Gret Haller
Statehood and Equality
Handling Morality and Law in International Policies
Ecumenical Association of Academies and Laity Centres in Europe, Annual Conference, Boldern (CH), 19. September 2003

Look around for areas of international policy in which morality and law are particularly important, I am practically compelled to start with the events that seemingly began with the terror attacks of 11.9.01. The were continued in what the US president calls the "war against terrorism" , later in the Afghanistan war and finally in the Iraq war. The United States reacted to the attacks in a specific way, although one should probably distinguish between the exponents of US foreign policy, the wider population in the USA and the circles of critical intellectuals. Europe reacted in a specific way that was subject to different changes. The world of Islam reacted, the world in general reacted ­ little remains as it was before 11 September 2001.

Since I am speaking today to a European audience, and to leaders of conference centres from both Western, Central and Eastern Europe, my remarks will primarily reflect the European view and sensibility. And to make it clear right away: by that I mean both that Europe which some people over the Atlantic have recently started calling "New Europe" and that which they seem to disparage with the term "Old Europe" . Relative to my topic, Europe forms a whole and internal European differences are a false distinction. From the start I would like to analyse the relationship between Europe and the United States of America. Europe does not defines itself in terms of its difference over the US and nor should it. Yet I cannot agree with those who still propagate the unshakeable unity of the "West" and anxiously negate the different stances that have emerged in the last few months. British historian Eric Hobschawm put it aptly: "Over against Americans one is European but with other Europeans one feels English or German" ("Die Zeit" , 10.7.03). For Europeans, the important thing about the differing transatlantic values that have surfaced in the last few months lies less in discerning these distinctions than in the realisation of what this European identity is ultimately about. It is not about setting ourselves apart but understanding better what we are ourselves, why we are what we are and what we have to offer in the worldwide interplay of nations.

If you want to better understand these differing positions it will not be enough to look back to 11.9.01 ­ the differences reach much further back, into the 17th century. I want to start with the national self-understanding of the United States, which is very different from that of European states. In 1648 the Peace of Westphalia marked the end of a century of religious wars in Europe. Any religious or moral justification for war was then banned in Europe, and religion was definitively rendered subordinate to the State. At the same time people began migrating to America. Most of the emigrants crossed the Atlantic from economic hardship or a sense of adventure. The few who had an ideological motivation did not want to recognise precisely this new European ranking of state and religion. The Pilgrim Fathers understood their religious communities as structures of public order that did not require a state at all. They believed in the "chosen people" and rejected any state interference. That is how the strict separation between Church and State arose in America. The purpose was never to protect the state from religion, as is the case for Europe. Instead, it was to protect religion from the state, since in the United States religion is above the state.

When nation states were created in the late 18th century this distinction unfolded its full effect. The European nations, without exception, were founded on the state. By contrast, the United States as a nation was founded on religion, albeit expressed in moral categories. No other ground for founding the American nation was possible ­ there is no state-policy identity in the European sense in the USA because the rank order between state and religion is reversed.

The reversal also affected the relationship between law and morality. In Europe law and morality are separate. While moral categories play an important role in the political debate about legislation once a law has come into force it is morally neutral. In Europe, freedom of conscience guarantees that "good" and "bad" people are treated in exactly the same way, whatever we may understand by those categories. All people are judged by their deeds alone, and not by their beliefs. Criminals, e.g. are not evil, they are only deserving of punishment by law. The US do not distinguish between law and morality in this strict European sense. For example, collective lawsuits are practically never decided in court; the moral pressure of public opinion forces the defendant to conclude a settlement. In the United States criminals are considered morally reprehensible. This is also the reason why the death penalty cannot be abolished.

