ࡱ> UWTRLbjbj .Phh,&   OR<8)Dmh!d p |  $`"% Qdd "!  @^[ 8!0h!%%% S ah!%  :ROLE OF ACADEMICS IN THE INTERCULTURAL DIALOGUE IN THE ENLARGED EUROPE Sinia Rodin  One of the standard definitions of culture describes it as the system of shared beliefs, values, customs, behaviors, and artifacts that the members of society use to cope with their world and with one another, and that are transmitted from generation to generation through learning.  Dialogue is interaction that seeks to discover meaning (through meaning, Greek  + ). Dialogue is a form of interaction of individuals, and between cultures. I will try to organize my thoughts about the intercultural dialogue in the enlarged Europe by reference to four great scholars. Paul Feyerabend, Iris Marion Young, Philip Allott, and Thomas Samuel Kuhn. I. To have a say means to have power. Power of dialogue is one of the main driving forces of European integration. Yet, that dialogue between Europe's East and West was absent during the large part of 20th century. Once it re-emerged, the dialogue between the two sides was not one between equal partners. Post-communist societies that succeeded in effort of making their nation states members of the EU, voluntarily accepted a method of communication in the process of integration that Paul Feyerabend calls guided exchange. In such a form of communication, ...some or all participants adopt a well specified tradition and accept only those responses that correspond to its standards. So the enlargement of the EU took form of guided exchange in which the candidate countries accepted a minimum of political, legal and cultural standards. Although the moment of accession to the EU has largely ceremonial character, it makes at least one difference of gigantic importance it changes the nature of discourse between the Member States and the acceding party. In other words, following accession, the nature of the discourse changed into the free exchange, i.e. a situation where one side, explicitly or implicitly, refuses to accept the standards of another legal tradition and insists on such communication where the participants get immersed into each others ways of thinking, feeling, perceiving to such an extent that their ideas, perceptions, world views may be entirely changed. II. Legal culture that developed in Europe's West, when confronted with Central and East European legal culture, in process of accession assumed position of the dominant legal culture as understood by Iris Marion Young.  While her work concerns primarily oppression related to gender, I find her concept of dominant culture productive in the present context. To paraphrase the idea, the dominant social group gradually develops dominant understanding of legal culture which it takes for granted and understands it as universal. As a consequence, all different cultures are understood as wrong and mistaken, what is often accompanied with normative claims directed against aberrant practices. Understanding of West-European legal culture as dominant in respect of legal culture of the candidate countries served as an implicit justification for the so-called conditionality policy that was widely practiced in the pre-accession period. However, the problem of dominant legal culture is present on the both sides of Europe. For example, some post-communist states have very strong opinions about certain traditional values, such as marriage and civil status in general, formal legal requirements, methods of interpretation, legal education, etc. Due to nature of European Law which does not apply to purely internal situations in the Member States, dominant legal cultures stay entrenched and their communication remains in form of free exchange. Participants to the dialogue insist on their positions as being right and undisputed and consider different cultural patterns as an aberration, or at least an exception or a mistake. Discourse between the cultures becomes burdened with numerous instances of semantic dissonance in discourse between legal professionals and citizens in general Among those are different understanding of the Rechtstaat, different approaches to normativity of constitution which is often understood as a political rather than a legal instrument or different understanding of separation of powers especially when it comes to the role and powers of the judiciary. Despite of the extensive legislative reforms, those differences were not harmonized and still exist in legal discourse, which has now taken form of free exchange. One of the examples of entrechement into a dominant legal culture can be found in the refusal of an European Court of Human Rights panel to recognize indirect discrimination and insistance on discriminatory intent as condition for violation of Art. 14 of the European Human Rights Convention in Czech Roma Education Case.  In that Case the European Court of Human Rights decided that placement of Roma children in "special schools", in fact schools for children with mental disabilities, where proportion of Roma children in such schools amounts to 80% to 90% of all pupils, does not amount to discrimination prohibited by Art. 14 of the European Human Rights Convention. Four out of seven judges hearing the case were from the non-EU States, notably from Hungary, Czech Republik, Lithuania and Ukraine.  