European Constitutional Imaginaries: Between Ideology And Utopia [1 ed.] 0192855484, 9780192855480, 0192667947, 9780192667946, 0191945641, 9780191945649

Table of contents :
Cover
Half Title
Title
Copyright
Dedication
Acknowledgements
Contents
List of Contributors
List of Abbreviations
1. European Constitutional Imaginaries: Utopias, Ideologies, and the Other
Part I: Constitutional Imaginaries Of The Past, Present, And Future Of Europe
2. European Constitutional Imaginaries: On Pluralism, Calculemus, Imperium, and Communitas
3. European Constitutional Imagination: A Whig Interpretation of the Process of European Integration?
4. The European Union as ‘Militant Democracy’?
5. Ideologies and Imaginaries of Legitimacy from the 1950s to Today: Trajectories of EU-​Official Discourses Read against Rosanvallon’s Democratic Legitimacy
Part II: At The Origins Of Constitutional Imaginary—​The Work Of Selected European Constitutionalists Revisited
6. Why Read The Transformation of Europe Today? On the Limits of a Liberal Constitutional Imaginary
7. Messianism, Exodus, and the Empty Signifier of European Integration
8. From Constitutional Pyramid to Constitutional Pluralism: The Transformation of the European Constitutional Imaginary
9. The Imaginary and the Unconscious: Situating Constitutional Pluralism
Part III: Rethinking Constitutional Imaginaries For The Present
10. The Constitutional Imaginary and the Metabolic Realities of European Integration
11. The European Public Good and European Public Goods
12. The Peoples Imagined: Constituting a Demoicratic European Polity
13. Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-​National Law
Part IV: Without Political Economy, There Can Be No Constitutional Imaginary
14. On the New German Ideology
15. Beyond Neoliberal Federalism? The Ideological Shade of the Eurozone’s Constitutional Order after the Eurozone Crisis
16. The Failure to Grapple with Racial Capitalism in European Constitutionalism
17. Constitutionalism and Powerlessness
18. Imaginaries of Prosperity as Constitutional Imaginaries
19. Conclusion: Making ‘the Other’ Explicit
Index

Citation preview

European Constitutional Imaginaries

EUROPEAN CONSTITUTIONAL IMAGINARIES Between Ideology and Utopia Edited by JA N KOM Á R E K

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Oxford University Press 2023 The moral rights of the authors have been asserted First Edition published in 2023 Some rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, for commercial purposes, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization.

This is an open access publication, available online and distributed under the terms of a Creative Commons Attribution – Non Commercial – No Derivatives 4.0 International licence (CC BY-NC-ND 4.0), a copy of which is available at http://creativecommons.org/licenses/by-nc-nd/4.0/. Enquiries concerning reproduction outside the scope of this licence should be sent to the Rights Department, Oxford University Press, at the address above Public sector information reproduced under Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm) Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number is on file at the Library of Congress ISBN 978–0–19–285548–0 DOI: 10.1093/oso/9780192855480.001.0001 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

To Mikael

Acknowledgements The volume forms part of the Project IMAGINE, which has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement no 803163). More information on IMAGINE can be found at www.imagine-const.eu. Furthermore, I would like to thank my academic home, iCourts: the Danish National Research Foundation’s Centre of Excellence for International Courts based at the Faculty of Law, University of Copenhagen, and especially its director, Mikael Rask Madsen, for both material and (ever more importantly!) intellectual and spiritual companionship. I would like to dedicate this volume to him, as his support was absolutely crucial at various stages of my project. I would also like to express my gratitude to two research foundations, the Carlsberg Foundation (Carlsberg Foundation grant no. CF18–0026) and the Dreyers Fund (Dreyers Fund grant no. 18b-375), which supported the conference that took place in Copenhagen in November 2018 from which this volume originated. Finally, all my postdoctoral collaborators in the Project IMAGINE who helped to get the volume over the finish line. Thank you, Michal, Birgit, and Marina!

Contents List of Contributors List of Abbreviations 1. European Constitutional Imaginaries: Utopias, Ideologies, and the Other Jan Komárek

xi xiii 1

PA RT I : C O N S T I T U T IO NA L I M AG I NA R I E S O F T H E PA ST, P R E SE N T, A N D F U T U R E O F E U R O P E 2. European Constitutional Imaginaries: On Pluralism, Calculemus, Imperium, and Communitas Jiří Přibáň

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3. European Constitutional Imagination: A Whig Interpretation of the Process of European Integration? Marco Dani and Agustín José Menéndez

44

4. The European Union as ‘Militant Democracy’? Signe Rehling Larsen 5. Ideologies and Imaginaries of Legitimacy from the 1950s to Today: Trajectories of EU-Official Discourses Read against Rosanvallon’s Democratic Legitimacy Claudia Schrag Sternberg

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PA RT I I : AT T H E O R IG I N S O F C O N S T I T U T IO NA L I M AG I NA RY— T H E WO R K O F SE L E C T E D E U R O P E A N C O N S T I T U T IO NA L I S T S R EV I SI T E D 6. Why Read The Transformation of Europe Today? On the Limits of a Liberal Constitutional Imaginary Jan Komárek 7. Messianism, Exodus, and the Empty Signifier of European Integration Alexander Somek and Jakob Rendl 8. From Constitutional Pyramid to Constitutional Pluralism: The Transformation of the European Constitutional Imaginary Hugo Canihac

119 147

160

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9. The Imaginary and the Unconscious: Situating Constitutional Pluralism Amnon Lev

180

PA RT I I I : R E T H I N K I N G C O N S T I T U T IO NA L I M AG I NA R I E S F O R T H E P R E SE N T 10. The Constitutional Imaginary and the Metabolic Realities of European Integration Peter L Lindseth

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11. The European Public Good and European Public Goods Neil Walker

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12. The Peoples Imagined: Constituting a Demoicratic European Polity Kalypso Nicolaïdis

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13. Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law Paul Linden-Retek

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PA RT I V: W I T HO U T P O L I T IC A L E C O N OM Y, T H E R E C A N B E N O C O N S T I T U T IO NA L I M AG I NA RY 14. On the New German Ideology Michael A Wilkinson 15. Beyond Neoliberal Federalism? The Ideological Shade of the Eurozone’s Constitutional Order after the Eurozone Crisis Hjalte Lokdam 16. The Failure to Grapple with Racial Capitalism in European Constitutionalism Jeffrey Miller and Fernanda G Nicola

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17. Constitutionalism and Powerlessness Damjan Kukovec

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18. Imaginaries of Prosperity as Constitutional Imaginaries Marija Bartl

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19. Conclusion: Making ‘the Other’ Explicit Jan Komárek

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Index

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List of Contributors Marija Bartl, Professor of Transnational Private Law, Amsterdam Law School, The Netherlands Hugo Canihac, Helmut Schmidt University, Hamburg, Germany Marco Dani, Associate Professor of Comparative Public Law, Faculty of Law, University of Trento, Italy Jan Komárek, Professor of European Law, Faculty of Law, University of Copenhagen, Denmark Damjan Kukovec, Judge of the General Court of the European Union, Luxembourg Signe Rehling Larsen, Fellow by Examination in Law, Magdalen College, University of Oxford, UK Amnon Lev, Associate Professor, Faculty of Law, University of Copenhagen, Denmark Paul Linden-Retek, Associate Professor of Law, The State University of New York, University at Buffalo School of Law, USA Peter L Lindseth, Olimpiad S. Ioffe Professor of International and Comparative Law, University of Connecticut School of Law, USA Hjalte Lokdam, Independent Researcher, Denmark Agustín José Menéndez, Professor Titular of Political Philosophy, Departamento de Filosofía y Sociedad, Universidad Complutense de Madrid, Spain Jeffrey Miller, Assistant Professor of Business, Gallaudet University, Washington DC, USA Fernanda G Nicola, Professor of Law, American University, Washington College of Law, USA Kalypso Nicolaïdis, Chair in International Affairs, School of Transnational Governance, EUI and Professor of International Relations, University of Oxford, UK Jiří Přibáň, Professor of Law, Centre of Law, Cardiff University, UK Jakob Rendl, University Assistant, Institute of Legal Philosophy, University of Vienna School of Law, Austria Alexander Somek, Professor of Legal Philosophy, Institute of Legal Philosophy, University of Vienna School of Law, Austria Claudia Sternberg, Principal Research Fellow, UCL European Institute, University College London, UK

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List of Contributors

Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations, Edinburgh Law School, University of Edinburgh, UK Michael A Wilkinson, Professor of Law, London School of Economics and Political Science, UK

List of Abbreviations CJEU ECB EC ECB ECHR ECtHR ECJ EEC EMS EMU EP EU EUI Euratom FDI GDP GFCC IMF SMEs TEU

Court of Justice of the European Union European Central Bank European Commission European Central Bank European Court of Human Rights European Convention on Human Rights European Court of Justice European Economic Community European Monetary System Economic and Monetary Union European Parliament European Union European University Institute European Atomic Energy Community foreign direct investment gross domestic product German Federal Constitutional Court International Monetary Fund small and medium-sized enterprises Treaty on European Union

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European Constitutional Imaginaries Utopias, Ideologies, and the Other Jan Komárek

I. Introduction In the early 2000s many people believed that European constitutionalism could push the integration project to a qualitatively new stage. Some understood the adoption of the Treaty establishing a Constitution for Europe by the high contracting parties in 2004 as the Union’s constitutional moment, realizing the utopia of ‘an ever closer Union’.1 Then the Treaty was rejected in the French and Dutch referenda and the European Council officially abandoned the ‘constitutional concept’.2 Several crises of the Union followed, most of them with direct implications for constitutionalism in Europe: the financial and economic crisis, the refugee crisis, the rule of law crisis in Hungary and Poland, and, of course, Brexit.3 The consequences of the Covid-19 pandemic and the ongoing war in Ukraine may prove to be truly existential for the Union, as they exacerbate the impact of the crises just mentioned and add new dimensions to the numerous problems that Europe has been facing since 2004 (or even before). The kind of constitutionalism emerging from the past decade and a half has lost its utopian character: the need to adopt a new constitutional settlement is seen not as a further step in European integration but as an obstacle better to be avoided. Only a few actors now call for the reinvigoration of the constitutional process.4 Political practice has returned to a much less demanding legalistic concept of the constitution, putting emphasis on the rule of law, understood mainly as compliance with rules (and this only selective). The Union’s constitutional utopia has been left to a few intellectuals.5 Remarkably, the Franco-German non-paper on key questions and guidelines for the Conference on the Future of Europe from November 2019, which called to ‘generate 1 On the utopian element in the reconstruction of what European integration stands for (and projecting such reconstruction onto the outside world) see Kalypso Nicolaïdes and Robert Howse, ‘ “This is my EUtopia . . .”: Narrative as Power’ (2002) 40 Journal of Common Market Studies 767. 2 Council of the European Union, Brussels, 20 July 2007, 11177/1/07, Brussels European Council of 21 and 22 June 2007, Presidency Conclusions, 15. 3 For a recent analysis of the EU’s various crises see Desmond Dinan, Neill Nugent, and William E Paterson (eds), The European Union in Crisis (Palgrave Macmillan 2017). 4 See Matej Avbelj, ‘The Ljubljana Initiative for Re-Launching the European Integration’ (Verfassungsblog, 13 January 2017) accessed 18 August 2017. It is telling that the text of the initiative is no longer available on the link provided in the article. 5 Besides Avbelj (n 4) see particularly Jürgen Habermas (Ciaran Cronin transl), The Crisis of the European Union: A Response (Polity 2012) and ibid, The Lure of Technocracy (Polity 2015).

Jan Komárek, European Constitutional Imaginaries In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0001

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new concepts to guide the future of Europe’, did not mention the word ‘constitution’ at all.6 This is hardly surprising if it is true that even a Treaty amendment must not be mentioned in the debate on the future of Europe.7 How to account for this change? This volume proposes to do so by looking more deeply into European constitutional imaginaries.8 In the remainder of this introductory chapter, I will first try to define this concept and put it into the wider context of political theory and philosophy (section II). Then I will explain what I think is missing in a number of recent publications that deal with European constitutionalism at a more reflexive and theoretical level and how the approach taken here can enrich our understanding of the EU’s present predicament (section III). Two perspectives are particularly important: that of history, discussed in section IV, and that of political economy, dealt with in section V. The conclusion (section VI) presents the broader project of which this volume is part and gives a brief overview of each chapter’s contents.

II. Constitutional Imaginary: Between Utopia and Ideology The term ‘constitutional imaginary’ has recently been used by legal theorists9 and sociologists,10 each tapping into various intellectual traditions and disciplines. It is used here in a rather idiosyncratic way, which is based on those works but does not follow their definitions slavishly. Constitutional imaginaries are understood here as sets of ideas and beliefs that help to motivate and justify the practice of government and collective self-rule. They are as important as institutions and office-holders. They provide political action with an overarching sense and purpose recognized as legitimate by those governed. A number of central concepts—‘contested truths’—form part of any constitutional imaginary.11 These concepts are essential to the practice of government, and yet 6 The non-paper and related documents are available at accessed 22 June 2020. 7 See Maïa de la Baume, ‘Conference on the Future of Europe: Don’t mention the T word’ (Politico, 21 January 2020) accessed 22 June 2020). The Joint Declaration of the European Parliament, the Council and the European Commission on the Conference on the Future of Europe of 10 March 2021 (OJ 2021/C 91 I/01 of 18 March 2021) remains ambiguous on this point: it states that ‘The scope of the Conference should reflect the areas where the European Union has the competence to act or where European Union action would have been to the benefit of European citizens. Citizens remain free to raise additional issues that matter to them.’ 8 A note on terminology: some authors make a distinction between imaginary and imagination, or use the term imagery. In this chapter I use the first, without however committing to any of the possible distinctions. 9 See particularly Martin Loughlin, ‘Constitutional Imagination’ (2015) 78 Modern Law Review 1. 10 See Paul Blokker, ‘The Imaginary Constitution of Constitutions’ (2017) 3 Social Imaginaries 167. 11 See particularly Daniel T Rodgers, Contested Truths: Keywords in American Politics since Independence (HUP 1987) and Edward L Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton UP 2005). Constitutional imaginary is formed by words—since law (similarly to politics) is ‘a linguistically constituted activity’—see Terence Ball, James Farr, and Russel L Hanson (eds), Political Innovation and Conceptual Change (CUP 1989). It however comprises images, architecture, visual arts, and

Constitutional Imaginary: Between Utopia and Ideology

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unsettled. It is around them that important political (and also legal–constitutional) arguments turn—be it the nature of statehood and sovereignty, the constitution and its identity, democracy, rights (human and/or fundamental), institutions that implement and protect them (judicial review or not), and so on. As Edward Rubin notes in his attempt to provide a new constitutional imaginary for the administrative state of the twentieth century, ‘these words and concepts possess inherent ambiguities because they encompass our deepest value conflicts, and are sedimented with the multiple meanings that have been attached to them over many centuries of use’.12 They are part of the conceptual vocabulary of modern public law and politics.13 Importantly, while constitutional imaginaries can be seen as ‘necessary fictions’ that make political rule possible,14 they are also ideologies—understood in (post-) Marxist terms as a ‘means of domination’.15 On such reading, ideology is primarily an instrument of domination. Ideology ‘reifies’ human experience, making the products of human activity (such as markets or a particular distribution of rights, especially property) appear as natural and fixed. Ideological distortion of reality thus excludes any possibility of change. It is a form of ‘false consciousness’. European constitutionalism could be conceived as a kind of deceptive ideology. We can say that, with the many crises of the past decade, it has been finally unmasked as such—and has collapsed. Constitutionalism is not capable to exercise the normative pull over the people that it once (possibly?) could. Unmasking the integration project—and its legal-constitutional conceptualization—as an ideology does not mean, however, that possible alternatives (including the return to a strong ‘nation state’ that would give ‘the power back to the people’ and make their state ‘great again’) are not ideological themselves. This is because ideologies are indispensable for political rule. In a broader sense they make up part of the individual’s experience and understanding of the world. Ideologies integrate individual subjects and their beliefs into a common whole.16 They conceal the gap between a political order’s claim to legitimacy and its subjects’ beliefs—they create necessary fictions (of nationhood, common identity, or shared history) that enable politics as a method of striving for freedom together with others.17 What is worse, however: there is no external vantage point from which to criticize ideologies. Not in the more trivial sense that any critique of ideology is also ideological, but in a way which challenges our own faculties of critical thought and perception of

many other artefacts. See eg Kathleen R McNamara, The Politics of Everyday Europe: Constructing Authority in the European Union (OUP 2015). 12

Rubin (n 11) 6. Explored eg by Martin Loughlin, Foundations of Public Law (OUP 2010) or Ball et al (n 11). For an attempt in the context of European integration see András Jakab, European Constitutional Language (CUP 2016). 14 See Yaron Ezrahi, Imagined Democracies: Necessary Political Fictions (CUP 2012) 37. 15 See Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (CUP 2000) 10. For an overview of the development of the concept of ideology and its various uses in practice and theory see Michael Freeden, Ideologies and Political Theory: A Conceptual Approach (OUP 1996) 1–136. 16 See Loughlin (n 9) 12–13. 17 Ezrahi (n 14). 13

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the world around us. Our very understanding of the political, social, economic, or cultural context in which we live is also formed by the ideologies that we want to evaluate. This is known as the ‘Mannheim paradox’, named after Karl Mannheim, who sought to establish a scientific (hence, non-ideological) knowledge of politics.18 However, science was revealed as a form of ideology too, particularly by the post-war critical theory, and there seems to be no solution to the paradox.19 Paul Ricoeur, the French philosopher of hermeneutics, suggested a different way out of this impasse: in his Lectures on Ideology and Utopia he proposes a counterconcept to that of ideology, openly admitting that the only way to get out of the circularity in which ideologies engulf us is to assume a utopia, declare it, and judge an ideology on this basis. Because the absolute onlooker is impossible, then it is someone within the process itself who takes the responsibility for judgment. It may also be more modest to say that the judgment is always a point of view—a polemical point of view though one which claims to assume a better future for humanity—and a point of view which declares itself as such.20

Utopia and ideology then together constitute the imaginary, or imagination, which was the concept taken up by Martin Loughlin in his Chorley lecture at the London School of Economics and Political Science in 2014.21 Imaginary—both at the level of an individual person who is co-producing it and at the level of a society, where such imaginary forms part of its collective experience—is both ideological and utopian. It is ideological since, in the interest of creating the society (or community), it suppresses the individual and her preferences, needs, or experience. Any belonging to the collective is such; the alternative is the aggregate of individuals, each different in their own sphere, not shared with others except through contracting. It is also utopian, since it gives the society a direction or horizon—although this remains out of reach. Utopias are crucial for preserving opposition to the status quo as aspirational schemes that seek actualization.22 They orient political action towards change and can lead to reforms that reconcile the political order with the desires of its subjects. One of the problems of today’s European constitutionalism lies in its inability to offer a utopia that could give a sense of direction to those who cannot identify with the present state of affairs, but at the same time (still) hesitate to follow European constitutionalism’s enemies.

18 See Karl Mannheim, Ideology and Utopia (Harcourt Brace and World 1936). See Peter Breiner, ‘Karl Mannheim and Political Ideology’ in Michael Freeden, Lyman Tower Sargent, and Mark Stears (eds), The Oxford Handbook of Political Ideologies (OUP 2013) 38. 19 See especially Jürgen Habermas, ‘Technology and Science as “Ideology” ’ in ibid (Jeremy J Shapiro transl), Toward a Rational Society: Student Protest, Science, and Politics (Polity 1987) 81 and Jürgen Habermas, ‘The Idea of the Theory of Knowledge as Social Theory’ in ibid (Jeremy J Shapiro transl), Knowledge and Human Interests (Beacon Press 1971) 43. 20 Paul Ricoeur (George H Taylor transl), Lectures on Ideology and Utopia (Columbia UP 1986) 172–73, discussed in Loughlin (n 9) at 13. 21 Loughlin (n 9). For a very useful account of the relationship between ideology and utopia in the work of various thinkers see Lyman Tower Sargent, ‘Ideology and Utopia’ in Freeden et al (n 18) Chapter 24. 22 Loughlin (n 9) 13.

Other Reconstructive Projects

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We need to maintain, to the extent that it is possible, both views of constitutional imaginary: as something indispensable for political rule, but at the same time something potentially oppressive. We need to understand why, in the different periods of European integration, European constitutionalists hold particular views about the constitution (both conceptual, referring to the realm of constitutional theory, and empirical, related to their understanding of the ‘really existing’ constitution of the EU)—without interpreting them as ‘simply having been afflicted with psychological pathologies’,23 seeking power or even domination. When establishing the meaning (or meanings) of the European constitution, one needs to take their ideas as seriously as possible. At the same time, in order to uncover the reformist potential of the constitutionalist project—its utopia—or its ultimate failure, we need to keep the critical project in sight. This can be pursued through ‘ideology critique’, which is, according to Susan Marks, ‘geared to promoting social change, not by advancing blueprints for the future, but by encouraging investigation of the resources of the past’.24 Studying various utopias as elements of the European constitutional imaginary forms part of this critical project.

III. European Constitutional Imaginaries in the Context of Other Reconstructive Projects Recently, several books have been published that provide important insights into the constitutional imaginary of Europe.25 They comprise works by constitutionalists themselves, which go beyond ‘mere’ conceptualizations of European constitutionalism and offer reflections on what it means to engage in constitutional practice and scholarship. In addition, ‘New Legal History’ of the EU is being written, together with the sociology of EU law. None of these, however, engage in a deep analysis of the world of ideas of EU constitutional law and theory, which lies at the heart of this volume and the overarching project to which it belongs. András Jakab’s recent book European Constitutional Language26 comes close to an analysis of the European constitutional ideology in several respects: it seeks to analyse a conceptual ‘vocabulary and grammar’ of European constitutional discourse, sensitive to the historical and sociological context in which it has been arising since the sixteenth century. The ‘grammar’ for Jakab consists primarily of the rules of constitutional reasoning,27 while the ‘vocabulary’ is formed by different conceptualized responses to social challenges at various points in history. This is because 23 Jan-Werner Müller, ‘The Triumph of What (If Anything)? Rethinking Political Ideologies and Political Institutions in Twentieth-century Europe’ (2009) 14 Journal of Political Ideologies 211–26, 214. 24 Marks (n 15) 27. 25 Besides those discussed in this chapter, the following need to be mentioned too: Turkuler Isiksel, Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State (OUP 2016), reviewed in Jan Komárek, ‘Rethinking Constitutionalism and Democracy . . . Again?’ (2019) 17 International Journal of Constitutional Law 992, Signe Larsen, The Constitutional Theory of the Federation and the European Union (OUP 2021) and Michael Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (OUP 2021). 26 CUP 2016. 27 Analysed in a relatively short Part I of the book.

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European Constitutional Imaginaries [o]ur basic concepts of constitutional law are a patchwork historical collection of responses to different challenges, and rightly so. Great social achievements like modern constitutional systems are all based on an incremental, lengthy, trial-and-error development of human knowledge.28

One cannot agree more—and the contextual analysis of the European constitutional discourse that Jakab offers provides important material for the ideology critique. Where we need to part with Jakab, however, is in his seeming application of the ‘objective teleological method’ to determining the content of the concepts, including the historical challenges to which they are intended to respond.29 To be sure, Jakab tries to be open about his normative preferences—to the extent that they can be read from his statement of political vision: ‘a federal Europe (meaning the European Union) which is a strong contestant on the political and economic world stage and which is based on its common constitutional traditions.’30 The statement says nothing with regard to some crucial issues which remain hidden from European constitutional discourse, such as the balance between politics and economics, democracy and capitalism, or the EU’s centre and its periphery. Instead, we have a chapter on ‘the rule of law, fundamental rights and the terrorist challenge in Europe and elsewhere’,31 which is almost exclusively about the liberal principle of the rule of law. What is usually understood as ‘fundamental rights’—be it in a more limited sense of negative liberties or as more demanding claims for social freedom—is not addressed at all.32 In fact, Jakab admits that his book is intended to be ‘an intellectual contribution to European institution-building’,33 which does not have a critical–emancipatory ambition, which lies at the heart of a ‘constitutional ideology critique’ in the very specific sense suggested above. We need to problematize and analyse in much greater detail the ‘historical challenges’ which inform the formulation of constitutional grammar and vocabulary of the time. In other words, we need to engage in a project of ‘constitutionalism as critique’ rather than simply contributing to the building of a project.34 Peter Lindseth’s Power and Legitimacy: Reconciling Europe and the Nation-State35 explicitly seeks ‘to challenge the claim, so prevalent in the work of leading European legal theorists on integration over the last several decades, that autonomous regulatory power [of the EU] demands an equally autonomous form of “non-statal constitutionalism”, or “constitutionalism beyond the state” ’.36 Instead of constitutionalism Lindseth suggests the notion of ‘the post-war constitutional settlement of

28 Jakab (n 26) 87, where Jakab also acknowledges inspiration for such view in Anthony Quinton, The Politics of Imperfection (Faber & Faber 1978)—see also Jakab ibid 3, fn 11. 29 Jakab (n 26) 87. 30 Ibid 5, fn 15. 31 Ibid Chapter 7. 32 For various understandings of fundamental rights see eg Adam Etinson (ed), Human Rights: Moral or Political? (OUP 2018). 33 Jakab (n 26) 4, fn 12. 34 See Gavin W Anderson, ‘Constitutionalism as Critical Project: The Epistemological Challenge to Politics’ in Stephen Gill and A Claire Cutler (eds), New Constitutionalism and World Order (CUP 2014) 281. 35 OUP 2010. 36 Ibid 18. See also Peter Lindseth, ‘Constitutionalism Beyond the State? The Administrative Character of European Governance Revisited’ (2012) 33 Cardozo Law Review 101.

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administrative governance’, with delegation (from the member states to supranational institutions) as ‘a foundational normative principle in European law’.37 But even if Lindseth were right about the administrative and not constitutional character of the EU integration project, constitutional ideology can do very important work in order for the whole construction to be sustainable and for supranational institutions to maintain authority over individual member states. One may therefore accept Lindseth’s characterization of the EU but point to a missing element in it: the role of constitutional ideology in the more critical sense mentioned above, as something that conceals the gap between the claim to authority by the EU and the beliefs of its subjects as regards what can possibly justify such authority. Still, Lindseth’s book is indispensable for the kind of intellectual history of the problem of state governing capacity and ensuing delegation in the post-war period which it offers, together with the re-conceptualization of some basic dilemmas of constitutional law and theory. Finally, The Cosmopolitan Constitution by Alexander Somek38 is, in a sense, an analysis of the constitutional imagination of the West, moving from the American revolutionary ‘we the people’ constitution to the constitution of human dignity represented by the post-war German Basic Law. For Somek constitutionalism represents a ‘project of emancipation’, first from the received feudal hierarchy through the constitution of negative liberties, where the market is the source of freedom and the state always suspicious, and later, after the Second World War, from the sources of un-freedom originating from within the market society.39 The present form of constitutionalism, ‘cosmopolitan constitution’, denotes the third stage in the development of the constitutional idea. It refers to ‘the constitution of the nation states under conditions of international engagement’40 and is deeply ambivalent: it acknowledges that constitutional authority is dependent on the national constitution’s embeddedness in the international system (through supranational projects of European integration or human rights adjudication by the European Court of Human Rights). The realization of this authority is, however, still dependent on the state. But people in the state do not act in a way comparable to the ‘we the people’ constitution—such acting is deeply suspicious for the cosmopolitan constitution which Somek presents in his book.41 Instead they yield to administrative authorities and do not act in a meaningfully ‘political’ (collective) way. Somek’s book offers a powerful reconstruction of the constitutional idea and a critique of its present actualization. It necessarily paints with a broad brush (ranging from the American revolution of the eighteenth century until today’s experience of Europe). It does not explicitly examine the EU and its constitutional ideology, particularly the people who have construed its constitutional imagination and their ideas. In

37

Ibid 24. OUP 2014. Ibid 10–11. 40 Ibid 25. 41 Think of the present fear of populism—no matter how much populism can get misrepresented in the present discourse. For an important corrective to the present trend to designate as ‘populist’ everything that challenges the present order see Jan Werner Müller, What Is Populism? (University of Pennsylvania Press 2016). 38 39

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that respect Somek can provide a very important philosophical orientation for a project that is more EU-specific and focuses on what has been written on the EU.