Because the US American nation is founded on religion and morality, the lack of distinction between law and morality is also significant for the national self-understanding. This transatlantic distinction is particularly visible today in international law. In Europe, international law was likewise invented with the Peace of Westphalia of 1648. It constitutes an international legal order to which states voluntarily submit, albeit renouncing part of their sovereignty. For some years now ­ more precisely since 1989 ­ the United States has consistently refused to sign international treaties. It prefers cooperation with friendly states on a case-to-case basis, and sets the "coalition of the willing" aside from the obligations of international law. But here morality substitutes for law: a global international order must be morally neutral in order to achieve its goal. The United Nations and its treaties must involve as many states as possible, without distinguishing between "good" or "bad" states. The "coalition of the willing" is, by contrast, a moral concept in which the "willing" become friends of the US. The "willing" are the "good" and the "unwilling" are given different names, ranging from the term of "clouded friendship" to "rogue state" . These are all moral concepts. The friend-enemy pattern used today by the US is the exact opposite of a worldwide commitment to international law. The two approaches are mutually exclusive.

But why is international law, that has evolved over the centuries, suddenly at risk today? Since 1989 we have been confronted with a new constellation for the first time in history. Up until World War I America was pretty isolated. Then it began to take an interest in the world but always had a strong military opponent. World War I was closely followed by World War II, and then by the threat from the Union of Soviet Socialist Republics (USSR). In the Cold War the United States was relatively European in its stance, as the Eastern bloc had to be kept in check under international law. As of 1989 US national self-understanding was able to expand without restriction. True, the present US president particularly highlights the role of religion in US national identity. However, it would be wrong to attribute the present world situation to the present US administration. All the signs of this transformation have been observable since 1989.

The US national self-understanding is mainly visible in the concept of "national interest" . This is not to be compared with what all European states could begin to understand by the same concept. When Americans argue for the "national interest" they implicitly always mean that this nation is God's chosen people. And they mean that this nation stands for the morally "good" as such. US "national interest" cannot be measured by European moral criteria as it constitutes, in itself, a moral yardstick founded in religion. This can only be explained by the reverse order of state and religion in the United States. This order also explains why the US can wage a war on moral grounds in our day and age. And it explains why this nation has to uphold the illusion of its own invulnerability. The reasons for the different views on both sides of the Atlantic are reflected in the history of ideas and go back to the 17th century. But it was only in 1989 that this became really clear to enlightened European states.

This national self-understand of the US ultimately leads to another understanding of human dignity than that which we have in Europe. Let me explain. US national identity derives human dignity from people identifying with the good for which this nation stands. Human dignity understood thus achieves universality in that, the world over, all people can subscribe to the values embodied in this nation. That explains the sense of mission of many US citizens. They see two kinds of people: one group believes in the values of this nation, the "others" do not, or not yet, because they are prevented from doing so by circumstances. A terribly clear example is the incomprehension on the part of much of the US population for the reactions of the Iraqis to the occupying forces. They had been expected to welcome the soldiers as liberators and then they were shot at. Taken even further, US national identity may lead to equating the national interest of the United States with the interest of the whole of humanity, because in this worldview the US nation acts as good "stewards" for the whole of humanity.

This understanding of nation explains the phrase "fighting evil" and, above all, why the representatives of US foreign policy consider themselves authorised to define this moral category on behalf of their country alone. No international exchange of views is planned, you can only agree or not agree with this view. The course taken by US foreign policy since the terror attacks of 11 September 2000 has made this understanding of human dignity suddenly tangible. Anyone who does not bow to the moral leadership of the US is numbered among the "others" . That is the reason why US foreign policy is humiliating for these "others" , regardless on what continent they live. The feeling of humiliation is caused by the moral exclusion on the basis of an inflated US national identity. And the reason is that human dignity thus understood is conferred on a national basis.

The fact that in Europe the nation state has always been far more advanced than in the United States is also to do with the differing view of humanity and the notion of human dignity and security. That is to say, a person has dignity only when and inasmuch as all people have the same dignity. Europe learned this lesson from a long history of violence and bloodshed. Europeans has learned the hard way what happens if you seek to exclude. First, the violent consequences of religious exclusion were felt, and later those of national exclusion, both leading to ghastly wars. Social exclusion was countered in Europe through the the establishment of social security systems which guarantee ­ at least, they have so far ­ that individuals do not fall through the social safety net. One only has personal security in this field too when every other person enjoys at least a minimum of security. Precisely that is the basis of the welfare state as developed in Europe – in some countries a bit more than in others. Security is quite centrally related to the understanding of human dignity. And that is why I believe that in the long term Europe has better methods than the United States to guarantee security.

