and seeing things which distinguish say Denmark from Britain, and Germany from France – to be a concept which has been constructed and reconstructed in the discourse of those belonging to the nation in question. Likewise, we argue that nationalists exaggerate and naturalize the unity of the historical nation, tying ‘the modern polity to the notion of a historically or naturally unified people who intrinsically belong together’ (Calhoun, 2007: 151). Hence, from our point of view nationalism entails an emotional and seductive narrative of national unity which often includes prejudice against others. This does not mean, however, that nationalism may not be viewed as a valuable force,


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aiming at securing the rule of law, democracy and domestic cultures, as shown by Calhoun (2007). Of particular importance to our study is the way that the national legal system is conceptualized in discourse. We argue, in accordance with the findings of Jacobson (2002), that modern national law has been equipped with a specific identity of its own – in contemporary legal writing often referred to as a ‘legal culture’11 – and that the constructive processes and mechanisms employed by legal actors in developing, maintaining – and inventing – the identity of a national legal system are similar to those employed in the making and shaping of the identity of a nation. 3.2 DISCOURSE ANALYSIS In line with the constructionist theory of nationalism and national legal systems on which we found our social analysis, our textual analysis is based on the constructionist assumptions of critical discourse analysis (CDA) that emphasize the role of language in the production and reproduction of social reality (Fairclough, 1992, 2003). We take as our starting point the cognitive version of CDA introduced by Van Dijk (1995, 1998). Thus, we assume that nationalism and internationalism of law may be studied as socially shared ideologies, which have cognitive existence in the minds of their supporters and are constructed and perpetuated in the texts that they write. We combine Van Dijk’s cognitive discourse theory with the ‘discourse– historical’ approach to the analysis of national identity developed by Wodak et al. (1999). In particular, we base our method of analysis on their notion of ‘discursive macro-strategies’ which we see as a useful implementation of the cognitive dimension of Van Dijk’s discourse model. ‘Discursive macro-strategies’ are defined as cognitive plans of action applied consciously or unconsciously by language users when producing a text (De Cillia et al., 1999). The Vienna study distinguishes between four discourse strategies involved in the constitutive processes of national identity: strategies that construct, perpetuate, transform or deconstruct national identity. We have chosen to simplify this model of analysis and distinguish only between constructive and deconstructive strategies. At the same time, we have added a perspective absent from the Vienna study, viz. the discursive construction and deconstruction of a competing European identity, which runs counter to the discourse on national identity and is in constant interaction with and opposition to that discourse. Taken together the strategies constitute the complex and dynamic discursive field shown in Figure 1 which illustrates our model of analysis. The application of our four-dimensional model of analysis makes it possible to show that both sides in the debate make use of constructive macro-strategies to promote their case, while at the same time deconstructing the object of construction promoted by the opposing party. The macro-strategies are enacted textually through a variety of linguistic devices – or ‘micro-strategies’ in the terminology of De Cillia et al. (1999) – that are selected consciously or unconsciously by text producers. Frequent use of ideological discourse structures, aiming at producing a positive image of ‘us’ and



FIGURE

1 . Simultaneous construction and deconstruction of two competing legal identities.

a negative image of ‘them’, are applied, e.g. expressive metaphors, exaggerations, unnecessary explicitness and irony; for an overview of ideological discourse structures see Van Dijk (1998). We present the main results of our analysis below, after the following presentation of our empirical data and their selection.

4. The selection of empirical data Within the tradition of CDA, discourse and society are viewed as mutually interdependent elements in how people produce and interpret meaning. Thus, when dealing with discourse, we are confronted with a twofold dimension of the concept; one focusing on social practice and the abstract patterns of meaning that govern that practice, and one focusing on meaning as it is constituted in the flow of concrete texts produced within a social practice. The latter approach requires the careful and purposeful selection of empirical text data that will enable detailed linguistic analysis. Danish discourse concerning national and European law on human rights comprises all text and talk produced on the subject in Denmark, including for example legal documents, scholarly writings, legislation and media texts as well as parliamentary debates, lawyer–client consultations, informal exchanges among lawyers and private conversations among citizens. This amounts to a totality of discourse, which is, in principle, beyond delimitation. However, following an understanding of how discourse theory may be implemented in linguistic analysis (Busse and Teubert, 1994), we have chosen to zoom in on a section of this unlimited totality of discourse. Thus, we have selected two text genres which we consider to be essential to the creation of legal and public opinion, and which, at the same time, meet with the practical need for accessibility, viz. media texts and articles in legal periodicals.


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Using both manual and digital search procedures, we gathered a text corpus consisting of 197 texts, comprising 88 articles from a broad variety of newspapers, and 107 articles from mainstream legal journals.12 Common to all texts is that they deal with the relationship between national law and European human rights law, and that they were published between 1989 and 2003. This allows us to draw a holistic picture of how mainstream discourse reflects – and is being reflected by – the ongoing process of European integration and its consequences for national law and national legal institutions in Denmark. Accordingly, we do not refer to the individual articles and authors, but only to the medium in general and to the date of publication. We have chosen to illustrate the strictly legal topic of the relationship between national law and European human rights law by studying not only legal text genres, but also newspaper articles commenting on the topic. This reflects our wide notion of legal communication, comprising what lawyers write to each other in professional discourse, what lawyers write in newspapers when they address the general public on matters of law, what lawyers say when they are interviewed in the media, and what journalists and politicians write in the press concerning law. The discourse strategies applied in scholarly legal articles are surprisingly similar to those adopted in the newspaper articles. Hence, our study supports the assumption that ‘the discursive construction of national identity is a multidimensional phenomenon’ (De Cillia et al., 1999: 170) that can be studied in a great variety of different social contexts, including contexts where traits of nationalistic ideology are not expected from the outset.