IV. The Role of History As suggested above, ideology critique is also dependent on a careful historical reconstruction.42 ‘Towards a New History of European Law’ was the title of a special issue of Contemporary European History that included numerous contributions from the recently established field of study, which uses legal historians’ methods to examine the field of EU law.43 Some of its protagonists aim ‘to treat the purported “constitutionalisation” of the European legal order as a historical problématique in need of a healthy dose of disciplined analysis based on archival research’.44 As such, this scholarship contributes to undermining the tendency of the ‘constitutionalization thesis’ to dominate the discourse on the nature of the EU and its law among lawyers— although this thesis is remarkably weaker today than it was at its peak, that is, before the rejection of the Treaty establishing a Constitution for Europe in 2005.45 The New History scholarship (together with more sociologically oriented research which I will discuss below) helped to turn attention to a whole new range of actors. The Legal Service of the Commission appears as the true champion of constitutionalization, pushing it against a much more reluctant ECJ,46 assisted by transnational networks of professional jurists and academics in and around FIDE.47 Legal historians also helped to open the ‘Pandora’s Box’ of national responses to the ECJ’s constitutionalizing efforts—Bill Davies’ Resisting the European Court of Justice: West Germany’s Confrontation with European Law, 1949–197948 is path-breaking in the attention

42

See the text at n 24. ‘Towards a New History of European Public Law’ is also the title of a research project led by Morten Rasmussen at the Saxo Institute, University of Copenhagen (see accessed 10 August 2017). There are of course far more contributions to the history of European law, all emerging in the past decade. Besides this kind of research, there are interesting collections of reflections on the ‘dark legacies’ of European law, emerging from a collective project led by Christian Joerges: see Navraj Singh Ghaleigh and Christian Joerges (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (Hart 2003) and ‘Special Issue—Confronting Memories’ (2005) 6(2) German Law Journal. 44 Bill Davies and Morten Rasmussen, ‘Towards a New History of European Law’ (2012) 21 Contemporary European History 305, 309. See also special issue, ‘Critical Legal Histories in EU Law’ (2013) 28 American University International Law Review 1173 and most recently Fernanda Nicola and Bill Davies (eds), EU Law Stories: Contextual and Critical Histories of European Jurisprudence (CUP 2017). 45 For a prominent voice among EU academic lawyers who argued against the constitutionalization thesis, see Bruno de Witte, ‘The EU as an International Legal Experiment’ in Joseph HH Weiler and Gráinne de Búrca, The Worlds of European Constitutionalism (CUP 2011) 19–56 and the ‘Dialogic Epilogue’ with Joseph Weiler, 262–70. 46 See eg Morten Rasmussen, ‘Establishing a Constitutional Practice of European Law: The History of the Legal Service of the European Executive, 1952–65’ (2012) 21 Contemporary European History 375. 47 See however, long before the ‘New Legal History’ emerged, Harm Schepel and Rein Wesseling, ‘The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe’ (1997) 3 European Law Journal 165. 48 CUP 2012. 43

The Role of History

9

it gives to the internal debates in the German government, public opinion, and academic debates.49 However, there are strong disciplinary limitations, openly acknowledged by the leading figure of the New Legal History movement, Morten Rasmussen: it is important to point out that the methodology of the discipline of history is fundamentally different from either law or the social sciences. The focus of historians is less to promote an explicit theoretical approach. Rather, it is to identify the best possible documentary and oral evidence to analyze the historical processes that shaped European public law.50

This does not need to mean that historians’ work cannot speak to the present: to the contrary, Davies mentions the ongoing debate among (particularly US) legal historians on whether the purpose of their work ‘revolves around the relevancy and importance of the distinction between “applied” and “pure” legal history and whether legal history must address contemporary structures’ and discusses advantages and pitfalls of both.51 The problem rather is the lack of interest in engaging—and, one is even tempted to say, competence to engage—complex questions of constitutional theory that are the necessary building blocks of constitutional ideology. Sociological research drawing on Pierre Bourdieu’s ‘field theory’52 emerged at about the same time as the ‘New Legal History’ scholarship.53 The field is a place for struggle between different agents, a sort of marketplace where different positions are held due to the amount of capital (economic, cultural, social and symbolic) that agents possess and which determine their potential influence on the functioning of the field.54

Actors hold differing symbolic power, another crucial category of Bourdiean analysis of law: ‘It is the power to transform the world “by transforming the words for naming it, by producing new categories of perception and judgment, and by dictating a new 49 On the latter see also Bill Davies, ‘Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context’ (2015) 21 European Law Journal 434. 50 Morten Rasmussen, ‘Rewriting the History of European Public Law: The New Contribution of Historians’ (2013) 28 American University International Law Review 1187, 1197. 51 Bill Davies, ‘Why EU Legal History Matters—A Historian’s Response’ (2013) 28 American University International Law Review 1337, 1350. See also Fernanda Nicola’s contribution to the same special issue, (2013) 28 American University International Law Review 1173, 1185. 52 See Pierre Bourdieu (Richard Terdiman transl), ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 37 Hastings Law Journal 805. For short introductions to Bourdieu’s sociology of law see Mikael Rask Madsen and Yves Deyalay, ‘The Power of the Legal Field: Pierre Bourdieu and the Law’ in Reza Banakar and Max Travers (eds), An Introduction to Law and Social Theory (Hart 2002) 189 and Antoine Vauchez, ‘The Force of a Weak Field: Law and Lawyers in the Government of the European Union (For a Renewed Research Agenda)’ (2008) 2 International Political Sociology 128. 53 See particularly Antoine Vauchez, Brokering Europe: Euro-lawyers and the Making of a Transnational Polity (CUP 2015) and Antoine Vauchez and Bruno de Witte (eds), Lawyering Europe: European Law as a Transnational Social Field (Hart 2013). In the introductory chapter to the latter Vauchez notes the indiscriminate use of the term ‘field’ in the European studies, from the rather metaphoric and spatial to the rigorously ‘Bourdiean’, using the related conceptual vocabulary. 54 Madsen and Dezalay (n 52) 192.

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vision of social divisions and distributions”.’55 Through such power actors can exercise symbolic violence and become dominant—something that is at the centre of the critical analysis of ideology. Antoine Vauchez’s recent book is the most comprehensive study of the field of EU law. It explicitly acknowledges the existence of the ‘constitutional paradigm as the inescapable frame of the EU polity in the face of diplomatic big bangs and centrifugal forces that have periodically attempted to reopen the space of political possibilities in Europe’.56 The book’s claim is that in the European Union, even more than anywhere else, there is no possible distinction between the ‘law’ and the ‘society’. There are no areas of Europe’s politics, economics, bureaucracy or civil society that have not been produced or co-produced to some extent by lawyers, whatever their guises may be. Legal Europe is co-extensive with Europe itself, and it is hardly possible to think about the Union and its ‘system’, its institutions and their ‘logic’, its markets and their ‘functioning’, its civil society and its ‘causes’, without delving into the impressive corpus of ad hoc legal theories and methodologies of Europe.57

Yet, despite this almost omnipotent role given to law, the whole approach misses an important dimension: that of ideas (and ideologies) and the agency they can exercise, which my project seeks to examine. If Vauchez’s book ‘inserts living, acting people into what has so far tended to remain a disembodied narrative of reified actors (“the Court”, “the Commission”) pursuing abstract goals and ex ante defined interests’, 58 ideology critique should examine their ideas and what these ideas can do— to the ‘external world’ (as part of the cultural capital contributing to the symbolic power in the Bourdiean sense), but also from their holders’ internal point of view— in other words, what these ideas can do to them. Now, if we focus on the ideas held and promoted by European constitutionalists, what kind of constitutional ideology do they have? The first objection raised can of course be that there is no cohesive group of ‘European constitutionalists’ and that the ideas of, say, Joseph Weiler, on the one hand, and Koen Lenaerts, on the other, have differed markedly, as they professional backgrounds. But one can agree with Vauchez that what we can conveniently place under the banner of ‘the constitutionalization of Europe’ flourished most particularly in the hills of Fiesole between Badia Fiesolana and the Villa Schifanoia, the home of the law department of the European University Institute (EUI) since its creation in 1976.59

55 56 57 58 59

Ibid 193–94, quoting Bourdieu (n 52) 839. Vauchez (n 53) 11. Ibid 4. Ibid 7. Vauchez (n 53) 202. The home moved to Villa Salviati in August 2016.

THE IMPORTANCE OF THE ‘C-WORD’

11

This will of course do a great injustice to all other departments of EU law at European (and other) universities which took the idea of European constitutionalism seriously— and a proper study of European constitutional ideology would need to take these into account too. But in the following part of this chapter I would like to highlight what this strand of European constitutionalism has always missed: the ideological effects of its ideas, in the sense of concealing domination enabled by such kind of constitutionalism, especially in the form of economic power.

V. The Importance of the ‘C-Word’, or Why We Cannot Do Constitutional Theory Without Political Economy The use of the vocabulary of liberal democracy in much of the European constitutional discourse has been stripped of its economic/social dimension: as if constitutional democracy in the EU had travelled back to before its post-war transformation, analysed by Somek as the ‘constitution of human dignity’.60 Mattias Kumm’s idea of a ‘legitimatory trinity’ of global public law (which he applies in the context of international law and EU law too), according to which human rights, democracy, and the rule of law have become the largely uncontested criteria of law’s claim to legitimate authority, illustrate this well.61 One is reminded of another trinity: liberté, egalité, fraternité, where the last can be translated as solidarity, to realize the contrast here. It is true that there has been a very important strand of EU constitutional scholarship, which takes the economic (and implicitly social) dimension seriously—in fact, putting it at its heart—European Economic Constitutionalism, introduced into the European constitutional language by an EUI professor of long standing, Christian Joerges.62 It was he who complained, as late as 2015, about a ‘benign neglect of the constitutional importance of the economy’63 in the constitutional debate of the past two decades.64 Joerges’ scholarship thus crucially contributes to the examination of European constitutional ideology proposed here. There has been no ‘Great Forgetting’ of questions of constitutional political economy which our colleagues in the United States have

60 Somek (n 38) 84 and 155–75. See also Marco Dani, ‘Rehabilitating Social Conflicts in European Public Law’ (2012) 18 European Law Journal 621. 61 ‘Legitimatory trinity’ was the term used by Mattias Kumm in a presentation at the LSE, European Public Law Theory seminar, 19 January 2012. 62 See particularly Christian Joerges, ‘What Is Left of the European Economic Constitution? A Melancholic Eulogy’ (2005) 30 European Law Review 461 and ‘What Is Left of the European Economic Constitution II? From Pyrrhic Victory to Cannae Defeat’ in Poul F. Kjaer and Niklas Olsen (eds), Critical Theories of Crisis in Europe: From Weimar to the Euro (Rowman & Littlefield 2016) 143. 63 Christian Joerges, ‘Constitutionalism and the Law of the European Economy’ in Mark Dawson, Henrik Enderlein, and Christian Joerges (eds), Beyond the Crisis: The Governance of Europe’s Economic, Political and Legal Transformation (OUP 2015) 216, 216. See also ibid, ‘ “Brother, Can You Paradigm?” ’ (2014) 12 International Journal of Constitutional Law 769–85, 64 Besides Joerges, one needs to mention the recent book by Clemens Kaupa, The Pluralist Character of the European Economic Constitution (Hart 2016). Kaupa also takes up the issue of constitutional ideology in ‘Has (Downturn‐)Austerity Really Been “Constitutionalized” in Europe? On the Ideological Dimension of Such a Claim’ (2017) 44 Journal of Law and Society 32.

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recently discovered in their discourse.65 The point of the kind of analysis suggested in the concluding part of this chapter is, however, different: to look into those contributions to the constitutional debate which ‘benignly neglected’ the questions of political economy and still were able to dominate the constitutional debate—in fact, for longer than the twenty years identified by Joerges. There is one more, and more serious, reservation to Joerges’ analysis of the European Economic Constitution, however.66 It appears remarkably conservative in its acceptance of the ordo-liberal philosophy of the ‘original’ economic constitution, with its division of labour between the supranational level, which would be responsible for establishing the market and protecting free competition on it, and the member states, which would remain responsible for social policy. In other words, Joerges seems to believe in at least the theoretical possibility of having a ‘social market economy’ in the EU, despite the dynamics between negative and positive integration and, more widely, between unbound capitalism, using the freedoms of the Internal Market to free itself from the ‘red tape’ of national regulation, and the state, which is defined by fixed borders and is dependent on their continued existence.67 What we need in Europe, according to Joerges, is a ‘conflicts of law’ constitutionalism, which would be able to proceduralize multiple conflicts in the EU.68 In Joerges’s view, ‘law cannot do more than provide procedures and principles which foster constructive cooperation’.69 Proceduralization of conflicts shares some basic premises with Habermas’ procedural paradigm of law and democracy outlined in his magisterial Between Facts and Norms.70 There is no space to discuss this in detail, but it should be noted that there is an important gap in Habermas’ analysis, noted even by his ‘sympathetic readers’.71 There are social pathologies generated by the capitalist political economy, maintained even by the procedural paradigm of law, which escape Habermas’ conceptualization. In the European context, Wolfgang Streeck has become the most vocal critique of capitalism and its ties to European integration, to the extent that he was called ‘nostalgic’ by no one else than Jürgen Habermas.72 In a bitter response to Habermas, Streeck observes: Unlike Habermas, I do not believe we can speak meaningfully about the future of democracy, in Europe or elsewhere, without at the same time speaking about the

65 See Jedediah Purdy, ‘Overcoming the Great Forgetting: A Comment on Fishkin and Forbath’ (2016) 94 Texas Law Review 1415. 66 See also Jan Komárek, ‘Political Economy in the European Constitutional Imaginary—Moving beyond Fiesole’ (Verfassungsblog, 4 September 2020) accessed 16 June 2021. 67 For this analysis see Fritz Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999). 68 See, among many iterations, Christian Joerges, ‘Unity in Diversity as Europe’s Vocation and Conflicts Law as Europe’s Constitutional Form’, LEQS Paper No. 28/2010, accessed 27 August 2017. 69 Joerges (2014, n 63) 777. 70 Jürgen Habermas (William Rehg transl), Between Facts and Norms (Polity Press 1996) 427–46. 71 William E. Scheuerman, ‘Capitalism, Law, and Social Criticism’ (2013) 20 Constellations 571, 583. 72 See Jürgen Habermas, ‘Democracy or Capitalism? On the Abject Spectacle of a Capitalistic World Society Fragmented along National Lines’, Chapter 7 in Habermas (2015, n 5), a review of Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (Verso 2014).

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future of capitalism. Put otherwise, we cannot do democratic theory without political economy.73

A good start, for a critique of European constitutional ideology, would be to consider the economic dimension of constitutional theory and the theory of European constitutional law in particular. It is also important to realize the importance of the ‘c-word’—not the constitution, but capitalism—and include it in our analysis of the European constitution.74

VI. Conclusion: Towards the Study of the European Constitutional Imaginary The foregoing was primarily intended to introduce a problématique that has only scarcely been studied in the context of EU constitutional law and theory: its constitutional imaginary, or, better put, imaginaries. However, I am not interested in ‘mythbreaking’ or creating new utopias (and ideologies). My main ambition is to take ideas—whatever their origin or prominence—seriously. It is imperative to understand why, in the different periods of European integration, European constitutionalists hold particular views about the constitution (both conceptual, referring to the realm of constitutional theory, and empirical, related to their understanding of the ‘really existing’ constitution of the EU). Through this ambition, we can fill a gap in our knowledge about EU constitutionalism. In line with the foregoing observations, the chapters in this volume seek to address various questions raised by our awareness of the ideological—and at the same time utopian—character of European constitutionalism. They result from, first, a conference organized in Copenhagen in November 2018, and then a workshop in May 2019, where some drafts of conference papers were discussed with new chapters added. This, together with intensive communication with the authors, has hopefully led to a volume that contains original texts, which however speak one to another and form a coherent whole that addresses the issues raised in the previous sections of this introductory chapter. The first part, entitled Constitutional Imaginaries of the Past, Present, and Future of Europe, contains chapters that provide a broad overview of the development of constitutional imaginaries of Europe. The first two chapters do so as self-standing conceptualizations. Jiří Přibáň offers an alternative understanding of constitutional imaginaries, grounded in social theory, and constitutional sociology and distinguishes four such imaginaries in Europe: ‘constitutional pluralism’ in the realm of political constitutionalism; administrative rationality; market-based prosperity; and finally democratic mobilization, of which populism is just one kind. These are put into

73 Wolgang Streeck, ‘Small-State Nostalgia? The Currency Union, Germany, and Europe: A Reply to Jürgen Habermas’ (2014) 21 Constellations 213, 218, emphasis in the original. 74 See Michael Wilkinson’s numerous publications in this vein, especially Wilkinson (n 25).

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the context of Přibáň’s own theory of societal constitutionalism, which is taken as an overarching frame.75 Marco Dani and Agustín José Menéndez offer a careful historical reconstruction of the debate on constitutionalization of the integration project and explain the stakes of understanding correctly what kind of constitution people have in mind in such debates. Their chapter thus contributes not only to the study of European constitutionalism but to European constitutional theory, which takes inspiration from both the supranational and national level, especially as they call for constitutional resistance from the collective of national constitutions to counterbalance the power which was transferred by these same constitutions to the supranational centre. Signe Larsen provides an important corrective to the now widely accepted characterization of the EU member states as ‘constrained democracies’, whereby the constraint is also provided by the EU, which serves as a ‘militant democracy’.76 Larsen warns that this is an overly reductive story of the post-war European constitutionalism, which in fact contains a richer variety of imaginaries: besides the ‘post-fascist constitutionalism’ which has informed the imaginary of the EU as a militant democracy, there is ‘evolutionary constitutionalism’ in countries which have never faced constitutional failure (most importantly the UK, but also Nordic member states of the EU) and finally ‘post-communist constitutionalism’—which is too quickly put into the same basket as the first, overlooking some key differences, especially the lack of the ‘fear of the people’ so present in post-fascist constitutionalism. Claudia Schrag Sternberg builds on her earlier work77 to examine the pertinence of Pierre Rosanvallon’s theory of democratic legitimacy for the EU.78 In Rosanvallon’s reconstruction, the legitimacy of modern democracies broke down in the 1980s owing to a loss of faith in its two main foundations in elections and bureaucracy; while Rosanvallon has left the EU outside his analysis, this chapter applies his key findings to the process of European integration. The second part of this volume, entitled At the Origins of Constitutional Imaginary— The Work of Selected European Constitutionalists Revisited, revisits the contributions of some key authors in the field. There is no doubt that Joseph Weiler and his ‘Transformation of Europe’ is the most influential of these (also confirmed by a recent survey).79 But should we read it today? The present author, Jan Komárek, argues so, and analyses various constitutional imaginaries behind ‘Transformation’. Alexander Somek and Jakob Rendl take issue with Joseph Weiler’s claims that Europe was built with messianic fervour.80 After the destruction and evil wrought by 75 See Jiří Přibáň, ‘Constitutional Imaginaries and Legitimation: On Potentia, Potestas, and Auctoritas in Societal Constitutionalism’ (2018) 45(S1) Journal of Law and Society 30. 76 See especially Jan-Werner Müller, Contesting Democracy: Political Ideas in Twentieth-Century Europe (Yale UP 2011). 77 See Claudia Schrag Sternberg, The Struggle for EU Legitimacy: Public Contestation, 1950s–2005 (Palgrave Macmillan 2013). 78 Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity (Princeton UP 2011). 79 See Jan Komárek, ‘Whose Ideas Matter? Studying the Origins of European Constitutional Imaginaries’, IMAGINE Working Paper No. 21 (iCourts Working Paper Series No. 300), accessed 1 December 2022. 80 See Joseph HH Weiler, ‘The Political and Legal Culture of European Integration: An Exploratory Essay’ (2011) 9 International Journal of Constitutional Law 678.

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the Second World War, Europe was supposed to be a ‘promised land’. Their chapter examines how Weiler conflates the narrative of the exodus with the messianic leap into a different aeon and concludes that they have to be held distinct. It also suggests that Weiler’s fusion of two distinct religious ideas betrays the force of ‘Europe’ as an ‘empty signifier’ of integration. Hugo Canihac goes back to the origins of one influential theory of European constitutionalism: constitutional pluralism and its ‘founding father’, Neil MacCormick. Canihac, a trained legal sociologist, gives particular attention to various professional and disciplinary coalitions that gave rise to this (now apparently dominant) European constitutional imaginary. Amnon Lev examines constitutional pluralism as a philosopher and historian of ideas, to examine the shifts that one of its key proponents, Neil Walker, undertook between his initial publications in the early 2000s and those revisiting his theory more than fifteen years later. Lev argues that Walker does not fully appreciate the conception of political life that is at the heart of European integration—premised on the demise of the ‘political’ in the society and the reduction of national politics to questions of ‘survival’. The third part, Rethinking Constitutional Imaginaries for the Present, is more programmatic in that it offers various new ways of thinking about European constitutionalism. Peter Lindseth argues that European constitutionalists have focused too much on the constraining function of constitutions. However, the latter may also serve a ‘metabolic function’: ‘the capacity to mobilise fiscal and human resources in a legitimate and compulsory manner.’81 For the EU, the real test is whether it would be able to do this autonomously, that is, without mediation through the member states. Neil Walker builds on the distinction between nomocracies and teleocracies and argues that the EU has long focused on pursuing various public goods—and is therefore closer to the latter. Teleocracies are concerned with pursuing various discrete goals (or goods), whereas nomocracies are based on the public good of being able to live and govern in common. At the same time, there has always been a hope that in the course of time the pursuit of ‘peace and prosperity’ can create a sense of a shared polity, for which living in common would also be a public good worth pursuing. In other words, the EU would become a nomocracy. Walker investigates whether this can ever be the case, also in comparison with the modern state. Kalypso Nicolaïdes investigates what sort of imaginary could bring awareness, among the peoples of Europe, of their mutual interconnectedness and constitute a transnational European polity. She argues for a democratic perspective, which, in her view, can help to push back against ‘technopolism’. Her chapter concludes with a strong argument for the delegation of authority to the EU by the constituent member states: once they have moved from the politics of space to the politics of time, they need to create ‘a pivot that requires deep democratic ownership of policies shaped and enforced by the EU as the guardian of the long term’.82

81 82

Lindseth in this volume. Nicolaïdes in this volume.

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European Constitutional Imaginaries

Paul Linden-Retek uses the perspective of constitutional imaginaries to shed a critical light on the Habermasian discourse theory of law and democracy and constitutional patriotism—a particular version of constitutional imaginary often connected with the European integration project. Crucially, Linden-Retek urges us to turn our attention from legal principles on which the theory stands to ‘the historical settlement of political conflict those principles reflect’.83 He then suggests that a reformed constitutional patriotism should ‘entail distinct modes of argumentation and interpretation: historical analysis, cross-jurisdictional translation, and material political consciousness, among them’.84 The fourth and final part takes up the claim made in this introduction: Without Political Economy, There Can Be No Constitutional Imaginary. It opens with Michael Wilkinson’s chapter ‘On the New German Ideology’, which argues that the dominant constitutional ideology in post-war Europe is based on a fear of democracy, constituent power, and popular sovereignty and a desire for political and economic stability: all taken from the German inter-war experience and the failure of the Weimar Republic. What has been missing in most accounts of European integration is the link between constitutionalism (which has been the centre of attention for most European constitutionalists) and capitalism, and their critique. Wilkinson’s chapter provides an excellent introduction to this task, alongside his recently published book.85 Hjalte Lokdam argues that while Economic and Monetary Union originally conformed to the neoliberal theory of interstate federalism by structurally circumscribing the effective exercise of activist public authority, the euro-crisis and, more recently, the Covid-19 pandemic have initiated changes that foresee more centralized public authority at the European level, able to control economic developments across the Union in accordance with certain objectives. At the same time, the structural framework of economic policymaking shifted from a modality of governing that relies on depoliticization and the ‘primacy of the market’ to one that is based on the ‘primacy of politics.’ The challenge is, however, to make this politics real, and democratic. The post-colonial roots of the integration project have recently been explored by historians and political economists alike. Jeffrey Miller and Fernanda Nicola connect these recent debates with the intellectual history of European constitutionalism and its early enchantment with the United States’ experience. This enchantment was possible only because the scholars who invoked this experience dismissed how the jurisprudence of the US Supreme Court over time protected the legal entitlements of slaveowners, businesses, and states at the expense of slaves, workers, women, and children. Their constitutional imaginary therefore obscured the embeddedness of racial capitalism in the European political economy from the beginning of European integration. Damjan Kukovec builds on his earlier critical work and argues for an interpretative turn in constitutional thinking that focuses on harm which relates to ‘powerlessness’: economic, and consequently political. Kukovec discusses powerlessness in terms of two kinds of European ‘periphery’: 83 84 85

Linden-Retek in this volume. Ibid. Wilkinson (n 25).

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The narrower and specific sense of the periphery in the European Union encompasses peripheral member states and regions of the European Union. The wider sense of the periphery means general social disempowerment regardless of its geographic location. Both denote powerlessness in the system.86

In Kukovec’s view, constitutionalism may play a rather conservative role as, while constitutions can change and be quite dynamic, if the question of powerlessness and harm is not addressed, nothing really changes on that level. Finally, and to some extent in contrast to Kukovec, Marija Bartl argues in her chapter that constitutional imaginaries of modernity have always been presented to us as a story of progress. In the twentieth century there have been two kinds of such imaginaries: collectivistic, represented by the example of a failed constitution of the Weimar Republic, and privatizing, embodied in the European economic constitution. Her chapter is a call for constitutional scholars to help create a new progressive collective imaginary of progress to address ‘environmental degradation, rising inequality, but foremost the sense of not having a home in the future, for large segments of society’, which has ‘undermined the credibility and affective appeal of privatizing imaginaries of progress in recent years’.87 The Editor’s conclusion to this volume suggests that there is much more to be explored in terms of constitutional imaginary—both at the supranational (EU) level and also within its member states. Let us hope it will also inspire our readers to reflect on the notion and possibly contribute to its further investigation. The very final note concerns the date this book was completed—the Editor submitted the manuscript in October 2021. The events that followed, most importantly the outbreak of the war in Ukraine in February 2022 and the consequences this has had for European constitutional imaginary could not be taken into account.

86 87

Kukovec in this volume. Bartl in this volume.