In this context I would like to take up another line, which has also strongly influenced current events. It is the history of Europe in the second half of the 20th century. Since World War II there has been a paradigm shift in Europe with regard to the concept of nation. In the 18th century "nation" designated a purely cultural phenomenon that had nothing to do with politics. This phenomenon is still termed "cultural nation" . It was only with the French Revolution that the concept of "state nation" arose. The newly founded republic had lost its identifying figure. The French king had said, "L'état, c'est moi" (I am the state) and then had lost his head. The ideals of the Enlightenment were too abstract for an identity to be derived from then. So the "cultural nation" was turned into a "state nation" , which now served as an identifying vessel for the republican concept of state. That is how the nation state arose.

We all know what atrocities the nation can lead to as soon as it takes the form of nationalism. In Europe that led to acts of violence as cruel as those a few centuries before, when this continent was shaken by wars of religion. In speaking of a paradigm change in the European understanding of nation since 1945 I mean the following: after 1945 a link was made to that step taken in the French revolution, connecting the state with the nation. But things now took the opposite direction. If we talk of national identity today in Europe we always mean the two components contained in this identity. One the one hand, there is state-political component of identity comparable to the republicanism created by the French revolution. On the other, there is a "national" component, understood in the sense of the old cultural nation, i.e. it is actually a cultural home. These two components were never separated up until 1945. But the shock of two world wars meant that the European nation states were willing to transfer part of their state-political identity to the European level and establish there a common area of law. However, national identity, understood as cultural home, has remained where it historically arose, i.e. at the level of the nation state and even in small-scale regional subdivisions such as Bavaria or Lombardy. Europe will never become one nation. Europe must not strive for national identity since its strength and its future lies in the slowly advancing replacement of state-political by the national component of its identity. Or, in other words, a state-political identity is forming and growing in the European Union (EU) that has overcome and cast off its fatal link with national identity. That is the basis of the European peace order and hence also the basis of the peaceful coexistence of people The paradigm shift has become possible through the terrible experience of two world wars.

But the paradigm shift follows a pattern that has a long history in Europe, and which I have already mentioned, i.e. the pattern of the Peace of Westphalia. Religion was then secularised, meaning that it was bound up in a higher legal structure. As I have mentioned, Europe discovered international law at the time, the states agreeing that they wanted to tie in religion in this way. That too was a paradigm shift, one that has had repercussions on Europe to this day. It provided the model for the paradigm shift that ensued from 1945. The EU does not just give rise to international law – we are witnessing the emergence of the next step, supra-national law. But the underlying philosophy is the same as since 1648. That is why I refer not just to the secularisation of religion that took place in 1648 but also to the secularisation of the nation that has been taking place in Europe since 1945. Between nationalism and violent practice of religion there are not just parallels in the form of rites and celebrations – nationalism is always based on the idea of being chosen, one common to the religions before their secularisation. That is why it was also possible, after the successful secularisation of religion in Europe, for such destructive wars to take place in which nations assumed the role played by religions before 1648. If we imagine history as a spiral we could say that after 1648 it took another turn, but on behalf of the nation, no longer on behalf of religion. One could also say that the Peace of Westphalia was only effectively implemented after 1945. German sociologist Ulrich Beck recently said something similar in comparing the separation of state and religion in the Peace of Westphalia with a separation of state and nation, which in a cosmopolitan Europe could also be one response to the "world (civil) wars of the 20th century" .

