We, The European People - . .'-Relâche?: Karl-Heinz Ladeur

European Law Journal, Vol. 14, No. 2, March 2008, pp. 147167.
2008 The Author Journal compilation 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
We, the European People . . .Relche?

Karl-Heinz Ladeur*
Abstract: The failure of the European constitutional treaty has not been taken seriously by the European constitutionalists. It is regarded as a kind of accident which will be repaired in due course. The article is a plea for a reopening of the debate on Europeanness. Europe cannot and should not be a superstate; nor can it be a kind of revival of the European nation state which is threatened by globalisation. Even less can it be a community of post-national deliberators as Jrgen Habermas would have it. Europe should be constructed as an entity of its own which responds to the heterarchical relational logic of fragmentation which characterises post-modernity and globalisation of which it is a part. It cannot be its counterpart. Europe does not need a constitution, and it does not need a people either.
We the, hmm, . . . European People . . .

The debate on the European Constitutional Treaty1 has, from inception, been marked by an illusion about the meaning of the term constitution. Did the French and the Dutch refuse to pronounce the performative words we, the European People . . . that the protagonists of the Constitutional Treaty expected to hear from them? If this were the case, it should have serious consequences for the self-interpretation of the EU. This is why the no, we are not . . . of even a majority of the voters of two of the founding
* University of Hamburg, Law Faculty, Schlterstr. 28 Hamburg D 20146 Germany. 1 See N. Walker, Europes Constitutional Momentum and the Search for Polity Legitimacy, (2005) 3 International Journal of Constitutional Law 211; N. Walker, Big C or Small c?, (2005) 12 European Law Journal 12; Ph. C. Schmitter, How to Democratise the European Union . . . and why bother? (Rowman & Littleeld, 2000); M. Nettesheim, Developing a Theory of Democracy for the European Union, in J. H. H. Weiler (ed), Issues in Legal Scholarship: Richard Buxbaum and German Reunication (New York University, 2000), Art 13; A. von Bogdandy, The European Constitution and European Identity: Potentials and Dangers of the IGCs Treaty Establishing a Constitution for Europe, in J. H. H. Weiler and C. L. Eisgruber (eds), Altneuland: The EU Constitution in a Contextual Perspective, Jean Monnet Working Paper (NYU School of Law, 2004), at 1; U. Di Fabio, Die politische Gestalt Europas, Frankfurter Allgemeine Zeitung, No 168, 22 July 2006, at 8; S. Oeter, Souvernitt und Demokratie als Probleme der Verfassungsentwicklung der EU, (1995) 58 Zeitschrift fr auslndisches ffentliches und Vlkerrecht 659; J. Habermas, Warum braucht Europa eine Verfassung?, Die Zeit, No 27, 28 June 2001; for a critique, see A. Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (Cornell University Press, 1998); A. Moravcsik, What Can We Learn from the Collapse of the European Constitutional Project?, (2006) 47 Politische Viertejahresschrift 219; D. Grimm, Does Europe Need a Constitution?, (1995) 1 European Law Journal 282; for a critique of Habermas, see L. Thomassen, The Inclusion of the Other, (2006) 34 Political Theory 439; see the rather helpless comments after the failure of the Constitutional Treaty by G. De Brca, After the Referenda, (2006) 12 European Law Journal 6; N. Walker, Big C or Small c, (2006) 12 European Law Journal 12.
European Law Journal
Volume 14
members of the EC is not really taken seriously: they must have been joking with us, say the protagonists of Europeanness. At this point, the deliberative constitutionalism2 can bring its strengths into play: it is based on a double standarddeliberative democracy as a decision-making procedure always comes back on democratic deliberation if the outcome does not correspond to the subtext of the all but open process. Deliberation never ends, and thus the participants in France and the Netherlands have not expressed themselves deliberately. Play it again, Sam . . . However, what would have been different, in fact, if the French and the Dutch had lived up to deliberative expectations (and if there had not been other mistakes)? Can the performative act of pronouncing the magic words we, the people . . . be committed by a narrow majority, at all? Do the ritualised words silence minorities?3 Did they only have bad arguments which cannot count in deliberation? Or can one expect the underlying minority to give in or to resign? This would not be a very convincing basis for the far reaching declaration that the protagonists hoped to hear from them. The meaning of the act itself would, had it been pronounced, have been far from clear or denite. We might have an idea of what a constitution is, and also of what an international convention is, but how about a mixture of both, the constitutional treaty? As even a hypothetical positive majority had different motives and aims, the second-order democratic deliberation on the meaning of the rst-order deliberation of the people should proceed cautiously. One cannot simply attribute a sense of belonging to the same deliberative community to the participants in the constitutional debate.4 One can vote for a constitution which one regards as a bad solution to a problem simply because one takes the view that a better one would not have found sufcient support, or a failure of a constitution might be regarded as a backlash forin this caseEurope. The specicity of the discussion about the constitutional convention consisted in the fact that a major part of the electorate did not want a better one, but wanted no constitution at all. This gives the discussion a specic accent, whereas, at the level of the nation state, plebiscits about constitutions normally are usually characterised by the vote on alternatives which stand on a par. This creates new lines of conicts and compromises. Those who do not want a constitution can even mobilise a much broader range of motives than the protagonists. This fact found its repercussion in the extreme heterogeneity of the coalitions which made the convention fail in both countries. The intellectual part of its protagonists, the deliberative constitutionalists in particular,5 wrongly took this for the strength of their deliberation, which attributed itself the capacity of positively dening what
2
For its theoretical foundations, see Habermas, op cit n 1 supra; O. Gerstenberg and Ch. F. Sabel, Directly-Deliberative PolyarchyAn Institutional Ideal for Europe?, in C. Joerges and R. Dehousse (eds), Good Governance in Europes Integrated Markets, Collected Courses of the Academy of European Law (Florence, 2002), at 289; from a legal point of view, see Nettesheim, op cit n 1 supra; S. Griller and E. Rumler-Korinek, Democracy and New Modes of Governance in Europe. Some Basic Reections, NewGov Project WP (August 2005); for a theoretical critique, see A. J. Norval, Democratic Identication. A Wittgensteinian Approach, (2006) 34 Political Theory 229, at 241. This seems to be N. Walkers hope: Walker, Europes Constitutional Momentum and the Search for Polity Legitimacy, op cit n 1 supra. For the supposed importance of the we feeling, see Walker, Europes Constitutional Momentum and the Search for Polity Legitimacy, op cit n 1 supra, at 212who is the bearer of this we feeling? Is it not rather the professional community of constitutionalists who pronounce: We the constitutionalists . . .? The convention is explicitly regarded as a product of deliberation in the theoretical sense by Nettesheim, op cit n 1 supra, at 38; see also D. Gler, DeliberationEin Zukunftsmodell europischer Entscheidungsndung? Analyse der Beratungen des Verfassungskonvents 20022003 (Nomos, 2006).
2008 The Author Journal compilation 2008 Blackwell Publishing Ltd.
148
March 2008
We, the European People . . .
the constitution is, while, on the opposite side, they saw nothing but the denial of deliberative rationality. This view is perhaps also due to a dformation professionnelle of lawyers who, once a constitution6 has been put in place, have to interpret it in a normative way which systematically tries to ignore the strategic impact of this new constitution. To a certain extent, this is to be attributed to the specic approaches of the legal system, which has to focus on its eigen-rationality and introduce a constitution into the network of constraints of consistency and of links to values and traditions which are needed for the legitimisation of concrete constitutional decisions, say, of a constitutional court.7 But this does not rule out the necessity of having a closer look at the social, political, economic and cultural conicts which structure the constitutional discourse. To regard the discussion in the convention in retrospect as an example of a rational deliberation8 is highly problematical. Although B. Ackerman9 refers constitution building to real political mobilisation, the abstract conception of deliberation in the Habermasian vein can apparently do without the political involvement of groups and individuals this is precisely the constellation of the European Convention: apart from politicians and an administrative or academic elite, there was no real participation of the people in the alleged demos-building process of the EU.10 This lack of involvement clearly allows pure constitutional deliberation to prevail. It seems to be a demos which is composed of arguments alone, and not of people. Is this how we have to interpret a (post-)modern constitution? In the following sections I would like to demonstrate that the abstract ideas about European constitutionalism tend to supersede several historical specicities of nation building and constitutionalism which emerged at the level of states mainly in the nineteenth century. At the same time, constitutionalism does not consider the postmodern conditions of the functionality of legal systems, the tendencies toward a fragmentation of social systems and of the evolution of constitutional law in the last 50 years, in particular. In a rst step I will try to show that the popular evocation of the American constitutional history is misleading (section 2). Then I will point out the strategic character of constitutions which makes them dependent on the uncertainties of a historical context (section 3). The next step will raise the problem of the evolution of liberal constitutions under conditions of the modern group-based social state (section 4) and question both the theoretical assumptions of the Habermasian deliberative constitutionalism (section 5) and the possibility of meetint the challenge of post-modernity by preserving the acquis tatique of European history in the constitution of a big European superstate (section 6). The last sections set forth the idea of a new logic of institution making in the EU beyond constitutionalism (section 7) and nally try to give an outlook on future evolutions (section 8).
6
8 9
10
See, also, for the World Trad Organisation, J. Trachtman, The Constitutions of the WTO, (2006) 17 European Journal of International Law 623. Y. Dotan, The Spillover Effect of Bill of Rights: A Comparative Assessment of the Impact of Bills of Rights in Canada and Israel, (2006) 54 American Journal of Comparative Law 293. Nettesheim, , op cit n 1 supra, at 38. B. Ackerman, We the People (Harvard University Press, 1991); R. Hirschl, Hegemonic Preservation: Assessing the Political Origins of the European Constitution, NYU Jean Monnet Program (WP 5/04). See the sceptical remarks of J. H. H. Weiler, In Defence of the Status Quo: Europes Constitutional Sonderweg, in J. H. H. Weiler and M. Wind (eds), European Constitutionalism Beyond the State (Cambridge University Press, 2003) at 7 and 8.
149
Volume 14
The Myth of the Performative Character of the American Pronouncement of the Magical Words We the People . . . ! The Double Sense of the American Constitution
The rst misunderstanding which haunts the debate on European constitutionalism is the mistaken example of the American Constitution. The comparison of this constitutive act with the famous American constitutional wording11 is all the less fruitful as one may, with good reason, assume that the specic constitutional momentum in the USA could, in fact, be interpreted as the institutionalisation of the Americans as a people whose members had thrown off the ties which linked them to their diverse countries of origin.12 The foundation of the USA was in fact a repercussion of the reproduction of the citizenship of the individual members after they had at rst only put their foot on a new land where no state order had existed before. In Europe this is apparently different. At the bottom of the American performative act13 of a new political identity, and, in fact, a new republican, discourse on a political, economic, religious and cultural understanding of society was established which found its expression in the American Declaration of Independence. The consent of the people14 as a new foundation of state and society cannot be reduced to the common declaration of a constitutional act. It constitutes the new individuals of society,15 as well. If it is no longer the traditional monarchy and its sovereignty which was derived from the past, it is not the pure declaration alone which can attribute legitimacy to the new state.16 The expectations are much higher: the individual who has left aside the old links and constraints has to constitute himself as a citizen who organises his life by himself and that of his community and has to acquire the knowledge and the capabilities which are needed to meet the challenge.
The Political, Economic, Cultural and Legal Complexity of Government by Consent and the Embeddedness of Early Liberal Constitutions
This complex intertwinement of social, cultural and political requirement of the new forms of government by consent17and not by traditioncannot be reduced to a legal declaration. Nation building in the liberal ages is a much more complex phenomenon which has developed in European countries in a different time dimension.18 At a more abstract level, nation building can be described as the process of transcending the self-orientation and self-identication by way of reference to both local and regional conventions and practical knowledge, and, instead of constructing an identity relating to a more abstract common cause and by accepting therewith the necessity to get involved in a more rapid process of continuous self-transcendence as
11 12 13 14
15 16 17 18
See also B. Ackerman, We the People. Foundations (Harvard University Press, 1991). E. Marienstras, Nous le peuple amricain (Gallimard, 1988). This concept is used by Habermas also with respect to the European constitution: op cit n 1 supra. cf G. Brown, The Consent of the Governed. The Lockean Legacy in Early American Culture (Harvard University Press, 2001). M. Schroer, Das Individuum der Gesellschaft (Suhrkamp, 2001). cf Weiler, op cit n 10 supra. Brown, op cit n 15 supra. cf for Ireland M. Kornprobst, Nation-Building and National Identity: The Reconstruction of Irishness, (2005) 11 Nations and Nationalism 403; generally A. Hastings, The Construction of Nationhood (Cambridge University Press, 1997).
150
March 2008
opposed to the stability of local communities and communal networks of interrelationships.19 Nation building, in this view, is a very complex process. Against this background, the modern codications, such as the French Code Civil20 or the German BGB,21 have a meaning which is very much different from the post-modern harmonisation of legal systems. The great codications were not only national rules (as opposed to local and regional ones), they were more enlightened, they were more dynamic (and more abstract) than their predecessorsif there were written laws at all. This is also true with regard to the higher potential of selfobservation and self-reection which were inherent in modern doctrine.22 It was open towards the requirements of modern industry and no longer referred to stable models of rules. The present discussion on a European constitution and its strong focus on the (expected) symbolic performative effect of its ratication in the Member States has left aside the embeddedness of each constitution in the legal paradigms, models of collective order,23 self-understanding of individuals which are also inherent in postmodern European societies. However, it would be an illusion to isolate government by consent from its historical underpinnings and transform it into an abstract principle of deliberation.
Post-Nation Building in Europe as a Pure Self-Constitution of Enlightened Individuals?