5. Analysing the data: the construction and deconstruction of a national and a European legal identity In the following we illustrate how the resulting four macro-strategies of discourse shown in Figure 1 are reflected in the analysed texts. We comment on the linguistic and lexical means that discourse actors employ in order to produce and reproduce, construct and deconstruct, concurring views on the ongoing processes of political and legal change in Europe. In order to show the similarity of discourse structures applied by legal actors representing opposing orientations, we have chosen to group our examples as follows: Constructive macro-strategies of discourse • •

constructing a national identity of law constructing a European identity of law

Deconstructive macro-strategies of discourse • •

deconstructing a European identity of law deconstructing a national identity of law



Moreover, we want to illustrate the correspondence between discourse topics and discourse devices present across newspapers and legal periodicals. In fact, we regard the high degree of emotionally and ideologically marked language use, evident even in legal journals meant for internal academic debate of lawyers and law professors, as the most surprising feature of the analysed corpus of texts.13 The frequent use of ideological discourse structures not normally associated with academic writings indicates that the changes caused by the Europeanization of human rights protection are not perceived by Danish legal actors as being just a matter of technical adjustments of Danish law and legal practice. On the contrary, the changes seem to have an impact on Danish lawyers that go beyond a purely professional reflection on how to solve the legal problems involved and apparently touch upon their overall national and cultural identity as – Danish – lawyers and citizens of Denmark. The similarity of discourse structures across the two text genres should be immediately detainable from the flow of selected examples, and we do not distinguish between the genres in the following survey. However, we do comment on the genre in cases where the language of a scientific legal article is particularly emotional or ideologically biased. 5.1 CONSTRUCTIVE STRATEGIES Constructive strategies are applied by discourse actors in an attempt to construct and establish a particular legal identity by promoting a sense of belonging together in a common past and future; by invoking a feeling of unity and uniqueness that differentiates insiders from outsiders (us/them); and by appealing to the necessity of defending the unity that binds us together against invented or real external threats. The italicized concepts in the above description all make out key concepts in nationalistic discourse (Smith, 2001/2003; Wodak et al., 1999). Thus, we assume that the application of those concepts in discourse contributes to the overall construction of a national (or a competing European) identity, and, on this basis, divide the general strategy of construction into the six constructive sub-strategies shown in Figure 2. As is evident, there are both similarities and differences between the substrategies constructing a national identity of law and those constructing a competing European identity. First, although reference to a common past is represented in both discursive orientations, the reference to a common future is a strategy applied more readily by discourse actors opting for a European identity of law than by actors in favour of constructing and reinforcing a Danish identity. Second, as opposed to the national discourse voice, the European voice does not make use of a strategy of defence in response to a real or imagined external enemy. This has to do with the selection of our corpus. If we had focused on the relationships between Europe and countries outside Europe (or countries whose European-ness is contested, as is the case with Turkey), there would probably have been a discursive voice invoking a feeling of threat to the unity of European law caused by such foreign countries. Consider, for example, the


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FIGURE

2 . Sub-strategies constructing a national or European identity of law.

on-going political debate concerning the (im)possibility of Muslim Turkey becoming a member of the EU. The following analysis of the individual text samples is structured according to the six sub-strategies listed in Figure 2 and shows how the strategies and their inherent nationalistic line of thought are linguistically and lexically enacted in the texts. It is important to note, however, that the concepts governing nationalistic discourse do not necessarily appear as lexical units on the surface of the individual texts. Thus, the concept of ‘past’ may, for example, be expressed in terms of something being traditional or deep-rooted, as described later. The important factor is the cognitive networks of meaning relied upon in the texts, forcing the reader to establish a connection between the matters described and the implicit reference to underlying concepts of national identity. This does not mean that the actual wording of the texts is without relevance. The words serve as signals to the reader to apply relevant background knowledge stored as cognitive semantic patterns in the mind. The lexical unit tradition in itself does not mean ‘past’, but it entails ‘past’, referring to cognitive patterns for such concepts as ‘custom’ and ‘heritage’, i.e. ‘specific practices of long standing that are handed down from the past by tradition’.14 Thus, the discursive strategies are enacted in specific texts through the interplay between the words and expressions used and the cognitive networks of meaning that they invite the reader to apply. The point of departure of our analysis is theories and insights from cognitive linguistics, especially the work of Fillmore (frame semantics) and Lakoff and Johnson (metaphors) (see e.g. Fillmore, 1985; Fillmore and Atkins, 1992; Lakoff and Johnson, 1980). The lexico-semantic analyses are based on the WordNet, which is a large electronic lexical database of English, developed by the Cognitive Science Laboratory at Princeton University under the direction of George A. Miller and Christine Fellbaum. Details concerning the WordNet and the theories that govern its structure and functioning are given in Fellbaum (1998).



5.1.1 Sub-strategies constructing a national identity of law a. Invoking a national past In the discursive construction of a national – Danish – legal identity, a strategy is often applied which stresses the long history of Danish law. Danish constitutional law is based on the fundamental democratic principle of separation of powers, provided for in the Basic Law (the Danish constitution). Hence, the balance between the state powers is often depicted as being ‘classical’; resting on a ‘tradition’ established a long time ago: (1) [. . .] the classical separation of the legislative, the executive and the judicial powers, laid down by the Constitution. (Jyllands-Posten, 20 December 2000) (2) [. . .] the incorporation of the Convention on Human Rights in Danish law rests on the explicit presupposition that it must not distort the traditional balance between the Folketing [the Danish parliament] and the judiciary. (Ugeskrift for Retsvæsen, 2002: 448. Explanation added in brackets.)

There are even examples of texts that depict the ‘Danish-ness’ of the legal system as being as fixed and unshakable as an old tree which was planted in Danish soil so many years ago that it has developed a deep net of roots on the habitat: (3) The European Council and the busybody Commission need to be told that such an opinion by no means corresponds with our deep-rooted Danish view of the freedoms of speech, press and information. (Jyllands-Posten, 19 April 2001)

b. Invoking the unity and uniqueness of national law Another construction strategy typical of the national discourse voice invokes the unity and uniqueness of national law. It may occur simultaneously with the strategy of invoking a national past, as evidenced by example (3), and is often enacted linguistically through reference to a national legal ‘us’: [. . .] our deep-rooted Danish view of the freedoms of speech, press and information [. . .] (4) The principle of proportionality is relevant here, too, and, hence, this principle can gain importance in the area of private law in a way that may seem foreign to our way of thinking. (Ugeskrift for Retsvæsen, 2001: 261)

As is seen in both quotes, the national ‘us’ – what binds us together and establishes us as a unity – is a specific way of thinking, a unique view of legal principles which may not in themselves be of Danish origin, but have been adopted by the Danish legal system a long time ago and have been interpreted and applied ever since in a way that fits our special needs and our culture. The invocation of a national ‘us’ typically goes hand in hand with the construction of an outsiders’ ‘them’, and, in fact, the uniquely Danish way our legal thinking is often explicitly presented as being in opposition to the ‘foreign’ European legal system, as seen in example (4): [. . .] foreign to our way of thinking.