Allow me a parenthesis on the wars of the 1990s on the Balkans, where I worked for five years. These wars were not wars of religion but were caused by ethno-nationalist factors. Ethno-nationalism leads to a monolithic ethnic identity. It annihilates state-political components of national identity and thereby national identity becomes nationalist. Or put the other way round: national identity is only protected from turning into nationalism if it also has a strong state-political component. That is why the Balkans can only be pacified by the creation of state-political identity; only that way is liberation possible from monolithic ethnic identity, that always leads to the use of force. Exactly the same development is necessary in the Balkans as was striven for in Western Europe after 1945, and that is the secularisation of the nations in the broadest sense, and their integration into a structure based on the rule of law. As soon as the state-political component of identity has become sufficiently strong again, inhabitants of different origins will be able to live together again in the individual states. Nationalism ­ particularly ethno-nationalism ­ seeks to match up the borders of cultural nation and state-nation by force. 200 years ago that was still possible ­ France is the clearest example of that. But the Balkans show us that it is no longer possible today. In the Balkans cultural nations are many and varied. If you try to make them into state-nations this will automatically lead to wars as many territories are claimed by different cultural nations. The reason is that the great empires survived for longer in Central and Eastern Europe than in Western Europe, the Ottoman empire, the Hapsburg dynasty and the Russian Romanov empire. I cannot imagine that the way forward for the Balkans consists in taking another 200 years about it, as western Europe did after the French Revolution. Nation states are being formed, or reformed now, and they are certainly sovereign, yet these events are already being influenced by the "separation of state and nation" going on in western Europe (see Ulrich Beck – "Die Zeit" , 10.7.03). The important thing ­ and why I opened this parenthesis in the first place ­ is that the Balkans has the same path before it as Western Europe has trodden since 1945 and Europe as a whole since 1648.

I will take up the catchword "morality" here because it enables us to pursue another line in a similar direction. To reformulate my position: in European usage "law" is the name for collective morality. My premise is that every person bears good and bad in themselves. It lies in their moral responsibility whether they let out the good or the bad. But if moral categories are to be generally binding they must go through a certain process. There has to be a public debate about what is to be collectively regarded as good or bad. This is called democracy and the result is applicable law. Good and bad are transposed into different legal standards, e.g. the good into fundamental values and bad into actions prohibited under the penal code. As soon as good and bad are forged in applicable law they are no longer termed "good" or "bad" . The law is morally neutral. A criminal offender is punishable but is not "evil" , as I indicated above. That is why "law" is the name for morality collectively declared to be valid. Law always arises through an exchange of views ­ if two people agree on what is to apply between them, the result is a contract. The parliamentary exchange leads via majority decisions to laws. International law arises through the interaction of states and is approved in its main features by national parliaments. One cannot conclude a contract with oneself, just as one parliamentarian cannot pass a law. Since the invention of international law it has been clear for Europe that law can only arise through an exchange of view even in relations between states. The same procedure is raised to the supranational level in the EU.

These thoughts on the relationship between law and morality touch upon the previous reflection on the relationship between law and nation. The EU does not just embody the overcoming of nationalism in that a state-political identity is being formed as distinct from national identity ­ the practical process consists in the creation of a common legal area that is above the nation state. With the decision to create this all-European legal area, state-political identity was raised above the link to the nation. Furthermore, morality ­ to the extent to which it relates to the handling of public order ­ has taken on an all-European dimension and can therefore no longer be described as national. Because there can be no all-European national identity, but only a state-political one, this thereby averts the danger of one nation alone defining moral categories. Morality declared to be collectively valid always takes the form of law and this law is always passed democratically ­ i.e. with the participation of all concerned. This applies in the case of participation by the European Parliament or by the monitoring of governments of member states by national parliaments. The crucial thing is that morality is replaced as the foundation of public order by the nation and it is enshrined in law Europe-wide.

Because you are responsible for European academies and conference centres that define themselves as religious I would now like to enlarge on the role of religion. In this context we have to distinguish between religion as a private matter and religion in structures of public order that guarantees social integration. In Europe values derived by individuals in private from religion have to follow a special process to find their way into public order structures, which are primarily state structures. This process is the same as for moral value judgements or other convictions, whatever they are based on ­ faith, experience or reason. Individuals must bring their beliefs into the public discussion, so to speak "translating" them into a language that people can also accept if they reject religion as such. That way these values will rise to the level of public order structures, where they will be confronted with other values, which have likewise been translated from their respective spheres into a general language, so that they can take the form of law. In Europe there is no way to make religious, moral or other value judgements directly binding for other persons apart from the law. Legislation serves as a kind of filter for the claims made on individuals: these claims can only be binding on the individual in his or her capacity as someone subject to the law when they have gone through the procedure in which the same individual can take part in his or her capacity as a citizen. This is again the precondition for being able to demand of the individual person the respect for those laws that they may reject as citizens but where they are in a minority and were voted down. And due to this procedure the obligation to respect legislation is no longer a moral, or even religious obligation, it is merely a legal one.