Europeanisation seems to have the meaning of post-nation building24 at a much higher and much different level of abstraction than nation building in modernity. Its abstractness is not linked to a new legal model as its infrastructure, which was the case in revolutionary France.25 There is no message which could be attributed to the new European constitution beyond the pure self-reference of a European deliberation process: we all belong to the same group of deliberators. Both the deliberativerational view and the more diffuse expressive-emotional understanding of the hypostasised magical words we, the European people . . . remain decoupled from the observation and reection of the process of self-transformation of post-modern law, let alone economic and cultural transformations of society. As B. Yack has rightly pointed out recently, public reasoning cannot be focused on social norms of impartial argumentation, but is, instead, about the common advantage which requires good judgment26 and not a disinterested constitution of common deliberation.
19 20 21 22
23 24 25
26
See generally K.-H. Ladeur, Der Staat gegen die Gesellschaft (Mohr, 2006). J. C. Monier and M. Long, Portalis. Lesprit der justice (Michalon, 1997). See C. F. von Gerber, System des Deutschen Privatrechts (Gustav Fischer, 7th edn, 1860). K. H. Ladeur, The Postmodern Condition of Law and Societal Management of Rules, (2006) 27 Zeitschrift fr Rechtssoziologie 87. Dotan, op cit n 7 supra, at 293. Habermas, op cit n 1 supra. cf for cultural homogeneisation in revolutionary France R. Balibar and D. Laporte, Le franais national. Politique et pratique de la langue franaise sous la Rvolution (Hachette, 1974). B. Yack, Rhetoric and Public Reasoning. An Aristotelian Understanding of Political Deliberation, (2006) 34 Political Theory 417, at 422.
151
Volume 14
The Meaning of the Constitution at Different Stages of German Constitutional HistoryA Comparative View The Uncertain Momentum of Constitution Making at the Level of Nation States: Three Examples from Germany
The second problem which is superseded by the abstract evocation of a post-national European constitution is the strategic momentum of constitution making which always intervenes into a highly complex historical polity under conditions of uncertainty: the upshot of a constitution underlies a process of evolution and cannot be anticipated. The meaning of the constitutional treaty cannot be derived from its character as a constitution alone. The rather abstract discussion on constitutionalism at the European level misses the point: it is not so much the constitution which is at stake, as much as this constitution with its concrete political, social and cultural infrastructure. The importance of this intertwinement can be demonstrated if one takes constitutional struggles at the level of Member States into consideration. I take three examples from Germany, which might demonstrate that the meaning of a constitution is far from self-evident and cannot be reduced to the performative act of a selfconstitution as the people of a certain country, in particular. This is nothing but an illusion which is based in the option of a certain theory, in this case deliberative constitutionalism, which has found its major protagonist in Jrgen Habermas.27
The Weimar Constitution and its Unintended Fatal Consequences