PART I

C ONST IT U T IONA L IM AG I NA R I E S OF T HE PAST, PR E SE NT, A ND F U T U R E OF E U ROPE

2

European Constitutional Imaginaries On Pluralism, Calculemus, Imperium, and Communitas Jiří Přibáň

I. Introductory Remarks Like human beings and their technical inventions or institutions, concepts have a social existence. They are created, used, expanded, criticized, blended, abandoned, and replaced by other concepts with new semantics and persuasive force. Their meaning changes with the passage of time, yet they also have capacity to frame social communication and determine its normative expectations and limitations. They can even define theoretical and public discussions and select between ‘good’ and ‘bad’ views or legitimate and illegitimate claims in politics, law, science, and other social systems. The concepts of imagination and imaginaries are intrinsic to social, political, and legal philosophy and theory. Karl Mannheim’s sociology of knowledge involving the study of political ideologies and utopian imaginations1 continues to inform the sociology of politics and nationalism just as much as Benedict Anderson’s more recently applied analysis of nations as imagined communities.2 Charles Wright Mills’ notion of the sociological imagination3 still excites those theorists keen to use their intellectual and conceptual skills as tools of societal, political, and legal reform. Furthermore, when Charles Taylor engaged in explorations of modern social imaginaries more than two decades ago,4 he could hardly predict how popular his inquiry into specific themes of social and political philosophy would become among legal theorists. Unlike the imagination, imaginaries are pre-reflexive and deeply entrenched modes of collective understanding of social existence. The concept of constitutional imaginary, then, refers to the symbolic capacity of presenting the pluralistic construction of social reality as one commonly shared and meaningfully constituted polity.5 The very idea of popular self-government and laws expressing the people’s collective will and shared values draws on the imaginary of society as unity defined by legal rights and guaranteed by political force. The constitution of society as one imaginary polity defined by the unity of topos-ethnos-nomos, that is the unity of territory, 1

Karl Mannheim, Ideology and Utopia (Routledge 1991). Benedict Anderson, Imagined Communities (Verso 1983). 3 Charles W Mills, The Sociological Imagination (OUP 2000). 4 Charles Taylor, Modern Social Imaginaries (DUP 2004). 5 For the sociological concept of constitutional imaginary, see Jiří Přibáň, ‘Constitutional Imaginaries and Legitimation: On Potentia, Potestas, and Auctoritas in Societal Constitutionalism’ (2018) 45(S1) Journal of Law and Society 30; for the context of constitutional theory, see especially Martin Loughlin, ‘The Constitutional Imagination’ (2015) 78 Modern Law Review 1. 2

Jiří Přibáň, European Constitutional Imaginaries In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0002

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On Pluralism, Calculemus, Imperium, and Communitas

people, and their laws, informed the rise of modern nations and nationalisms as much as constitutional democratic statehood and its liberal and republican regimes did. It persists in the current post-national European society, which, nevertheless, invites other imaginaries of its political and societal self-constitutionalization. Like the modern nation-states, the historical process of supranational European integration has been informed by two general political goals, namely economic prosperity and social stability. These goals are formulated through modern social imaginaries of the economic market, legal rights, and democratic political power. However, these typically modern liberal imaginaries are further strengthened by imaginaries of a supranational European community which is socially and morally pluralistic, efficiently and rationally governed, economically prosperous, and sufficiently democratized to challenge populist and illiberal responses to the European integration. The imaginaries of legal pluralism, administrative calculemus, economically prosperous imperium, and democratically mobilized communitas, therefore, legitimize transnational European politics and law. I therefore argue that European constitutional imaginaries have to be distinguished from the imagination of EU constitutional theory as much as do European political ideologies and utopias. They spontaneously evolve in European society and, despite their theoretical contextualizations and uses, cannot be purposively constructed by theorists to justify the integration and constitutionalizing of Europe. The imaginaries of statehood, nationhood, European polity, and transnational societal integration are not products of theoretical speculations and political programmes. Furthermore, these imaginaries are more general than ideologies because their function is not to legitimize the existing relations of political domination. They are societal power themselves, which precedes structures of political power and constitutes the common understanding of social reality despite all its fragmentations, diffusions, and differentiations. In this chapter, I draw on the theory of societal constitutionalism to analyse the polysemy and polyvalence of the European constitutional imaginaries. I highlight the sociological meaning of the concept of imaginary as a background power of both national and transnational legal and political systems, which determines legitimacies and illegitimacies in EU law and politics. I subsequently analyse specific imaginaries of EU integration and their general components. I conclude by arguing that these European constitutional imaginaries are part of the societal constitutionalism of the EU beyond constraints of law and politics and the old semantics driven by the imaginary unity of statehood.

II. Theoretical Imaginations: From Social Transformations to Critical Self-Descriptions Sixty years ago, C.W. Mills introduced the sociological imagination to ‘define the meaning of the social sciences for the cultural tasks of our time.’6 He famously

6

Mills (n 3) 18.

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criticized Parsons’s social systems theory and all other grand theories treating individuals as isolated fragments of society, preferring morally and intellectually engaged research into general and specific societal problems. Criticizing sociological theories’ tendency to ignore practical problems arising within power and authority institutions, Mills stated that theoretical concepts, such as value orientation or normative structure, are primarily related to the central symbols of legitimation. According to Mills, the relationship between symbols and structures of institutions is one of the most important problems of sociology. The legitimation function of symbols in acceptance or rejection of the existing power structures shows the impossibility of moral unity in modern society. The sociologically imaginative exploration of shared values, therefore, must focus on legitimation techniques and concepts within specific structures of society. It needs to abandon the speculative and prescriptive approach seeking first to discover and define them, and only subsequently to analyse the social system and political order in light of these foundational values.7 Decades after Mills’s employment of the sociological imagination as a practical and humanist methodological alternative to the grand theories of modern society, James Boyd White introduced the concept of the legal imagination as a response to the critical need of transforming legal education and the lawyers’ understanding of law.8 Similarly to Mills’s pragmatic and politically engaged sociological approach, Boyd White considered the imagination a transformative methodological tool with practical and political consequences for symbols and structures of power and authority and legitimation of the system of positive law and its agencies. Instead of directly politicizing law in the traditional ways of legal realism or critical legal studies, however, Boyd White sought an imaginative transformation of the legal system by establishing and exploring legal connections with the realm of literature and fictional narratives and their internal constructions of subjects and subjectivity, modes of interpretation, and different styles of writing. Apart from the practical aim of transforming the legal mind, education, and reasoning by internalizing methods, conceptualizations, and interpretations from the world of literature, Boyd White’s concept of the legal imagination had the original theoretical value of exploring, analysing, and explaining the legal system, its agencies, and its operations by non-legal methods. The legal imagination thus evolves through external observations of law and comparisons to literature which allegedly enable both the reconstruction of thoughts, fictions, and actions of lawyers and the reconstitution of their semantics and modes of communication.9 Boyd White’s comparative analysis of the imagination in law and literature has inspired many scholars in critical legal theory attempting to transform the system of 7

ibid ch 2, pt III. James Boyd White, The Legal Imagination (UCP 1973). 9 In this respect, Boyd White’s invocation of the legal imagination draws less on the directly political job of theoretical imagination typical of Mills and more on the traditional use of imagination as a specific method of the humanities and history which had been elaborated by the British philosopher RG Collingwood in the 1920s. According to Collingwood, the historical imagination was supposed to be a guiding method enabling historians to reconstruct history by re-enacting the thought processes of historical persons. Similarly, Boyd White examines the imaginary and fictional reality of law by comparing it to the fictions and imaginary world of literature to engage with subjects and operations of the legal system. See Robin George Collingwood, The Idea of History: Revised Edition with Lectures 1926–1928 (OUP 1994) 245. 8

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positive law, especially its legislation and adjudication. According to these approaches, the legal imagination allegedly opens up the possibility of transgressing epistemic norms of legality and engaging in affective, sensory, and emotional forms involved in adjudication. The importance of art and imagination in legal adjudication allegedly consists in its potential to reveal specific values, interests, emotions, and social harms and injustices at stake in specific legal cases and techniques of juridical decisionmaking. Legal theory and internal imaginative and fictional constructions of the system of positive law are subsequently challenged by the philosophy of imagination, theories of emotions, and rhetoric to disclose elements and contexts typically hidden and covered over by legal texts.10 These views of the legal imagination draw on the long tradition of theory as an illuminating enterprise revealing what is hidden in social reality and transforming it through its discoveries and insights. The legal imagination is considered an epistemological tool with the potential to change both the conceptual and argumentative framework of jurisprudence and the systemic operations of legal decision-making. The transgressive value of the legal imagination in the system of positive law is then measured by its engagement in political and moral contexts of law, professional ethics, and judicial virtues and vices.11 Such normative and transvaluative expectations of the legal imagination may be difficult to imagine at the level of specific legal norms, arguments, and interpretations. Nevertheless, the constitutive and re-constitutive role of the non-legal imagination in positive law is traditionally examined in the realm of constitutional law as a meeting point of politics and law. In this context, Martin Loughlin recently elaborated on the concept of the constitutional imagination, which, in his words, is ‘the manner in which constitutions can harness the power of narrative, symbol, ritual and myth to project an account of political existence in ways that shape—and re-shape—political reality’.12 For Loughlin, the constitutional imagination is a complex concept bringing together thought, text, and action and explaining their interplay in the constitution of modern political authority. It originates in modern philosophies of the social contract setting external parameters of modern politics as operating through the written constitutional documents and converting political actions into constitutional aspirations, principles, and rules. Loughlin examines a genealogy of the process of constitutionalization of modern politics and historical and intellectual roots of the current political situation in which ‘[t]he claim that constitutions specify the authoritative ground rules of politics is today more widely accepted than at any other point in modern political history’.13 He is interested in the imagination’s capacity to constitute and transform political and social reality. This potentia—power of philosophical knowledge and thoughts to create the modern imaginary of politics as the text of constitution—is linked to Locke’s initial 10 Maksymilian Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Hart Publishing 2020). 11 Amalia Amaya and Maksymilian Del Mar (eds), Virtue, Emotion and Imagination in Law and Legal Reasoning (Hart Publishing 2020). 12 Loughlin (n 5) 3. 13 ibid 2.

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distinction between society and government, which, according to Loughlin, rejects the older absolute concept of sovereignty just as much as the organic imaginary of one political body. These are replaced by the mechanical metaphor of governmental checks and balances and demystification of power as the ultimate guarantor and transcendental reason of social order.14 Loughlin further argues that the recent shift from negative constitutionalism constraining political actions to positive constitutionalism channelling politics through legal means is part of the more general modern development of operationalization of government, which ‘today acquires its legitimacy not through transcendent claims but through its regulatory functions in seeking to improve the life and health of its citizenry’.15 Instead of simply praising the transformative potential of the modern constitutional imagination, he thus acknowledges its power to transform modern politics and society yet remains critical of its consequences, especially the transformation of the modern democratic state into an organization of societal governance.

III. From the Transformative Constitutional Imagination to the Social Imaginaries of Constitution Loughlin’s conceptualization of the constitutional imagination raises important meta-theoretical and social-theoretical questions regarding the role of positive law and jurisprudence in constructing ‘imagined communities’.16 In constitutional law, the prominence of the legal imagination is magnified by the fact that the constituent power of the people can only be imagined and its real impact on politics is always a matter of its invention and re-invention by political and legal actors as much as by constitutional theorists. Who is the people? What is its constituent power? How is a sovereign people self-constituted as a polity of the constitutional rule of law? These questions obviously cannot fit the restrictive jacket of the theoretical imagination and belong to the more general societal constitutions of positive law and politics. Nevertheless, these self-examining encounters encourage some theorists to further explore the potentialities and possibilities of democratic constitutionalism and its imagination ‘beyond the people’ and its image wars.17 Other scholars even invite their readers to adopt, for instance, the ‘eutopian imagination’ and constitutions of modern popular selfhood beyond the conceptual circularity and paradoxes of political constitutionalism.18 However, such normative expectations transform the imagination’s hermeneutics from a self-referential circle into a speculative quasi-Hegelian spiral of historical progress through political applications of theoretical knowledge. They promote the constitutive power of imagination in society and draw on the belief that sociological and legal theory can internally constitute its imagination as a specific method which 14

ibid 8. ibid 23. 16 Anderson (n 2) 6. 17 Zoran Oklopcic, Beyond the People: Social Imaginary and Constituent Imagination (OUP 2018) 354. 18 Philip Allott, Eutopia: New Philosophy and New Law for a Troubled World (Edward Elgar Publishing 2016) 100. 15

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subsequently will be used externally to reconstitute social reality and transform its cultural, legal, and political contexts. The theoretical imagination, therefore, can be described as the observer’s method, which promises two very different sets of validation—the scientific validation of truth and the moral validation of collective political existence. It is expected to coevally operate as the scientific enterprise and the evaluative ground of legitimate social steering. This theoretical approach draws on the long tradition of modern European rationalism and scientific knowledge as the capacity to see that others do not see what they do not see. In other words, the scientist operates here as the observer collecting the truthful knowledge of false knowledge of the observed subjects who, unlike the scientist, do not recognize the falsity of their symbolic and imaginary constructions of social reality. Nevertheless, an alternative theoretical route to this historical optimism and speculation on the role of theory in social life suggests a more cautious study of constitutional, political, and any other social imaginations and imaginaries. Loughlin’s concept of constitutional imagination is broad enough to include important elements of more sociologically informed explorations of modern social imaginaries as intellectual constructs and conceptualizations of the general meaning and legitimation of social and political order.19 The imaginary function of constitutions as symbolic forms of the collectively meaningful life can be contrasted to their political institutionalization and legal coding.20 The complex relationship between general imaginaries of modern society and specific political ideologies and the role of constitutional texts and interpretive strategies has to be compared, contrasted, and critically analysed to comprehend complexities of modern political government, its constitutional forms, and its legitimizing symbols. In other words, the focus has to shift from theoretical imaginations to a theory of self-descriptive constitutional imaginaries operating in the systems of positive law and politics at both national and transnational European levels. The concept of imagination as a complex of normative and speculative expectations of political constitutions thus needs to be distinguished from a more sociologically informed concept of imaginary which Charles Taylor introduced to social and political theory and philosophy in the late 1990s. According to Taylor, social imaginaries precede both theoretical knowledge and practical action and refer to the common sense of legitimacy and meaningful life.21 Constitutional imaginaries, therefore, are best described as semantic reflections of structural tensions in modern constitutions, such as the distinctions between hierarchical political mastery and horizontal civic autonomy; normative authority and factual self-creation; reason and will; or transcendental validity claims and their immanent enforcement. They are responses to the most general question of the possibility of a legitimate political order and collective self-rule materializing in the rule of law.

19

Loughlin (n 5) 3. Kim Lane Scheppele, ‘The Social Lives of Constitutions’ in Paul Blokker and Chris Thornhill (eds), Sociological Constitutionalism (CUP 2017) 35, 35. 21 Taylor (n 4), 23. 20

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IV. A Sociology of Constitutional Imaginaries as Societal Power Formation Modern political and legal theories and philosophies of constitutional democracy draw on the intrinsic tension between the concepts of constitution as power limitation and as power formation. According to the liberal constitutionalist tradition, political constitutions normatively limit power and eliminate its potential excesses, including the tyranny of the majority, potentially threatening all democratic regimes. Constitutions and their legal normativity are considered stabilizers and functional preconditions of democratic power. The rule of law and fundamental rights, separation of constitutional power, and division between the private and public spheres restrain and legally operationalize arbitrary societal forces. Political constitutions are expected to contain the collective political will and transform its contingencies into the normative rational order, guaranteeing societal stability, certainty, predictability, and functionality. Legality and power meet in constitutions and the basic paradox of constitutionalism, namely sovereign democratic power of the people exclusively executed by its legal self-constraint,22 is a common research field of modern constitutional theory. However, this theoretical canon has been increasingly challenged by social-theoretical and sociological approaches to constitutions and constitutionalism.23 These approaches find the existing theoretical canon ‘reductive’24 and consider it to fall short of addressing the more general societal contexts of both democratic power and political constitutions. Instead of power-limiting functions, sociologically informed approaches to constitutions consider them to be power-formation organizations in which different societal powers can be constituted, maximize their efficiency, and expand their execution.25 Analysing the problem of power formation and the paradoxical process of its societal expansion through political limitation, the sociology of constitutionalism then adopts the concept of social imaginaries originally elaborated by the social theories and philosophies of Castoriadis, Lefort, Taylor, and others to explore the symbolic dimension of constitutions.26 Constitutions are subsequently analysed as specific forms of collective self-representations and political self-identifications beyond formal rational techniques of self-rule.27 Avoiding the reductionist approaches of political theory focusing on already institutionalized power and critical theory busy with legitimation values and hegemony, a 22 Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP 2008). 23 See especially, Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (OUP 2012); Chris Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in HistoricalSociological Perspective (CUP 2011); Chris Thornhill, A Sociology of Transnational Constitutions: Social Foundations of the Post-National Legal Structure (CUP 2016). 24 Hauke Brunkhorst, Critical Theory of Legal Revolutions (Continuum 2014). 25 Scheppele (n 20). 26 For the legal context, see also Jiří Přibáň, Legal Symbolism: On Law, Time and European Identity (Ashgate 2007). 27 Chantal Mouffe, The Return of the Political (Verso 1993).

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social-theoretical and sociological approach to constitutional imaginaries treats them as a background power coevally enhancing its societal force and legitimizing its constitutional form and operations. Imaginaries thus show the inseparability of constitutional powers from other societal forces and knowledge. Paul Blokker, for instance, reformulates Castoriadis’s general political imaginary significations of mastery and autonomy as a dual constitutional imaginary, namely the modernist imaginary defined by sovereignty of power limiting reason and the democratic imaginary defined by the self-creation and self-assertion of the sovereign people.28 According to Blokker, these two imaginaries provide for the conceptual framework as much as the ideological meaning and ontology of political constitutions. The modernist imaginary is driven by the primary distrust of political sovereignty and draws on the requirement of legal and normative limitations of power in both the public and private spheres. The democratic imaginary then signifies the opposite social dynamic of self-determination and self-constitution of polity through its political mobilization and self-empowerment.29 Blokker’s duality of the constitutional imaginaries draws on the most general distinctions defined by philosophies and theories of politics and law, but its central focus is the difference between the societal processes of power limitation and power formation. Similarly, other sociological theories define constitutional imaginaries as part of the power and action dynamics in the political system in particular and society in general. They echo Max Weber’s remark about ‘world images’ created by ‘ideas’ as having the ‘switchmen’ function and determining ‘the tracks along which action has been pushed by the dynamics of interest’.30 Expanding the socio-legal analysis of constitutional imaginaries as power formation, it is then necessary to critically adopt the perspective of societal constitutionalism which reformulates the Hobbesian problem of the constitution of society as a society of many constitutions evolving at both national and supranational European levels.31 According to this perspective, constitutions are not considered only juridical and political constructions formulated in terms of constitutional sovereignty, territorial control, and popular power. Their structures and semantics are part of more general constitutions of different social systems. Instead of the image of society totally integrated by the ultimate rule of political constitution, the sociology of constitutionalism offers a perspective of multiple societal constitutions evolving through communication between the system of positive law and other functionally differentiated social systems of economy, politics, administration, science, or education. Furthermore, theories of societal constitutions have shifted attention from national and public law themes to the transnational and private law regimes.32 Formal structures of constitutional monism and politically organized processes of constitutional integration have been contrasted to the informal networks of European and global 28

Paul Blokker, ‘The Imaginary Constitution of Constitutions’ (2017) 3 Social Imaginaries 167, 176–77. ibid. 30 Max Weber, ‘The Social Psychology of World Religions’ in Hans Gerth and Charles Wright Mills (eds & transl), From Max Weber: Essays in Sociology (OUP 1958), 267–301, 280. 31 Teubner (n 23) 35. 32 For the impact of the concept of transnational law, see Peer Zumbansen (ed), The Many Lives of Transnational Law: Critical Engagements with Jessup’s Bold Proposal (CUP 2020). 29

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legal pluralism and its spontaneous processes of self-constitutionalization.33 New constitutional subjects and imaginaries have been recognized by the sociology of constitutionalism beyond typically modern political imaginaries of nationhood and statehood.34 Societal constitutionalism assumes the condition of European and global legal pluralism and transnational regimes reconstituting power in global society. Some scholars even speak of ‘the world power system’,35 while others demand that this plurality of transnational legal regimes and power evolving in them be contrasted to non-political yet subversive justice claims and civil constitutions.36 Societal constitutions are defined as spontaneously evolving, horizontally organized, and heterarchical alternatives to the political, administered, vertically organized, and hierarchical structures of political constitutions evolving at national and transnational global levels.37 The theoretical shift from the public, national, monist, and unified to the private, transnational, pluralist, and fragmented networks and regimes thus means the possibility of a radical reconceptualization of constitutionalism as a transnationally and globally evolving system operating independently of constituent and constituted powers and its political subjects. Despite the risk of losing the political function of constitutions, theories of societal constitutionalism show a general sociological problem behind every constitutionalism—private and public or national and European—namely the plurality of power regimes evolving in society through their constitution-making and imaginary self-legitimation. Due to this capacity, it is possible to adapt the perspective of societal constitutionalism to the context of European integration and reformulate its history and recent trends as specific societal power formations and imaginary legitimations.

V. A History of European Social Imaginaries and Their Destabilization European integration was constituted by two legitimate goals applicable to all political societies, namely economic prosperity and political stability. These goals were formulated by the founding fathers of European integration within the framework of typically modern social imaginaries of: (1) market as an exchange of mutual advantages and benefits between different agents; (2) community of rights equally shared by

33 Jiří Přibáň, Sovereignty in Post-Sovereign Society: A Systems Theory of European Constitutionalism (Routledge 2015) 93–118. 34 Among many, see, for instance, David Held and others, Global Transformations: Politics, Economics and Culture (SUP 1999); Martin Shaw (ed), Politics and Globalisation: Knowledge, Ethics and Agency (Routledge 1999); Daniele Archibugi (ed), Debating Cosmopolitics (Verso 2003); Giuliana Ziccardi Capaldo, The Pillars of Global Law (Ashgate 2008). 35 See, for instance, Jean de Munck, ‘From Orthodox to Societal Constitutionalism’ in Jean-Philippe Robé, Antoine Lyon-Caen, and Stéphane Vernac (eds), Multinationals and the Constitutionalization of the World Power System (Routledge 2016) 135–57. 36 See Gunther Teubner, ‘Self-subversive Justice: Contingency or Transcendence Formula of Law?’ (2009) 72 Modern Law Review 1, 9; Teubner approvingly refers to David Nelken, ‘Law in Action or Living Law? Back to the Beginning in Sociology of Law’ (1984) 4 Legal Studies 157, 172–73. 37 Teubner (n 23) 60.

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their subjects; (3) political power democratically accountable and operating and conditioned by the non-political public sphere.38 The societal constitution of the transnational European polity was thus associated with the same imaginaries as those operating as the background legitimation power of the modern constitutional democratic state. Furthermore, European constitutional imaginaries determine the integration’s potentiality and viability in both the positive form of desires and the negative form of warnings and prohibitions. They can warn against political atrocities and wars of the past as much as they can promote political values of peace, democracy, and freedom. Imaginaries of constructive optimism drawing on desires of prospective benefits and general prosperity of the EU thus have the prohibitive side of deconstructive pessimism, warning against the horrors of the European past and possibilities of their return. Negative warnings and positive expectations coevally influenced the history of European integration from its beginnings up to the 1980s, when politically postdictatorial and economically peripheral Greece, Portugal, and Spain joined the European Economic Community, as well as in the post-1989 ‘return to Europe’ of former communist countries.39 After the end of the Cold War, the newly established European Union looked like the strongest magnet for both established democracies and democracies in the making, and the enlargement of the EU with Austria, Finland, and Sweden in 1995 was followed by the most radical succession of enlargements in 2004, 2007, and 2013, turning the Union into the biggest single market and supranational polity. Furthermore, the post-1989 ‘return to Europe’ of former communist countries drew on the imaginary contrast between the European Union and the Soviet Union. Peace, democracy, and rights were considered fragile yet very precious values protected by the EU and membership in this transnational organization was considered the best political and societal prospect for post-communist societies in the 1990s. The post-communist constitutional imaginaries then looked pretty simple and straightforward and were consistent with the dominant European imaginaries of the market economy, liberal democracy, and constitutional rights. In the 1990s, Europeanization and globalization replaced the Cold War’s reductive binary coding of West/East. Processes of democratization of the pre-1989 autocratic and totalitarian states and their transformation and further integration into transnational structures of evolving European and global society even looked like part of the Hegelian logic of the World Spirit and History coming to its end. Ever closer Union and progressive integration seemed strong and solid despite regular practical and theoretical challenges and criticisms. The whole project of European integration was even imaginable to some as a simple normative and ethical struggle between the good side, Euro-optimists, and the bad side, Euro-pessimists. This image of historical struggle, however, began to recede at speed with the Constitutional Treaty crisis at the turn of the twenty-first century. In the past two decades the EU has experienced an unprecedented series of crises, from the eurozone and migrant crisis to Brexit, Covid, and illiberal yet democratically enacted politics 38 39

Compare Taylor (n 4) 21–22. See, for instance, Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (OUP 2012).

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in several of its member states, particularly Hungary and Poland. These institutional failures lead to both segmented structural tensions between member states and EU institutions and functional systemic tensions between the European economy, politics, law, and administration. Furthermore, the historically justified imperative of limitation of state sovereignty and national politics, which resulted in totalitarianism and war, became destructive itself because another historical fact was ignored: the fact that the nation-state also represents the most legitimate organization of constitutional democratic politics. Despite a number of well-intended efforts, the EU never managed to match or substitute for democratically elected and publicly accountable and representative bodies operating at the level of its member states. Further integration without democratic consolidation thus exposes the EU to the Marxist fallacy described by Ernest Gellner in his Nations and Nationalism as the expectation that the boundaries between nation-states will be weakened and eventually disappear when members of those nations realize that their nationalist sentiments are only ideological masks hiding the real causes of their conflicts and existential hardship.40 Similarly, theorists of European integration used to believe that transnational structures would be gradually strengthened as citizens of the EU experienced the benefits and realized the humanist potential of European integration. Nationalist prejudices were expected to disappear together with further weakening of the nation-state and its replacement by transnational networks and regimes of multiple rationalities successfully substituting for nationally practised and constrained procedures of democratic legitimation. However, hierarchies of nation-states are still popular among their citizens, in both democratic and authoritarian forms, while transnational and horizontally operating European institutions beyond national boundaries are not necessarily perceived as beacons of humanity and cosmopolitan values. The current delegitimation process of European integration, therefore, cannot be tackled at superficial levels of political ideologies, theoretical imaginations, and moral values. Instead, it has to be comprehended against the background of further analysis of more specific social imaginaries of European integration and their constitutional power. In the following sections I therefore focus on the specific European imaginaries of legal pluralism, administrative calculemus of social steering, economic imperium of prosperity and democratically mobilized communitas, and their contextualizations of the general modern imaginaries of market, rights, and power. I show how they are internally constituted and operate within functionally differentiated systems of law, administration, economy, and politics, yet have the capacity to present European society as one collectively shared and meaningfully constituted community. In their specific ways, these imaginaries, which obviously can be detected at national levels but play a particularly important role at transnational levels of European integration, represent a typical paradox of modern society, which is functionally differentiated and constitutes societal unity as difference, yet also keeps its imaginary capacity to describe such differentiation as unity. Instead of some theoretical imagination or political utopia,

40

Ernest Gellner, Nations and Nationalism (Blackwell 1983) 12.

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European society thus represents its collective self to itself only through the specific imaginaries spontaneously constituted by its different systems.

VI. The Imaginary of European Constitutional Pluralism Political constitutionalism has been typically associated with the classic topos-ethnosnomos unity and its notions of legal monism, political hierarchy, and cultural homogeneity. Against this imaginary of constitutional authority and legitimacy, theories of legal pluralism claim that changes in European and global society require abandoning state-centred conceptualizations of law and politics and adopting the concept of law as a plurality of normative orders operating within, beyond, and outside the nation-state. Though criticized as ‘an oxymoron’41 contradicting the very notion of constitution as the ultimate legal authority enforced by political power, the concept of legal and constitutional pluralism has become a critical point of reference of European constitutional debates since the establishment of the EU in the 1990s.42 According to the critics, the classic distinction between societal potentia, political potestas, and legal auctoritas—that is, the distinction between societal power, its political institutionalization, and normative legal authorization—by definition assumes the ultimate power source.43 Nevertheless, globalization of society, one segment of which is the process of European integration, transforms the concepts of normative order and authority.44 Modern constituted hierarchies are challenged by entirely new power structures operating through heterarchies of non-legal regimes and depoliticized governance. Legal pluralism of the EU is thus not just a jurisprudential problem of several legal systems operating within one transnational order. It is a socio-legal problem of the plurality of social systems and different transnational agencies, organizations, and institutional frameworks.45 Instead of searching for moral foundations or the basic norm of European law and society, it is a plurality of differentiated systems that constitutes European society and both state and non-state power structures and operations. EU constitutionalism subsequently can be imagined as the plurality of societal authorities operating without a constitution, state, and even polity. Responding to these transformations of constitutional authority, it is necessary to adopt the concept of constitutional pluralism as societal plurality of self-constitutive normative orders. The simple juridical fact of the coexistence of different official constitutional orders mutually recognizing their authority and its self-limitation is to be distinguished from the sociological plurality of both official and unofficial normative systems and regimes constituting society.46 This conceptual shift leads to the study of 41

Martin Loughlin, ‘Constitutional Pluralism: An Oxymoron’ (2014) 3 Global Constitutionalism 9. Jiří Přibáň, ‘Asking the Sovereignty Question in Global Legal Pluralism’ (2015) 28 Ratio Juris 31. For further details on this distinction and its importance for constitutional imaginaries, see Přibáň (n 5) 31. 44 See, for instance, Gunther Teubner, ‘The King’s Many Bodies: The Self-Deconstruction of the Law’s Hierarchy’ (1997) 31 Law and Society Review 763. 45 Peer Zumbansen, ‘Transnational Legal Pluralism’ (2010) 1 Transnational Legal Theory 141. 46 Boaventura de Sousa Santos, Toward a New Legal Common Sense (CUP 2002). 42 43

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the state law’s social environment and non-legalities or a-legalities operating within it.47 More importantly, it shows different forms of legitimation and illegitimacies, alternatives, and resistances to the official legal norms. Exploring these transnational legal changes and challenges, Gunther Teubner established a theory of societal constitutionalism according to which the Europeanized and globalized systems of economy, politics, science, or sport and education are externally assisted in their operations and evolution by the system of positive law. This systemic communication between law and its social environment amounts to the constitutionalism without state sovereignty and political power.48 Nevertheless, potentialities and contestations in this societal constitutionalism evolving at European level also show that the question of legal authority and its legitimation persists even in nonpolitical constitutional regimes.49 Social heterarchies and horizontal systemic communication involve claims to constitutional authority in the EU but these are typically framed by the functional constitutional settlements and their efficiency. In this respect, Neil Walker recently reformulated the typically modern difference between legitimation by instrumental efficacy and foundational values and the following tension between reasons of functionality and principles by recalling the classic distinction between gubernaculum and iurisdictio.50 Gubernaculum originally described a ship’s rudder or steering oar and now generally signifies the capacity to govern and steer anything including political society. Its legitimation depends on performance, deliverance, and goal achievements. On the other hand, iurisdictio signifies procedures and principles according to which power has to be executed to claim legitimacy. It is the entitlement of power which is formulated by legality. The distinction between gubernaculum and iurisdictio thus represents structural coupling between the political system, which has power as its medium of communication, and the legal system communicating through the medium of legality. According to the social systems theory, this coupling leads to the establishment of constitutions as social organization of legally organized and politically enforced authority.51 The theory of societal constitutions subsequently expands the notion of constitution to the structural coupling between the system of positive law and any other social system, not just the political system.52 This theoretical approach of societal constitutionalism is particularly important for EU constitutionalism, driven by the administrative capacity to govern and economic performativity as much as by political power and legal authorization. European

47 Fleur Johns, Non-Legality in International Law: Unruly Law (CUP 2012); Hans Lindahl, ‘ALegality: Postnationalism and the Question of Legal Boundaries’ (2010) 73 Modern Law Review 30. 48 Gunther Teubner (ed), Global Law Without a State (Dartmouth 1997). 49 For the general theory of transnational law and authorities in it, see Nicole Roughan, Authorities: Conflicts, Cooperation and Transnational Legal Theory (OUP 2013). 50 Neil Walker, ‘The Antinomies of Constitutional Authority’ in Roger Cotterrell and Maksymilian Del Mar (eds), Authority in Transnational Legal Theory: Theorising Across Disciplines (Edward Elgar Publishing 2016) 125, 128 51 Niklas Luhmann, Law as a Social System (OUP 2004) 404. 52 Teubner (n 23) 71.