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The invocation of national identity is sometimes supported by the linguistic device, characteristic of nationalistic biased text and talk, of explicitly mentioning that something is ‘Danish’, irrespective of the fact that this information is superfluous and can be derived from the context.15 This technique is applied in example (3): [. . .] our deep-rooted Danish view of the freedoms of speech, press and information [. . .]

But it is even more evident in example (5). The Folketing is the name of the Danish parliament, and no adult Danish reader – in particular no jurist – would need the information that the Folketing is a Danish institution. It is common knowledge: (5) [. . .] the system implies that the Danish Folketing, the central administration, the chair of the ombudsman, and other legal authorities are inferior to the organs of the Convention. (Ugeskrift for Retsvæsen, 1995: 241)

As the text also indicates, the opposition ‘us’ and ‘them’, ‘Danish’ and ‘European’ may involve a discursive construction of ‘our’ superiority compared with ‘them’. In example (5), this strategy is applied in a subtle way; the legal author of the text implicitly refers to the unreasonable demand that Danish legal authorities should be ‘inferior’ to ‘foreign’ organs: the Danish Folketing [. . .] inferior to the organs of the Convention.

The uniqueness of ‘our’ legal system makes us the natural champions of the world: ‘We are the best’, as the saying goes. However, even though this construction strategy is certainly evidenced in the texts of our corpus (in terms of the presupposition underlying some of the texts that ‘the Danish welfare system is the best in the world’), a more salient method of construing the relations to the ‘European other’, the ‘foreign legal system’, is to depict it as an enemy, a threat towards the continued existence of ‘our national legal system’, as described in the following. c. Invoking a feeling of external threat The ultimate strategy when attempting to construct – or re-construct – a national identity is one that invokes the necessity of protecting and defending the nation against an invented or real external enemy. As a matter of fact, discourse actors opting for perpetuation and preservation of the national legal system rely heavily on a strategy invoking a feeling of threat. Of course, what some writers depict as a threat against Danish law is no enemy in the strict sense of the word, but rather the risk that, according to the discourse actors, the stable, well-established and well-balanced Danish legal system might be disturbed or even destroyed by a European legal system that does not fit Danish ways of thinking. Thus, in example (6) what is at risk is the ‘traditional balance’ between the Danish parliament and the judiciary, referred to in example (2): (6) The obvious enthusiasm for the Court [of Human Rights] in domestic circles is continuously attributing constitutional status to the Convention on Human Rights.


Kjær and Palsbro: National identity and law in European integration 613 The consequence is not only a distortion of power and legal instability – what is legal this year might be ruled illegal the next year by an activist international court of law. (Weekendavisen, 3 August 2001)

Otherwise, the linguistic enactment of this sub-strategy is mostly carried out through the application of lexical units (dead metaphors) designating the concept of ‘attack’, as shown in examples (7) and (8). Danish law is conceptualized as a victim of a foreign aggressor, European law. Please note that in both cases, the examples are drawn from articles written by lawyers in respected legal periodicals: (7) What constitutes an ulterior, and perhaps even more serious attack against the [Danish regulation] is Art. 10 of the European Convention on Human Rights, and not least, the interpretation of this rule by the European Court of Human Rights. (Ugeskrift for Retsvæsen, 2002: 118) (8) It is not always easy to determine to which degree the decisions by the Court and the Committee of Ministers hit Danish affairs [. . .]. (Fuldmægtigen, No. 3, 1995)

Sometimes, the description of the perceived aggression is accompanied by a metaphor depicting the impact of European law on the national legal system as a downright ‘punishment’ of the national legal authorities by the European Court, as is seen in example (9): (9) That was the first time that the Supreme Court was given a rap over the knuckles by the judges in Strasbourg. (Aktuelt, 3 November 2000)

Similarly, the textual reaction to the aggression may be construed in terms of the ‘shame’ felt when a youngster has done something wrong and is punished for his or her disobedience: (10) Furthermore, it can be stated that the opinion of the Supreme Court [. . .] was not put to shame [by the Commission]. ( Juristen, No. 2, 1989)

In order to appreciate the mechanisms at play here, it is necessary to take into account the complex national identity of Denmark as a small country which has survived as an independent state in Europe for centuries despite its size. The Danish Supreme Court was NOT put to shame: ‘We are small, but we are clever’ – as is often said in contexts of discussing the role of Denmark in the world, or the relations between Denmark and other nation states in Europe. The ‘foreign attack’ is sometimes described as a progressive demolition of justice and even circumscribed by a strong metaphor implicitly comparing the influence of European law on the national legal system to a warlike devastation, cf. example (11). It is worth noticing that the example is drawn from an article written by a law professor to a legal weekly journal of general coverage and of great esteem:


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Discourse & Society 19(5) (11) [. . .] in Denmark, the judgment [of the European Court of Human Rights] in the Hauschildt case has left a deep trail of blood. (Ugeskrift for Retsvæsen, 1998: 375)

The fierce defence of the national legal system is often expressed through implicit or explicit invitations to ‘mobilize resistance’ against the foreign influence on Danish law. Often this line of discourse takes the form of a critique directed towards the Danish Supreme Court, which is depicted as being ‘intimidated’ (Aktuelt, 3 November 2000) and seen to be ‘bowing the knee’ (Politiken, 8 November 2000). Instead of just ‘falling into line’, it should ‘take a stand’, as a much-used expression states (e.g. Juristen, 2001: 54–9). 5.1.2 Sub-strategies constructing a European identity of law As indicated earlier, the strategies constructing a European identity of law are surprisingly similar to those constructing a national identity of law. However, there are also differences. A national identity of law was already constructed by the nineteenth century. Hence, rather than constructing the nationality of legal identity anew, constructive strategies employed in the service of the nation state today are more likely to be concerned with perpetuating, preserving and re-constructing it in the light of Europeanization. By contrast, strategies aiming at the formation of a concurring European legal identity are not merely referring to an already existing ‘European-ness’ of law, established in the past, but are also emphasizing the necessity of organizing law differently after the atrocities done in the name of the national legal systems in the twentieth century. Therefore, on closer examination, the constructive strategies applied in favour of a European identity of law are both strategies of perpetuation, preservation and re-construction and strategies of new-construction. This is evidenced in the following section of our analysis. a. Invoking a European past In our text corpus, we find multiple references to the common legal past of Europe. For illustration, consider examples (12) and (13): (12) At the court in Strasbourg they don’t just pass judgements. They are trying minutely to work out what is shared European heritage. (Weekendavisen, 21 September 1997)