The example of the creation of the Weimar Constitution in 1919 demonstrates one problematical version of a constitution,28 which serves, for a certain moment, as an act of stabilisation of a political order (banning anti-constitutional revolutionary forces) which, once it had accomplished this aim, was called into question by almost all its protagonists who looked for a possibility of changing the political order in their favour. If one had taken the Weimar Constitution seriously, one would have interpreted it as a social democratic one, but not even the social democrats gave it this sense. Carl Schmitts famous characterisation of its material (social democratic) elements as being dilatorial formal compromises29 which could not be invoked as a legitimate basis for restrictions of the traditional formulas which constitutionalised the Rechtsstaat (rule of law) was not that far fetched, because even the social democrats had, at the outset, preferred, and still dreamt of, the socialist state. The formal elements of the constitution which did not intend to block further constitutional evolution beyond its own decision mirrored the weight of political facts. It left the options of a social democratic reform state, communist revolution (in parliamentary forms) or nationalist antirevolution open. And it was not by accident that the Nazi Party made use of this formalism in order to overthrow the constitution and to establish the dictatorship without breaking the constitution: they used the emergency powers in an (almost) constitutional form to suspend almost all civil liberties. This was an unexpected though not unlikely outcome of the Weimar Constitution.
27
28 29
Habermas, op cit n 1 supra; Nettesheim, op cit n 1 supra; Gerstenberg and Sabel, op cit n 2 supra; see also Griller and Rumler-Korinek, op cit n 2 supra, at 24. W. Pauly, Grundrechtslaboratorium Weimar (Mohr, 2004). C. Schmitt, Verfassungslehre (Duncker and Humblot, 1928), at 31.
152
March 2008
The German Constitution of 1949 (Grundgesetz) and its Unexpected Success

My second example is the German Constitution of 1949 (Grundgesetz). The constitutional debates were again marked by conicts which reproduced the Weimar alternatives in a less extreme version: it is not well known today that the Constitution contains in Article 15 a type of counter-constitution which gives parliament the power to nationalise major parts of industry and the banks. This norm was immediately superseded and neutralised by the evolution of the political and economic forces in the 1950s. Its practical meaning today remains unclear. If one takes the constitution to be a type of founding document for an ongoing process of discussion, one could ask oneself what kind of society (not to mention a community) had been intended in the early days of the Grundgesetza notion which, by itself, has changed its meaning: at its inception, this concept was chosen in order to demonstrate the provisional character of this document (which did not deserve the title of a constitution). Nowadays, this notion is regarded as a kind of solemn basic law which contains fundamental values which cannot be called into question. In retrospect, it might even sound bizarre that, for some years in the 1960s and 1970s, an alternative interpretation of the Grundgesetz30 as a kind of socialist constitution claimed to tell the truth about the real constitution which had just been betrayed by political leaders. This provoked almost no resonance in scholarly debate.
The Failed Constitution of the Early Nineties

The third example is the most recent one and, strangely enough, the least known. It is also an example of a failed constitutional initiative: during the process of German reunication in 1989 and 1990, there was also a discussion on a new constitution.31 This phenomenon is, in more than one respect, interesting. It failed, and it did not raise much interest in the broader public. And, interestingly, Jrgen Habermas was one of the protagonists of this deliberative project32 which was pushed into its purest forms, paradoxically enough, because it did not really interest the majority, who wanted to adhere to the Grundgesetz. It was also based on the principled assumption that a new political polity, such as a re-united Germany, needed a new constitution. As we all know, the pragmatic but, to deliberators, theoretically unconvincing solutionthe option for the continuity of the old (slightly modied) constitutionwas put through, and nobody later took the view that any of the subsequent difculties of the unication process could have been avoided on the basis of a new constitution.
The Societal Character of Constitutions