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societal constitutionalism is unlimited by legality and power; its emergence is determined by structural coupling between the systems of European law and other systems such as economy and administration. Similarly, Michelle Everson criticized the formal statist concept of constitutionalism and the normative imaginary of democratically and juridically self-constituted polity, and contrasted it to the current European economic constitution and its creation of the European market polity.53 Rather than the classic imaginary of polity as sharing a collective existence and common destiny, she persuasively argues that the European polity includes the plurality and multiplicity of rationalities, such as economic rationality and imaginaries of the market stretching far beyond rationality of the EU legal and political systems. Instead of searching for simple formulas and basic norms of the EU polity’s constitution, it is necessary to recognize the social consequences of the economic constitution as much as those of the political and legal integration. The European polity thus consists of the differentiated plurality of legal, administrative, economic, political, and other rationalities which can have both integrative and disintegrative effects. This pluralist imaginary draws on a radically constructivist argument that constitutions are not products of pre-existent polities which would be their ultimate source of authority and social basis. Instead, legal constitutions evolve and operate as the self-referential unity of primary and secondary rules legally supporting other social systems, from economy and administration to science and education.54 European societal constitutionalism thus avoids the theoretical and conceptual pitfalls of transnational political constitution-making without democratic politybuilding illuminated, for instance, by endless and tiresome ‘no demos’ debates in the post-Maastricht EU. It stretches beyond the state as much as beyond the systems of politics and law themselves. Societal constitutions emerging at European level include legislatures and courts as much as epistemic communities, legal and non-legal professions and their associations, NGOs and private corporations, and other social organizations, networks, and knowledge regimes. In this societal pluralism, iurisdictio constitutes just one of many systemic operations externally limiting self-constitutions of society by legality while gubernaculum represents the internal governing and steering capacity of individual subsystems. This self-limitation of the European legal system and its recognition of normative and societal pluralism shows other imaginaries evolving beyond EU legality, such as the imaginary of calculemus legitimizing the system of EU administration and its capacity of social steering. The historical and intellectual evolution and meaning of calculemus will be discussed in the next section.

53 Michelle Everson, ‘Beyond the Bundesverfassungsgericht: On the Necessary Cunning of Constitutional Reasoning’ (1998) 4 European Law Journal 389, 403. 54 Teubner (n 23) 88.

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VII. The Imaginary of European Administrative Calculemus Some theories of European constitutionalism still consider it a critical project of cosmopolitan political identity-building and moral mobilization of solidarity, recognizing yet bridging political, cultural, and societal differences. However, the theory of societal constitutionalism abandons the concept of constitutionalism as a meeting point of legal normativity, political will, and moral aspirations and pushes for alternative sociological explorations of the great variety and plurality of selfconstitutionalizations within European society. Teubner’s theory of societal constitutions transforms the concept and imaginary of constitutionalism and constitutional polity vis-à-vis the EU’s supranational and transnational organization and governance. It supports the distinction to be made between European society and the EU as one of its many organizations. Any kind of imaginary polity constituted by the Union’s structures subsequently must be analysed within the framework of European society and its specific systems of positive law and politics, and not as its ultimate normative precondition and settlement. The EU’s legal and political systems facilitate the evolution of European society but do not constitute it. This society is functionally differentiated and constituted by other systems alongside politics and law, such as economy, administration, science, and education. The European constitutional polity is constituted by structural coupling between the systems of EU law and politics just as much as other social systems. The emphasis on societal laws operating independently of political decision-making and positive law has always been part of the sociological tradition and imagination. It can be traced to the philosophy of Condorcet, who, like other philosophers of the Enlightenment era, wanted to apply mathematical and statistical methods in public administration and thus replace power and oppression with the rule of scientific truth and human happiness. His rational men, so-called sophisters, were expected to replace monarchs and priests and govern on the basis of their calculation skills. The future could be decided on the basis of rational calculation of utilitarian consequences. Condorcet’s calculemus was to become the new form of governance using statistical and quantitative methods, cost-effectiveness, and industrial technologies instead of the old form of political government by the privileged classes. Disinterested experts were expected to rationalize social life and maximize the satisfaction of human needs.55 Condorcet’s disciple Saint-Simon further elaborated on this governance by scientific, economic, and industrial rationality and hoped to replace the government of individuals with the impersonal governance and administration of things. He also contrasted industrialists and scientists and their productive role in modern society with the old professional politicians and lawyers who merely reproduced the old government establishment. The subsequent birth of sociology as the science of rational governance of society, which is superior to the other political forces, was sealed by

55

Isaiah Berlin, The Crooked Timber of Humanity: Chapters in the History of Ideas (Pimlico 2003) 255.

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On Pluralism, Calculemus, Imperium, and Communitas

Saint-Simon’s secretary August Comte, who claimed its status as a positivistic religion promoting universal and impartial reasoning and calculation.56 Transnational governance theories often draw on this long tradition of sociology as anti-political science and describe European society as post-polemical and heterarchical, constituted by administrative gubernaculum rather than conflicts of power and authority. It moves beyond the retro-politics of the sovereign state by adopting the rational and efficient arbitration of public choices. These theories consider European and global society ‘operated by a professional personnel which lacks . . . the capacity to bring to prevalence any type of power-mediated politics’.57 Unlike power politics, the depoliticized expert knowledge of professionals allegedly liberates politics from the logic of power conflicts and turns the whole political enterprise into problems of European or global calculation, distribution, administration, and arbitration. The above-mentioned distinction between gubernaculum and iurisdictio is radicalized by the theory of societal constitutionalism because it treats European transnational governance as merely one specific form of multiple societal constitutionalizations.58 Constitutions are thus liberated from identity politics of constituent power and constitutional subjects. Societal constitutions are the opposite of state hierarchies and power politics. Their heterarchies and polyarchies of societal coordination, administrative reasoning, and expert consultation constitute European polity beyond the imaginary of a community of shared cultural values and political principles. Nevertheless, these non-political self-constitutionalizations of European governance are not self-justifying and their organizational complexity is challenged by the legal constitutional call for iurisdictio. As Christian Joerges critically notes: ‘[W]hile governance arrangements seek the law’s support, they also challenge the law’s rule through a de-juridification of the polity.’59 The polyarchies of EU governance thus cannot avoid the political distinction between inclusion and exclusion of subjects and agencies involved in governance structures and operations. Societal constitutionalism, therefore, cannot ignore the political aspects of administrative calculemus and social steering and replace them by the most general sociological extensions of the constitutional self-reference of rules on rules.60 The concept of European polity including its imaginary of administrative calculemus and efficient social steering have to be studied in their self-referentiality as part of evolving transnational European society. In this respect, new post-state imaginaries of pluralistic and rationally administered constitutional polities using hybrid legalities and iurisdictio61 56 Jiří Přibáň, ‘The Concept of Self-Limiting Polity in EU Constitutionalism: A Systems Theoretical Outline’ in Jiří Přibáň (ed), Self-Constitution of European Society: Beyond EU Politics, Law and Governance (Routledge 2016) 37, 41. 57 Jean Clam, ‘What Is Modern Power?’ in Michael King and Chris Thornhill (eds), Luhmann on Law and Politics: Critical Appraisals and Applications (Hart Publishing 2006) 145, 152. 58 For an early view of European governance as constitutionalization, see Alec Stone Sweet and Thomas L Brunell, ‘Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community’ (1998) 92 American Political Science Review 63. 59 Christian Joerges, ‘Constitutionalism and Transnational Governance: Exploring a Magic Triangle’ in Christian Joerges, Inger-Johanne Sand, and Gunther Teubner (eds), Transnational Governance and Constitutionalism (Hart Publishing 2004) 343. 60 Teubner (n 23) 63. 61 Paul Schiff Berman, ‘Toward a Jurisprudence of Hybridity’ (2010) 1 Utah Law Review 11, 14–15.

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cannot hide the fact that these societal constitutionalizations always involve societal power configurations and legitimations.

VIII. The Imaginary of Prosperous Imperium The growing complexity and differentiation of administrative and economic management and their legal regulation and political context led to a rethinking of the concept of constitution in all these social systems. The economic constitution has been adopted by European constitutionalism theories to highlight the importance of European economic and administrative regulation62 and the role of both national and European political institutions as economic agencies. At the same time, it addresses the political role of economic institutions such as banks, market regulators, and trade organizations. In post-1945 European integration, the common market has always been associated with the imaginary of the European commonwealth. The market as social institution, based on economic rationality and communication through the code of profit, was to constitute Europe as the union of economic prosperity and political stability. In this transnational society, politically authoritative decisions and their enforcement in the common market realm were expected to be legitimized by factual recognition of mutual benefits and profitability. European integration and its history are examples of the typically modern process of politicization of economy. Unlike the Marxists, who considered economy a substructure of society which determines the processes of political and legal superstructures, the founding fathers of the European common market believed it to be just one institution to be taken together with other institutions of evolving European society and its specific systems of law, politics, administration, science, or education. The EU’s economic constitutionalization went hand in hand with the postMaastricht EU’s process of steady political constitutionalization.63 Nevertheless, the imaginary of the prosperous transnational imperium has been just as intrinsic to its early history as the complex presence of European integration. Constitutionalization of the European economic system thus cannot be limited to the structural coupling between the systems of European economy and law. It has been part of the evolution and constitution of European society beyond its political, legal, and economic or administrative regulation limits. According to this imaginary, the market’s economic function is also considered a societal force behind political constitution-making. In this respect, it is possible to analyse the EU’s economic constitution by applying Max Weber’s classic definition of imperium as discipline based on the recognition of rules as factually binding, which, nevertheless, can be politically enforced against possible resistance.64 Its combination 62 See especially Giandomenico Majone and others, Regulating Europe (Routledge 1996); Renaud Dehousse, ‘Europe Institutional Architecture after Amsterdam: Parliamentary System or Regulatory Structure? (1998) 35 Common Market Law Review 595. 63 Wolf Sauter, ‘The Economic Constitution of the European Union’ (1998) 4 Columbia Journal of European Law 27. 64 Max Weber, Economy and Society: An Outline of Interpretive Sociology. Vol II (UC Press 1978) 651–52. This classic definition is different from more recent distinctions between imperium and dominium in the

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of societal discipline and political enforcement explains specific operations of the European common market and its proclaimed ability to generate commonwealth and political interests beyond national economies and states by the instrumental mode of mutually advantageous consociation.65 The political appeal of the spontaneously evolving market and the economic appeal of a strong state legally enforcing market rules thus reinforced each other throughout the history of European integration, and the influence of the German school of ordoliberalism was significant in this context.66 The imaginary of a spontaneous social order of the common market and the imperium of prosperity evolving from it was strongly supported by juridical constitutionalization, including the ECJ’s case law. As Karlo Tuori observed, ‘the second-order principles of effectiveness and uniformity have functioned as a bridge linking economic and juridical constitutionalisation’.67 The ECJ’s jurisprudence of free movement law became a key moment in the economic constitutionalization of Europe.68 The constitution of a supranational European polity legitimized by the economic value of prosperity was as important as its legitimation by political values of democracy, rights, and peace among the multitude of European peoples. However, initial procedural values of the economic constitution externally assisting the common market by legal rules gradually became accompanied by other societal values of rights, harm, and solidarity, to the extent that some scholars now speak of the specific subsystem of ‘the social constitution’.69 The post-Maastricht EU’s economic constitution thus accommodates concepts of political constitutionalism, such as citizenship, representation, and participation.70 Furthermore, the post-Maastricht economic constitutionalization of the EU witnessed various conceptualizations and criticisms of political interference and consequences of the single market regulations, the evolution of economic and social rights, and exceptional responses and policies of the European Central Bank (ECB), the

sociology of law and economics literature. For instance, Terence Dainith defines imperium as ‘a generic term to describe those instruments of policy which involve the deployment of force by government’ and dominium as ‘those policy instruments which involve the deployment of wealth by government’. See Terence Dailith, ‘Legal Analysis of Economic Policy’ (1982) 9 Journal of Law and Society 191, 215–16. Instead of using this distinction between the use of force and distribution of wealth by government, I refer to Weber’s definition of imperium as the recognition of rules as factually binding and the combination of power of discipline and punishment. 65 Jiří Přibáň, ‘Imaginary of the Imperium of Prosperity and Economic Constitutionalism in the EU: A Socio-Legal Perspective of Spontaneity of the Common Market and Its Limits’ in Lisa Mardikian, Achilles Skordas, and Gábor Halmai (eds), Economic Constitutionalism (Edward Elgar Publishing 2023). 66 Milene Wegmann, Früher Neoliberalismus und europäische Integration. Interdependenz der nationalen, supranationalen und internationalen Ordnung von Wirtschaft und Gesellschaft (1932–1965) (Nomos Verlagsgesellschaft 2002). 67 Kaarlo Tuori, European Constitutionalism (CUP 2015) 137–38. 68 Harm Schepel, ‘Constitutionalizing the Market, Marketing the Constitution, and How to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law’ (2012) 18 European Law Journal 177. 69 Tuori (n 67) 227–32. 70 Peter Lindseth, ‘Delegation Is Dead, Long Live Delegation: Managing the Democratic Disconnect in the European Market-Polity’ in Christian Joerges and Renaud Dehousse (eds), Good Governance in Europe’s Integrated Market (OUP 2002) 139–63.

The Imaginary of Mobilized European Democratic Communitas

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European Commission (EC), and the International Monetary Fund (IMF) adopted vis-à-vis the eurozone economic crisis. Ad hoc informal bodies without official jurisdiction, such as the ‘Troika’ consortium of the ECB, EC, and IMF, exposed the state of economic and administrative governance and its detrimental effects on democratic legitimacy and constitutional values at member state and European levels.71 As regards the EU’s economic constitution, the imaginary of spontaneous selfconstitution and coupling between the common market and case law produced by the judiciary and courts through dispute resolution72 was challenged by the European Commission’s growing regulatory powers in the post-Maastricht EU. The ECJ’s initial function of a ‘negative integration’ guarantor73 was limited by the institutional and organizational transformations commonly described as the EU’s ‘macroeconomic constitution’.74 Policy documents, such as the Stability and Growth Pact of 1997 and the fiscal pact in the Treaty on Stability, Coordination and Governance, constitute the EU’s political economy, focusing on political implications of the European market as much as economic implications of EU politics, which include both European and member state political systems.75 Furthermore, the macroeconomic constitution now has its case law, such as the ECJ Commission v Council ruling in 2004 regarding the excessive deficit procedure76 and the Pringle case addressing the eurozone crisis.77 The imaginary of the spontaneously self-constituting imperium of prosperity, which evolves as a structural coupling between European economy, politics, administration, and law, thus currently operates as a background power of EU economic constitutionalism in both its microeconomic and macroeconomic regimes.

IX. The Imaginary of Mobilized European Democratic Communitas In normative constitutional theory and philosophy, impersonal rationality of the market and consociation of utilitarian and purpose-oriented action is often contrasted with imaginary communities of values and collective existence, such as nations. The distinction between the forces of life in its authenticity and the forces of alienating systems is a formula used for both progressive or conservative revolutions and for the alleged symbolic revolution of humanity against alienating systems. The first goal of 71 Mark Dawson and Floris de Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76 Modern Law Review 817, 824–26. 72 Alec Stone Sweet, The Judicial Construction of Europe (OUP 2004) 66. 73 Koen Lenaerts and Eddy de Smijter, ‘The Question of Democratic Representation: On the Democratic Representation throuth the European Parliament, the Council, the Committe of the Regions, The Economic and Social Committee and the National Parliaments’ in Jan A Winter, Deirdre Curtin, Alfred E Kellermann, and Bruno de Witte (eds), Reforming the Treaty on European Union—The Legal Debate (Kluwer Law International 1996) 173, 175. 74 Tuori (n 67) 174. 75 Stefano Bartolini, Restructuring Europe: Centre Formation, System Building, and Political Structuring between the Nation State and the European Union (OUP 2005). 76 C-27/04 Commission v Council [2004] ECLI:EU:C:2004:436. 77 C-370/12 Thomas Pringle v Government of Ireland [2012] ECLI:EU:C:2012:756; see also Tuori (n 67) 210.

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politics is then considered to be overcoming the enormous force of money and capitalism by the sovereign powers of the forces of life.78 These imaginaries contrasting the impersonal logic of legality, calculemus, and the market to the mobilized agora of political society are part of the populist rationality drawing on the distinction between elitist expert knowledge and popular wisdom. It can be taken as evidence of further constitutionalization and democratization of EU politics that these imaginaries now find their specific forms and formulations in the context of EU constitutionalism. The emergence of democratic mobilization in the European context is a response to the growing populism at member state level. While populism is commonly contrasted with constitutionalism79 and perceived as the cause of backsliding towards authoritarianism, 80 some scholars appeal to ‘populist reason’ as a tool mobilizing and speaking for ‘the outsiders’ to ‘the system’.81 In this theoretical context, constitutionalism stands for power limitation and populism is considered the realm of the political will and power formation beyond institutional and constitutional constraints.82 Because societal constitutionalism defines imaginaries as background power, it logically has to examine the imaginary of populism in its both national and European contexts. The post-1989 rise of identity populism and its politics is part of the transnationalization of global society.83 It also informs the process of European integration and its constitutional imaginaries of authentic political identity and alienating depoliticization, both of the people and beyond. Description of the EU as a politically deficient and even morally corrupt administrative machinery or imperium of money and profit84 is a populist response to the profound Europeanization of national societies and its impact on the typically modern imaginaries of nation, state, democracy, and popular sovereignty. Constitutional imaginaries of transnational Europe face a populist backlash due to their transformative power affecting the state and nation and their forms of organization and functions in modern society. European integration used to be imagined as an alternative to the modern history of nationalist politics dominated by nation-states. However, the current state of the EU, with its democratic deficit and expertise-driven decision-making, cannot avoid collisions with populist imaginaries and responses emerging within and beyond democratic institutions of 78

ibid 507. Jan-Werner Mueller, ‘Populism and Constitutionalism’ in Cristobal Rovira Kaltwasser and others (eds), The Oxford Handbook of Populism (OUP 2017). 80 Cass Mudde and Cristóbal Rovira Kaltwasser (eds) Populism in Europe and the Americas: Threat or Corrective for Democracy? (CUP 2013); Paolo Cossarini and Fernando Vallespín (eds), Populism and Passions: Democratic Legitimacy after Austerity (Routledge 2019). 81 Ernesto Laclau, On Populist Reason (Verso 2005) 153. 82 Jan-Werner Mueller, What Is Populism? (University of Pennsylvania Press 2016). 83 Ulrich Beck, Anthony Giddens, and Scott Lash, Reflexive Modernization: Politics, Tradition and Aesthetics in the Modern Social Order (SUP 1994). 84 For an analysis of Eurosceptic attitudes from critics of the EU’s current regime to the critics of EU policies and supports of exits from the EU, see Catherine E De Vries, Euroscepticism and the Future of European Integration (OUP 2018) 8. 79

its member states.

The Imaginary of Mobilized European Democratic Communitas

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The EU constitution-making failure and subsequent searches of post-constituent constitutionalism only highlight the inseparability of constitutionalization and democratization and the coevolution of political representation and identity beyond the semantics and structures of the modern nation-state. Responding to these processes, the imaginary of the transnational pluralistic European public spheres and the peoples’ Europe mobilized as ‘demoicracy’ has been formulated by recent theories of European constitutionalism. The transnational European public sphere cannot be imagined as constituting a democratic sovereign. However, it can be imagined as a communication network channelling the deontology of rights, liberty, and equality as part of the public media network85 and critically observing and pluralistically limiting the expansion of power formed through EU political institutions. To have one public sphere speaking in the authentic voice of the European people is an impossible fantasy. However, EU democratized politics can be reimagined as a specific mobilizing and pluralistic structure of public spheres86 of communication between governing institutions and the governed citizens and peoples of the EU.87 This imaginary of the mobilized European public spheres is very close to the concept of demoicracy pursued by some scholars as a response to the increasing conflicts between elitist and populist legitimations permeating EU institutions. While originally used in a critical sense to describe the constitutional dilemma of EU politics in the 1990s and the need to constitute a European demos,88 Kalypso Nicolaïdis recently adopted the concept as a middle way between the federalist dream of the European demos and the intergovernmentalist notion of the EU as an association of states governed by their sovereign demoi.89 The concept of demoicracy responds to the EU’s democratic deficit by arguing that the absence of the European demos does not rule out the possibility of democratic control and legitimacy of EU political institutions. The EU as a communitas of demoi governing together but not as one abandons the imaginary of one Europe of shared values, further strengthening the European bonds and collective identity, and instead builds on procedures of deliberative democracy and applies them to the pluralistic community of the EU.90

85 Ruud Koopmans and Paul Statham (eds), The Making of a European Public Sphere: Media Discourse and Political Contention (CUP 2010). 86 Thomas Risse (ed), European Public Spheres: Politics Is Back (CUP 2014). 87 Hans-Jörg Trenz and Klaus Eder, ‘Democratizing Dynamics of a European Public Sphere’ (2004) 7 European Journal of Social Theory 5. 88 Philippe van Parijs, ‘Should the European Union Become More Democratic?’ in Andreas Follesdal and Peter Koslowski (eds) Democracy and the European Union (Springer 1998) 287. 89 Kalypso Nicolaïdis, ‘European Demoicracy and Its Crisis’ (2013) 51 Journal of Common Market Studies 351 90 James Bohman, ‘From Demos to Demoi: Democracy across Borders’ (2005) 18 Ratio Juris 293.

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X. Concluding Remarks: EU Societal Constitutionalization and its Imaginaries European societal constitutionalism has the capacity to theorize constitutional processes as part of both social integration and fragmentation, divergence and convergence, inclusion and exclusion, legal and non-legal regulation. It actually comprehends these distinctions as part of the same functionally differentiated process of societal self-constitutionalizations and highlights conflicts, contestations, and crises emerging between the economic, social security, legal, and political constitutions of the EU. For instance, the eurozone financial crisis led to political responses exceeding the legitimate self-constraints of EU legality and administrative governance. These responses are considered the de facto state of exception in which legality has been suspended and decisions taken without pre-existent rules.91 The failure of gubernaculum of economic efficacy thus threatens to delegitimize the existing iurisdictio of EU constitutional authorities. Furthermore, the absence of supreme constitutional authority vis-à-vis the financial and economic or migrant crises experienced by the EU has revealed the plurality of power structures and their reconfigurations in different sectoral constitutions of the EU. If democracy originally had been constituted as the political system granting power to the many poor citizens—the demos—against the few rich citizens of the ruling elite—the oligoi92—the current critical state of the EU offers a new form of this structural conflict and coupling of societal powers not only beyond the nation-state and national polity segmentary boundaries, but also as part of functional differentiation and self-limitation of the general systems of law, administration, economy, and politics. Some critics respond to these challenges by calling for genuine political constitutionalism with the autonomous capacity of EU institutions to mobilize and enforce fiscal and human resources and thus exercise supreme constitutional authority. According to them, the growing societal potentia of European economy, law, and administration is becoming a destabilizing force in the absence of political potestas behind auctoritas of EU constitutional law. This absence allegedly leads to the ‘parasitic legitimacy’ of the EU and ‘as if ’ fictional constitutionalism, which is weak in terms of both its normative foundations and its efficacy and cannot sustain further EU integration.93 Nevertheless, EU societal constitutionalization and its different imaginaries show that, if there is a basic norm of European constitutionalism, it can be summarized as ‘no gubernaculum without iurisdictio’. However, this basic norm operates in both political and non-political regimes, which are the holders of power beyond politics and legitimation beyond legality. 91 See, for instance, Christian Joerges and Carola Glinski (eds), The European Crisis and the Transformation of Transnational Governance Authoritarian Managerialism versus Democratic Governance (Hart Publishing 2014). 92 Paul Cartledge, Democracy: A Life (OUP 2016) 18–19. 93 Peter L Lindseth, ‘The Perils of “As If ” European Constitutionalism’ (2016) 22 European Law Journal 696.

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The tension between democratic iurisdictio and technocratic gubernaculum in European constitutionalism may be managed by societal constitutions of demoi with the potentia of dissent and its execution through the procedures of systemic selfcontestation in EU law, politics, administration, and economy. European constitutionalism then carries the possibility of legitimation and ‘jurisprudence’ of different regimes of administrative, economic, and legal knowledge. Understanding this jurisprudence of different disciplines of knowledge requires identifying and analysing their constitutional imaginaries evolving in different social systems, and constituting new subjects of both political and societal constitutions in Europe.