This example refers to a common ‘European heritage’ of the nation states of Europe, thus presupposing that the European legal systems ‘share’ fundamental principles, ready to be disclosed by the Strasbourg judges, and invoking a common ‘past’ by choosing the word heritage: heritage (practices that are handed down from the past by tradition) ‘a heritage of freedom’16

More explicitly than the otherwise identical sub-strategy of invoking a common national past, this strategy calls for the reader’s identification with European law as a ‘culture’ to which Denmark has always belonged. Example (13) shows the ease with which legal writers today tend to describe legal systems in terms



of ‘cultures’17 and at the same time illustrates the emotional undercurrent often accompanying the use of that concept. ‘Culture’ in this text does not simply refer to ‘all the knowledge and values shared by a society’.18 By stating that European legal culture is the natural homestead of Danish law, the alleged European-ness of Danish law is emotionalized: (13) So the judgement of the Supreme Court can be seen as a rapprochement with the European legal culture where Denmark is naturally at home. (Ugeskrift for Retsvæsen, 1997: 87)

The lexical choice of ‘home’ is significant, especially when used in the context of a legal journal. A more neutral expression such as for example ‘membership’ or ‘adherence’ to a common legal system in Europe – or even to a European history of law – would have deprived the expression of its emotional component. ‘Home’ is not just anywhere; ‘home is where the heart is’: home (an environment offering affection and security) ‘home is where the heart is’; ‘he grew up in a good Christian home’; ‘there’s no place like home’19

In sum, when the judgment of the Danish Supreme Court referred to in the example complies with European law, this means that it is actually in accordance with values perceived as inherently Danish. Thus, there is no reason to worry about the future existence of Danish law; Danish law was always European, and Europe is a place ‘offering affection and security’. b. Invoking a European future Even though discourse actors rely heavily on a concept of a common European past, they also express the view that Europeans – and especially European nation states – should break with the past and re-organize European law and politics. Importantly, invoking a common European future does not constitute a concurring strategy; the invocation of a shared European heritage goes hand in hand with the strategy of calling for a new beginning and aims at the same purpose, viz. constructing a European legal identity. The strategy of invoking a European new beginning is often depicted as ‘a drastic and far-reaching change in ways of thinking and behaving’ – which is the definition of ‘revolution’ offered by the WordNet. Thus, in many of the texts in our corpus, the adoption of the European Convention on Human Rights is portrayed as a true revolution, as can be seen in examples (14) and (15): (14) But the real revolution was the adoption of the European Convention on Human Rights in 1953 [. . .]. (Ugeskrift for Retsvæsen, 1997: 1) (15) The revolution is that suddenly all the nation states of Europe said that this [the atrocities of the war] was no longer acceptable. (Weekendavisen, 21 February 1997)

The strategy is enacted linguistically partly by explicit use of the word revolution, as we have just shown, partly by the application of adverbial expressions denoting ‘change’: in text-sample (15) by the use of the adverb suddenly; in


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example (16) the text following the quote in example (14), by the adverbial phrase for the first time in history: [. . .] suddenly all the nation states of Europe said that this [the atrocities of the war] was no longer acceptable. (16) [. . .] for the first time in history, an instance of appeal was established, an international court of law where individuals could file a complaint against their own governments. (Ugeskrift for Retsvæsen, 1997: 1)

c. Invoking the unity and uniqueness of European law The strategy of invoking a common European future often goes hand in hand with the final constructive strategy that we have identified in our text corpus – invoking the unity and uniqueness of European law. In some of the texts explicit reference is made to a distinct European ‘we’ when invoking a common future. This new European ‘we’ does not refer to a group of individuals, united in a ‘nation’, but to a group of European nation states, united in a ‘union’. Note in the next quote, which is the text that follows immediately after the text of example (15), that it is an excerpt from an interview with a former president of the Danish Supreme Court: (17) The revolution is that suddenly all the nation states of Europe said that this [the atrocities of the war] was no longer acceptable. Individual human beings have rights that are so fundamental that we must act jointly to protect them. (Weekendavisen, 21 February 1997)

The discursive construction of a European ‘we’ seems explicitly directed towards the elites acting on behalf of the nation states and protecting their citizens. In this respect, it differs from the ‘we’, used in discourse constructing a national identity of law. But in terms of the discourse strategy applied, the result is identical in both cases: the construction of a legal identity – national or European – is what is at stake. Example (17) also shows another aspect of the construction of a European identity of law that differs from the strategies employed in the name of the nation state, indicated by the phrase: [. . .] we must act jointly [. . .]

Invoking a common future means breaking with the past and doing it in cooperation. Hence, the unity and uniqueness of a European legal identity are construed in a manner that relies on the notion of ‘solidarity’ or even ‘brotherhood’. This is evident also in example (18), which – in spite of the clearly ideological language use – is a quote from a legal journal: (18) The European Convention on Human Rights will soon become a reality for all citizens of Europe, because respect for human rights starts with the individual and is fundamentally based on each individual’s attitude towards and respect for the life and conditions of his fellow human beings. (Juristen No. 2, 1993)



5.1.3 Summing up constructive strategies As we have seen, Danish lawyers react differently to the changes brought about by legal integration in Europe. Some of them react by discursively re-constructing a national identity of law, others by (re-)constructing a European identity of law. However, irrespectively of argumentative orientation – towards a national or European identity – discourse actors rely on surprisingly similar strategies, and both orientations draw heavily on key concepts, normally associated with nationalistic discourse, for example invoking a common past, and stressing the unity and uniqueness of Denmark or Europe. In the following section we examine how these constructive processes interact with the simultaneous deconstructive processes that we have identified in our text corpus, cf. the illustration in Figure 1. Our analysis shows that identity building may be achieved not only by constructive strategies in favour of either a national or European identity of law, but also by deconstructive strategies, presenting the competing identity as somehow unfavourable. 5.2 DECONSTRUCTIVE STRATEGIES When examined in conjunction and over time, the discursive struggle for a national versus European identity of law presents itself as an abstract dispute between two parties with arguments and counterarguments being put forward as actions and reactions to the allegations of the other party. Whereas the strategies of construction emphasize the uniqueness of the two legal orders and focus on the reasons why they are worthy of being maintained, developed and protected, the deconstructive strategies questions their uniqueness by emphasizing aspects of the respective legal systems which are banal, coincidental or problematic, and therefore in need of being dismantled, transformed or replaced. Thus, the deconstructive strategies are often counter-strategies that attempt to undermine the constructive strategies by questioning the very foundation on which they rest, as illustrated in Figure 3. The following analysis of the text samples takes its starting-point in these sub-strategies and shows how, in each individual case, the discourse strategy is enacted linguistically. Again, focus is primarily on the lexical means employed by discourse actors.