To cut a long story short, in general, constitutions do not have the principled character of a founding declaration which the European debate attributes to them. Even if this is, to a certain extent, the case, as with the Weimar Constitution, success is doubtful.
30 31
32
U. Mayer and G. Stuby (eds), Das ldierte Grundgesetz (Pahl-Rugenstein, 1977). B. Guggenberger and T. Stein (eds), Die Verfassungsdiskussion im Jahr der deutschen Einheit (Hanser, 1991). Habermas proposed a new social contract among citizens instead of a reunication of the German stateswhatever this means, quoted from (2000) 112 utopie kreativ 112.
153
Volume 14
The Weimar Constitution33 blocked a communist revolution, but, at the same time, it remained unclear what kind of political order was to be put in place instead. The Grundgesetz could have failed, too. That it did not is mainly due to the integration of Germany into the West, but is certainly not due to its foundational intent. Constitutions are not just reections and reinforcements of political processes, but they are mainly societal constitutions in the sense that they nd their basis in the normative reection of the autonomous processes of self-organisation which are taking place in society. They have to be acceptable from a practical point of view, which presupposes trust in social institutions and the generation of a pool of social capital on which political order can be based.34 Only on the basis of this assumption are general norms, such as the guarantee of civil liberties, meaningful. For example, what does freedom of opinion mean as a constitutional right if it is not to be expected that the majority will accept the plurality of opinions? If such a condence does not exist only norms are imaginable, such as the German constitutional right granting asylum (Article 16a GG): in the past, it was composed of ve words; after a constitutional reform, four long paragraphs have been added (it now needs a whole page and raises much more conicts than in the 1960s and 1970s). It tries to solve so many detailed problems which, in the past, had not been regulated at all.35 In Europe, this trust can only be generated from the practical functioning of European institutions; it cannot be created by a normative foundational act. The assumed normative circle which is meant to create Europeanness only tries to keep invisible this blind spot.36 More concrete descriptions of Europeanness limit themselves to the assumption that Europeans are not Americans, whereas positively speaking they are rather Irish, Danes, Poles, Italians, etc. A European identity37 cannot be dened in this way. This is the moment where deliberative constitutionalism comes to the fore and, in a circular mode, declares the deliberative momentum of constitutionalism to be the core version of European identity.38 This core element can be reduced to the
33
34
35
36
37
38
R. B. Myerson, Political Economics and the Weimar Disaster, (2004) 160 Journal of Institutional and Theoretical Economy 187. S. Burtt, The Politics of Virtue Today, A Critique and a Proposal, (1993) 87 American Political Science Review 360; G. Klosko, Rawlss Political Philosophy and American Democracy, (1993) 87 American Political Science Review 348. The outcome of a constitutional constellation without a minimum of trust can be observed in the constitution of the US state of Alabama which probably has the longest constitution in history: it is full of details (certain measures to be taken in a certain county, specic rules about salaries of teachers, etc). This bizarre constitution is due to the racial split of the electorate in Alabama: the former white majority was afraid that increasing access of blacks to public authority at the local level could not be controlled by the state authorities sufciently; see the website available at http://www.legislature.state.al.us/ constitution. The constitution has 210 sections and 773 amendmentsit is even longer than the European Constitutional Treaty which is probably the second longest constitution: including protocols it contains 474 pages ([2004] OJ C310/1). How long will a comprehensive commentary be? For the embeddedness of Europeanness in national identity, see Th. Risse, Neofunctionalism. European Identity, and the Puzzles of European Integration, (2005) 12 Journal of European Public Policy 291. For the exibility and multiplicity of identities, see W. Outhwaite, The Future of Society (Oxford University Press, 2006), at 71. One has to be aware of the fact that identity is one of the most obscure notions which have risen to prominence in recent debates. This is due to the shift from more objective approaches to more subjective reections; cf from the point of view of psychoanalysis D .D. Odds, Identication: Psychoanalytic and Biological Perspectives, (2006) 54 Journal of the American Psychoanalytical Association 17; identication in the past was regarded as the fundamental relationship to the Other of tradition which has to be appropriated; in a cultural environment of narcissism identity is a self-referential concept:
154
March 2008
self-referential construction of a constitutional discourse which nds its expression in the performative act of the pronunciation of the mythical words: we, the people . . .. Is it really true that, in principle, all modern constitutions begin with these words as S. Chambers alleges?39 And are constitutions really agents of integration as N. Walker assumes, even after the rejection in France and the Netherlandshow about examples?
The Evolution of Liberal Constitutions under Conditions of the Group-Based Social State of the Twentieth Century
Civil liberties and liberal constitutions have their core in societal and public interrelationships at the level of nation-based societies.40 This does not exclude international and supranational protection of constitutional rights in particular, but it is always to be constructed as a secondary remodelling of the primary level of protectionwhich European courts unfortunately sometimes tend to ignore.41 European constitutionalism has to bear in mind the historical process of the rise and transformation of the nation state. There is no repeat play in history. Constitutions, in the traditional sense, are state related: they are focused on the relationships of individuals towards the state and the organising principles of state power. If one has a look at modern constitutions, one cannot escape from the fact that already the group-based collective patterns of the generation of power in society are not reected in the norms of the constitutions themselves.42 Constitutional courts, more or less successfully, adapt the individualistic principles of modern constitutions to groups, companies, political parties, patterns of publicprivate bargaining, and the rights of individuals within public insurance systems, etc. Nobody has claimed that this highly complex heterogeneous ensemble of patterns of inter-relationships which does not follow the established tracks of constitutional ordering, can ever be codied in a satisfactory mode which could be regarded as a functional equivalent to classical liberal constitutions.
39
40
41
42
J. C. Kaufmann, EgoPour une sociologie de lindividu (Nathan, 2001), which mirrors the new type of individualism which seems to be able to construct a stand alone self which denes its relationship towards society in an autonomous way; this ambivalence is neglected in many discourses about identity; cf Nettesheim, op cit n 1 supra. S. Chambers, Democracy, Popular Sovereignty, and Constitutional Legitimacy, (2004) 11 Constellations 153 et seq. cf W. Becker, Ein Pldoyer gegen den Universalismus, Frankfurter Allgemeine Zeitung, No 144, 14 June 2006, at 50 (against Habermas). The most spectacular case in which a European court has shown that it is completely ignorant of the value of diversity in Europe is the case Caroline von Hannover (Monaco) v Germany, Reports of Judgments and Decisions 2004-VI, judgment of 24 June 2004. We have (at least) three different regimes of balancing freedom of the press and protection of privacy: the liberal English version, the restrictive French version and a middle way in Germany. Why on earth does a European court feel competent to decide which one is the right onein this caseto simplifythe French version? Such a concrete judgment could only be acceptable in a unitary constitutional domain. This case shows the risk of the loose talk about constitutionalism; for a critique cf M. Koskenniemi, The Fate of Public International Law: Constitutional Utopia or Fragmentation?, Chorley Lecture at the London School of Economics (6 June 2006). cf D. Grimm, Die Zukunft der Verfassung (Suhrkamp, 1998); for the contemporary crisis of constitutionalism cf C. F. Sabel and J. Zeitlin, Active Welfare, Experimental Governance, Pragmatic Constitutionalism: The NEW Transformation of Europe, Draft for the International Conference of the Hellenic Presidency of the EU: The Modernisation of the European Social Model and EU Policies and Instruments (2122 May 2003), at 19 and 28.
155
Volume 14
This evolution has found its repercussion in controversies about constitutional interpretation such as the conict between textualism and purposivism in the USA. Both in one way or the other, one is aware that it is the context of the constitution which counts, even if the focus of the former is on semantic and the focus of the latter is on political context and ideas about reasonable problem solving.43 However, the context of the EU Constitution would be much more fragmented and heterogeneous than that of a nation state because the EU cannot exist as a polity beyond the Member States and their divers contexts. This creates new uncertainties: how would the European Court of Justice (ECJ) as a full-edged constitutional court interpret the even more difcult task of the adaptation of a constitutional text which cannot help follow the example of a liberal constitution and would, at the same time, be forced to adapt to a much more fragmented post-modern polity? These problems are exacerbated by the dismantling of both the nation state and citizenship in particular. The formal apparatus of the nation state can less and less accommodate the political process which becomes global solely in the sense of escaping from the established institutions of the nation state.44 Why should it be possible to solve the even more complex issues of post-modernity by a viable constitution at European level? This might be one of the reasons why the possibility of a societal constitution is invoked in the debate about post-modern constitution building.45 However, this is nothing but an illusion about a civil society which follows its own public rationality as opposed to the blind emergence of private power in the (un-)civil society. There is, in fact, a new societal constitutionalism that emerges in the network society, but it remains beyond codication by a convention which cannot but follow the state-based tracks of tackling problems.
The EU as the New, Better State which Leaves Aside the Constraints of Sociality? The EU as a Bigger Nation State?
The attempt to reintroduce a more comprehensive approach to the understanding of the constitution in post-modernity presupposes a retrospective look at the role of the nation state in the past. The European constitutionalism often draws in an explicit or implicit way on the conception of the modern state which has been put forward by Jrgen Habermas in the debate46 on the European constitution: according to him Europe does not have to meet a new challenge, it is not necessary to invent something new but what is at stake is the preservation of the achievements of the European nation state beyond its national borders in a different format. The question of whether this requirement can even be extended to the global level of the constitution of a world
43
44
45
46
cf J. T. Molot, The Rise and Fall of Textualism, (2006) 106 Columbia Law Review 1; J. F. Manning, What Divides Textualists From Purposivists?, (2006) 106 Columbia Law Review 70. S. Sassen, Territory, Authority, Rights. From Medieval to Global Assemblages (Princeton University Press, 2006), at 280. G. Teubner, Societal Constitutionalism: Alternatives to State-centred Constitutional Theory, Storrs Lecture 2003/4, Yale Law School. Habermas, op cit n 1 supra.
156
March 2008
state may be left open.47 Apparently the risks of globalisationin the broader and in the narrow (European) senseconsist in the emergence of a brute and mute facticity against which the performative foundational political act which re-establishes the nation state at global level has to be pronounced. The constitutive moment of citizenship,48 the fundamental relationship towards the nation state, is, according to Habermas, an institution which has produced the abstract solidarity mediated by the law as opposed to the mute struggles for power. This means that the effect of the legal system is reduced to an abstract inter-relationship between citizens which constitutes the autonomy of man as a human being beyond the practical networks coded by the social systems such as the economy, religion, culture and law in the narrow sense, etc. Basically, the predominant right of the individual as citizen is the right to be given reasons (Recht auf Rechtfertigung)49 which excludes, for example, the respect for the limits of argumentative rationality inherent in the stupidity of things.50 We have to bear in mind the concrete conditions of the rise, the failure and the institutional transformation of the nation state. This is why, as mentioned above, there is no repeat play. The European polity and its institutions have to be constructed as something new and not to be designed as a preservation of the accomplishment of the nation state and of its constitution, in particular.
Regaining the Power of the Nation State against the Rising Tide of Globalisation?
To many, the Europeanisation of law, and the constitutionalisation of the EU in particular, in the Habermas argument seems to be quite appealing. Globalisation is interpreted as having curbed the states capability51 to impose norms on the transnational process of expanding markets.52 This evolution seems to have not only reduced the action potential of the state, but, at the same time and even more importantly, it has also reduced the value of citizenship. Citizenship can only be constituted via a direct relationship with the state, which, at the same time, constitutes the realm of deliberation, whereas the diffuse networks of transnational inter-relationships53 beyond the state cannot be reected by the process of public deliberation. This view is nothing but an illusion. There is no way of xing the constitution as a framework for a stable public
47
48
49 50 51 52 53
This is the tendency of a speech given by M. Zrn, Facing the Twenth-First Century. Challenge to the State, in Hertie School of Governance (ed), The Role of the State in the Twenty-First Century (2223 April 2004), at 51. One should not forget about the miracles which were expected from an inclusive citizenship expanded to immigrantsand the devastating effects of the German blood principle: U. K. Preu and F. Requejo (eds), European Citizenship. Multiculture and the State (Nomos, 1998). Habermas, op cit n 1 supra. L. Trilling, The Opposing Self (Viking, 1979), at 146. Zrn, op cit n 47 supra, at 48. ibid, at 48. The network concept is often used in a loose way (Nettesheim, op cit n 1 supra, at 32); it should be specied with respect to some combination of informality, equality, and commitment: P. DiMaggio, Conclusion: The Futures of Business Organisation and Paradoxes of Change, in P. DiMaggio (ed), The Twenty-First Century Firm: Changing Economic Organisation in International Perspective (Princeton University Press, 2001), at 212I would add its functionality for a mode of generation of knowledge and management of uncertainty; cf for the concept of the disaggregated State A. M. Slaughter, A New World Order (Princeton University Press, 2004); see also A.-L. Barabsi, Linked. The New Science of Networks (MIT Press, 2002), at 201, who stresses the element of knowledge generation as being the topical quality of networks.
157
Volume 14
realm of deliberation and rational decision making. The lack of clarity of the meaning of the European constitution which lies beyond the explicit reform of European institutions, competences, procedural requirements, etc, is not atypical of post-modern legal development, which is determined more by a-centric evolutions than by systematically designed decisions.54 On the other hand, it is also characteristic for state constitutions that political processes, not to mention rational deliberation, cannot be derived from the constitution as a foundational act. The specicity and strengths of the EU can only be located in the openness of its processesin the vagueness of its institutional perspectives. Its functioning is characterised by tentative search processes55 and the creation of new initiatives which break the frames of statehood. This is the positive side of its difference from the nation-building processes of the past. At the bottom of the deliberative construction of the state that focuses on a realm of public deliberation which grants every citizen a right to be given reasons for its decisions lies a reduced image of nineteenth century nation states. As mentioned above, nation building consisted in the conception of bigger units beyond traditional relationships among citizens. This unit was supposed to be founded on something like a common stake pertaining to the stability and continuity of a practical knowledge base enshrined in more open networks of inter-relationships, but not primarily an abstract forum of deliberation or discourse. The EU does not seem to have such a common stake. This is partly due to the fact that many people in the bigger states in particular regard Europe as a federation of welfare states56 which is supposed to stem against the tides of globalisation. The social state without a common economic, cultural, political project is a nightmare of decline.57 The EU as a mere self-referential deliberative project, refers to the idea of transcending the narrative of the nation state, and, in this way, ends up in the self-reference of the declaration of identity as a deliberative European but no longer refers to the practical constraints of sociality, the common stake58 of meeting the challenge of the ongoing self-transcendence of the collective intelligence inherent in the practical networks of relationships59 which are reproduced within differentiated social systems and which are the core components of the collective order. The diverse groups in society hold together because they practice politicsnot because they agree about fundamentals, or some such concept too vague . . . ever to do the job of politics for it.60 The trans-substantiation of national identities by
54
55
56
57
58
59
60
G. Teubner, Netzwerk als Vertragsverbund (Nomos, 2004); J. M. Guhenno, The End of the Nation State (University of Minnesota Press, 1995);J. M. Guhenno, Lavenir de la libert (Flammarion, 1999). For the comitology cf C. Joerges and E. Vos (eds), EU Committees: Social Regulation, Law and Politics (Hart, 1999); the Commissions White Paper on European Governance, COM (2001) 428 nal, regards it as a threat to its central position; A. Gatto, Governance in the European Union: A Legal Perspective, (2006) 12 Columbia Journal of European Law 487, at 497 and 500. P. Manent, Dbat avec J.-M. Ferry, Les Etats-Nations sont-ils solubles dans lEurope?, (2006) 4 Philosophie Magazine 8, at 10. cf the realistic pessimism of W. Laqueur, Die letzten Tage von Europa. Ein Kontinent verndert sein Gesicht (Propylen, 2006). A. Minc, Le crpuscule des petits dieux (Grasset, 2005); for the inevitable element of bindingness which is pr- ou ant-constituant, cf also J.-L. Nancy, Limpossible acte constituant, Le Monde, 28 June 2005, available at http://www.prospectives.info. cf P. Manent, La raison des nations. Rexions sur la dmocratie en Europe (Gallimard, 2006), at 119 and 124, who rightly remarks that liberal societies constantly produce new differences and distinctions which have to be interiorised by individuals. B. Crick, In Defence of Politics (Allen and Unwin, 1962), at 24; D. Rodrik, Has Globalisation Gone too Far? (Institute for International Economics, 1997), at 70.
158
March 2008
Europeanness is attributed to the act of constitutionalisation, a pure act of volition to enter into a new type of discourse. But this view only demonstrates that the continuity of the nation state cannot be a productive idea for the EU. In many political domains one has, in fact, the impression that the EU tries to establish a constitution for a bigger and better post-nation state.
Does Globalisation Demand Big States? The Paradoxical Success of the Smaller States in Europe The Deterritorialisation of Economic and Political Governance and the Anachronistic Search for a European Super State
The size of the EC clearly presents advantages for todays economic and legal systems. However, this advantage is different from the gains to derive from size in the nation state. Globalisation is not equivalent to more conformity, greater harmonisation, more standards, or, at least, the convergence of legal orders.61 Beyond the traditional forms of territorial separations, a new sectoral principle of differentiation which deploys its eigen-rationality is emerging. The new legal system follows a logic of networking: more and more transnational legal regimes come to the fore, which generate, observe and manage their own rules. The reexive potential of private regimes for the management of rules differs from the normative systems of the past. This evolution corresponds to the above-mentioned rise of network-like hybrid organisations and inter-relationships (at hierarchies) in the economy.62 This deep transformation is also important for the institutional design of the EU. The conception of supranationality has been functionally open and exible in the past.63 It is a paradox that, in recent years, this experimental open character of the European institutions has increasingly vanished and been supplanted by a state-centred perspective on a kind of super-state in spite of the fact that this runs counter to the new relational logic of societal self-organisation and its open dynamic of self-transformation. The post-modern legal discourse at the level of the Member States has been focused for quite some time on the value and productivity of divergence.64 The emergent system of governance is experimental and networked, not hierarchical.65 However, increasingly the EU is associated with more centralisation, more hierarchy and more harmonisation.66 The principle of