3

European Constitutional Imagination A Whig Interpretation of the Process of European Integration? Marco Dani and Agustín José Menéndez*

What is discussed is the tendency in many historians to write on the side of Protestants and Whigs, to praise revolutions provided they have been successful, to emphasize certain principles of progress in the past and to produce a story which is the ratification if not the glorification of the present. Herbert Butterfield, The Whig Interpretation of History, 1931

I. Introduction In this chapter, the characterization of European law1 as a constitutional order is challenged from two related standpoints, namely, the ambiguity of the qualification of European law as constitutional, and the lack of a well-argued narrative explaining how European law became constitutional and what type of constitutionalism it has developed. We start by clarifying the concept and conceptions of constitution, emphasizing the centrality of the structural and normative conceptions of constitution. This preliminary conceptual work facilitates the task of elucidating what exactly is being argued when it is claimed that European law is constitutional, and what implications are consequently justified. We then note that while the process of constitutionalizing plays a key role in structuring European law as a discipline, normative reasons underlying such characterization remain, if anything, more assumed than explicit and fully demonstrated. This leads us to conclude by arguing that it may be preferable not to imagine contemporary European law in constitutional terms. At the same time, however, we note that the power effectively held by the European Union reaches so many corners of national legal and socio-economic structures as to render it insufficient to merely reject any claim to its constitutionality. The predicament of European law is that of a legal order that de facto discharges the *

This chapter is dedicated to Mark Gilbert. We use the term ‘European law’ to refer to supranational law, both of the Community and of the European Union law. This avoids the confusion resulting from the use of those two terms, although it is unsatisfactory to the extent that it appropriates the adjective European to speak of what is actually only one part of it. 1

Marco Dani and Agustín José Menéndez, European Constitutional Imagination In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0003

Introduction

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functional tasks proper of constitutional orders, while lacking the requisite democratic and social credentials. The leitmotiv of this book, the ‘European constitutional imagination’, is part of the progeny of what may be referred as the ‘constitutional turn’ in European studies, most especially European legal studies. Once regarded as odd,2 characterization of the European Union as a ‘constitutional’ entity became very frequent in the 1990s3 and ubiquitous in the early 2000s, to the point that different forms of ‘Euroconstitutionalism’ have become influential theories among not only jurists4 but also political philosophers,5 political scientists,6 and historians.7 These ‘constitutional’ theories are deployed as reconstructive tools to account for the development of European law, which became a constitutional legal order on a par with national democratic legal orders. The attribution of a constitutional nature to European law comes to bear when settling concrete legal questions—notably, but not exclusively, conflicts between supranational and national norms regarding the competence of institutions or the substantive content of norms, entailing the supremacy of European law and its prevalence over any conflicting national norms, even those included in the national, and democratically legitimated, constitution.8 In this chapter we challenge the constitutional renderings of European law from two related standpoints—the ambiguity of what is meant when characterizing European law as constitutional, and the lack of a well-argued narrative explaining how European law became constitutional and what type of constitutionalism it has developed— which propel, in our view, confused thinking on the relationship between European and national law. Firstly, theories that characterize European law as constitutional tend to assume that the meaning of constitutional and, consequently, the implications of characterizing a

2 See Eric Stein, Gerhard Casper, John W Bridge, Stefan A Riesenfeld, Pieter van Themaat, and Ami Barav, ‘The Emerging European Constitution’ (1978) 72 Proceedings of the American Society of International Law 166, 166 in which Stein apologizes for the title of the panel: ‘Professor Stein stated that he must accept blame for the ringing title for the panel. It might strike one as unrealistic and Pollyannaish, if not outright propagandistic in more than one sense.’ 3 Eric Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1; Giuseppe F Mancini, ‘The Making of a Constitution for Europe’ (1989) 26 Common Market Law Review 595. 4 See for example Joseph HH Weiler, The Constitution of Europe, ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (CUP 1999); Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (Hart 2009); Robert Schütze, European Constitutional Law (CUP 2015). 5 Jürgen Habermas, ‘Remarks on Dieter Grimm’s “Does Europe Need a Constitution?” ’ (1995) 1 European Law Journal 303; Jürgen Habermas, ‘Why Europe Needs a Constitution’ (2001) 11 New Left Review 5; Jürgen Habermas, ‘Democracy in Europe: Why the Development of the EU into a Transnational Democracy Is Necessary and How It Is Possible’ (2015) 21 European Law Journal 546. 6 Simon Hix and Bjørn Høyland, The Political System of the European Union (Palgrave 2011); Andrew Moravcsik, ‘The European Constitutional Settlement’ (2008) 31 The World Economy 158. 7 Bill Davies, ‘Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in Its Intellectual Context’ (2015) 21 European Law Journal 434; Morten Rasmussen and Dorte S Martinsen, ‘EU Constitutionalisation Revisited: Redressing a Central Assumption in European Studies’ (2019) 25 European Law Journal 1. 8 See, eg, the ruling in Case C-416/10 Križan and Others [2013] ECLI:EU:C:2013:8.

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A Whig Interpretation of the Process of European Integration?

legal order as constitutional are (or should be) univocal.9 This is hardly the case and tends to give rise to very confused debates, in which implications are drawn from the constitutionality of European law (paradigmatically, its supremacy over any other conflicting norm, including national constitutional norms) which would be fully justified only if European law was constitutional in a strong normative sense, but not necessarily in most others. This invites a more articulate analysis of the concept and conceptions of constitution, which we undertake in section II, so as to be in a position to clarify what exactly is being argued when it is claimed that European law is constitutional, what implications are consequently justified, and which of them are not. Second, and quite relatedly, it is clear that whatever the sense in which European law is regarded as constitutional, it must be claimed that this results from the transformation of an international legal order established through three international treaties into a constitutional order which may define the canonical form of constitutionality in Europe. In other words, given that European law was not created as a constitutional order but rather drafted in the grammar of public international law, anybody claiming that European law is now a constitutional order must specify not only in what sense this is so, but also how European law became constitutional. Again, whether such transformation has been completed depends on what conception of constitution, and what consequent claims, are at stake. A number of European legal scholars, however, assume that European law has become constitutional in a strong normative sense. By doing so, they endorse a Whig legal history of European integration. Accordingly, the constitutionality of European law is the result of an evolutionary process coherent with the spirit if not the letter of its founding Treaties, in which the consequent transformation of the supranational and the national politics and law were already encoded.10 Consequently, the history of European integration would amount to the unavoidable march forward of a specific way of understanding European law and society.11 We note that while this process of constitutionalization plays a key role in structuring European law as a discipline, normative reasons underlying such characterization remain, if anything, more assumed than explicit and fully demonstrated. In fact, the Whig narrative not only obfuscates the political, social, and economic conflicts that come a long way to explain the evolution of European law since its inception, but also distracts our attention from the recent pattern of evolution of European law— what could be referred to as its neoliberal torsion. This is why in Section III we revisit a number of key watersheds in the evolution of European law, and consider how and whether the shifts in the characterization of European law as a constitutional order could be justified on the basis of a strong normative conception of constitutionalism. As a result, a less triumphalist and reassuring picture emerges—one in which the legitimacy of European law cannot be taken for granted, in particular if a strong normative conception of constitutionalism is embraced.

9 This reductio ad unum is evident even in the most theoretical analyses; see, eg, Mattias Kumm, ‘Beyond Golf Clubs and the Judicialization of Politics: Why Europe Has a Constitution Properly So Called’ (2006) 54 American Journal of Comparative Law 505. 10 Stein (n 2 and 3); Weiler (n 4). 11 Alec Stone Sweet, ‘The Juridical Coup d’État and the Problem of Authority’ (2007) 8 German Law Journal 915.

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This leads us to conclude the chapter by putting forward two arguments against the European constitutional imagination. Firstly, we find that Euro-constitutionalism is at best anchored to a type of liberal constitutionalism that may well end up divorcing constitutional law from democratic and social legitimacy, to the extent that it may lead to an authoritarian organization of power. Second, we argue that the European Union lacks the political and social legitimacy necessary to sustain any normative claim to constitutionality, not least because of the growing distance it entertains with constitutionalism in a strong normative sense, at least if the latter is conceived in accordance with the democratic and social constitutionalism at the core of European national post-war constitutions. In that sense, the question is not only whether European law should aim to be constitutional, but whether it can be so. At the same time, however, we note that the power effectively held by the European Union reaches so many corners of national legal and socio-economic structures as to render it insufficient to merely reject any claim to its constitutionality. The complexity of the predicament of European law12 is that of a legal order that de facto discharges functional tasks proper of constitutional orders while lacking the democratic and social credentials to do so.

II. Which Constitution, Whose Constitution? Many different meanings may be presupposed or attributed to the terms ‘constitution’ or ‘constitutional’ when used in a legal or political debate. It is indeed accurate to say that ‘constitution’ and ‘constitutional’ are essentially contested concepts,13 or— which is the same—that how we define them depends on which normative positions we stand for (and vice versa).14 Debates about European law are not an exception, as they also reflect the extent to which ‘constitution’, ‘constitutional’, and ‘constitutionalism’ are normatively, culturally, and politically loaded. To put order into the discussion, it seem to us necessary to: • distinguish, for analytical purposes, five main conceptions of constitution, while stressing that not all of them are placed at the same level of generality, so there are substantive connections between them (subsection A); • add that each conception of constitution raises specific claims to constitutionality, which become extremely relevant in pragmatic legal discourses (subsection B); • conclude that the frequently used (not least in European law debates) concept of ‘constitutionalism’ refers to a specific conception of constitution hearkening back to ‘liberal constitutionalism’, to be distinguished from ‘democratic and social constitutionalism’ (subsection C). 12 Capturing insights from Kaarlo Tuori, European Constitutionalism (CUP 2015), but at the same time not disregarding the warnings of Peter L Lindseth, ‘The Perils of “As If ” European Constitutionalism’ (2017) 22 European Law Journal 696. 13 Walter B Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167. 14 See Dieter Grimm, ‘Types of Constitutions’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2013) 98.

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A. Five conceptions of the constitution Five main conceptions of the constitution are relevant in debates on European law and, in particular, in its relationship with national constitutional norms:15 (1) The formal conception of constitution refers to a document or set of documents that are proclaimed to contain the fundamental norms governing social interaction and cooperation in a given society.16 Quite typically, modern legal systems are crowned by one single legal document or a clearly delineated set of documents17 approved through a special formal procedure established exclusively for that purpose, and which contains quite typically a series of norms establishing and regulating the institutional structure of the polity and substantive provisions defining the fundamental rules and principles of the legal order (not least fundamental rights). (2) The functional conception of constitution refers to the set of norms of social interaction that, regardless of what is formally proclaimed as the constitution, actually regulate the fundamental social institutions and practices.18 It is the sheer centrality of the said norms in the life of the polity that requires us to regard them as constitutional, independently of whether they are written or merely implicit (for example, as ‘constitutional conventions’), and of the processes through they were elaborated. (3) The structural constitution refers to the norms that determine whether other norms are or are not part of a given legal order, and what force and effects they have.19 The structural constitution plays a fundamental role in founding and sustaining the legal domain. It is not only the gatekeeper of legal validity, but a necessary condition of the functionality of law; in other words, it plays a fundamental role in creating the conditions under which legal norms can be applied by their addressees and by institutions in a more or less coherent fashion.20

15 Other conceptions could be distinguished. Our point is not to be exhaustive, but to pinpoint the distinctions pertinent in the debate on European law. 16 It goes without saying that the standard formal constitution is the written constitution. The proclamation of the formal constitution has to be done by institutions (eg a constituent assembly) raising and redeeming a claim to political authority; typically, such political authority is reinforced and higher than that vested in ‘ordinary’ political institutions. 17 Eric Barendt, Introduction to Constitutional Law (OUP 1998) 26ff, distinguishes written and codified constitutions, the latter being those in which constitutional norms are included in a single document. See also Grimm (n 14) 106. 18 Turkuler Isiksel, Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State (OUP 2016). 19 Hans Kelsen, ‘The Function of a Constitution’ in Richard Tur and William L Twining (eds), Essays on Kelsen (Clarendon Press 1986) 109; part of the characterization of secondary norms in HLA Hart, The Concept of Law (OUP 1961). Kelsen’s argument makes the validity of the first historical constitution rest on a hypothetical norm (‘the grundnorm’) that has to be presumed if we want to make legal arguments. Implicitly, this seems to us to imply grounding the validity of the constitution on a societal practice, perhaps wider than that hinted at by Hart (who makes judges and lawyers the key and almost exclusive players), as argued by Neil MacCormick, Institutions of Law (OUP 2007). 20 Quite famously, Kelsen spoke of the ‘first historic constitution’ as containing the structural constitution. Kelsen (n 19) 114 (‘historically first constitution’).

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(a) It is important to notice that we may speak of the structural constitution in two different senses: a weak and a strong one. (b) When we refer to the constitution of a given legal order in a weak sense, we are claiming that we are dealing with a legal order and not merely with a congeries of norms, because from the standpoint of such legal order itself (but only from such a standpoint, and not necessarily from others), the validity of its norms is determined by a norm or norms belonging to that very same order. (c) But we may also speak of the structural constitution in a strong sense. Then, we assume that the norms of that legal order govern the validity of all legal norms applicable at the given time and in the given space in which such legal order claims validity, whether or not those norms are generated by that legal order. In this latter sense, the pretence of structural constitutionality goes beyond the legal order itself, and applies to all legal orders and suborders applicable within the space and time in which the legal order is valid. In other words, the strong conception presupposes not only that we are dealing not only with a legal order, but with one which claims the last word on the definition of law and legality within a given territory. There are thus close connections between the strong conception of structural constitution and the concept of sovereignty (mediated by concepts such as that of kompetenz-kompetenz, not by chance invoked by—some—national constitutional courts when setting limits to the implicit claims to strong structural constitutionality21 allegedly raised by the European Court of Justice (ECJ)).22 (4) The normative conception of the constitution points to a set of precepts characterized by very intense legitimacy credentials. From a democratic perspective, constitutional norms are those claiming the broadest popular consensus in a particular political community. By contrast, from a strong cognitivist perspective, constitutional norms are those which reflect the fundamental moral values, that is, those values the correctness of which can be established independently, also from procedures of collective decision-making.23 In both cases, it is the normative legitimacy of the norms that justifies their radiating force over the whole legal order, and indeed their capacity to prevail over any other conflicting norm. (5) The material conception of the constitution refers to the non-formalized or not fully formalized factors that not only allow the establishment of the constitutional normative order, but also sustain it over time. Quite typically, the 21 Dieter Grimm, ‘Sovereignty in the European Union’ in Johan van der Walt and Jeffrey Ellsworth (eds), Constitutional Sovereignty and Social Solidarity in Europe (Nomos 2015) 39 22 The European Court of Justice was later redenominated the Court of Justice of the European Union (CJEU). We hesitated between sticking to one single way of referring to the Court or using one or the other denomination depending on the date of the ruling. We opted for the latter option because, contrary to what is the case with European law, there is no obvious more encompassing term that can be used. 23 Which normative conception of the constitution is upheld is something that is closely related to the conception of law which one holds. The closer one is to cognitivist conceptions, the more likely it is that one supports a non-positivistic conception of law.

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A Whig Interpretation of the Process of European Integration? material conception assigns a central role to specific constellations of institutional actors (such as political parties).24

The description of these five conceptions of the constitution illuminates the very different senses in which one can make use of the word constitution. However, the mere definition of these different conceptions of the constitution does not clarify in what senses European law can be regarded as a constitutional legal order. Let us consider this briefly. Perhaps the only statement that can be made in a rather unqualified manner is that the European Union has a functional constitution. It suffices to consider that the basic norms regulating the socio-economic structure and activity, from corporate law to competition law, including decisive elements of labour law and money, are now mostly (but not exclusively) enshrined in supranational law. This can be expressed in a more succinct manner by saying that the legal norms ‘encoding capital’25 in Europe are mostly part of European Union law. However, it is far from clear whether the European Union could be said to have a formal constitution. Even if it has become not infrequent to refer to the Treaties (the Treaty on European Union and the Treaty on the Functioning of the European Union) as the constitution of the European Union (at least in the sense that they are regarded as the documents that most closely resemble a written constitution in the supranational legal order), it remains the case that the Treaties are both over and under-inclusive: not all fundamental norms are part of them, and at the same time they contain far too many non-fundamental legal norms.26 By the same token, it is clear that the European Union has a structural constitution in a weak sense. Regulations, directives, the rulings of the Court of Justice, and a considerable number of other European norms can be and indeed are regularly reduced to a system by reference to a fundamental secondary norm that is part of European Union law itself (much as that is the case not only with national constitutional law, but also with public international law). It is, however, intensely debated whether the European Union has a structural constitution also in a strong sense. That would imply that European law, not national law, is the ultimate gatekeeper of legal validity in Europe. That is implicit in the understanding of the structural principles of European Union law (direct effect, supremacy) but has been constantly rejected by national constitutional courts.27 The contested character of the claim that European Union law has a strong structural constitution bears relation to the question whether the European Union has a normative constitution. It seems to us fair to say that while national 24 Costantino Mortati, La Costituzione in Senso Materiale (Giuffrè 1940); Marco Goldoni and Michael A Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567. 25 Cf Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton University Press 2019). 26 It is true that, not infrequently, the written constitution does not include all documents of constitutional relevance or salience. This tends to result from the progressive accretion through history to the constitutional canon. In the case of the European Union, however, it is revealing of the fact that the Treaties remain the product of intergovernmental Treaty-making. Dieter Grimm, ‘The Democratic Cost of Constitutionalization: The European Case’ (2015) 21 European Law Journal 460. 27 Cf Alessandro Mangia, ‘L’interruzione della Grande Opera. Brevi note sul dialogo tra le corti’ (2019) Diritto pubblico comparato ed europeo 859.

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constitutional actors (notably constitutional courts) assume that national constitutions remain the normative anchor of law in the European Union due to their democratic and social pedigree, those sustaining the constitutional character of European law tend to rely more on cognitive claims, based on a certain understanding of the foundational role of the rule of law or of the freedom-enhancing aspect of subjective economic freedoms. This may reflect different understandings of the normative constitution itself, in the terms already pointed out above.28 We should add that the distinction of five conceptions of the constitution makes full sense from an analytical perspective. Indeed, the fact that a given set of norms is constitutional in one sense does not entail by itself that they are to be regarded as constitutional in any other relevant sense. Viz: That a given social order is stable, because it has long been tolerated by the population to which it is addressed, does not entail that it is to be regarded as legitimate in a normative sense. By the same token, we should carefully distinguish the claims to weak and strong structural constitutionality: there is a world of difference between the claim that we can identify a fundamental norm around which a legal order is built, and the very different claim that such fundamental norm governs the validity of all legal norms applicable in a given territory at a given time. However, the different conceptions of the constitution are not situated on the same plane of generality but neither do they stand in splendid isolation from each other, as has emerged in their illustration. In that regard, it is important to stress that different claims to constitutionality may enter into conflict. For example, legal and political analysis may lead to the conclusion that the formal constitution does not contain the fundamental norms that de facto govern social life.29 This urges us to consider what the functional and the material constitutions reveal about the actual organization of power in a given society, precisely because the norms that really matter are not enshrined in the formal constitution. This was, for example, the purpose of Ferdinand Lassalle in his essay on the Bismarckian constitution.30 In a similar fashion, we could consider the gap between the formal proclamation of equality and solidarity in contemporary constitutions, and the growing social, economic, and existential inequalities which lead to a social practice in which the common action norms being applied are different from formal legal norms—a conflict which can indeed be detected in European Union law too, with perhaps paradigmatic clarity. Finally, it must be said that how we characterize a given legal order in some dimensions of constitutionality may predetermine our judgement in other dimensions. In that regard, the strong structural and, above all, the normative conceptions of constitutions turn out to be decisive ones, both in themselves and in their relationships with other conceptions of constitution. To summarize: there is a plurality of conceptions of the constitution, and it matters deeply which specific conception of the constitution we have in mind when we engage in

28 The two alternative perspectives are visible respectively in Rainer Wahl, ‘In Defence of “Constitution” ’ and Mattias Kumm, ‘The Best of Times and the Worst of Times: Between Constitutional Triumphalism and Nostalgia’ in Martin Loughlin and Petra Dobner (eds), The Twilight of Constitutionalism? (OUP 2010). 29 Cf Karl Loewenstein, Political Power and the Governmental Process (University of Chicago Press 1957). 30 Ferdinand Lassalle, Was nun? Zweiter Vortrag über Verfassungswesen (Meyer und Zeller 1863).

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‘constitutional talk’. There are critical differences between affirming that the European Union has a constitution in a normative sense or in a purely functional sense. To put it differently, the polysemic ambivalence characteristic of the use of the word ‘constitution’ can only be avoided if we clarify in which sense we are using the term in each specific case.

B. Claims to constitutionality in pragmatic legal discourses We have already hinted at the fact that each conception of the constitution entails a series of claims regarding the structure and content of the legal order, or, in brief, a series of claims to constitutionality. Such claims are relevant in political discourses, but become particularly consequential in legal debates aimed at settling in an authoritative manner disputes about how specific cases should be decided, or indeed who should adjudicate upon them. In the latter cases, some of the claims to constitutionality (especially when implying a strong structural conception and the normative conception) may well work as an argumentative trump card. Take for example the recent Weiss saga, in which the German Federal Constitutional Court (GFCC)31 and the Court of Justice of the European Union (CJEU)32 entered into a rather spectacular conflict. On the one hand, the CJEU found that the quantitative easing programme of the European Central Bank complied with the competence and proportionality requirements of European law, and could thus proceed unimpeded. On the other hand, the final ruling by the judges sitting in Karlsruhe not only cast serious doubt on its compatibility with German constitutional law, but also concluded that such a programme should be invalidated as unconstitutional, and therefore void, if the strong doubts it expressed were to be confirmed. As a result, the pragmatic conflict between the two courts (each arguing for a different outcome to the case) is open to reconstruction as a conflict between the claims to constitutionality that they make, which results in a conflict concerning the rules to be applied to the concrete case. The ruling of the CJEU implied a claim to the strong structural constitutionality of European law, which excluded a parallel one made on behalf of German constitutional law, and upheld the validity of the decisions taken by the European Central Bank (ECB).33 In its turn, the ruling of the GFCC advanced a claim to the strong structural constitutionality of German constitutional law, which excluded the one made by the CJEU on behalf of European law,34 and opened the door to the invalidation of the decisions taken by the ECB. The solution to these conflict between two incompatible

31 German Federal Constitutional Court, Judgment of the Second Senate, 5 May 2020, 2 BvR 859/15, ECL I:DE:BVerfG:2020:rs20200505.2bvr085915. 32 Case C-493/17 Weiss and Others [2017] EU:C:2018:1000. 33 A point proven by the press release issued by the CJEU after the Weiss ruling of the German Federal Constitutional Court. Cf Press release following the judgment of the German Constitutional Court of 5 May 2020, 8 May 2020, accessed 12 May 2021. 34 The GFCC seemed to somehow dissolve the conflict between European and national law by also claiming that the CJEU was constructing European law wrongly.

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constitutional claims hinges, at the end of the day, upon the normative credentials of the conflicting legal orders, as we will see.35 With this example we have already hinted at the fact that claims to constitutionality can be raised either implicitly or explicitly. It is quite interesting to notice that the German Constitutional Court made its claims to strong structural and normative constitutionality rather explicit while the CJEU remains quite implicit in its claims, refraining from raising the constitutional card.36 As we will see, the difference between explicit and implicit claims to constitutionality will be highly relevant when reconstructing the legal history of European Community law.

C. Which constitutionalism? Constitutionalism is a term as ambiguous as constitution. There is a great variety of constitutionalisms, reflecting different political conceptions of the relationship between individual and community, and further complicated by the way in which the relationship between different conceptions of the constitution is understood.37 However, the term tends to be identified (not least in debates on the law of the European Union) with liberal constitutionalism, according to which the fundamental function of constitutional law is to constrain state power, so as to guarantee private autonomy against encroachments by public actors and institutions.38 It is thus a form of normative constitutionalism, which holds that the realization of the said underlying values is what sustains the legitimacy of the fundamental law. It is important to keep in mind that liberal constitutionalism is an important conception of constitutionalism in historical terms, to the extent that it dominates the history of constitutionalism in Europe in the nineteenth century, in which the constitution is associated with the limitation of public power. Things look different, though, from a historical, comparative, or, for that matter, normative perspective. There are good reasons to affirm that the paradigmatic conception of constitution in Europe is the one proper of the democratic and social constitutional state, which makes very different assumptions regarding the relationship between individual, society, and state

35 Cf on the issue Ulrich Haltern, ‘Revolutions, Real Contradictions, and the Method of Resolving Them: The Relationship between the Court of Justice of the European Union and the German Federal Constitutional Court’ [2021] International Journal of Constitutional Law 208. 36 When claims to constitutionality are explicit, there is always resort to constitutional language. That is not the case when the claims are merely implicit, in which case there is no need to use the ‘c’ word; it suffices to affirm (or presuppose) that the legal order has the features that correspond to a specific conception of the constitution. 37 See Grimm (n 21). See also Signe Rehling Larsen, ‘Varieties of Constitutionalism in the European Union’ (2021) 84 Modern Law Review 477. 38 A modern rendering in András Sajó, Limiting Government: Introduction to Constitutionalism (Central European University Press 1999). An explicit endorsement of negative constitutionalism in Joseph HH Weiler, ‘In Defence of the Status Quo: Europe’s Constitutional Sonderweg’ in Joseph HH Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State (CUP 2003) 7, 15: ‘[Our constitutions] are about restricting power, not enlarging it; they protect fundamental rights of the individual.’ In its turn, the positive dimension is highlighted by Manuel García Pelayo, Las transformaciones del Estado contemporáneo (Alianza 1977); Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (University of Chicago Press 1997) and Martin Loughlin, Political Jurisprudence (OUP 1997).

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than its liberal counterpart, and emphasizes that the constitution constitutes public power, which it both limits and enables, not least with a view to ensuring a fundamental degree of equality within society.39 This vision, even if only fully realized in Europe in the post-war period, was inspired by interwar constitutional developments, both in Europe and in the US (the New Deal constitutionalism), which pointed to an activist government capable of contributing to the stabilization of the economy, industrial policy, and redistribution.40 It seems to us that it is of essence to keep in mind that liberal constitutionalism is far from the only possible form of constitutionalism, and that indeed the post-war European ‘constitutional tradition’ endorses democratic and social, not liberal constitutionalism. To opt for liberal constitutionalism is not only a normative choice,41 but one that contradicts the identity of contemporary post-war constitutions.

III. The Claims to Constitutionality of European Law: Notes for a Counter-Narrative The previous section spelled out five different conceptions of the constitution, giving rise in turn to distinct claims to the constitutionality of a given legal order. Equipped with these conceptual tools, we revisit briefly the legal history of the European Union. We aim to explore and assess the genesis of its claims to constitutionality, and in the process to sketch the main lines of what could be characterized as a non-Whig constitutional history, one that avoids taking for granted the constitutional character of European law.42 Instead of a linear unfolding in which the constitutionality of European law comes slowly but steadily to the fore, the history of European law is better reconstructed by distinguishing several relevant turning points in the evolution of European law, not by chance closely connected to wider social, economic, cultural, and political transformations, in which the constitutional pretence of the Union becomes increasingly problematic. We focus on five snapshots capturing the same number of stages of its evolution by reference to the specific claims to constitutionality raised by European institutional actors, most notably the legal services of the European Commission and the judges of the ECJ/CJEU. We start by analysing the ambivalence of the founding Treaties of the European Communities (subsection A). Then we consider how European institutional

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Cf Maurizio Fioravanti, Costituzionalismo. Percorsi della storia e tendenze attuali (Laterza 2009). See, e.g., Hermann Heller, ‘Rechtstaat or Dictatorship?’ (1987) 16 Economy and Society 127; Giuseppe Dossetti, ‘Funzioni e ordinamento dello stato moderno’ (1953) 2 Quaderni di Iustitia 16, and García Pelayo (n 37). On the New Deal constitutionalism, see Bruce Ackerman, We the People, vol. II: Transformations (Harvard University Press 1998) 256. 41 Which, it may be said en passant, is coherent with the historicist ‘end of history’ and ‘end of ideology’ ideologies. 42 We present the turning points in a stylized and sequential fashion. This, by itself, may create the (wrong) impression that there is something pre-ordained in the way in which events unfold, that each of them somehow naturally leads to the following. This is especially the case when, as here, the dominant narrative intentionally presents facts in such a fashion. Not only is there no such continuity, however, but it is important to keep in mind that events might have unfolded differently. To make sense of how European law has evolved, it is of essence to consider how it might have evolved. 40

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actors fashioned European law in distinctive terms from standard international law by presenting it as a new type of legal order characterized by its autonomy. This entailed raising a two-fold claim to structural constitutionality, in the sense that the claim was implicitly to strong structural constitutionality (extending to both supranational and national law), while explicitly it pointed to weak structural constitutionality (limited to the sphere of supranational law). Moreover, political and social circumstances (not least the reinforcement of intergovernmentalism in the wake of the ‘empty chair’ crisis) ensured that the implicit claim to strong structural constitutionality remained merely latent. In the meantime, however, the reach of supranational law expanded, laying the basis for a claim to functional constitutionality, which led to an initial series of conflicts with national constitutional courts (subsection B). In the early 1970s the circumstances in which European integration evolved changed quite radically. This unleashed functional pressures that encouraged European institutional actors not only to scale up their implicit and explicit claims to (strong) structural constitutionality, but also to imbue them with substantive normative content. This resulted in a remarkable expansion of the scope of European law and its recalibration in the light of constitutional principles borrowed from national constitutional traditions (subsection C). At this point, a range of national institutional actors headed by national constitutional courts engaged into new waves of resistance against the pretence of strong structural constitutionality of European law. National actors, however, failed to realize the full constitutional implications of the Europeanization of the functional constitution of the socio-economic structure, with obvious repercussions for the actual capacity of national legal orders to claim strong structural constitutionality also beyond the policy areas transferred to the European Communities. As a result, the supremacy of national constitutions became divorced from their actual capacity to shape the substantive content of the legal order, at the very same time that the constitutional equivalence between the supranational and national legal orders was implicitly affirmed and accepted, while leaving open what that entailed in concrete terms (that is, functional, structural or normative equivalence; subsection D). The financial, economic, and fiscal crises that have hit the European Union since 2007 have led to European institutions abandoning most of their self-imposed limits on the claims they made to the constitutionality of the European legal order. This reveals the normative and functional limits that European constitutional theories face (subsection E).