FIGURE

3 . Sub-strategies deconstructing a national or European identity of law.


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5.2.1 Sub-strategies deconstructing a national identity of law a. Contesting the unity and uniqueness of national law As we have seen earlier, the claim for uniqueness is a central element in the discursive construction of a national identity of law. Being ‘unique’ essentially means being one of a kind, but often carries an additional layer of meaning viz. that of being ‘superior’:20 alone, unequalled, unparalleled (radically distinctive and without equal) ‘Bach was unique in his handling of counterpoint’

Hence, when Danes talk about their unique legal system, they refer not only to the fact that there is only one, but also to the presupposed outstanding quality of that system. The strategy of contesting the ‘uniqueness’ of the national system of law in Denmark thus implies contesting the superiority of that system. As the following examples show, the alleged superiority can be contested in relation to both the quality of laws and the quality of lawyers. Starting with the Basic Law, the Danish constitution, the fact that it dates back to the nineteenth century is often taken as a sign of the ‘uniqueness’ of the Danish legal system, and the ‘deep-rootedness’ of the legal principles laid down in the constitution as a sign of their superior quality. But it is also obvious that the long history of the constitution can just as easily be interpreted as a sign of being outdated. Thus, we have found numerous texts in which the constitution is criticized for being too old and therefore not in accordance with contemporary standards and requirements, as illustrated by the following two examples: (19) Today, Article 77 is one of the poorest constitutional rules on freedom of speech in the world. (Lov & Ret, April 2001)

Metaphorically speaking, the constitution cannot keep up with development, it is falling behind: (20) The Constitution is lagging behind (Information, 29 December 1998)

Also, the otherwise highly praised ‘Danish model’ of labour law is prone to deconstruction on grounds of out-datedness, as illustrated in example (21), which is an excerpt from a legal article: (21) It is also evident that the employment law system seriously needs a complete overhaul and a clarification in the light of recent years’ development. (Ugeskrift for Retsvæsen, 2003: 64)

By means of the metaphor ‘overhaul’ the labour law system is viewed, in this example, as an old engine, which may have functioned well in the past but now needs inspection and repair, or as an old house which is no longer up to standard and needs renovation and modernization. The metaphorical allusion thus serves the purpose of highlighting the necessity of transforming or innovating the national legal system.



A second variant of the strategy of contesting the ‘uniqueness’ of the national legal system is that of questioning the competence of Danish lawyers. In the following example we find a legal expert commenting rather arrogantly on the supposedly inadequate skills of Danish judges as regards the application and interpretation of European law: (22) It is not always an easy task, but the courts should undertake it to the best of their abilities. (Lov & Ret, May 1999)

Moreover, the deconstruction is achieved by implying that national lawyers are lazy, as illustrated in the next quote which presupposes their lamentable and unprofessional lack of interest in matters of European law: (23) Until recently, the Danish jurist has had a good excuse for not paying an overwhelming interest in the Convention on Human Rights. (Fuldmægtigen No. 8, 1995)

A third variant of contesting the alleged superiority of the Danish legal system – and of Danish lawyers – is enacted by appealing to feelings of embarrassment with the national legal system which at times reveals itself as provincial and in lack of international outlook. Examples of this sub-strategy are particularly salient in situations where Denmark has lost a case before the European Court of Human Rights, as illustrated by example (24): (24) It was an embarrassing affair for Denmark who had not understood the “true nature of freedom of speech”. (Jyllands-Posten, 4 February 1997)

b. Contesting the nationality of national law As described earlier, referring to a common past and a glorious history is one of the most characteristic elements in the formation of a national identity. An essential element of Danish history is the signing of the Danish constitution in 1849, an historic event which plays an important role in the (re)construction, and consequently also in the deconstruction of a national identity of law. This is shown in the following quote from a leader commenting polemically on the Danish Constitution Day; the author anticipates the usual nationalistic appraisals of the Danish constitution: (25) To the extent that the speakers today will praise the high standards which distinguish democracy from tyranny of the majority and public mood dictatorship, normally associated with constitutional laws, they should not forget the great inspiration from abroad. (Politiken, 5 June 2000)

Apart from the implicit critique of how democracy sometimes turns out in Danish political life (populism), this quote deconstructs the birth of the Danish constitution as an inherently national historic event. Furthermore, by positioning it in a broader European historic context, the constitution is ‘de-nationalized’


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and deconstructed as the result of a particularly Danish conception of democracy and justice. This is particularly evident in the following quote drawn from the same text sample: (26) Just as the constitution of 1849 was copied from that of Belgium, neither the Danish constitution nor Danish democracy, exists in a vacuum. (Politiken, 5 June 2000)

The Danish constitution was not only inspired by ideas originated outside the national borders of Denmark; it was directly copied from a foreign constitution viz. that of Belgium, and therefore it cannot be the result of a uniquely Danish way of thinking. 5.2.2 Deconstructing a European identity of law While the deconstruction of a national identity is mostly obtained by arguing against the allegedly high quality and unique nationality of the Danish legal system, the strategies aiming at the deconstruction of a European identity of law concentrate primarily on contesting the legal basis of European human rights as such. As our analysis in the following shows, the deconstructive sub-strategies are enacted in text partly by the use of hyperbole, exaggerating the ideal content of human rights law, and thus leaving the impression that its proponents are fanatics, partly by the use of lexical items and metaphors by which the legal and democratic character of human rights is questioned. a. Contesting the unity and uniqueness of European law An integral element of the strategy destructing a European identity of law is the disruption of the idealistic picture of a legal system based on universal justice, and composed of judges searching for an objective truth – as illustrated in the following example from a legal journal: (27) [. . .] the work of the European Court of Human Rights is dependent on the personal sense of justice of each individual judge. (Ugeskrift for Retsvæsen, 2001: 446)

What is implied in this quote is that the European legal system is fragmented and lacks the necessary coherence for it to be a stable system of law that guarantees legal certainty and objectivity. What is deconstructed is not the personal competence of the European judges, but the very foundation on which a judge must rely in order to pass fair and foreseeable judgments governed by the rule of law. Following this line of thought, the European Convention on Human Rights does not rest on a legal foundation, shared by the member states. Consequently, European judges have to rely on their ‘personal’ sense of justice. Moreover, when European judges have nothing to stick to when interpreting the convention but their individual sense of justice, what is required of them is a divine insight into human rights. This presupposition is set up and then deconstructed in the next text example drawn from a legal periodical:


Kjær and Palsbro: National identity and law in European integration 621 (28) Most judges at the Court of Human Rights are undoubtedly excellent jurists, but they do not possess a particularly divine insight into the understanding of human rights. (Juristen, 2001: 54–9)

One may wonder why this discourse voice would engage in a statement on the ‘non-divinity’ of the judges of the European Court of Human Rights. Is it not to kick in open doors? By stating the obvious – that no judge can reasonably be assumed to possess divinity – the author of this quote manages to accuse the imaginary opponent of an exaggeration which she then dismisses. The discursive device exploiting the concept of ‘divinity’ is also brought to bear on the nature of the human rights themselves, as can be seen in the following example: (29) The Human Rights and the conventions are not divine statements, containing a truth beyond dispute. (Jyllands-Posten, 19 December 2001)

What is presupposed in this quote is that the Convention on Human Rights – like any other set of laws –is made by humans, and therefore subject to imperfection. b. Contesting the legal character of European law The sub-strategy of contesting the legal character of European law may be viewed as an extension of the strategy of contesting its uniqueness. Thus, the text in quote (29) not only implies the commonality (‘non-divinity’) of European human rights law, but takes the allegation a step further and accuses the European legal system of being an untimely mix of law and politics: (30) The conventions are quite simply used and misused as a cover for legitimising someone’s personal political views. (Jyllands-Posten, 19 December 2001)

This sub-strategy aims at the very core of a democratic society based on the rule of law, viz. the separation of powers, the fundamental checks and balances guaranteed by a division of labour that ensures that the application of laws is in the hands of the judiciary, whereas the making of laws is the sole competence of the parliament. Furthermore, this strategy makes the invocation of human rights appear as a mundane action, planned and carried out to the benefit and profit of the actors themselves. Deconstruction in this sense is complete in the following examples, where the metaphors draw parallels between human rights and more profane activities like ‘playing a game’ or ’being engaged in an industry’: (31) The human rights card is played a little too often. (Weekendavisen, 19 April 2002) (32) There is quite a hectic human rights industry at the moment, as [MP X] so precisely put it. (Jyllands-Posten, 20 December 2000)


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Some authors question in particular the dynamic interpretation style of the European Court of Human Rights, which according to their view leads to political judgments. Thus, according to Weekendavisen (3 August 2001), the court is ‘activistic, which is a more polite form of saying making politics’. Furthermore, the court is presented as an institution that is too powerful – and even compared with the non-democratic government of ‘enlightened absolutism’, as it is phrased in an article in the daily newspaper Jyllands-Posten (8 November 2000). In consequence: (33) It cannot be ruled out that the Court of Human Rights will arrive at politically controversial results, which cannot reasonably be assumed to be the supposed will of the legislator. (Juristen, No. 2, 2002: 76–82)

A final method adopted with the aim of deconstructing a European identity of law is that of stressing the lack of democratic legitimacy of the European legal institutions, as is evident in this last example, which is drawn from a legal article written by a judge at the Danish Supreme Court: (34) However, the most epoch-making thing about the convention is that it is left to an international, technocratic panel of judges without any popular mandate to apply and interpret intensively the fundamental rights of the convention [. . .] (Ugeskrift for Retsvæsen, 1995: 241)

5.2.3 Summing up deconstructive strategies In conclusion, what we find in the analysed corpus of texts are strategies that can be seen as discursive reactions to the alleged uniqueness and high quality of the national legal system of Denmark, and to the alleged uniqueness and high ideals of European Human Rights. Taken together, the discourse strategies make up a pattern of arguments and counter-arguments that indicates an intense discursive struggle between legal actors in Denmark. As we have shown, this is a struggle that unfolds both in the professional debate in legal journals and in the public debate in the media.

6. Conclusion: discourse struggle and social change As the results of our study show, there are interesting discursive forces at play in the seemingly neutral and objective professional exchanges of national jurists concerning the impact of European law on the national legal system, and national lawyers are far more emotionally involved in the debates over European integration than is commonly assumed. In accordance with the conventional presumption of the neutrality and objectivity of professional discourse, we assumed from the outset that the legal articles of our corpus would be unemotional and detached, focusing on facts and legal analysis of the relationship between national law and European law. However, we found clear examples of both implicit and explicit nationalism in the language of Danish legal professionals in their comments on technicalities of European law. Mostly,



nationalism of legal academics is manifest in the barely noticeable national reproduction, gently woven into habits of language and unmemorable clichés, described by Billig (1995) under the heading of ‘banal nationalism’, but in some cases nationalism reveals itself in a more explicit flag-waving kind of nationalistic language, as we hope to have illustrated by the above examples. We suggest two plausible explanations for this discursive anomaly. First, we presume that the emotional, ideologically biased outbursts characteristic of some of the legal writers can be apprehended only if the symbolic power of law in a national tradition is considered – and recognized. The nationalistic discourse of legal professionals may be interpreted as a simple expression of a deeply felt wish to protect the national legal system and the national legal rules because they are assumed to constitute part of a unique national culture. Thus, law is seen as national symbol on a par with language, culture and history. In that respect, nationalistic discourse in the legal articles is part of a wider order of ideological discourse, evident also in the media texts. Second, we argue that European integration brings challenges not only to the citizens of Europe, but indeed also to national legal elites. European integration has considerable influence on national legal actors whose power basis – the nation states and the national institutions of law – is under threat of being replaced by the EU institutions and the common European law courts. The social power of lawyers is dependent either on the continued supremacy and autonomy of the national legal system or, alternatively, on the increasing importance of European law. Thus, jurists’ discursive struggle for hegemony in the debates over Europe is not only an ideological struggle, concerning the future of the national legal cultures in Europe, but also a professional struggle between different groups of lawyers, aiming at retaining or winning the power within the legal profession. A struggle between two competing groups of national lawyers: those with – and those without – an expert knowledge on matters of European law. For lawyers national identity is not a matter of belonging to a nation, but of playing an important part in a national legal system. To be precise, lawyers are the social actors who guarantee the very working of a national legal system. This implies, on the one hand, that national legal systems could not function without lawyers and, consequently, that lawyers have an extremely powerful position in the nation states of modern society. On the other hand, lawyers are themselves dependent on the continuous existence of national legal systems. Their professional competence and identity is closely linked to and intertwined with the national legal system. In general, legal knowledge is local knowledge, of interest only inside the confines of a national legal system. Hence, what national lawyers know, and how they think and act, is relevant only as long as legal rules are defined by the national legal system, i.e. as long as they are set up by national parliaments, interpreted and applied in national law courts, and commented on in national law faculties. With European integration, law is no longer solely or primarily a national concern. On the contrary, legal rules are increasingly produced in the supranational institutions of the EU. Moreover, the European Court of Justice is furnished with the sole competence to interpret EU rules – over and above the