After the Grand Chamber had reversed the decision and embraced the concepts of indirect discrimination, shift of the burden of proof and looked into the effects, rather then intention, the first instance panel, again, reversed to the old position in Oru v. Croatia,  indicating the interpretative rift within the ECHR. There are other examples witnessing that on the side of acceding states, residual national resistance did not disappear. Instead of accepting guided discourse, national dissenters insisted on construction of national as against European identity. As a consequence parallel existence of the two identities, national and European, created a situation in which genuinely European discourse is confronted with national. Advocates of European values get confronted with traditional paradigm. In such confrontation, European discourse is facing two dangers: marginalisation and assimilation. Marginalisation can be described as a phenomenon where national issues and themes replace European. Protectionism as against free market; national, as against multi-level constitutionalism. National values come ahead, European topics are ignored. On the other hand, assimilation can be described as presentation of genuinely European artefacts as national. Errant understanding that directives once implemented into national law become irrelevant while national law completely absorbs them is one of the examples. Multiplicity of understandings how to implement the requirements of the Bologna process is another.  European becomes consumed by dominant national culture. European dialogue is created, but it is de-nationalized. III. There is no fast solution to the problem. It will take a paradigmatic shift as described by Thomas Samuel Kuhn. For Kuhn  a paradigm is a collection of beliefs shared by scientists, and arguably other social networks. It is a set of agreements about how problems are to be understood. In Kuhn's words "no natural history can be interpreted in the absence of at least some implicit body of intertwined theoretical and methodological belief that permits selection, evaluation, and criticism. Paradigms offer a promiss of success in solving future problems. All so-called normal sciences are based on an assumption that they know how the world looks like. Due to that assumption, normal sciences, or generaly speaking, to translate it to language of Iris Marion Young, dominant social groups, often supress fundamental discoveries and resist a change. The paradigmatic shift takes place in times of crisis, when normal sciences (and dominant social groups), are not able to solve new problems, while, at the same time, such new problems can be better predicted, explained and solved from the perspective of a new paradigm. After the paradigmatic shift, the understanding of world is fundamentaly changed. Earth becomes a sphere and not a flat resting on the showders of Titans. Community law has been through a paradigmatic shift since the landmark Van Gend en Loos Case. European legal order is a new legal order in favor of which Member States have limited their sovereign rights, albeit in limited fields.  Europe's spirit has been through a similar shift since the Schumann Declaration. In terms of Europe's identity, such shift means construction of identity as against negative historic experiences of nazism and communism, instead of its construction as against each other. Such European law, policy and identity are the soil from which intercultural dialogue grows and prosperes. IV. Europe is still too much governed by diplomacy instead of democracy and, the final paradigmatic shift is still yet to come. When it comes about, it will not be delivered by States and diplomats, but by European men and women. To put it in the words of Phillip Allott, The people of Europe have watched patiently as one gang after another has strutted across the stage of European history, seeking to rule our lives: kings and courtiers, bishops and priests, generals and politicians, bureaucrats and tax collectors, factory owners and financiers. The so-called European Community is merely the latest in a long line. And he continues: The true European Community is the society of Europe which has been made by and in the European mind.  It is to hope that Europe will become to be construed in terms described. Therefore Europe needs intercultural dialogue, therefore Europe needs academics.  Jean Monnet Chair, University of Zagreb, Faculty of Law  Daniel G. Bates, Human Adaptive Strategies: Culture, Ecology, and Politics, 3 rd edition, Allyn & Bacon, Boston, 2005  Das Sagen-haben bedeutet Macht haben. Paul Kirchof, Recht wirkt durch Sprache, (2004) Festschrift fr Erik Jayme, Band 2, p. 1167, Selier, Munich.  Paul Feyerabend, Science in a Free Society (1978) NLB London, at p. 29.  Id.  Iris Marion Young, Justice and the Politics of Difference, Princeton Universtiy Press, Princeton 1990  CASE OF D.H. AND OTHERS v. THE CZECH REPUBLIC, Application no. 57325/00, Judgment of 7 February 2006  The case was decided by Mr J.-P. Costa (France), President, Mr. A.B. Baka (Hungary), Mr. I. Cabral Barreto (Portugal), Mr. K. Jungwiert (Czech Republic), Mr. V. Butkevych (Ukraine) Ms. A. Mularoni (San Marino) and Ms. D. Jo ien (Lithuania), judge Costa concurring.  Application no. 15766/03, judgment of 17.7.2008  For example, pre-Bologna degrees acquired at universities of former Yugoslavia were fully compatible. Now, after having implemented the Bologna process, which was supposed to harmonise the degrees, they are not any more. This is, in my view, due to the national interpretation of the Bologna process.  Thomas S. 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