A. Foundational ambivalences The establishment of the European Communities in 1951 and 1958 was undertaken through the writing of a new set of legal norms (the Treaties establishing the said Communities),43 which in their turn foresaw the production of a whole raft of additional norms through which the objectives set in the Treaties were to be spelled out (in particular, decisions in the case of the European Coal and Steel Community, 43 The three founding Treaties (of the Coal and Steel Community of 1951, of the European Economic Community of 1957, of EUROATOM of 1957) together with the Merger Treaty of 1965, through which the three independent communities (and legal orders) were fused into one.

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or ECSC,44 and regulations and directives in the case of the European Economic Community, or EEC, and Euratom45). As a result, there were good reasons to assume that a new legal order had been created, an order which would soon be referred as ‘Community law’. This implied, by itself, a claim to the weak structural constitutionality of this new legal order (alongside a modest claim to functional constitutionality, if only because key elements of the economic order were regulated or affected by Community norms). But whether there were other constitutional claims to be made remained unclear because of the ambivalence of the founding documents of this new legal order, an ambivalence which was not least the result of the failure to ratify the closely interrelated Defence and Political Treaties in 1954. The failure of these initiatives, which aimed at establishing an autonomous supranational political level of government and pointed to modelling European law in the semblance of federal constitutional law, was however followed by the negotiation and ratification of the Treaty Establishing the European Economic Community and that establishing the European Atomic Energy Community (Euratom), which could be seen as pointing to a radically alternative way of creating a framework for cross-border relations and interactions, or as an indirect and oblique way of realizing the goals enshrined in the unratified Treaties. As a result, the trio of European Treaties was open to be interpreted in at least two different ways: • The form of the legal documents in which the key set of new norms were contained and regulated seemed to point to Community norms being part of a (sub) system of international law. After all, the Communities were established through (three) documents negotiated in diplomatic conferences and written with the grammar and syntax of international Treaties. This would have entailed that each national legal order would determine the actual force of Community norms according to its own constitutional norms, as was the case with ‘classical’ international norms.46 Consequently, the only claim to constitutionality inherent in the Treaties was one to weak structural constitutionality. • At the same time, however, not only the goals set in the Treaties, but also the institutional structure, were infrequent in classical international Treaties.47 This emerged in the range of powers and competences assigned to the European Communities. In particular, it was slightly idiosyncratic that the Treaties delineated procedures through which Community institutions could produce new norms (what would come to be known as secondary norms), not least with a view to harmonize national legal norms (ex article 3h TEC). There were thus some reasons which supported characterizing European law as a form of international law adventuring in governance and policy-making, and for 44

Cf Article 14 of the ECSC Treaty. Cf Article 189 of the EEC Treaty; Article 161 of the Euratom Treaty. 46 As indeed argued by AG Roemer in his conclusions in Case 26/62 Van Gend en Loos [1962] ECLI:EU:C:1962:42. 47 Bruno de Witte, ‘The European Union as an International Legal Experiment’ in Grainne De Búrca and Joseph HH Weiler (eds), The Worlds of European Constitutionalism (CUP 2012) 25. 45

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this purpose aspiring to something more than a claim to weak structural constitutionality.48 A similar ambition would have been supported by a cognitivist normative claim to constitutionality (perhaps based on the degree to which European integration contributed to peace and prosperity),49 and would have entailed claims to formal and, in due course, functional constitutionality. This tension between form and substance (but also between political intentions and functional needs) reflected the underlying disagreements between the very actors that played a key role in the drafting and implementation of the Treaties. In particular, the same individuals50 that favoured deeper integration (not least the Political Treaty of 1952),51 and who had contributed to formulating the norms which seemed to differentiate Community law from international law into the three founding Treaties, were to a large extent to be the same ones who promoted at a later stage the interpretation of Community law as if it was something other than a ‘classical’ international legal order, on the basis of which several additional claims to constitutionality could be raised (and indeed, as we will see, were raised).

B. An autonomous legal order: A claim to strong structural constitutionality on hold The foundational ambivalence of the founding Treaties morphed into constitutional ambiguity in the first two decades of European integration. What was at stake at the time was whether European law was to be construed as an international legal order or not. To break from the mould of international law in which the Treaties had been framed, it was argued that European law constituted a radically new type of legal order, and that it was characterized by its autonomy (subsection 1). This theoretical formulation was given canonical form in several rulings of the ECJ, albeit that it must be stressed that the latter reflected the debates of a broader set of actors. The result was the creation of the theoretical space in which it was possible to raise a dual claim to constitutionality. Explicitly, the Luxembourg judges were very careful, and limited themselves to raising claims to weak structural constitutionality, fully confined to the European legal order. Yet lurking behind the affirmation of the direct effect and the primacy of European law over conflicting national norms in Van Gend and Costa was a more radical claim to constitutionality, to strong structural constitutionality (subsection 2). At any rate, Community law developed for years as a complement, not 48 Joseph HH Weiler, ‘The Geology of International Law—Governance, Democracy and Legitimacy’ (2004) 64 German Yearbook of International Law 559. 49 As later hinted at by the ECJ in Van Gend and as summarized by Pierre Pescatore, ‘La constitution, son contenu, son utilité. La constitution nationale et les exigences découlant du droit international et du droit de l’intégration européenne: Essai sur la légitimité des structures supra-étatiques’ (1992) 111 Zeitschrift für Schweizerisches Recht 41. 50 Paradigmatic in this regard are the figures of Michel Gaudet and Pierre Pescatore. See Anne Boerger and Morten Rasmussen, ‘The Making of European Law: Exploring the Life and Work of Michel Gaudet’ (2017) 57 American Journal of Legal History 51. Pierre Pescatore, ‘Les travaux du “groupe juridique” dans la négociation des traités de Rome’ (1981) Studia diplomatica 159. 51 Richard T Griffiths, Europe’s First Constitution: The European Political Community, 1952–1954 (Kogan Page 2000).

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an alternative, to national constitutional orders (themselves in the process of being reshaped by reference to democratic and social constitutionalism), acquiring a consistency and relevance that supported claims to functional constitutionality, owing to the increasing importance of cross-border economic activities (subsection 3). The growing salience of Community law, alongside the tensions at the core of the dual claim to constitutionality raised by European institutional actors, paved the way for the first wave of resistance of national institutional actors (subsection 4). 1. An autonomous legal order? Once the Treaties were in force, and even more so once they started to be implemented, it was just a matter of time before conflicts would arise between supranational law and national law. This prompted the question of how such conflicts were to be solved, and consequently how the relationship between European law and national law was to be structured. The first thing to be observed is that at this stage references to the constitutionality of European law were marginal. With very few exceptions, neither institutional actors nor scholars dared to raise explicit claims to the constitutionality of European law when discussing how to decide the first conflicts between national and supranational law.52 This is in itself telling, given the present tendency to see the history of European integration as the realization of the constitutional nature of Community law, without problematizing the ubiquity of constitutional language and rhetoric. When no justification is offered as to how an international order was transformed into a constitutional order, it might be concluded that it is assumed that the said order was, in one sense or the other, constitutional since its inception—a claim that is not only wrong in substantive terms, but also contradicted by the fact that ‘constitutional talk’ about European Community law would only emerge in the late 1970s and early 1980s, as will be shown below. Indeed, it seems to us that it would be clarifying to reflect on why barely any legal scholar sustained the constitutional nature of European Community law in the 1950s and 1960s. Considering that several of the actors who played a key role in the relevant debates had entertained the idea that some form of European law could play a central role in the building of some kind of ‘United States of Europe’, certainly the cause was not lack of political commitment or insufficient legal imagination. It seems to us that two factors were decisive. Firstly, the establishment of the European Communities as a polity with a fullblown democratic normative constitution had been attempted—and had failed. The rejection of the Defence Treaty by the French Parliament on August 1954 entailed the demise of the European Political Community Treaty, which was a blend of international Treaty and embryonic democratic normative constitution.53 As a result, the failure of this Treaty precluded the usage of constitutional lexicon. 52 The exception was constituted by Eric Stein, ‘Toward Supremacy of Treaty-Constitution by Judicial Fiat: On the Margin of the Costa Case’ (1965) 63 Michigan Law Review 491; see also the allegations of the Italian barrister that represented Mr Costa before the ECJ: Amedeo Arena, ‘From an Unpaid Electricity Bill to the Primacy of EU Law: Gian Galeazzo Stendardi and the Making of Costa v. ENEL’ (2019) 30 European Journal of International Law 1017. 53 Griffiths (n 51).

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Second, and most decisively, the reconstruction of Western European nation-states after the Second World War revolved around a strong normative conception of democratic and social constitutionalism, which came to define constitution and constitutionalism tout court. This was most obviously the case in France and Italy, where two ‘revolutionary’ democratic constitutions were written.54 But the close association between constitutional law and the highest democratic legitimacy permeated the conception of the constitution even in countries where there was no new constitutional beginning after the war (such as Belgium, the Netherlands, or Luxembourg).55 Or, what is the same, the social and economic transformations of the 1940s, 1950s, and 1960s left their mark on the conception of the constitution to such an extent that it would have been inaccurate to characterize as constitutional the legal order of the European Communities, which had been established through a diplomatic, intergovernmental agreement, and which did not correspond to the characteristic template of the constitutions of mass-democratic polities.56 Indeed, the democratic legitimacy of the European Communities was entirely derivative, more akin to that of a supranational administrative structure than that of a full-blown political system.57 Consequently, talk about ‘constitution’ and ‘constitutional’ applied to Community law seemed at best premature.58 Under such circumstances, even supporters of a federal Europe in which federal law would make a claim to structural and normative constitutionality in a strong sense had to accept that the only realistic goal was a much more modest one, namely, to succeed in establishing that Community law was not ‘mere’ international law, if possible in such a way as to prepare the ground for later claims to be made to constitutionality other than in a weak structural sense. This is what was achieved through the depiction of European law as a new and autonomous legal order, which stood separate and equal in its relation to national legal orders, and distinct from public international law. The originality of Community law created the theoretical and practical space in which it was possible to deny the international character of Community law, at the very least according to the more ‘traditional’ paradigm of international law, while preparing the ground for later bolder claims to constitutionality. In particular, the ‘newness’ of Community law came hand in hand with the characterization of the relationship between European law and national law in terms of ‘autonomy’. In negative terms this implied a rejection of the outright subordination of Community law to national law, as would have been the case if Community law would qualify as standard public international law. In positive terms, the two orders were identified as separate but equal. In such a way, a claim was made to something more than a weak structural constitutionality which was at the same time tamed by the profession of ‘separation’ 54 See Bruce Ackerman, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law (Harvard University Press 2019) chapters 4, 5, 7 and 8. 55 Cf Tony Judt, Postwar: A History of Europe since 1945 (Allen Lane 2005); Martin Conway, Western Europe’s Democratic Age (Princeton University Press 2020). 56 Indeed, not by chance, the German 1949 Fundamental Law, which was the result of a process in which US occupying authorities played a fundamental role, was not labelled as a constitution but as a fundamental law. 57 Ernst Forsthoff, Der Staat der Industriegesellschaft: dargestellt am Beispiel der Bundesrepublik Deutschland (CH Beck 1971). 58 Peter Lindseth, Power and Legitimacy (OUP 2010).

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between the two legal orders, not least reflecting acceptance of the attributed character of the powers of the Communities, limited to cross-border trade, plus a limited set of flanking policies, crucially agricultural policy and transport.59 The autonomy of European law was thus the product of calculated ambivalence. 2. The canonical formulation of autonomy: A dual claim to structural constitutionality As legal historians have clearly shown, the characterization of Community law as a new and autonomous legal order was the product of a collective work undertaken by institutional actors, scholars, and practitioners.60 However, ‘autonomy’ was given canonical form in the foundational rulings of the ECJ, particularly in the Van Gend en Loos and Costa cases.61 It is to be noticed that the ECJ settled the cases by reference to categories central to international law. Thus, direct effect was but an alternative way of referring to the self-executing character of a Treaty provision.62 At the same time, however, the Court shaped these categories in a way that enabled their strategic reconceptualization, by affirming that Community law governed the question of what force was to be acknowledged to Community norms not only by Community institutions (as would have been the case if applying the template of international law with its companion weak claim to structural constitutionality), but also by national institutions (something which pointed to something more than a weak claim to structural constitutionality).63 Still, as has already been advanced, the success of the autonomy narrative is closely related to its (calculated) ambiguity, stemming from the tension (if not contradiction) between what was implicitly argued and what was explicitly said, resulting in an ambiguous claim to constitutionality, or rather, in the introduction of two different claims to constitutionality at one and at the same time. On the one hand, Van Gend and Costa pointed to a very innovative characterization of the terms of relationship between Community law and national legal orders. In particular, direct effect and primacy were capable of becoming the bridges through which Community norms could penetrate into each and every legal national order, if only because the norm establishing the effect of Community precepts was to be regarded as part and parcel of both Community law and each and every national legal order. 59

See below III.B.2. Cf Morten Rasmussen, ‘The Legal History of the European Union: Building a European Constitution’ in Oxford Research Encyclopedia: Politics, 29 July 2019, accessed 12 May 2021. 61 While there is a clear tendency to regard the two cases as instances through which the ECJ applied a single coherent vision of Community law, a close reading of the judgments reveals the extent to which ‘Euro-constitutionalism’ was work in progress. Consider the following. In Van Gend, the Court characterizes Community law as a ‘new order of international law’, while in Costa the reference to the international law is dropped, Community law being now characterized as a ‘new legal order’ without any further qualification. 62 Cf Bruno de Witte, ‘Retour à “Costa”—La primauté du droit communautaire à la lumière du droit international’ (1984) Revue trimestrielle de droit européen 425; Bruno de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’ in Gráinne de Búrca and Paul Craig (eds), The Evolution of EU Law (OUP 2011) 323. See also Ole Spiermann, ‘The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order’ (1999) 10 European Journal of International Law 763. 63 See the literature referred in the previous footnote. 60

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This entailed the beginning of a process of fusion of the two legal orders, and implied a claim to structural constitutionality other than a weak one. On the other hand, the explicit constitutional claim being raised by the ECJ remained rather self-restrained.64 Firstly, both rulings were drafted in an ambivalent language, which combined symbolic rupture (reflected in the reference to ‘a new legal order’, or in the affirmation that individuals had a key role in the process of integration) and marked orthodoxy (very clear in the resort to the categories of international law, not least direct effect), which seemed to reassure national higher courts that not much had actually changed. Second, the actual consequences of the rulings were very limited. The revenue at stake in Van Gend was negligible because the decision only affected the interpretation of transitory norms, while the Italian government won the day in Costa as the Luxembourg judges recognized the European validity of the (politically decisive) nationalization of electricity in Italy. Third, and critically, the ambivalent claim to structural constitutionality came hand in hand with the assumption that there was a clear division of labour and competences between supranational and national law.65 Community law was defined as a legal order having an impact on the way in which states treated (mainly) goods and workers in cross-border movement, and which reinforced the overall design of each national socio-economic structure (as was the case with coal and steel restructurings and common agricultural policy).66 Not by chance, the fundamental substantive provisions defining the core objective of the Treaty establishing the European Community, the internal market, imposed formal rather than substantive obligations on member states, through the prohibition of discrimination on the basis of nationality.67 In other words, member states were precluded from closing their economic borders and from treating goods and workers from other member states in ways dissimilar to those they applied to their own goods and workers. But member states remained free not only to determine the substantive content of their regulations, but also to make substantive choices concerning their socio-economic policy. Consequently, building an internal market did not entail eliminating economic borders, but rather rendering them predictably porous, sufficiently open so as to allow goods and workers to flow across them. But if that was so, then the direct effect and supremacy of Community law could be regarded as entailing constraints concerning cross-border movement, not affecting the core of the legal order of each member state. Consequently, the separateness of the two legal orders was basically intended as meaning that European law was the legal order of cross-border trade, which further complemented national legal orders by

64 Mauro Cappelletti, ‘Is the European Court of Justice “Running Wild”?’ (1987) 12 European Law Review 3. 65 See for example the main lines of ‘The Brussels Report on the General Common Market’, Luxembourg: Information Service of the High Authority of the European Coal and Steel Community, 1956, accessed 12 May 2021. See also Alan Milward, The European Rescue of the Nation-State (London: Routledge 1994). 66 Stefano Giubboni, Social Rights and Market Freedom in the European Constitution: A Labour Law Perspective (CUP 2009). 67 Compare with Federico Ortino, Basic Legal Instruments for the Liberalisation of Trade: A Comparative Analysis of EC and WTO Law (Hart Publishers 2004).

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means of creating the conditions for their further realization.68 The implicit premise underpinning such characterization was that it was possible to draw clear jurisdictional lines between the sphere of Community law and that in which national legal orders were applicable. It should also be kept in mind that the transformative capacity of European law was still very limited in 1964. Community norms were not only limited in number, but any additional norm added to what would soon start to be called the acquis communitaire had to be unanimously agreed within the Council of Ministers. Moreover, the political environment in the mid and late 1960s further contributed to reinforcing the national control of European integration.69 As is well known, these were the years in which the Communities took a clearly intergovernmental direction, not least, albeit not exclusively, because of the way in which the ‘empty chair’ conflict was solved in 1966 through the so-called Luxembourg compromise.70 For all these reasons, the member states retained the power to contain the growth of the supranational legal order. The gift of autonomy was its duplicity. At the very same time that the claim to strong structural constitutionality was ventilated, it was tamed and put on hold by means of (re)separating the two legal orders. As a result, Community law was made into a legal cloth sufficiently dissimilar to international law and sufficiently similar to national law as to affirm a basic degree of functional, even if not normative, equivalence between the two legal orders. In such a way the subordination of Community law to national law, implicit in any theory that grants ultimate primacy to national law—whether labelled dualistic or monistic—could be de facto transcended. 3. Community law as complement to democratic and social constitutionalism As the programme of the creation of an ‘embedded’ internal market71 was progressively realized under the conditions described in the previous subsection, the substantive affinities between Community law and national democratic and social states seemed to become more marked. Firstly, supranational law complemented national democratic and social states. As noted, Community norms were mainly applied to cross-border relationships which national legal orders could not effectively regulate. Not by chance, a key holder of Community rights in the period was the cross-border worker, who became entitled to the same socio-economic rights as national workers, thus contributing to the definition of communities of social insurance on the basis of residence and not nationality. 72

68 That was the way, we would insist, in which common policies such as agricultural policy were conceived. That is the view underpinning Milward (n 65). 69 The combination of legal supranationalism and political intergovernmentalism was theorized in Joseph HH Weiler, ‘The Community System: the Dual Character of Supranationalism’ (1981) 1 Yearbook of European Law, 267. 70 On the empty chair crisis, Mark Gilbert, European Integration (Rowman and Littlefield 2012) 77ff. 71 John G Ruggie, ‘International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order’ (1982) 36 International Organization 379. 72 The emergence of a community of social insurance on the basis of residence was articulated in Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L 257, 19.10.1968, 2–12.

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Second, Community law was largely respectful of the substantive choices enshrined in national constitutions. As was pointed out in the previous subsection, most of the obligations imposed by Community law were formal in nature, leaving substantive choices in the hands of each member state. At the same time, European integration contributed to economic growth by stabilizing the conditions under which crossborder trade in goods proceeded, something that enabled the creation of economies of scale which, in turn, contributed to the consolidation of social states.73 Third, European law was substantially defined by reference to national legal orders, and, at the end of the day, by the collective of national constitutions. This is paradigmatically reflected in the way in which the ECJ defined in 1970 the unwritten principle of protection of fundamental rights by reference to the constitutional traditions common to the member states.74 In less grandiose terms, the derivative character of European law was reflected in the use of comparative arguments when interpreting and applying European law, not least by the legal services of the different European institutions.75 This was so even if the degree of substantive convergence between national legal orders was strong only at the level of abstract principles, while there were major differences in terms of how such principles were institutionalized and operationalized. That rendered it unavoidable that the number and intensity of conflicts would grow as integration became closer and the concrete divergence between national legal systems increased in successive waves of enlargement of the Communities. What should be stressed now is that the primacy stemming from Costa was a muted one because Community law developed as a complement to national constitutional orders; a complement which was, moreover, largely homogeneous with them in substantive terms. By the same token, at this stage of the evolution of European law the production of secondary law was quite limited and remained the product of unanimous decision-making within the Council, something which also favoured complementarity. The more that supranational law thickened through the adoption of regulations and directives realizing the programme of economic integration, the more there was a case to raise a claim to functional constitutionality of Community law. That may come some way to explain why the German Constitutional Court used the ‘c’ word to refer to Community law already in 1967,76 admittedly limiting itself to conceding what was uncontroversial once it was recognized that Community norms formed a distinctive

73 Something that led to a faster growth of intra-Community trade than international trade of the Member States of the Communities. Cf Milward (n 65) 167ff. 74 Case 29/69 Stauder [1969] ECLI:EU:C:1969:57; Case 11/70 Internationale Handelsgesellschaft [1970] ECLI:EU:C:1970:114. 75 See, for example, Koen Lenaerts, ‘Interlocking Legal Orders in the European Union and Comparative Law’ (2003) 52 International and Comparative Law Quarterly 873. 76 German Federal Constitutional Court, First Senate, 18 October 1967, 22 BVerfGE 293, summarized in (1968) 5 Common Market Law Review 483: ‘The EEC Treaty is in a sense the constitution of this Community. The legal provisions enacted by the Community organs within their Treaty powers, the “secondary Community law”, constitute a separate legal order, the norms of which are neither international law nor national law of the Member States. Community law and the domestic law of Member States are “two autonomous legal orders, different from each other”; the law created by the EEC Treaty derives from an “autonomous source of law”.’

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legal order—or, which is the same, once the soundness of a weak claim to structural constitutionality on behalf of supranational law was accepted. 4. The first wave of national constitutional resistance Even if ambivalent and muted, the claim to structural constitutionality was bound to result in theoretical (constitutional) unrest as European law expanded, that is, as the number of regulations and directives increased and their remit widened. The substantive intertwinement of the national and supranational legal orders, reflected in the synthetic conception of ‘constitutional traditions common to Member States’ put forward in Internationale77 and Stauder,78 was aimed at quelling such unrest. In particular, some national constitutional courts (chief among them the German and the Italian ones) took seriously the doubts which were emerging in lower courts regarding the mismatch between the ambiguous claims to structural constitutionality made by supranational actors and the lack, on the part of Community law, of the procedural and substantive features proper of a democratic and social constitutional order. By placing the unwritten principle of fundamental rights protection (and consequently the collective of national constitutions) at the very basis of Community law, the Court of Justice was seen (and rightly so) as pre-empting attacks on the primacy of European law.79 Still, what started as a revolt of guardians of constitutionality would then spread to other jurisdictions and to other kinds of courts.80 The tension would only ease after a peculiar reformulation, on the side of national courts, of what the autonomy of European law entailed—something which was only possible by neglecting the extent to which what was labelled as ‘economic law’ had massive constitutional implications, as we will see in subsection C.1.81

C. From an autonomous to a constitutional-like legal order In the late 1970s and early 1980s we can observe three decisive transformations that represent a clear break in the evolution of Community law, and that by themselves prove the wrongness of reconstructing its history in a Whig key. Firstly, national constitutional actors came to accept the claim to autonomy of Community law raised by supranational actors, trying in the process to give it a peculiar twist (subsection 1). At the same time, second, changes in supranational policy led to a decisive transformation of the substantive content of Community law, which implicitly entailed a redefinition of its substantive scope; this set Community law on a potential collision course with national legal orders (subsection 2). Third, European institutional actors strengthened the explicit claims to structural constitutionality, in the process reinforcing the claims to functional and normative constitutionality. In particular, the CJEU 77

Case 11/70 Internationale Handelsgesellschaft [1970] ECLI:EU:C:1970:114. Case 29/69 Erich Stauder v City of Ulm—Sozialamt [1969] ECLI:EU:C:1969:57. 79 Joseph HH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403. 80 Such as the decision of the French Conseil d’Ètat in Cohn-Bendit, 22 December 1978, [1980] 1 CMLR 543. A general panorama in A Hofmann, ‘Resistance against the Court of Justice of the European Union’ (2018) 14 International Journal of Law in Context 258. 81 Italian Constitutional Court, Frontini, ruling 183/1973, of 18 December 1973, ECLI:IT:COST:1973:183. 78

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started to use constitutional language and reshaped the scope of the claim to primacy over conflicting national laws, making it explicit that it could extend to national constitutional norms (subsection 3). 1. National acceptance of the claim to autonomy of European law As was pointed out in section 2.D, national courts, and very especially national constitutional courts, had resisted, both on democratic procedural82 and on substantive83 grounds, the claim to autonomy of Community law put forward by European institutional actors. This backlash resulted in inter-institutional declarations and new lines of case law through which the explicit features of Community law were restyled, coming to resemble more closely the characteristics of a constitutional order.84 In 1976, the Act establishing the direct election of the Members of the European Parliament was finally agreed, putting an end to the secondment of national parliamentarians. The political core of a new supranational citizenship seemed to be emerging, further developing the ‘proto-citizenship’ latent in the personal status as developed by the European legislator (and fine-tuned by the ECJ in the 1960s and 1970s).85 Moreover, a series of supranational fundamental rights emerged, one case at a time, from new lines of case law of the Luxembourg Court, inspired by the collective of national constitutions and by the European Convention of Human Rights (which was coming of age at precisely the same time as the Strasbourg Court).86 As a result of the above-mentioned transformations, the stance of some of the key guardians of national constitutionality became more nuanced. On the one hand, both the Italian and the German Constitutional Courts subscribed to the ‘separate but equal’ doctrine on the basis of the axiological equivalence between supranational and national law. As long as European law continued to develop its original project (the legal order of cross-border activities, to which human rights were being progressively uploaded), the said courts would not engage in any form of review of the contents of European norms, and could indeed accept both their direct effect and the primacy.87 On the other hand, however, national constitutional courts maintained unaltered their claims to the supremacy of national constitutions. This entailed that the primacy of Community law was not self-standing, but rested upon the national constitutional decision to open itself to supranational law. This was reinforced by the role which national constitutional courts assumed as guardians of the core of the fundamental values of national constitutions in the process of European integration. The result was a counterclaim to the implicit supranational claim to strong structural constitutionality on the side of the CJEU. Indeed, the controlimiti doctrine88 served 82

Italian Constitutional Court, Costa ruling 14/1964, of 7 March 1964, ECLI:IT:COST:1964:14. See Frontini (n 78) and German Federal Constitutional Court, Solange I, 29 May 1974, BVerfGE 37, 271 [1974] CMLR 540. 84 E.g. Bill Davies, Resisting the European Court of Justice (CUP 2012) chapter 5. 85 Agustín J Menéndez and Espen DH Olsen, Challenging European Citizenship (Palgrave 2020). 86 Gráinne de Búrca, ‘The Evolution of EU Human Rights Law’ in de Búrca and Craig (n 62) 465–97. 87 Italian Constitutional Court, ruling 170/84, Granital, 5 June 1984, ECLI:IT:COST:1984:170; German Federal Constitutional Court, Solange II, 22 October 1986 BVerfGE 73, 339, [1987] 3 CMLR 225. 88 On the ‘contro-limiti’ doctrine, see for example Pietro Faraguna, Ai confini della costituzione: Principi supremi e identità costituzionale (Franco Angeli 2015) 74–75, 84–88. A useful contribution is Riccardo Nevola, ‘Le limitazioni della sovranità statale in favore dell’Unione europea nella giurisprudenza 83