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previously sovereign supreme courts of the member states. Also the European Court of Human Rights exercises an increasing impact on the national legal systems, where parliaments and courts – in nation states that have signed the European Convention on Human Rights – are obliged to respect the judgments passed by the court. In sum, national legal systems have to adapt to rules and orders that stem from institutions outside their own borders, and national lawyers have to accept that their power base is consequently diminished. Only lawyers competent in international law and EU law profit from the integration process; their knowledge has increasingly high symbolic power in the market of jurisprudence. In fact, the notion of European identity seems to be gaining terrain and needs to be considered as a serious rival identity, if not for the general population of Denmark, then for the professional community of lawyers, who find themselves in a situation where the frames of reference of their professional life – and thereby the foundations of their social position in society – are radically changing. N OTE S

1. All quotations in this article are our own translations of the original text fragments in Danish. 2. The research project ‘Danish Legal Culture in the Light of European Integration’ was carried out by researchers at the Faculty of Law, University of Copenhagen, and the Faculty of Modern Languages, Copenhagen Business School, between 2001 and 2004. It was an interdisciplinary (Law and Language) research project funded by the Danish Research Councils for Social Sciences and the Humanities. 3. Hardt-Mautner (1995: 180) does touch upon the fact that ‘the concept of “Europe” includes a proposal for an alternative supra-national identity’, but her analyses do not include the discursive construction of this alternative European identity. The same holds true for a comprehensive Austrian research project on national identity. The researchers state: ‘In the countries of EU, the propagation of a new European identity has been accompanied by the emergence or reemergence of seemingly old, fragmented and unstable national and ethnic identities’ (De Cillia et al., 1999: 150, italics added). However, their study does not comprise an analysis of the discursive construction of the propagated European identity referred to in the text. 4. ‘Les lois politiques et civiles de chaque nation … doivent être tellement propres au peuples pour lequel elles sont faites, que c’est un grand hazard si celles d’une nation peuvent convenir à une autre.’ De l’Ésprit des Lois, Book I, Ch. 3. 5. As is well known, the European constitutions of the late 18th and 19th centuries were also the outcome of the French revolution and the liberal philosophy expressed in the French Declaration of Human and Civic Rights from 1789 (for an overview, see e.g. Smith, 2001). 6. See e.g. the official website of the Danish parliament, April 26, 2005: http://www. folketinget.dk 7. The ISSP is a continuing annual programme of cross-national collaboration on surveys covering topics important for social science research. It brings together pre-existing social science projects and coordinates research goals, thereby adding a cross-national, cross-cultural perspective to the individual national studies.



8. 9. 10. 11.

12.

13.

14. 15. 16. 17. 18. 19. 20.

42 countries are members of the ISSP (ISSP homepage, 27 July 2007: http://www. issp.org/members.shtml). Johannes Andersen (Associate Professor at the University of Aalborg), in a report of the survey in the Danish newspaper Politiken, 26 May 2005. The Sun, 22 September 1992, ‘What the Hell is Maastricht About?’, quoted in HardtMautner (1995): 198. The homepage of ‘FREE BRITAIN’, quoted in Teubert (2002): 8. The notion of legal culture has been applied with great persistence, especially by the French-Canadian lawyer Pierre Legrand, who has analysed, in numerous works, European legal integration from the point of view of law-as-culture. A collection of his works is given in Legrand (1999). The following Danish news media are represented in the study: Politiken, Berlingske Tidende, Weekendavisen, Aktuelt/Det fri Aktuelt, Information, Fyens Stiftstidende, Vejle Amts folkeblad, and Jyllands-Posten. While Jyllands-Posten, during the cartoon crisis, became world famous for its rather extreme attitude towards protecting freedom of speech, nothing seems to indicate that the newspaper presents more radical views than the other papers as far as Europeanization of human rights is concerned. Besides the newspapers, the following legal periodicals were subject to empirical study: Journalisten, DJØF-bladet, Fuldmægtigen, Advokaten, Lov & Ret, EU-Ret & Menneskeret, Juristen, and Ugeskrift for Retsvæsen. We are surprised not by the fact that the arguments of the legal articles that we have analysed are not neutral and objective, but by the fact that the scholarly and professional analyses of European legal integration are phrased in a markedly emotional language. Thus, we do not presuppose a value-free science. But we do presuppose that academic legal writing is normally expressed in neutral and objective terms. The definition is drawn from the online version of WordNet 3.0, Princeton University, 2006. See Van Dijk (1998): 266ff. The definition is drawn from the online version of WordNet 3.0, Princeton University, 2006. For a criticism of this scholarly practice, see e.g. Glenn (2004), and Ogus (2002). Definition according to WordNet 3.0, Princeton University, 2006. Definition according to WordNet 3.0, Princeton University, 2006. Definition according to WordNet 3.0, Princeton University, 2006.

REFERENCES

Anderson, B. (1991 [1983]) Imagined Communities. Reflections on the Origin and Spread of Nationalism. London: Verso. Archard, P. (1993) ‘Discourse and Social Praxis in the Construction of Nation and State’, Discourse & Society 4: 75–98. Beck, U. (1993) Risk Society. Towards a New Modernity. London: SAGE. Billig, M. (1995) Banal Nationalism. London: Verso. Bishop, H. and Jaworski, A. (2003) ‘“We Beat “em”: Nationalism and the Hegemony of Homogeneity in the British Press Reportage of Germany Versus England During Euro 2000’, Discourse & Society 14: 243–71. Brookes, R. (1999) ‘Newpapers and National Identity: The BSE/CJD Crisis and the British Press’, Media Culture & Society 21(2): 247–63.


