The historical-sociological foundations

The Achilles Heel of Constitutional Jurisprudence: Conceptualization of Minority Rights by Constitutional Courts in Central and Eastern Europe

“…Such a fiction simply does not correspond to reality, since nation-states are usually inhabited by diverse ethnic groups that use different languages and share different cultures and traditions (Kymlicka and Straehle 1999, 73; Pan, Pfeil, and Videsott 2018, 3; Žagar 2002, 82–85). This fiction results from the German model of ethnic nation-state, which is based on “the recognition and legal institutionalisation of ethnic differences in terms of belonging to linguistic or religious communities conceived as socially closed and culturally homogenous” (Marko et al 2019, 149). Here, the foundational concept is the nationality principle requiring the “right to national self-determination based on the Herderian equation of one language as the objective basis for the definition of one people with a right to form its own national state.” Cultural diversity is “redefined into ethnic difference providing the ground for the categorical distinction between the majority population and ethnic minorities” (Marko et al 2019, 149–150).…”

“…This fiction results from the German model of ethnic nation-state, which is based on “the recognition and legal institutionalisation of ethnic differences in terms of belonging to linguistic or religious communities conceived as socially closed and culturally homogenous” (Marko et al 2019, 149). Here, the foundational concept is the nationality principle requiring the “right to national self-determination based on the Herderian equation of one language as the objective basis for the definition of one people with a right to form its own national state.” Cultural diversity is “redefined into ethnic difference providing the ground for the categorical distinction between the majority population and ethnic minorities” (Marko et al 2019, 149–150). The spread of the ethnic nation-state model in Central and Eastern Europe during the 19th and 20th centuries resulted in a situation where “myths of common ancestry, language, culture, and history created by linguists and historians were turned into politically decisive and divisive factors” (Marko et al 2019, 155).…”