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first and foremost to prevent any claim to sovereignty of the European Communities, that is, to rule out any capacity of the European Communities to set their own competence basis and, consequently, impose their normative claims. It was not by chance that the shift operated by national constitutional courts was contemporary to the diffusion of legal theories that constructed Community law in a constitutional key. The 1980s were the years in which Eric Stein ceased to be the odd man out in labelling Community law as a constitutional order and became the scholar that opened a new path in the analysis of European law,89 not least explored by the ‘integration through law’ project led by Mauro Cappelletti.90 The paradox, as we will see, is that both constitutional courts and scholars were proceeding on the assumption (or faith) that the substantive content of European law was becoming akin to that of national constitutions, precisely at the time at which European law was in flux, being radically transformed by what we have suggested labelling as its neoliberal torsion.91 2. The substantive transformation of European law The demise of the international monetary order in 1971 (the so-called Bretton Woods system) and the economic crisis triggered in 1973 by a rapid rise in the price of oil unleashed a period of financial and economic turbulence, during which the socioeconomic consensus which had slowly emerged during the post-war years was put on trial and found inadequate. Despite the extent to which states (some with more conviction than others) tried to make use of the monetary and fiscal levers to reflate economies, both stagnation and inflation set in.92 This created the conditions under which neoliberal socio-economic views, which had been marginal throughout the post-war period, could be imposed with full force.93 The substantive consistency and breadth of Community law was radically reshaped in this new socio-economic context. Two developments were crucial. Firstly, a European monetary infrastructure (the European Monetary System, or EMS) was (re)created by the end of 1978. This intergovernmental arrangement not only prioritized the fight against inflation over other socio-economic goals, such as full employment or distributive justice, but consolidated the hegemonic role played by the only independent European central bank, the Bundesbank, which de facto was granted the power to set the monetary policy of the EMS as a whole.94 As a result, the political space for autonomous national monetary (and even fiscal) policies was costituzionale’, Corte Costituzionale Servizio Studi STU 262, maggio 2014, available at , accessed 10 June 2021. 89

Stein (n 3). Mauro Cappelletti, Monica Seccombe, and Joseph HH Weiler, Integration through Law (De Gruyter 1985–88). 91 Edmondo Mostacci, ‘La sindrome di Francoforte: crisi del debito, costituzione finanziaria europea e torsioni del costituzionalismo democratico’ (2013) 44 Politica del diritto 481. 92 Overviews in Andrew Glyn, Philip Armstrong, and John Harrison, Capitalism since World War II: The Making and Breakup of the Great Boom (Fontana 1984); B Eichengreen, The European Economy since 1945: Coordinated Capitalism and Beyond (Princeton University Press 2007). 93 Andrew Glyn, Capitalism Unleashed: Finance, Globalization, and Welfare (OUP 2007); Philipp Ther, Europe since 1989: A History (Princeton University Press 2016). 94 Jeremy Leaman, The Bundesbank Myth: Towards a Critique of Central Bank Independence (Palgrave 2001) 181ff, 193ff. 90

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drastically reduced, contrary to what had been the case in the precedent monetary infrastructures of the European Payments Union and Bretton Woods. Second, almost at the same time, the legal services of the Commission and the Court of Justice favoured a new interpretation of free movement of goods, to be understood no longer as an operationalization of the principle of non-discrimination on the basis of nationality, but as a concretization of the right to private property and of entrepreneurial freedom, which required eliminating (in principle) all obstacles to its exercise.95 In both cases we observe a shift not only in substantive content, but also in the very scope of Community law. For the EMS, the fight against inflation required turning such goal into a pre-condition for all socio-economic policies. In other words, monetary stability was to be not only the objective of monetary policy, but an overriding goal to be achieved before other goals could be pursued through fiscal or social policies. Meanwhile, free movement of goods (and later all other economic freedoms) became a yardstick to gauge the validity of all national regulatory measures, and not only those affecting cross-border trade.96 Consequently, Community law ceased to be a neutral constraint on domestic policy choices and instead became loaded in favour of a neoliberal socio-economic model with private property and entrepreneurial freedom at its centre, aspiring to exert their substantive influence over the entire breadth and scope of national legal orders. This was immediately constructed by the Commission as entailing the emancipation of economic integration from intergovernmental political consensus, in the process rendering corporate actors into its main drivers through the judicial vindication of their economic freedoms.97 Again, however, the full potential of these trailblazing changes would not yet be fully drawn on. The EMS was a powerful vincolo esterno, but it was still possible to introduce negotiated changes in the parities of the currencies.98 By the same token, the new understanding of Community rights was for the time being limited to free movement of goods, while de jure, even if increasingly less de facto, remnants of the embeddedness of capital remained in place. Things started to change in 1987 with the entry into force of the Single European Act, and even more with its natural corollary, Directive 88/361 on free movement of capital,99 which confirmed and radicalized the shift implicit in Cassis de Dijon. Still, as was pointed out, the Court trod a cautious path (as reflected, for example, in its nuancing of its case law on goods in Keck),100 and was rather restrained in its case law until the signature of the Maastricht Treaty. 95

Case 120/78 Cassis de Dijon [1979] ECLI:EU:C:1979:42. Cf, for example, joined cases C-321/94, C-332/94. C-323/94 and C-324/94, [1997] Pistre, ECLI:EU:C:1997:229. 97 Communication from the Commission concerning the consequences of the judgment given by the Court of Justice on 20 February 1979 in case 120/78 (‘Cassis de Dijon’) [1980] OJ C 256, 3.10.1980, 2–3. 98 Several devaluations were agreed between 1979 and 1987; however, the amount by which the DMark was revalued did not compensate the full amount of ‘real’ depreciation of such currency. See Augusto Graziani, Lo sviluppo dell’economia italiana (Bollati Boringhieri 2001) 133.137. The rigidification of changes after 1987 played a key role in the collapse of the EMS in 1992. 99 Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [1988] OJ L 178, 08.07.1988, 5–18. 100 Case C-267/91, Keck [1993] ECLI:EU:C:1993:905. 96

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What we find important to stress at this juncture is that the EMS and the case law following Cassis de Dijon pointed to a radically transformed relationship between European law and national law. Before 1979, the claim to strong structural constitutionality implicit in primacy was somehow softened by the purely formal and thus relative character of the obligations stemming from Community law (non-discrimination on the basis of nationality). After 1979, the actual implications of the claim to primacy were critically changed by the new substantive characterization of the obligations stemming from the European monetary infrastructure, the new conception of free movement of goods, and the implicit claim to full-range scope of Community law. One of the reasons why this was not fully realized at the time (and, to a large extent, continues not to be realized) was that the European Communities occupied the European imaginary by borrowing the language of democratic and social constitutionalism at the same time that the institutions embarked on a policy agenda that would undermine the very constitutional commitments it pretended to emulate at the supranational level. 3. From implicit to explicit constitutional language Not by chance, the transformations in the substantive content and scope described in the previous subsection came hand in hand with a change in the way in which European institutional actors raised claims to the constitutionality of European law. Firstly, the implicit claim to strong structural constitutionality was emboldened. In particular, from Simmenthal II onwards the language of primacy was replaced by that of supremacy, with a quite unequivocal reference to European law prevailing over national constitutional norms.101 Secondly, explicit reference to the constitutional character of Community law was made in Les Verts.102 The ‘c’ word was finally pronounced, scaling up the muted claim in Costa, namely that European law was not only ‘separate and equal’ vis-á-vis national law but was also of the same normative fabric as national law, that is, a ‘constitutional’ legal order. This partially reflected the rise of the constitutional narrative in legal scholarship, and at the same time nourished it in terms of what concerned European law. 4. European law unleashed: One money in one market European law was in a process of radical and rapid mutation since the late seventies (in the terms that we described in subsection B). The Treaty of Maastricht would consolidate the neoliberal socio-economic turn (confirmed by a deeply asymmetric economic and monetary union), while fostering the further wrapping of the constitutional restyling (reflected for example in the relabelling of the European personal status increasingly focused on mobility as ‘European citizenship’). This determined that supranational constitutionalism came even more to resemble liberal constitutionalism, while diverging from democratic and social constitutionalism.103

101

Case C-106/77 Amministrazione delle finanze dello Stato v SpA Simmenthal [1978] ECLI:EU:C:1978:49. Case C-294/83 Les Verts [1986] ECLI:EU:C:1986:166. 103 Dieter Grimm, The Constitution of European Democracy (OUP 2017) highlights the (excessive) robustness of the discipline of economic freedoms on European law, which contrasts with the weak democratic legitimacy credentials of European law. 102

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In the fateful wake of the collapse of the Berlin Wall, which was followed by German (first monetary, then political) reunification, European leaders agreed on an unprecedented form of monetary union, which would result in the creation of a new and peculiar common currency. On the one hand, the monetary side of Economic and Monetary Union (EMU) certified that the German government held the stronger hand. Monetary policy was federalized and its implementation entrusted to a radically independent system of central banks, helmed by the ECB, which was left to define the monetary rules concretizing its originally narrow mandate.104 On the other hand, political consensus on the introduction of a common currency did not extend to an agreement on how to reconcile the two (uneasily fitting) planks of the agreed monetary union; or, which is the same, how to make an effective whole out of the combination of a single monetary policy and a plurality of national fiscal policies. The euro was planned to be a currency without a supporting state. Coordination of national fiscal policies was not to be entrusted with a political centre, the assumption being instead that a sufficient degree of direction would largely result from the enforcement of fiscal rules erecting walls of separation among national exchequers105 and setting ceilings on both the levels of annual deficits and the total stock of public debt.106 Finally, the freedom of capital owners was dramatically enlarged by means of extending its sphere of application to flows originating or ending in third countries,107 in a move that was deliberately intended to empower financial markets to act as forces disciplining national fiscal choices. In the wake of the ratification of the Maastricht Treaty, the ECJ extended to all economic freedoms the characterization of free movement of goods that it had put forward in Cassis de Dijon.108 At the very same time, the Luxembourg judges developed a case law which increased the bite of the principle of non-distorted competition as a yardstick of review for the validity of large swathes of national norms.109 By 1995, the ECJ, in tandem with the Commission, had de facto become a peculiar form of constitutional court, reviewing national norms in the light of constitutional standards that, despite the abundant constitutional rhetoric, continued to diverge from those employed in national constitutional quarters.

104 Governing Council of the ECB, A Stability-Oriented Monetary Policy Strategy for the ESCB, 13 October 1998, available at ; Governing Council of the ECB, The ECB’s Monetary Policy Strategy, 8 May 2003, available at accessed 31 March 2021. 105 As results from Articles 101 TEC (now Article 123 TFEU) and 103 TEC (now Article 125 TFEU), as amended by the Maastricht Treaty. 106 Article 1 of the Protocol to the Maastricht Treaty on the Excessive Deficit Procedure. 107 By virtue of Article 56 TEC, as amended by the Maastricht Treaty (now Article 63 TFEU). 108 Cf Case C-55/94 Gebhard [1995] ECLI:EU:C:1995:411; Case C-415/93 Bosman [1995] ECLI:EU:C:1995:463; Joint Cases C-163/94, C-165/94, and C-250/94 Sanz de Lera [1995] ECLI:EU:C:1995:451. 109 From the mid-1980s, the ECJ started to make use of competition provisions to engage into a strict scrutiny of state actions shaping the socio-economic structure. Cf Case C-18/88 Régie des telegraphes [1991] ECLI:EU:C:1991:474; Case C-41/90 Höfner and Elser [1991] ECLI:EU:C:1991:161; Case C-387/92 Banco Exterior de España [1994] ECLI:EU:C:1994:100; Case C-206/06 Essent [2008] ECLI:EU:C:2008:413; Joined Cases C-399 and 401/10 Bouygues [2013] ECLI:EU:C:2013:175. Cf the prescient Francis Snyder, ‘Ideologies of Competition in European Community Law’ (1989) 52 The Modern Law Review 149.

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This changed the pace of the transformation of the substantive content of European law which had started in 1979. If in Costa the collective good had justified the expropriation of electricity, and in Internationale the establishment and running of a common agricultural policy had been found to uphold conspicuous constraints on the right to private property, by 2007 the Court would find that the right to strike was to be trumped by freedom of establishment. Or, to be more precise, the right to strike had to be exercised in such a way as not to undermine the right to freedom of establishment—another way of taking the democratic ‘risk’ out of the right to strike.110 It is important to stress, indeed, that the exterior form and the interpretative techniques of democratic and social constitutionalism were placed at the service of a modified form of supranational liberal constitutionalism, in which the trio of private property, entrepreneurial freedom, and monetary stability came to define the substantive bases of the legal order. In other words, behind provisions with a similar wording to those enshrined in national democratic constitutions laid a radical substantive break resulting from the prioritization of private property and entrepreneurial freedom and the corresponding downgrading of other socio-economic objectives. The salience of these transformations accounts for a second but very ambiguous wave of resistance on the side of national constitutional courts, to which we turn in the next section. The tensions, however, will only come fully to the surface in the aftermath of the European crises. From 2008 onwards, functional pressures (not least to avoid the uncontrolled unravelling of the eurozone) led to the radicalization of the claims to constitutionality made by supranational institutions, a development that would push the legitimacy and stability of European law on to ever more precarious terrain.

D. A second wave of national constitutional resistance: Failing to take seriously the constitutional nature of economic law The ratification of the Maastricht Treaty paved the way to a second wave of resistance to the constitutional claims made by European institutional actors, following the steps taken in the 1970s first wave (section 2.D). If objections were raised at the time of the ratification of the Treaty on European Union in the first half of the 1990s, they became even more acute after the codification in the treaties of the principle of respect of the national identities of member states.111 National constitutional courts, led by the German Constitutional Court, seemed to render more robust the controlimiti by means of developing new grounds on which they would be inclined to review the constitutionality of European norms. In its Maastricht ruling,112 the guardian of German constitutionality strengthened the principle of attribution as a yardstick to measure the domestic constitutionality of European norms 110 Even more invasive and abrasive was the ruling in Case C-314/08 Filipiak [2009] ECLI:EU:C:2009:719, in which the CJEU found that the decision of the Polish Constitutional Court to limit the temporal effects on one of its own rulings undermined the effectiveness of the primacy of Union law, and was, consequently, to be declared in breach of European law itself. 111 Cf Article F of the Maastricht Treaty, now Article 4(2) TEU. 112 BverfG, Judgment of 12 October 1993–2 BvR 2134/92, 2 BvR 2159/92, [1994] 1 CMLR 57.

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and decisions. In 2009, in its Lisbon ruling,113 the judges sitting at Karlsruhe added a new head of review, (national) constitutional identity, and beefed up the competence review, by drawing more stringent limits regarding the Europeanization of a number of competences. However, it must be added that the new review powers were later gummed, as the Court ruled out intervening unless breaches were not egregious (in more technical terms, ‘structural’).114 What national courts seemed keen on preserving was not so much the supremacy of the Constitution in procedural and/or substantive terms, but the very kernel of sovereignty, the competence over the delimitation of competences (or kompetenzkompetenz) and, as a reflection, their own power as guardians of that sovereignty. All attempts at making that slightly more substantial (as through the drawing of ‘red lines’ to the powers to be held by the European Union) failed to take into account the necessary consequences of their previous jurisprudence, which had enabled the Union’s neoliberal drive. Suffice in that regard to remind the reader of how the ratification of the Maastricht Treaty led to a dramatic change in the German Basic Law, namely, the constitutionalizing of the independence of the central bank, which had previously been guaranteed only by an act of Parliament.115 On the basis of such an amendment the Federal Constitutional Court carved out a sphere of public power (monetary policy, defined in opposition to economic policy), no longer subject to parliamentary democratic control. In the process the functional constitution of the European Union was also radically changed, making monetary stability a sort of overriding metaprinciple steering the direction of other EU policies. 116

E. The ultimate gambit: Redefining national constitutionalism in the image of European law From 2007 the European Union, and very especially the eurozone, was hit by overlapping yet distinctive financial, economic, and fiscal crises, triggering scores of punctual decisions and structural reforms aimed at overcoming and containing them.117 Functional reasons (summarized in the ambivalent rallying call to ‘save the euro’) led to remarkable changes in the organization of power in Europe, deeply affecting the terms of the relationship between supranational law and national law. In particular, the supranational level of government was assigned more powers to discipline and control 113 German Federal Constitutional Court, Second Senate, 30 June 2009, 2 BvE 2/08, ECLI:DE:BVerfG:20 09:es20090630.2bve000208. 114 German Federal Constitutional Court, Order of the Second Senate, 6 July 2010, 2 BvR 2661/06, ECLI: DE:BVerfG:2010:rs20100706.2bvr266106. 115 Article 88 of the German Fundamental Law. See Christian Joerges, ‘What Is Left of the European Economic Constitution?’ EUI Working Paper, LAW No. 2004/13, available at accessed 31 March 2021; now in Christian Joerges, ‘What Is Left of the European Economic Constitution?’ (2005) 30 European Law Review 461. 116 As reflected for example in Article 119.3 TFEU. 117 Agustín J Menéndez, ‘A European Union in Constitutional Mutation?’ (2014) 20 European Law Journal 127.

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the ways in which member states defined their fiscal, labour, tax, and social policies. Social expenditure and social rights became the only macroeconomic adjustment variables left in the hands of member states,118 forced to undertake painful internal devaluations given the sheer impossibility of resorting to an external devaluation. In such a context, freedom of movement ended up becoming a peculiar functional substitute of social policy, given that migration to the eurozone core emerged as the only alternative to destitution for a good number of the young in the eurozone periphery. The result was a regression towards a form of liberal constitutionalism, fragmenting and pulverizing public power in the name of preserving the rights of individuals and, notably, private property and entrepreneurial freedom. The implicit and explicit claims to strong structural constitutionality of European law were further strengthened, to the point that the relationship between European law and national law was reversed to a considerable extent, with European law posing as the template which national legal orders should follow.119 This can be chiefly appreciated in the field of fiscal rules. The legally and constitutionally peculiar Fiscal Compact requires the member states to patriate into their constitutional system the fiscal rule limiting the volume of annual deficits.120 At the same time, the CJEU has been empowered to control the extent to which national reforms to that effect comply with this obligation.121 An equally remarkable development concerns the procedures of surveillance of national compliance with fiscal rules. In the name of reducing political discretion, the power to impose sanctions is now assigned jointly to the Commission and a minority of member states; that is to say, sanctions could be applied despite a majority (below a qualified one) objecting to them. The crises have also revealed the normative and functional limits of the claims to structural and normative constitutionality of European law on the part of European institutions. The European Union has been proven unable to redeem such claims because it lacks the necessary preconditions for doing so. Not even at the height of the crisis was the European Union capable of exercising sovereign public power in an explicit fashion. The European Union can act as a vincolo esterno (exerting negative powers), but not as an autonomous political actor (making use of positive powers). It lacks the institutional, the material, and, above all, the legitimacy resources to do so, to a considerable extent because its functional and material constitutions are far from those presupposed by democratic and social constitutionalism.122 This is true of all European institutions, including those, such as the ECB, which have not only have seen their powers expanded during the crises, but have played a central role in its governing. It is true that the so-called unconventional monetary policies of the ECB were decisive in the denouement of the crises, whatever assessment we make of their

118 Francesco Costamagna, ‘National Social Spaces as Adjustment Variables in the EMU: A Critical Legal Appraisal’ (2018) 24 European Law Journal 163. 119 Alexander Somek, ‘Delegation and Authority: Authoritarian Liberalism Today’ (2015) 21 European Law Journal 340. 120 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, Article 3(2). 121 Ibid Article 8(1). 122 Grimm (n 103) makes the argument focusing on the European Parliament, but it can be projected to the European Union as a whole. The same line of reasoning was already present in Fritz Scharpf, Governing in Europe: Effective and Democratic? (OUP 2000).

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opportunity and effectiveness. But it is telling that the ECB could only act in a decisive manner by pretending that it was merely discharging its modest role of implementing monetary policy in a fully rule-based manner.123 Only by means of cloaking its political role as purely technical could the ECB take the decisions it took. Had the ECB fully disclosed the nature of what it was doing, its authority would have been immediately depleted.124

IV. Conclusions The combination of the analytical tools put forward in section I and the historical reconstruction contained in section II reveals that ‘Euro-constitutionalism’ makes two central claims to the constitutionality of European law: a claim to strong structural constitutionality, which is hard to disentangle from a claim to sovereignty on behalf of the European Union; and a claim to normative constitutionality, which is grounded on liberal constitutionalism, in particular, on private property, entrepreneurial freedom, and monetary and financial stability as overriding principles of European law.125 The claim to strong structural constitutionality cannot be fully redeemed by the European Union, both for normative and functional reasons. As we saw in section II.5, contradictions at the core of the asymmetric economic and monetary union have put European institutions under strong functional pressure to come very close to claiming that European law is the constitutional order of a fully sovereign polity. This neglects that the EU does not have, and is unlikely to acquire any time soon, the capacity to act as a constitutional sovereign.126 The constitutional umbilical cord with national constitutions and national institutional structures cannot be severed. However, it would be too rash by half to conclude that the strong claim to structural constitutionality is as a result simply irrelevant. A claim to strong structural constitutionality on behalf of European law, even if incapable of being legally and politically redeemed, does contribute to the enervation of national public power. This is indeed the path that the European Union has trodden in the past three decades. Power, very especially in terms of what concerns socio-economic issues, has shifted away from national parliaments and governments, but it has not been recreated in an equivalent form at the European level, with the result that it has been dispersed to the benefit of some private actors and technocratic (or pseudotechnocratic127) bodies. In other words, the power of European institutions is not so much positive—to 123

As argued repeatedly by the ECB, not least in the judicial sagas of Gauweiler and Weiss. It suffices to consider what the outcome of the Weiss saga would have been had the ECB explicitly admitted to the exercise of fiscal powers. 125 Agustín J Menéndez, ‘A European Union Founded on Capital? The Fundamental Norms Organising Public Power in the European Union’ in Céline Jouin (ed), La Constitution Matérielle de l’Europe (Pedone 2019) and ‘The “Terrible” Functional Constitution of the European Union: “Sound” Money, Economic Freedom(s) and “Free” Competition’ in Marco Goldoni and Michael A Wilkinson (eds) The Cambridge Handbook on the Material Constitution (Cambridge University Press 2023). 126 Damian Chalmers, ‘European Restatements of Sovereignty’ in Richard Rawling, Peter Leyland, and Alison Young (eds), Sovereignty and the Law: Domestic, European and International Perpsectives (OUP 2013). 127 Paul Krugman, ‘Crisis of the Eurocrats’ New York Times, 22 May 2014. 124

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shape policy—as negative—to constrain and discipline the policy choices taken by its member states. The second claim—that to normative constitutionality—implies a frontal attack on democratic and social constitutionalism. The fact of the matter is that the force characteristic of democratic constitution-making and/or democratic constitutionalizing has not manifested itself at the supranational level. There has not been a European constitutional moment; nor have the fundamental norms organizing power in the EU been appropriated by political actors with a view to develop a constitutional ethos, or, for that matter, evolved into a democratically supported constitution. In such circumstances, imagining European law as if it were constitutional entails the risk of divorcing constitutional law from its democratic and social basis—something that unavoidably paves the way for authoritarian regression.128 On such a basis, it is simply impossible to claim that acknowledging to European law the condition of a ‘constitutional order’ is either a neutral way of referring to the object of study of a legal-dogmatic discipline or a means of promoting the transformation of European law in the semblance of democratic and social constitutionalism. The perverse way in which European lawyers ‘imagined’ European constitutionalism has resulted in an updated version of liberal constitutionalism, only wrapped up in the rhetoric of its historical opponent and replacement. The result is not so much legal dogmatics as dangerous legal mythology. What is needed, however, is not a mere rejection of the constitutional character of European law, because European integration has proceeded in such a way that a good deal of the powers transferred to the supranational level have major constitutional implications. The constitutional implications of European integration and of Europeanization have to be fully taken into account without devaluing the currency of the democratic and social constitution. Therefore, the European constitutional imagination has to rely, first and foremost, on the collective of national democratic and social constitutions.

128 Hermann Heller, ‘Authoritarian Liberalism?’ (2015) 21 European Law Journal, 295; Michael A Wilkinson, ‘Authoritarian Liberalism in the European Constitutional Imagination: Second Time as Farce?’ (2015) 21 European Law Journal 313; Wolfgang Streeck, ‘Heller, Schmitt and the Euro’ (2015) 21 European Law Journal 361.

4

The European Union as ‘Militant Democracy’? Signe Rehling Larsen

I. Introduction In response to the coronavirus outbreak in Europe, the prime minister of Hungary, Viktor Orbán, declared a state of exception without any time limitation, raising the question of whether the European Union (EU) now has a dictatorship in its midst.1 This state of exception, not withstanding its extremity, is not an altogether new development but rather a result of the turn to authoritarianism that has characterized Hungary’s (and Poland’s) recent past. In the past decade both Hungary and Poland have undergone constitutional transformations2—formal or informal3—of such extent that the scholarly consensus is now that these regimes are no longer compatible with the ‘constitutional values’ of the EU that the member states are presumed to share,4 and that is the foundation of their mutual trust.5

1 The literature on the relationship between the state of exception and dictatorship is vast. Important works are Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton University Press 1948); Ernst Frankel, The Dual State: A Contribution to the Theory of Dictatorship (OUP 1941); Carl Schmitt, Dictatorship: From the Origin of the Modern Concept of Sovereignty to the Proletarian Class Struggle (Polity Press 2014); Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (UCP 2010); Giorgio Agamben, State of Exception (Chicago: UCP 2005). 2 For an authoritative account of the constitutional transformation of Poland, see Wojciech Sadurski, Poland’s Constitutional Breakdown (OUP 2019); for an account of Hungary’s constitutional transformation, see Gábor Attila Tóth, Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (Central European University Press 2012); Miklós Bánkuti, Gábor Halmai and Kim Lane Scheppele, ‘Hungary’s Illiberal Turn: Disabling the Constitution’ (2012) 23 Journal of Democracy 138. 3 ‘Many changes which are part of democratic backsliding occur without a formal change of institutions and procedures, so they are invisible to a purely legal account’: see Wojciech Sadurski, ‘How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding’ (2018) 18 Sydney Law School Research Paper 1, 5, italics in original; see also Gabór Halmai, ‘The Making of “Illiberal Constitutionalism” With or Without a New Constitution: The Case of Hungary and Poland’ in David Landau and Hanna Lerner (eds), Comparative Constitution Making (Edward Elgar Publishing 2019). 4 Following Article 2 of the Consolidated version of the Treaty on European Union [2016] OJ C202/13 (hereafter TEU), ‘the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. 5 As argued by the ECJ, ‘mutual trust between the Member States and, in particular, their courts and tribunals is based on the fundamental premise that Member States share a set of common values on which the European Union is founded, as stated in Article 2 TEU’: see C-64/16 Associação Sindical Dos Juízes Portugueses [2018] ECLI:EU:C:2018:117, para 30. See also C-216/18 PPU Minister For Justice And Equality [2018] ECLI:EU:C:2018:586, para 35.