61
62
63
64
65 66
A. Fischer-Lescano and G. Teubner, Regime-Kollisionen (Suhrkamp, 2006), at 36; cf also F. Snyder, Europeanisation and Globalisation as Friends and Rivals: European Union Law in Global Economic Networks, in F. Snyder (ed), The Europeanisation of Law: The Legal Effects of European Integration (Hart, 2000), at 293; F. Snyder, Governing Economic Globalisation: Global Legal Pluralism and European Law, (1999) 5 European Law Journal 334. W. W. Powell, The Capitalist Firm in the Twenty-First Century. Emerging Patterns in Western Enterprises, in DiMaggio, op cit n 53 supra, 37, at 41 and 67. U. Di Fabio, Das Recht offener Staaten (Mohr, 1998); U. Di Fabio, Der Verfassungsstaat in der Weltgesellschaft (Mohr, 2001). O. Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, (2004) 89 Michigan Law Review 262, at 305. Sabel and Zeitlin, op cit n 42 supra, at 19. This is also the approach which prevails in the white book of the EC-Commission; cf also the critique in the EUI comments on the White Paper on Governance: C. Joerges, Y Mny and J. H. H. Weiler (eds), Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance (Harvard Law School, 2001); in this respect the role of the European Court of Justice has changed, too: whereas in the
159
Volume 14
subsidiarity67 is a good example: in the procedure for the application of the principle in the assessment of legislative acts, respect for the autonomy of Member States bore no weight; it is only focused on the efciency of problem-solving strategies.68 The new constitutionalism returns to the traditional state logic of the nineteenth century. This idea is also inherent in the deliberative conception of a more democratic EU which can claim more legitimacy for its hierarchical order. It is the ideological background against which the proclamation of we, the European people . . . as the bearer of this higher level of sovereignty is demanded. And this is also the reproduction of the abstract level of solidarity which Habermas attributes to the European achievement of the nation state.69 The major part of the opponents probably share this belief in the state; however, it asks for a narrower democratic pressure on the state, and this is why they adhere to the nation state seen as the more reliable welfare state,70 whereas the more abstract super-state is named neo-liberal because they fear (with good arguments) that the EU cannot escape the constraints to adapt to the new rules of the game.71 Given this, the widespread complaint about the democracy decit of the EU72 appears in a new light: it may be read as the expression of a more explicit will to re-establish a central power in the tradition of the nation state.73 And this is about to happen precisely at a moment when the limits of territoriality and the rise of more open
67
68
69 70
71
72
73
past some bold decisions (direct effect, etc) have contributed to the permeability of Member States in the EC, it tends more and more to overstretch its role by blindly opting for more and more harmonisation of the legal systems without bearing in mind that what was productive yesterday may be destructive today once a certain level of harmonisation is already established. The deep intervention of the court jurisprudence into even more fundamental principles of Member States law creates more and more perverse effects because the ECJ denitely cannot manage the complexity of decisions whose effect within the infrastructure, eg of civil law or of general administrative law, it cannot observe in a meaningful way. Cf C. Schmid, The ECJ as a Constitutional and a Private Law Court (Zentrum fr Europische Rechtspolitik, DP 4/2006), at 24 et seq, who rightly complains about the courts negligence of the general national legal context into which a European directive is necessarily embedded. The court behaves like a super court which imposes the uniform logic of hierarchy in a legal environment whose complexity asks for a cooperative legal approach. Cf K. H. Ladeur, Methodology and European LawCan Methodology Change so as to Cope with the Multiplicity of the Law?, in M. Van Hoecke (ed), Epistemology and Methodology of Comparative Law (Hart, 2004), 91 et seq. cf M. Kumm, Constitutionalism and Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union, (2006) 12 European Law Journal 503. cf the quite convincing polemic of G. Davies, Subsidiarity. The Wrong Idea, in the Wrong Place, at the Wrong Time, (2006) 43 Common Market Law Review 63, at 76. Habermas, op cit n 1 supra; cf also Manent, op cit n 56 supra. This explains also the failure of the Constitutional Treaty especially in France: the referendum did not just express a verdict on unpopular political leaders; the vote was mainly shaped by socialists and in particular unskilled and low-waged employees: M. Qvortrup, The Three Referendums on the European Constitution Treaty, (2006) 77 The Political Quarterly 89, at 96. Only one third of the citizens of the Member States would opt in favour of a transfer of welfare policy to the European Union: S. Mau, Wohlfahrtspolitischer Verantwortungstransfer nach Europa?, (2003) 31 Zeitschrift fr Soziologie 302, at 311; T. Boeri and S. Baldi, Europe(s) sociales, convergence et comptition, (2005) 115 Revue dEconomie Politique 705it should be interesting to know whether these are the citizens who are less dependent on the welfare state; in any case people know that the EC is much less dependent on direct political pressures. cf only Nettesheim, op cit n 1 supra, at 8 et seq; for a critique see L. Siedentop, Democracy in Europe (Penguin, 2000); Moravcsik, The Choice for Europe, op cit n 1 supra; Moravcsik, What can we Learn from the Collapse of the European Constitutional Project?, op cit n 1 supra. For a direct social responsibility of the EU, cf Schmitter, op cit n 1 supra; Ph. C. Schmitter and M. W. Bauer, A (Modest) Proposal for Expanding Social Citizenship in the European Union, (2001) 11
160
March 2008
modes of governance74 are discussed at the level of the Member States and in other Western countries.75
The Rise of the Regional State and the Evolution of the Smaller Member States
The traditional conception of a homogeneous collective order which can be described and governed from the hierarchical level of state power has come under pressure in the nation state. This is not a problem of size: The role of space as such has changed completely: on the one hand, we can observe the evolution of strong regional cores of economic development in Member States; on the other hand, they are operating in a exible mode in loosely coupled global dynamic networks which do not wait to be assembled in a bigger state but need support from new public institutions beyond the traditional forms of the nation state and territoriality. This evolution nds its repercussion in the increasing heterogeneity among Member States: we have, on the one hand, a group of smaller states (Denmark, Sweden, Finland, the Netherlands, Ireland) which try to meet the challenge of globalisation proactively, we have the British exception of a functioning liberal system, we have a group of bigger states (France, Germany, Italy) which are facing decline and adapt to the new world order only reluctantly and in a haphazard way. And we have the politically and economically weak states in Eastern Europe. This political setting determines the institutional background which has to be regarded as the frame of reference for the transformation of the constitutional document into a living constitution. It is extremely difcult to anticipate the direction of the EU institutions after its constitutionalisation. Will the EU be a bulwark against globalisation? Will it block the trajectory of the more exible smaller states? And, with respect to the core elements of the (failed) Constitutional Treaty, it would be completely incalculable to try to work out to what extent and in which direction the new constitutional rights could be brought to bear on the legal systems of Member States. The assumption that the functioning of a de-nationalised constitution presupposes a mature sense of reasonableness on all sides and the political will to implement it76 is a telling example of a voluntaristic attitude which is the ip side of the abstractness of the deliberative constitutionalism.
Which Role for the ECJ as a Constitutional Court in a Heterogeneous Political Environment?
National constitutional courts are necessarily, in some way or other (in particular by the selection procedure), integrated into the political system of states, including public opinion, whereas European judges are detached and isolated from Member State level because each Member State selects only one judge. On the other hand, the judges are not really integrated into the heterogeneous political system of the EU and its weak
European Journal of Social Policy 55, who propose a right to social assistance for everybody; see generally H. Obinger, S. Leibfried and F. G. Castles, Beipsse fr ein Soziales Europa, (2005) 44 Der Staat 505, at 538. For the meaning of the concept of governance, cf C. Mllers, European Governance: Meaning and Value of a Concept, (2006) 43 Common Market Law Review 313, at 314. cf Lobel, op cit n 64 supra, at 305. G. De Brca and O. Gerstenberg, The De-nationalisation of Constitutional Law, (2006) 47 Harvard International Law Journal 242, at 262.
74
75 76
161
Volume 14
public sphere. They cannot have the same sensibility for the framing of facts and the emergence of political or cultural patterns and perspectives as a national constitutional court can.77 Constitutions always refer to, and presuppose, a pool of political, legal and cultural variety78 which has hitherto been generated mainly in the history of states. There is, of course, a common European core which can serve as a basis for closer co-operation and a process of reframing different ways of world-making.79 Public law, and constitutional law in particular, is a vernacular language, a complex network of practices that condition and sustain the activity of government;80 it cannot be reduced to general principles and procedures. At the same time, it is linked to the societal constitutions which emerge in national and transnational networks of interrelationships among social actors.81 The ECJ, in particular, has, in the past, been involved in an open process of rendering national political and legal systems more permeable for the views and interests of other Member States, and, at the same time, mesh the networks of practice which are generated at the national and transnational level. It has, however, to accept the fact that it does not have direct unmediated access to the complex legal infrastructure of Europe. The courts tendency to regard European Treaty law even without a formal constitution as constitutional82 calls into question the reservations, presumptions, canons and usages which were implied in international law83 with regard to the legal infrastructure which was reproduced at Member State level. The new Constitutional Treaty, in contrast, might induce a completely new court role which lacks an adequate theoretical and methodological underpinning, and which might be disruptive for the multi-level legal order of the EU. This is not necessarily the case, but it is possible if one bears in mind the phenomena of judicial activism which one has already been able to register in the past. It may also act in a contradictory incalculable way, being active with a view to a European superstate in some elds and being more exible in other areas. We simply do not know. We do not have any concrete idea about how a constitutional court in the complex environment of a European constitutional order might use its broad zone of discretion which results from the limited guidance of constitutional rules alone (eg constitutional rights). Such a new role can only be formulated in a political process of coalition building which supports the implementation of a constitutional practice. This is why the strategic character of a constitution, its intervention into a heterogeneous eld of political, economic, cultural tensions, has to be considered. According to the protagonists of a more democratic EU, the Community should, for example, expand its welfare role in particular.84 The ECJ already now breaks up the social insurance system of Member States with the sole justication of equal treatment
77
78 79 80 81 82
83 84
For this interrelationship in international law, see M. Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument (Cambridge University Press, 2005), at 524 et seq. Dotan, op cit n 7 supra, at 293. N. Goodman, Ways of Worldmaking (Harvester, 1978). M. Loughlin, The Idea of Public Law (Oxford University Press, 2003), at 30. cf Teubner, op cit n 45 supra. cf generally A. Stone Sweet, Constitutional Dialogues in the European Community, in A.-M. Slaughter, A. Stone Sweet and J. H. H. Weiler (eds), The European Courts and National Courts: Doctrine and Jurisprudence (Hart, 2000), 305, at 306 and 308; A. Stone Sweet, The Judicial Construction of Europe (Oxford University Press, 2004). Koskenniemi, op cit n 77 supra, at 609. Schmitter, op cit n 1 supra; Schmitter and Bauer, op cit n 73 supra, who propose a right to social assistance to everybody; for a critique see Moravcsik, What Can We Learn from the Collapse of the European Constitutional Project?, op cit n 1 supra, at 228 et seq and 231.
162
March 2008
of all citizens of the EU.85 This view tends to ignore the complex pre-suppositions of a functioning post-modern welfare state in countries such as Denmark,86 Sweden or Finland, which can still claim to conform to such a role. The welfare state, in the traditional sense, is a continuation of the nation state with its strong restricted relationship of citizenship.87 Once this relationship can no longer be pre-supposed,88 the welfare state tends to get into an ideological crisis89 which is difcult to managethis is, in particular, the case in countries with a high number of immigrants90 who are accused of exploiting the system. However, this problem can only be tackled at the level of the Member States and it will only be exacerbated by a transfer of social competencies to the EU level. Such an idea which is far spread among pro-European intellectuals only demonstrates that the construction of the EU is not well understood: the nancial resources would have to be taken from the richer Member States and be distributed to the poorer populations in other Member States. This kind of social policy would reinvigorate right-wing parties in the former countries. It is also symptomatic that the EU tries to meet the critique of the anti-globalisation movement which is opposed to neoliberalism by the creation of a new globalisation fund.91 It shall protect workers in industries who lose jobs because of globalisation. This is a new opportunistic move which is bound to fail because it follows the traditional defensive and passive attitudes of the traditional welfare state and does not conceive a new proactive form of social policy (as the Scandinavian states do). The EU can, in this and in many other respects, only use the strength of weak ties92 and play a bridging role between the transnational networks which evolve within Europe. The EU cannot be a superstate, not to speak of a super welfare state which claims to guarantee equal treatment for all citizens.
The Strengths of the EU beyond the Myth of the Democracy DecitA Perspective on the Deterritorialised Network Organisation EU Democracy and Democratic Experimentalism of (Smaller) Member States
Against the background of a post-modern a-centric society, the EU should also be modelled as a hybrid organisation which does not follow the established models of a Europe of multiple fatherlands (de Gaulle) or of the Member States being the
85 86
87 88
89
90
91 92
cf De Brca and Gerstenberg, op cit n 76 supra, at 243 and 259. For the Danish welfare system cf J. Torng, Towards a Schumpeterian Workfare Postnational Regime: Path-Dependency in Danish Welfare State Reform, (1999) 28 Economy and Society 3. Sassen, op cit n 44 supra, at 79. In the Scandinavian countries (Denmark 90%) the reluctance to claim social assistance eventually without also meeting legal requirements is considerably higher than in countries like Germany (60%) and France (40%)not to mention other countries: Y. Algan and P. Cahu, Civic Attitudes and the Design of Labor Market Institutions (CEPREMAP- WP 2005), at 14. Schmitters and Bauers proposal to guarantee every citizen of the Union one-third of the average income in the EU as minimum nancial assistance (op cit n 73 supra) starts from the illusion that poverty is an objective category and that solidarity can be created by a political decision. Both Sweden and Denmark have strong neo-nazi viz xenophobic movements in spite of their rather well-ordered welfare system; the same is true for Norway which also has the strongest xenophobic party in Europeonly Finland is different but it has almost no non-European immigrants. Frankfurter Allgemeine Zeitung, No 289, 12 December 2006, at 15. M. Granovetter, The Strength of Weak Ties. A Network Theory Revisited, (1983) 1 Sociological Theory 201, at 224 et seq.
163
Volume 14
masters of the Treaty.93 Nor should the EU be classied as a kind of big nation state. The new problems of producing collective order under conditions of complexity cannot be managed by expanding the space of the nation state. The preservation of the predominance of the intergovernmental mode of governance (as opposed to supranational autonomy94) could be constructed as a pooling of sovereignties95 in a heterarchical network of overlapping international, supranational, transnational and national elements of order and decision making, instead of being constructed as a superstate. This would be much more promising, as, in fact, the smaller states are much more exible and proactive in their approach to the transformation of societies than the bigger ones. They introduce a productive element of political and social experimentation into the European pool of variety. This is true for Finland, in particular: this country isrightlypraised for the success of its educational system. Finland, like the other Scandinavian countries, also has a homogeneous integrative society with a sense of cohesiveness, a high level of exibility and openness to compromiseas opposed to the adversarial political culture in place in the bigger Member States. And on this basis, Finland has put in place a vision of Finland as a knowledge society96 which would, in many countries, meet erce oppositionin spite of its success. The smaller states, in some respects, could be regarded as experimenting with the new social models that are often blocked in bigger states by their more adversarial public culture. The equality of Member States in the past is a tribute to this innovative role which will be undermined by more democratic balancing of votes in the EU. Against the myth of the democratic decit of the EU, A. Moravcsik97 has drawn our attention to the fact that, even at the level of the nation state, major institutions are exempt from immediate democratic control. However, one should add that this is also true for many decision-making processes in society and in publicprivate partnerships.98 It should be added that collective intelligence, which is regarded as being the driving force of social dynamics in post-modernity, is, both in economic and in general cultural respects, beyond the reach of political intervention. The expansion of the agenda of democratic decision making, such as social insurance, labour contracts and education, etc, in many countries blocks any type of reformin the bigger states in particular. Responsibility will, at the end of the day, reside neither at European nor at national level, but will have to be managed by transnational networks of private and public actors within which the EU could play the role of a mediator,99 rather than that of a sovereign decision maker. A European
93
94
95 96
97
98
99
See the Maastricht Decision of the German Federal Constitutional Court BVerfGE (Reports) 89, at 155; Nettesheim, op cit n 1 supra, at 7. cf also K. H. Ladeur, Towards a Legal Theory of Supranationality: The Viability of the Network Concept, (1997) 3 European Law Journal 33. Moravcsik, The Choice for Europe, op cit n 1 supra, at 8. C. J. Dahlman, J. Routti and P. Yl-Anttila (eds), Finland as a Knowledge Society. Elements of a Success and Lessons Learned, Working Paper of the International Bank of Reconstruction and Development/ World Bank (2005). A. Moracsik, In Defence of the Democratic Decit: Reassessing Legitimacy in the EU, (2002) 21 Journal of Common Market Studies 603; for a realistic look at democracy in Member States, cf also K. H. Ladeur, Globalisation and the Conversion of Democracy to Polycentric Networks, in K. H. Ladeur (ed), Public Governance in the Age of Globalisation (Ashgate, 2004), at 89. Finlands success is also due to close coordination of private and public actors, cf Dahlman, Routti and Yl-Anttila op cit n 96 supra, at 9, which in many other countries would not be regarded as democratic. C. Kukathas, The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford University Press, 2003); C. Kukathas, The Cultural Contradictions of Socialism, (2003) 20 Social Philosophy and Policy
164
March 2008
democracy and a common constitution may block the democratic experimentalism100 of Member States. Or, to say the least, their contribution to a productive management of diversity within Europe is unclear.
A European Constitution to Preserve the Acquis Etatique?