626

Discourse & Society 19(5) Busse, D. and Teubert, W. (1994) ‘Ist Diskurs ein sprachwissenschaftliches Objekt? Zur Methodenfrage der historischen Semantik’, in D. Busse et al. (eds) Begriffsgeschichte und Diskursgeschichte. Methodenfragen und Forschungsergebnisse der historischen Semantik, pp. 10–28. Opladen: Westdeutscher Verlag. Calhoun, C. (2007) ‘Nationalism and Cultures of Democracy’, Public Culture 19(1): 151–73. Condor, S. (2000) ‘Pride and Prejudice: Identity Management in English People’s Talk About “this Country”’, Discourse & Society 11: 175–205. De Cillia, R., Reisigil, M. and Wodak, R. (1999) ‘The Discursive Construction of National Identities’, Discourse & Society 10: 149–73. De Montesquieu, C.L. de Secondat (1748) De L’Ésprit des Lois. Genève. Fairclough, N. (1992) Discourse and Social Change. Cambridge: Polity Press. Fairclough, N. (2003) Analysing Discourse: Text Analysis for Social Research. London: Routledge. Fellbaum, C. (1998) WordNet: An Electronic Lexical Database. Cambridge, MA: MIT Press. Fillmore, C.J. (1985) ‘Frames and the Semantics of Understanding’, Quarderni di Semantica 6: 222–55. Fillmore, C.J. and Atkins, B.T. (1992) ‘Toward a Frame-based Lexicon: The Semantics of RISK and its Neighbours’, in A. Lehrer and E. Feder Kittay (eds) Frames, Fields, and Contrasts – New Essays in Semantic and Lexical Organization, pp. 75–102. Hillsdale, NJ: Erlbaum. Galasinska, A. (2006) ‘Border Ethnography and Post-Communist Discourses of Nationality in Poland’, Discourse & Society 17(5): 609–26. Giddens, A. (1990) The Consequences of Modernity. Cambridge, UK: Polity Press. Glenn, P. (2004) Legal Traditions of the World. Oxford, UK: Oxford University Press. Hall, S. (1992) ‘The Question of Cultural Identity’, in S. Hall, D. Held and T. McGrew (eds) Modernity and Its Futures, pp. 273–316. Cambridge, UK: The Open University. Hardt-Mautner, G. (1995) ‘“How Does One Become a Good European?”: The British Press and European Integration’, Discourse & Society 6: 177–205. Harty, S. (2002) ‘Lawyers, Codification, and the Origins of Catalan Nationalism, 1881–1901’, Law and History Review 20(2): 349–84. Higgins, M. (2004) ‘Putting the Nation in the News: The Role of Location Formulation in a Selection of Scottish Newspapers’, Discourse & Society 15: 633–48. Jacobson, S. (2002) ‘Law and Nationalism in Nineteenth-Century Europe: The Case of Catalonia in Comparative Perspective’, Law and History Review 20: 307–47. Kjær, A.L. and Palsbro, L. (2004) ‘Med andre ord . . . Hvad jurister og journalister skriver om dansk rets møde med europæisk menneskeret’, in H. Koch & A.L. Kjær (eds) Europæisk retskultur – på dansk, pp. 289–339. Copenhagen: Thomson. Lakoff, G. and Johnson, M. (1980) Metaphors We Live By. Chicago: Chicago University Press. Law, A. (2001) ‘Near and Far: Banal National Identity and the Press in Scotland’, Media Culture & Society 23: 299–317. Legrand, P. (1996) ‘European Legal Systems Are Not Converging’, The International and Comparative Law Quarterly 45: 52–81. Legrand, P. (1999) Fragments on Law-as-Culture. Deventer: Tjeenk Willink. Madsen, M.R. (2004) ‘France, the UK, and the “Boomerang” of the Internationalization of Human Rights (1945–2000)’, in S. Halliday and P. Schmidt (eds) Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context, pp. 57–86. Oxford, UK: Hart.


Kjær and Palsbro: National identity and law in European integration 627 Madsen, M.R. (2007) ‘From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics’, Law & Social Inquiry 32: 137–59. Ogus, A. (2002) ‘The Economic Basis of Legal Culture: Networks and Monopolization’, Oxford Journal of Legal Studies 22: 419–34. Rasmussen, H. (1986) On Law and Policy in the European Court of Justice. A Comparative Study in Judicial Policymaking. Leiden: Brill. Shaw, G. (2005) ‘German Lawyers and Globalization: Changing Professional Identity’, German Life and Letters 58: 211–25. Smith, A.D. (2001) Nationalism. Theory, Ideology, History. Oxford, UK: Blackwell. [Danish translation by A. Nygaard (2003) Nationalisme. Teori, ideologi, historie. Copenhagen: Reitzel.] Teubert, W. (2002) ‘Der Britische Anti-Europa-Diskurs und seine Schlüsselwörter’, Sprachreport 2: 7–12. Teubner, G. (1998) ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’, Modern Law Review 61: 11–32. Tsang, W.K. and Wong, M. (2004) ‘Constructing a Shared “Hong Kong Identity” in Comic Discourses’, Discourse & Society 15: 767–85. Van Dijk, T.A. (1995) ‘Discourse Semantics and Ideology’, Discourse & Society 6: 243–89. Van Dijk, T.A. (1998) Ideology. A Multidisciplinary Approach. London: SAGE. Von Savigny, F.C. (1814) Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft. Heidelberg. Weiler, J.A. (1994) ‘A Quiet Revolution: The European Court of Justice and its Interlocutors’, Comparative Political Studies 26: 510–34. Wodak, R., De Cillia, M., Reisigil, M. and Liebhart, K. (1999) The Discursive Construction of National Identity. Edinburgh: Edinburgh University Press.

A N N E L I S E K J Æ R, PhD, is a postdoctoral research fellow at the Law Faculty of

the University of Copenhagen and specializes in the field of Law and Language. Prior research concerns legal lexicology and phraseology, legal translation and multilingual interpretation in law. Ongoing research aims at developing cross-disciplinary approaches to the study of legal integration in Europe, combining theories of language, discourse, culture and law. A D D R E S S : Faculty of Law, University of Copenhagen, 19, Skt. Peders Stræde, DK-1453 Copenhagen K, Denmark. [email: [email protected]] L E N E PA L S B R O,

PhD, is Director of the Department of Communication, Business, and Information Technologies at the University of Roskilde. Prior research has centred on reception analysis in a cross-cultural perspective as well as cognitive linguistics and argumentation analysis in specialized communication on economics and law. A D D R E S S : Roskilde University, Building 43.3, 1, Kommunikationsvej, DK-4000 Roskilde, Denmark. [email: [email protected]]


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