We have already looked at the situation beyond the Atlantic. Just as moral ideas directly influence social debate in the United States this also happens with religious values. Religion thereby takes on the status of a structure of public order, for which there is certainly a need since, unlike in Europe, public order is not primarily that of the state. Each society needs, and has, a structure of public order. If it is not based on statehood (Staatlichkeit), something else will take its place.

Particularly in economic matters we are today confronted with a massive wave of denationalisation (Entstaatlichung). In your capacity as leaders in academies and conference centres you undoubtedly have experience of the state withdrawing from your work. But I would like to go beyond the purely economic field here and look at denationalisation from the angle of identity. Individuals freed from a state structure will seek bonds. When state-political identity fades another form of bonding must appear. After all, everyone needs a balanced relationship between freedom and bonds, whether they are aware of that or not. Denationalisation is therefore less concerned with having more, or less, freedom, than with the question of how freedom is defined. For lack of state-political identity there is a certain necessity in the USA to believe in "voluntary communities" so that freedom and bonds will stay in balance, with national identity, reinforced by religious elements, guaranteeing the cohesion of society. In Europe this cohesion is guaranteed by state-political identity and, conversely, the possibility of organising one's own life free of religious affiliation and free of bonds with "communities" , and also to allow national identity to continue to recede. Denationalisation thereby means no more and no less than two movements: first, the moving of freedom from one area to another and, second, the moving of bonds from one area into another. It is therefore not the case that denationalisation leads to enormous freedom, whatever the protagonists of an ideology of denationalisation may understand by freedom. Something takes the place of statehood, and that something is religion. It becomes manifest either directly in religious categories or in moral ones, which the individuals are called on to respect directly, without being protected by the filter of legislation.

There is a "third" factor in all societies, wherever they may be at home on this planet, either now or in the past. This third factor goes beyond the purely horizontal relations between individuals and is a social glue, providing cohesion and enabling individuals to develop a social identity that also extends beyond their purely horizontal relations to other individuals. At the beginning of humankind the third factor everywhere was religion, and later it was able to be a mix of religion and state. In the Middle Ages the state and religion entered more into competition, with both claiming to embody this third factor. In the Europe of 1648 the state won; beyond the Atlantic it was religion. When Romanticism subsequently invented the nation this new invention served on both sides of the Atlantic as a mantle for the respective third factor: America clad religion in the guise of the nation, Europe clad the state in the guise of the nation. In Europe the third factor, here statehood, is slowly beginning to take off the cloak of the nation. The bloodstains on this cloak are new in some cases, in others extremely faded, but the cloak is worn out. Only now are we realising that the third factor on either side of the Atlantic is not the same, and has never been. And yet, on both sides, the two mantles in which the "third party" has been clad look alike.

And so it is no accident that from the other side of the Atlantic they are watching with such suspicion to see what comes out from under the mantle that Europe is cautiously beginning to take off, namely Europe's statehood and the state-political identity of Europeans. What is coming out, is something that people in the USA thought they had definitely left behind them. Religion, that beyond the Atlantic constitutes the third factor, will not take off the mantle of the nation in the next few decades because religion as a third factor without the mantle of the nation is inconceivable for the US. Statehood and nation have fitted together pretty well in Europe over the last 200 years, only the wheels of time have now rolled on, and suddenly we are noticing that discarding the mantle has been on the agenda for some time now. Each society ­ including European society ­ needs a "third" factor. If you take this third thing away from people they will immediately design another one to replace what they have lost. In the history of ideas in Europe statehood is a very costly thing.

That is why I chose the term "statehood" for my heading. Equality needs statehood. And statehood is the precondition for the creation of law – law that treats all alike and law that contains morality declared to be valid in a collective procedure. We have developed all this in Europe over centuries; a painful and guilt-laden history has forced Europeans to tread this path. Let us continue to support these ideas, and move forward together. It will be worth it!