Below the level of intergovernmental institutions (such as the European Council) and supranational components, a dense multi-level network of networks which consists of state ofcials, experts, representatives of industry and interest groups, etc, is already emerging.101 This is the specic institutional momentum of the EU which cannot be stabilised by a constitution in a traditional sense. That the co-operative components of European decision making are equivalent to unaccountable public power102 is doubtful because the heterarchical overlapping inter-relationships and the coupling of networks may allow for more efcient accountability and transparency than the ctitious power of a central hierarchy which is not adapted to decision making under conditions of complexity. The risk of the emergence of political elds which escape from control and accountability as a consequence of the fragmentation of political issues is not to be denied, but it is limited by the high requirements of consensus and reciprocal transnational interdependencies which block the preponderance of national special interests. The overlapping networks, for example, in the different committees and their regulatory functions, and the necessity of their links with the legal order of the Member States, can to a certain extent work as a functional equivalent to the conception of democratic political control of administration at national level which in fact legitimises hierarchy.103 This aspect conrms the assumption that, in the end, reform of institutions both at EC and at state level are closely related: many problems only emerge at EC level because the Member States block the inevitable reforms which are required by the rapid self-transformation of society. Conceptual approaches to EU and state problems still tend to be kept apart. A new institutional framework for the EU has to be constructed in a new logic and not with a look back on the acquis tatique of the European social model. The new collective order which could be a response to the post-modern challenge has to be conceived of in a different way. It cannot be designed as a bigger nation state104 because the requirements of institution making and the constraints generated by the distributed networks of inter-relationships in society have changed completely. The tendency of de-nationalisation of the nation state105 does not signal the possibility of re-invigorating the apparatus of the state at a more abstract level.
100
101 102 103 104
105
18; F. Moreau, The Role of the State in Evolutionary Economics, (2004) 28 Cambridge Journal of Economics 847. M. C. Dorf and C. F. Sabel, A Constitution of Democratic Experimentalism, (1998) Columbia Law Review 267. J. H. H. Weiler, The Constitution of Europe (Cambridge University Press, 1999), at 98. S. Breuer, Der Staat (Rowohlt, 1998), at 289. Ladeur, op cit n 97 supra. For the weakness of the trs grand Etat, see J. J. Rosa, Lerreur europenne (Grasset, 1998); J. J. Rosa, Le second XXe sicle (Grasset, 2000). Sassen, op cit n 44 supra, at 233 and 280.
165
Volume 14
Toward an Open Method of (Constitutional) Coordination

As a countervailing procedure, a model of both a more dynamic role of the EU as such and, at the same time, of open states106 based on competition of rules and institutions107 which would operate on the basis of mutual observation and benchmarking could be put in place.108 Such an approach could also be extended to regions, and could include the observation and comparison of their specic potentials and problems. Regional benchmarking might allow for a second look at the problems that Member States have which are hidden by traditional democratic hierarchies, while intelligent comparative approaches might be much more adapted to heterarchical open networks of decision making. Formal parliamentary control in the conventional sense may not be adequate for the observation of new hybrid forms of decision making. In this view, the role of regions without rigid legal borders could also be better adapted to the new exible agenda of public governance.109 This approach should be supported by a method of rule- and decision making which is systematically reformulated with a view to ex post monitoring and the selection of common standards of accounting and control.110 More and more methods of benchmarking and measurement of hitherto unmanageable complex tasks and policies are thereby developed, and these promise transparency where it is a possible goal: namely, in retrospect. Elements of this approach are enshrined in the open method of coordination111 which the EU adopted in 2000. Unfortunately, it is somewhat regarded as a second-best method as opposed to the clear attribution of the competency of decision making. At the level of the Member States, democratic politicians do not want to make use of such methods, either; they prefer to ask for transparency and safety from proposed experimental reform strategies ex antewhich is clearly impossible. The protagonists of a preservation of the traditional roles of the state and its extension to the EU are not interested in a new experimental design of policies which would include measurement and evaluation because high public expenditure is often related to low efciency.112 The new modes of governance113 which are demanded by the network society cannot be structured by a classical state-based constitution or the conception of a static multi-level approach which leaves aside the multiplicity and heterogeneity of interrelationships beyond hierarchy. It should have become clear that a formulation of the European project beyond the state is a promising perspective which corresponds to
106
107
108
109
110 111
112
113
Di Fabio, Das Recht offener Staaten, op cit n 63 supra; Di Fabio, Der Verfassungsstaat in der Weltgesellschaft, op cit n 63 supra. cf S. Deakin, Legal Diversity and Regulatory Competition: Which Model for Europe, (2006) 12 European Law Journal 455; P. Zumbansen, Spaces and Places: A Systems Theory Approach to Regulatory Competition in European Company Law, (2006) 12 European Law Journal 534. cf Sabel and Zeitlin, op cit n 42 supra, at 2; for an analysis of the search for best practices, cf D. Zaring, Best Practices, (2006) 81 New York University Law Review 294, at 298. For the rise of regionalism, see K. Ohmae, The End of the Nation State. The Rise of Regional Economies (Free Press, 1995). cf K. H. Ladeur, Risiko Sozialstaat, (2007) 46 Der Staat 61. cf Sabel and Zeitlin, op cit n 43 supra, at 23; Lobel, op cit n 64 supra, at 313; E. Szyszczak, Experimental Governance: The Open Method of Coordination, (2006) 12 European Law Journal 486. cf A. Afonso, L. Schuknecht and V. Tanzi, Public Sector Efciency: An International Comparison (WP 242, ECB, July 2003), at 22 et seq; for the evaluation of public education cf J. P. Greene, Education Myths (Rowman and Littleeld, 2005). cf generally J. A. Caporaso and J. Willenbrinck, The New Modes of Governance and Political Authority in Europe, (2006) 13 Journal of European Public Policy 471.
166
March 2008
the increasing pluralisation of the processes of creating order from disequilibrium114 which is characteristic of post-modernity. It can only be developed in an experimental approach of trial and error. Clearly, this perspective is one-sided in as much as it focuses on the emerging forms of organisation, management and culture, while, in many respects, more conventional ways of generating order as equilibrium prevail. However, this is not a completely new phenomenon: the welfare state, too, was a second-order modelling of the liberal state and now a process of third-order remodelling of the liberal model emerges. The political and ideological protagonists of the European constitution do not adapt their ideas to the new dimensions of public governance beyond the state, but re-evaluate its revival at a larger scale.
Outlook: New Forms of Governance Instead of a Traditional Form of Constitutionalism

The emerging paradigms of transnational collective order are a symptom of the weakness of territoriality as the frame of reference for public governance.115 The productive operation with the constraints of globalisation and the pluralisation of order in postmodernity pre-supposes the insight that whenever we actin private or public networkswe are part of a larger system116 because stable borders between the inside and the outside of organisations, or stable separations between public and private or market and organisation,117 or the attribution of xed competencies no longer exist. The new patterns of action which emerge under these conditions are still not well understood. This is why the new ill-structured type of problems demand more of a trial-and-error process: they can only be tackled by tentative approaches towards experimentation with heterogeneous regimes from which public interest can only be generated in an indirect mode.118 The EU should focus more on the indirect contributions to the establishment of a satisfying collective order. This is also where the nation state had its strengths in the past. Public governance in the future will have to accept the heterogeneity of the paradigms of order which are far from equilibrium. The EU should be organised as a post-modern project of de-centred order beyond the state, instead of indulging in a nostalgic retrospective of the nation state. Instead of the democratic sovereign state, the new heterarchical model of catalytic governance119 which mainly refers to societal processes of self-organisation should prevail. The EU needs new forms of governance which follow the idea of exploratory learning on the basis of a re-elaboration of the Community method120 but it does not need a constitution! And it does not need a people, either.
First Submitted: October 2006 Final Revision Accepted: April 2007

114 115 116
117 118
119 120
cf for this concept in science I. Prigogine and I. Stengers, La nouvelle alliance (Gallimard, 1979). DiMaggio, op cit n 53 supra, at 210 and 212. P. M. Senge and G. Carstedt, Innoverting our Behaviour to the Next Industrial Revolution, (2001) 42 Sloan Management Review 24, at 39. E. Ostrom, Coping with Tragedies of the Commons, (1999) 2 Annual Review of Political Science 493. cf the interesting remarks of U. K. Preu, Auf der Suche nach Europas Verfassung, Transit No 17 (1999), at 1, who stresses the heterogeneity of European regimes and its conict with state-based hierarchical order. L. Weiss, The Myth of the Powerless State (Cornell University Press, 1998). Sabel and Zeitlin, op cit n 43 supra, at 38.
167

We, The European People - . .'-Relâche?: Karl-Heinz Ladeur

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

We, The European People - . .'-Relâche?: Karl-Heinz Ladeur

Uploaded by

Copyright:

Available Formats

European Law Journal, Vol. 14, No. 2, March 2008, pp. 147167.

We, the European People . . .Relche?

We the, hmm, . . . European People . . .

European Law Journal