Signe Rehling Larsen, The European Union as ‘Militant Democracy’? In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0004

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The overwhelming response from legal and political academia alike has been to call for an intervention from the EU, in one form or another. The EU Treaties allow for the Union to sanction a member state that is persistently breaching the constitutional values of the Union as defined by Article 2 of the Treaty on European Union (TEU). Most importantly, the recalcitrant member state can have certain Treaty rights suspended, including its political representation in the Council.6 Moreover, many different approaches within the current ‘toolbox’ of the EU have been suggested, ranging from social pressures and shaming,7 recommendations via the Commission’s ‘rule of law framework’,8 and systematic infringement actions9 to the protection of fundamental rights by national courts acting in their capacity as European courts. Attempts have been made to tie the EU Covid-19 Recovery and Resilience Facility and the EU budget to rule of law conditionality; however, as of yet they have had no success.10 It is, however, by no means clear that the ‘tools’ currently available to the EU can deal effectively with the situation in Poland and Hungary. The Article 7 procedure is seen as ineffective for at least two reasons: first, because of the impossibly high threshold for the ‘sanctioning arm’ (unanimity minus the recalcitrant member state);11 second, even if this obstacle could be overcome, withholding rights does not amount to an actual intervention that would remedy the situation—the EU might end up with a de facto authoritarian dependency rather than an authoritarian member state. Neither has the Union yet been capable of sanctioning Poland and Hungary with any of the other ‘tools’ available to it. The limitations of using the infringement procedure are neatly illustrated by the fact that the European Court of Justice (ECJ) could only deal with Orbán’s court-packing as a matter of age discrimination.12 The ineffectiveness of this approach is highlighted by the fact that the judgment did not reinstate the Hungarian judges. Proposals such as ‘reverse Solange’13 and other schemes that rely on member state courts have the obvious weakness that the turn towards authoritarianism in Poland and Hungary has undermined the independence of the judiciary. Several scholars are therefore calling for more drastic measures—some of them beyond the current framework—ranging from financial sanctions,14 such as 6

Article 7 TEU. Ulrich Sedelmeier, ‘Political Safeguards against Democratic Backsliding in the EU: The Limits of Material Sanctions and the Scope of Social Pressure’ (2016) 24 Journal of European Public Policy 337. 8 Communication from the European Commission to the Council and the Parliament, ‘A New EU Mechanism to Strengthen the Rule of Law’ COM (2014) 158 final/2. 9 Kim Lane Scheppele, ‘Enforcing the Basic Principles of EU Law through Systemic Infringement Actions’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (CUP 2016). 10 ‘COVID-19 Emergency Measures Must Comply with the Rule of Law’ (European Economic and Social Committee, 14 December 2020) accessed 6 April 2021; ‘EU Budget Plan Lets Hungary, Poland off the Rule-of-Law Hook (for Now)’ (POLITICO, 9 December 2020) accessed 6 April 2021. 11 Articles 7(2) and 7(3) TEU. 12 C-286/12 Commission v Hungary [2012] ECLI:EU:C:2012:687. 13 Armin Von Bogdandy and others, ‘Reverse Solange—Protecting the Essence of Fundamental Rights against EU Member States’ (2012) 49 Common Market Law Review 489. 14 Gábor Halmai, ‘The Possibility and Desirability of Rule of Law Conditionality’ (2019) 11 The Hague Journal on the Rule of Law 171; Daniel Kelemen and Kim Lane Scheppele, ‘How to Stop Funding Autocracy in the EU’ (Verfassungsblog, 10 September 2018) , accessed 31 May 2021. 7

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withholding EU structural funds, to expulsion.15 Jan-Werner Müller has been one of the most vocal scholars in this debate, calling upon the EU to act as a constitutional guardian of liberal democracy, not merely for the Union but also for the member states.16 Müller’s argument, in a nutshell, is that for the member states, one of the most important reasons for the creation as well as their joining of the EU was to protect themselves against constitutional developments such as those in Hungary. The Union’s raison d’être is to make sure that the experience of fascism and authoritarianism—the ‘dark side’ of democracy—does not repeat itself. The EU, as it were, adds to the domestic constitutions a further layer of constitutional guarantee of ‘substantive democracy’ and ‘value order constitutionalism’.17 Following this argument, the Union has not merely a right but also a duty to intervene in order to ‘save member states from themselves’. Though widely discussed, Müller’s argument regarding the post-Second World War era as heralding a new chapter of ‘constrained’ or ‘militant’ democracy still needs to be fully incorporated into the constitutional scholarship on European integration. The project of European integration and post-Second World War development of a new form of ‘value order’ constitutionalism at the domestic level are often treated as two parallel endeavours rather than as inherently connected. This chapter suggests that these two projects are constitutive elements of a broader constitutional project of ‘post-fascist constitutionalism’ (section II). As such, it lends credibility to Müller’s analysis that the EU is part of the project of ‘constrained democracy’. Nevertheless, this chapter asks whether the tale of ‘post-fascist constitutionalism’ is a particularly German story; or, at least, whether it applies equally to all the member states. The article suggests that, together with ‘post-fascist constitutionalism’, the member states of the EU are characterized by (at least) two additional ‘varieties of constitutionalism’: ‘evolutionary constitutionalism’ (section III) and ‘post-communist constitutionalism’ (section IV). These varieties of constitutionalism are not characterized by a foundational ‘fear of the people’ or ‘constrained democracy’. For that reason, they do not look to the EU as a guarantor of democracy at the domestic level. The argument of the EU as a ‘transnational militant democracy’18 is therefore less convincing for the member states that are not influenced by post-fascist constitutionalism.

15 Jan-Werner Müller, ‘Safeguarding Democracy Inside the EU: Brussels and the Future of Liberal Order’ (2013) 3 Transatlantic Academy 1, 23; Jan-Werner Müller, ‘Protecting the Rule of Law (and Democracy!) in the EU: The Idea of a Copenhagen Commission’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge: CUP 2016) 212. 16 Jan-Werner Müller, ‘Should the EU Protect Democracy and the Rule of Law inside Member States?’ (2015) 21 European Law Journal 141, 147; Jan-Werner Müller, ‘The EU as a Militant Democracy, Or: Are There Limits to Constitutional Mutations Within EU Member States?’ (2014) 165 Revista de Estudios Políticos 141. See also Ulrich Sedelmeier, ‘Anchoring Democracy from Above? The European Union and Democratic Backsliding in Hungary and Romania’ (2014) 52 Journal of Common Market Studies 105. 17 For a discussion of the notion of the constitution as an order of values, see Martin Loughlin, ‘The Silences of Constitutions’ (2018) 16 International Journal of Constitutional Law 922. 18 Ulrich Wagrandl, ‘Transnational Militant Democracy’ (2018) 7 Global Constitutionalism 143.

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II. The Reconstitution of Europe With the end of the Second World War, a new form of constitutionalism was born. In contrast to the constitutional project of the republican revolutions that sought to harness the power of the people and create a stable system of checks and balances, the post-Second World War constitutional project was founded on a fear of the people and concerned with permanently constraining or even destroying the potential for the exercise of political power. Alexander Somek has described it as a new ‘stage’ in the constitutional imagination, ‘constitutionalism 2.0’,19 and Christoph Möllers captures it in his phrase ‘We (are afraid of) the people’.20 I suggest the label ‘post-fascist constitutionalism’ for this form of constitutionalism, but the prefixes ‘anti-totalitarian’ or even ‘anti-revolutionary’ would also be fitting. Jan-Werner Müller describes this project as ‘militant democracy’21 or ‘constrained democracy’.22 This constitutional project was shaped by a specific interpretation of the origins of the inter-war breakdown and the Second World War as the ‘excess’ of democracy, or what José Ortega y Gasset called ‘hyperdemocracy’.23 Within this constitutional project, the aim of the constitutional order is to make sure that the people does not commit ‘democratic suicide’ by electing to power an anti-constitutional party that will use the rules of constitutional democracy to introduce an anti-democratic constitutional order via ‘unconstitutional constitutional amendments’.24 Democracy has to be disciplined, the argument goes, otherwise its dark side, ‘totalitarianism’, will prevail, either in its left-wing or its right-wing incarnation: Communism or fascism. This merging of fascism and Communism into a unitary political phenomenon is part of a broader movement of ‘antitotalitarian constitutionalism’25 that came to influence both European and American post-Second World War constitutionalism.26 The aim of this constitutional project became not so much to stabilize political power as to permanently constrain or even repress it. In contrast to revolutionary constitutionalism, in which every generation should have its own revolution, this constitutional project aims to eliminate what it sees as ‘extra-constitutional’ manifestations

19

Alexander Somek, The Cosmopolitan Constitution (OUP 2014) ch 2. Christoph Möllers, ‘ “We Are (Afraid of) the People”: Constituent Power in German Constitutionalism’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (OUP 2008). 21 With reference to the term coined by Karl Loewenstein’s two-part article ‘Militant Democracy and Fundamental Rights, I’ (1937) 31 The American Political Science Review 417; ‘Militant Democracy and Fundamental Rights, II’ (1937) 31 The American Political Science Review 638. 22 Jan-Werner Müller, Contesting Democracy: Political Ideas in Twentieth-Century Europe (YUP 2011). 23 José Ortega y Gasset, The Revolt of the Masses: Authorised Translation from the Spanish (Norton & Company Inc 1932). 24 Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017). 25 Richard Primus, ‘A Brooding Omnipresence: Totalitarianism in Postwar Constitutional Thought’ (1996) 106 The Yale Law Journal 423. 26 Les K Adler and Thomas G Paterson, ‘Red Fascism: The Merger of Nazi Germany and Soviet Russia in the American Image of Totalitarianism, 1930’s–1950’s’ (1970) 75 The American Historical Review 1046. 20

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of power.27 The German Basic Law took this a step further with the introduction of an ‘eternity clause’ that made some aspects of the constitution unamendable— importantly, the core constitutional value of the new order that gives everything else its meaning: human dignity.28 The constitution is understood as an order of values that have to be balanced against one another.29 Democracy is merely one ‘value’ among others. Moreover, the political power of the people was ‘disciplined’ by empowering the constitutional court, by strengthening the judiciary vis-à-vis the executive and the legislature, and by banning ‘anti-constitutional’ political parties (mostly former fascist ruling parties or collaborating parties, but also a few communist parties). Without constant vigilance, Dr Jekyll (democracy) will turn into Mr Hyde (fascism or Communism). This story is hardly new. It has been told, and told well, by constitutional scholars such as Alexander Somek and Christoph Möllers.30 However, the role of European integration in the emergence of this post-Second World War constitutional project is often left out, or, in Somek’s account, portrayed as a later ‘stage’ of ‘cosmopolitan constitutionalism’.31 What is sometimes ignored by constitutional scholars is that, from the very beginning, the post-Second World War constitutional project was not merely concerned with the creation of a new form of constitutionalism at the domestic level. Equally important was the creation of a constitution for Europe, a new European order that was no longer built on the principle of a balance of powers between the European empires.32 A key insight from Contesting Democracy, despite the fact that Müller only refers to it in passing, is the interpretation of the rise of a new form of constitutionalism at the domestic level together with the project of European integration as part of the same post-Second World War project of reconstituting Europe.33 The post-war reconstitution of Europe has to be understood as constitution-building at both the domestic and the European level.34 The view of the post-Second World War constitutional project was that democracy’s enemy—‘totalitarianism’—could only be conquered through the creation of a strong union between the former enemies on the European continent. For the European Christian Democrats,35 but perhaps to an even greater extent for the Americans, the 27 Michael Wilkinson and Alexander Somek have recently coined the term ‘unpopular sovereignty’ to describe this constitutional project: see Alexander Somek and Michael A Wilkinson, ‘Unpopular Sovereignty?’ (2020) 83 The Modern Law Review 955. 28 Dieter Grimm, Alexandra Kemmerer, and Christoph Möllers, Human Dignity in Context: Explorations of a Contested Concept (Nomos Verlagsgesellschaft 2017). 29 Jacco Bomhoff, Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse (CUP 2013). 30 Somek (n 19); Möllers (n 20). 31 Somek (n 19) chs 4–5. 32 Signe Rehling Larsen, The Constitutional Theory of the Federation and the European Union (OUP 2021)ch 2. 33 Müller (n 22) 5, 141–42, 148–49, 157, 238–39. 34 Peter L Lindseth, Power and Legitimacy: Reconciling Europe and the Nation-State (OUP 2011) 3 describes this integrated system as the ‘postwar constitutional settlement of administrative governance’. In Lindseth’s view, European integration is integral to the development of the domestic constitutional settlement. However, the European level, Lindseth argues, cannot be conceived of as genuinely ‘constitutional’ but should rather be understood as conferred ‘administrative’ power that relies on member state legitimacy for its efficacy and legitimacy. 35 Wolfram Kaiser, Christian Democracy and the Origins of European Union (CUP 2007).

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creation of a federation in Europe came to be understood as legal and political protection against the totalitarian subversion of democracy.36 The fear in the post-Second World War era was not merely, or even primarily, directed at the return of Nazism in Germany or German aggression; it also took in the ‘communist threat’ both from without and within.37 The overall aim of the project of European integration was to stabilize and constrain the post-Second World War regimes to ward off any form of political extremism on either the right or the left.38 European integration had to provide the material conditions that would allow Western Europe to provide its people with a living standard that could outcompete the promises of material well-being made by the USSR.39 Moreover, until the collapse of the project of the European Defence Community, or arguably until the collapse of the negotiations around the Fouchet Plans, a defence union among the central European states was understood as a means to protect Western Europe from any kind of Soviet aggression.40 Finally, Europe became the ‘Sorelian myth’41 for the post-Second World War era in the eyes of Europe’s ‘founding fathers’. ‘Europe’ had to fill the void left after the experience of totalitarianism; it heralded a ‘spiritual renewal’ for a new generation of Europeans that would transcend the world of the nation-state.42 The centrality of the creation of a new form of legal order beyond the state is manifest in the constitutional provisions of several ‘core’ European states, which allow for the limitation of public authority in order to establish a new form of international order.43 The most striking provisions are found in the preamble to the German Basic Law, stating that ‘the German people, in the exercise of their constituent power’ constitute the Federal Republic on the basis of their ‘determination to promote world peace as an equal partner in a united Europe’.44 A united Europe is one of the core aims of the German Basic Law; or, in the words of the German Constitutional Court, 36 Antonin Cohen, ‘Constitutionalism Without Constitution: Transnational Elites Between Political Mobilization and Legal Expertise in the Making of a Constitution for Europe (1940s–1960s)’ (2007) 32 Law & Social Inquiry 109, 125. 37 Alan S Milward, The European Rescue of the Nation-State (Routledge 1992) xi, 333–37; E Timothy Smith, ‘United States Security and the Integration of Italy into the Western Bloc, 1947–1949’ in Francis H Heller and John R Gillingham (eds), NATO: The Founding of the Atlantic Alliance and the Integration of Europe (Macmillan 1992); Klaus Schwabe, ‘The Origins of the United States’ Engagement in Europe, 1946– 1952’ in Francis H Heller and John R Gillingham (eds), NATO: The Founding of the Atlantic Alliance and the Integration of Europe (Macmillan 1992); Ronald EM Irving, ‘Italy’s Christian Democrats and European Integration’ (1976) 52 International Affairs 400, 406. 38 Thomas Risse and Daniela Engelmann-Martin, ‘Identity Politics and European Integration: The Case of Germany’ in Anthony Pagden (ed), The Idea of Europe: From Antiquity to the European Union (CUP 2002). 39 Mark Gilbert, European Integration: A Concise History (Rowman & Littlefield Publishers 2011) 12. 40 Edward Fursdon, The European Defence Community: A History (Macmillan 1980); Anthony Teasdale, ‘The Fouchet Plan: De Gaulle’s Intergovernmental Design for Europe’ [2016] LEQS 1. 41 Georges Sorel, Reflections on Violence (CUP 2004) 20–24. 42 See for example, Konrad Adenauer, World Indivisible—With Liberty and Justice for All (George Allen & Unwin Ltd 1956) 6–7. 43 Bruno De Witte, ‘The EU as an International Legal Experiment’ in Joseph HH Weiler and Gráinne De Búrca (eds), The Worlds of European Constitutionalism (CUP 2012). 44 The Preamble of the 1949 German Basic Law opens with the following statement: ‘Conscious of their responsibility before God and man, Inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law.’

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‘the Basic Law calls for European integration’.45 The Treaty of Rome, as argued by John Erik Fossum and Agustín José Menéndez, is made with ‘implicit reference to the six national constitutions of the founding member states’.46 Nevertheless, within EU law scholarship, the inherent connection between the emergence of a new form of constitutionalism at the domestic level and the project of uniting Europe is often ignored. Perhaps because of the failure of Europe’s ‘first constitution’,47 the European Political Community, and the European Defence Community, the story told by EU lawyers often begins, almost ex nihilo, with the ‘constitutionalization’ of EU law through the case law of the ECJ starting in the 1960s (‘integration through law’).48 The political origins of the project of European integration are not discussed to any significant degree. EU law and European integration has overwhelmingly been interpreted as a form of ‘freestanding constitutionalism’ committed to market integration and universal cosmopolitan values.49 For that reason, the roots of European integration in a particular ‘anti-totalitarian’ constitutional project (encompassing fascism as well as Communism) are not fully appreciated in EU legal scholarship.50 That European integration and the domestic constitutional regimes that emerged in Western Europe have to be understood as part of the same broad constitutional project—what this article calls ‘post-fascist constitutionalism’—is therefore not yet fully incorporated into legal academia. The interpretation of the project of a European constitution, together with the rise of a new form of constitutionalism at member state level, as two aspects of the same ‘post-fascist’ or ‘anti-totalitarian’ constitutional project lends support to Müller’s thesis of the EU as an extra layer of constitutional guarantee. Nevertheless, the question is whether, or to what extent, this is a particularly German story.51 What is left out of the account so far is that not all member states of the EU are of the ‘post-fascist’ type. Müller admits as much in that he argues for a kind of ‘British exceptionalism’.52 The question, however, is whether there are many more exceptions than those for which Müller allows. In what follows I will propose two other ideal-types of constitutionalism that influence the EU member states, neither of which are characterized by a

45

BVerfG, Judgment of the Second Senate of 30 June 2009–2 BvE 2/08 (Lisbon Ruling), para 225. John Erik Fossum and Agustín José Menéndez, The Constitution’s Gift: A Constitutional Theory for a Democratic European Union (Rowman & Littlefield Publishers 2011) 18–19. 47 Richard Griffiths, Europe’s First Constitution: The European Political Community, 1952–1954 (Federal Trust for Education and Research 2000). 48 Starting with the ECJ’s declaration of direct effect and supremacy of EU law in C-26/62 NVAlgemene Transport—en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECLI:EU:C:1963:1 and C-6/64 Flaminio Costa v E.N.E.L. [1964] ECLI:EU:C:1964:66. For a reappraisal of the project of ‘integration through law’, see Daniel Augenstein, ‘Integration through Law’ Revisited: The Making of the European Polity (Ashgate 2012). 49 Michael A Wilkinson, ‘Political Constitutionalism and the European Union’ (2013) 76 The Modern Law Review 191. 50 See, however, Michael A Wilkinson, ‘The Reconstitution of Post-War Europe: Liberal Excesses, Democratic Deficiencies’ in Michael W Dowdle and Michael A Wilkinson (eds), Constitutionalism beyond Liberalism (CUP 2017); Michael A Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (OUP 2021). 51 Cf Michael A Wilkinson’s chapter in this volume. 52 He also includes Norway and Switzerland among his exceptions, neither of which are member states of the EU: see Müller (n 15) 11. 46

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foundational fear of the people: ‘evolutionary constitutionalism’ and ‘post-communist constitutionalism’. The EU member states are characterized by different ‘varieties of constitutionalism’ and for that reason they do not relate to the project of European integration in the same way.53 Whereas it might be possible to create a ‘constitutional synthesis’ between the constitutional orders of the Union and the member states within post-fascist constitutionalism by imagining the EU as an additional layer of constitutional guarantee, this is not the case within either ‘evolutionary constitutionalism’ or ‘post-communist constitutionalism’. For that reason, the post-war constitutional settlement, compromising the Union and the member states, is characterized by different sorts of tension and contradiction depending on what type of constitutionalism is dominant in a member state—or so it will be argued.

III. Nothing Above or Besides Parliament For the post-fascist constitutional imagination the end of the Second World War is the watershed moment, the ‘zero hour’ (Stunde Null). It is this rupture in time that allows for a new constitutional imagination to be born, a new way of thinking about the constitution of public authority. Not all of the EU’s member states experienced the end of the Second World War as such a ‘new beginning’, however. The UK is an obvious example, but it is not the only one. The Scandinavian member states, Sweden and Denmark, had not experienced total legal and political collapse either and the Second World War did not lead to a new form of constitutionalism in these countries.54 This does not mean that the war is not a significant event for these countries, merely that it is not interpreted in the same way as it is by the ‘constrained democracies’. Because of the lack of a constitutional rupture, the constitution was interpreted as an unbroken tradition and democracy was understood, as it was in the pre-Second World War era, in terms of the sovereign will of the state expressed via Crown-in-Parliament. The UK and the Scandinavian member states belong to a form of ‘evolutionary constitutionalism’. They all understand themselves as exceptions to what happened in the rest of Europe (and, for that reason, as democratically superior to their neighbours). The UK, Sweden, and Denmark had very different experiences during the Second World War. But for different reasons, none of them experienced the complete legal and political collapse on which the post-fascist constitutional imagination is founded. The UK came out of the Second World War as the proud saviour of Europe, with its dreams of imperial glory not yet lost. Sweden remained neutral and politically stable,

53 Signe Rehling Larsen, ‘Varieties of Constitutionalism in the European Union’ (2021) 84 Modern Law Review 477. 54 Johan Östling, Sweden after Nazism: Politics and Culture in the Wake of the Second World War (Berghahn 2016) 19. Cf Tony Judt, Postwar: A History of Europe since 1945 (Vintage Books 2005) 36ff. The Second World War is not considered a constitutionally significant event in the Scandinavian Member States. In Alf Ross’s main work on Danish constitutional law, Dansk Statsforfatningsret (3rd edition, Nyt nordisk forlag 1983), the Second World War is not even included in the section discussing Danish constitutional history. The two ‘revolutionary’ events in Danish constitutional history are the introduction of absolutism in 1660 and the introduction of constitutional monarchy in 1849.

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untouched by fascism as an ideology, and under the leadership of the same social democrat, Per Albin Hansson, before, during, and after the Second World War. Known by German soldiers as the ‘cream front’ (Sahnefront), Denmark was not severely affected despite its occupation by Nazi Germany. Denmark became a German ‘model protectorate’ and was allowed to retain control of external and internal affairs, at least until 1943.55 Throughout most of the war, Danish institutions functioned more or less normally, and relatively few Danes died as a consequence of the war.56 Crucially, the Second World War did not subvert Danish civil society, and after the War the Danes prided themselves on the efforts of ‘ordinary people’, importantly fishermen, who helped to clandestinely ferry the Danish Jews to Sweden.57 Democracy had conquered rather than caused fascism: that was the lesson drawn. The story told after the Second World War in Sweden and Denmark was therefore never that of the ‘excess’ of democracy; quite the contrary.58 At the heart of the constitutional imagination of the ‘evolutionary’ democracies is the idea that the sovereign will of the state is expressed via Crown-in-Parliament. Nothing stands above or beside Parliament. It should be noted that from a historical perspective, there is nothing inherently ‘democratic’ about this. Parliamentary government has not always been on the side of ‘the people’ (whether that is understood as the many, the masses, or the poor).59 Nevertheless, with the expansion of the franchise to gradually include women, the poor, and the young, parliamentary government came to be understood as the authentic expression of democracy. Gradually the view became that the people expressed their sovereign will via Parliament. This view persists within evolutionary constitutionalism today. Democracy is understood as a procedural framework for decision-making, not a substantive theory for a democratic ‘content’ in the form of fundamental rights or human dignity.60 For the Scandinavian legal realists that dominated post-Second World War legal academia in Sweden and Denmark, the conservatism, natural law philosophy, and human rights thinking that influenced the Christian Democrats61 was understood as an impediment to post-Second World War democracy.62 Post-Second World War Scandinavia is social democratic rather than Christian democratic, and for the Scandinavian social democrats strong individual rights are seen as obstacles to democracy conceived of as

55 Samuel Abrahamsen, ‘The Rescue of Denmark’s Jews’ in Leo Goldberger (ed), The Rescue of the Danish Jews: Moral Courage under Stress (NYUP 1987) 4. 56 More than 95 per cent of the Danish Jews survived the Second World War due to the combined efforts of resistance by the Danish government and civil society. In total, 464 Danish Jews ended up in concentration camps, and most of them were ultimately saved. See ibid 2–3. 57 Leo Goldberger, The Rescue of the Danish Jews: Moral Courage under Stress (NYUP 1987). 58 Andreas Føllesdal and Marlene Wind, ‘Nordic Reluctance towards Judicial Review under Siege’ (2009) 27 Nordic Journal of Human Rights 131, 137. 59 Martin Loughlin, The British Constitution: A Very Short Introduction (OUP 2013) 42. 60 No one expressed this sentiment more clearly and in a less apologetic manner than Alf Ross (n 54) 136: ‘Democracy is a form of will-formation of the state based on the principle of majoritarianism, not a principle for its substance.’ 61 Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention (OUP 2017). 62 Johan Strang, ‘Scandinavian Legal Realism and Human Rights: Axel Hägerström, Alf Ross and the Persistent Attack on Natural Law’ (2018) 36 Nordic Journal of Human Rights 202, 203. See also Östling (n 54) 205ff.

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majority rule.63 The social democratic interpretation of the inter-war breakdown does not understand the underlying cause to be the ‘excess of democracy’ but rather the ‘excess of the market’ leading to economic inequality. Democracy should therefore not be constrained but rather protected via social and economic policies that, as a minimum, could limit the impact of economic crises.64 Social democracy as well as legal realism is based on a belief in the ‘primacy of politics’65 over law, and for that reason there is no call for a constitutional court to monitor democracy.66 In the words of the Swedish legal realist Vilhelm Lundstedt, the idea that the power of the state could be checked by universal and natural rights ‘beyond’ the political, such as property, was as ‘meaningless as the chatter of a parrot’.67 Parliament is essentially understood as its own guardian. The idea of judicial review is not a part of evolutionary constitutionalism and is generally understood as a problematic ‘political’ exercise of power by the judiciary. As the Danish legal realist Alf Ross puts it, the judiciary is ‘by its very nature’ subject to the will of Parliament.68 The constitution is interpreted not primarily by the courts but by parliamentary praxis.69 Evolutionary constitutionalism is not shaped by a revolutionary event but has rather evolved over centuries by insiders giving strategic concessions to outsiders in order to avoid revolutionary upheavals.70 With its uncodified constitution, which has evolved with political events over centuries, the UK is the paradigmatic example. However, both the Danish and Swedish constitutions developed along similar trajectories. The Danish Constitution (Danmarks Riges Grundlov) of 1849, still in place in a revised form, was, for example, a concession of the King pre-empting a violent uprising, and as a consequence of that the Danish ‘revolution’71 of 1848 was bloodless. There is no clear revolutionary event in which a modern constitution was introduced in Sweden 63 Martin Scheinin, ‘Constitutionalism and Approaches to Rights in the Nordic Countries’ in Joakim Nergelius (ed), Constitutionalism: New Challenges—European Law from a Nordic Perspective (Martinus Nijhoff Publishers 2008) 136. 64 Johan Strang, ‘The Other Europe? Scandinavian Intellectuals and the Fragility of Democracy in the Wake of World War II’ (2019) 17 Journal of Modern European History 500, 504. 65 Sheri Berman, The Primacy of Politics: Social Democracy and the Making of Europe’s Twentieth Century (CUP 2006). 66 In recent years, however, several Scandinavian scholars have expressed their unease about this form of ‘unchecked democracy’, calling for an increase of the power of the judiciary: see Jens Elo Rytter and Marlene Wind, ‘In Need of Juristocracy—The Silence of Denmark in the Development of European Legal Norms Symposium: Nordic Juristocracy’ (2011) 9 International Journal of Constitutional Law 470. See also Niclas Berggren, Nils Karlson, and Joakim Nergelius, Makt utan motvikt: om demokrati och konstitutionalism (City University Press 1999). 67 Strang (n 62) 206. 68 Ross (n 54) 131. 69 For example, the Danish Supreme Court has only declared an act of Parliament unconstitutional on one occasion: Danish Supreme Court, 1999.841 H—The Tvind case [1999]. Moreover, the Danish political institutions, rather than the Supreme Court, define Denmark’s ‘constitutional identity’: see Helle Krunke, ‘Constitutional Identity in Denmark: Extracting Constitutional Identity in the Context of a Restrained Supreme Court and a Strong Legislature’ in Christian Calliess and Gerhard van der Schyff (eds), Constitutional Identity in a Europe of Multilevel Constitutionalism (CUP 2019) 121ff. 70 Bruce Ackerman discussing different paths to constitutionalism has named this the ‘insider’ model. See ‘Three Paths to Constitutionalism—and the Crisis of the European Union’ (2015) 45 British Journal of Political Science 705. 71 There is no consensus among Danish historians of whether the events of 1848 should be interpreted as a peaceful transition or a revolution, see Claus Møller Jørgensen, ‘Året 1848 og overgangen fra enevælde til folkestyre’ accessed 6 April 2021.

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either. In its current form, the Swedish Constitution, Sveriges Grundlagar, is composed of four ‘fundamental laws’: the Instrument of Government (Regeringsformen) of 1974; the Freedom of the Press Act (Tryckfrihetsförordningen) of 1949; the Fundamental Law on Freedom of Expression (Yttrandefrihetsgrundlagen) of 1991; and the ‘Act of Succession’ (Successionsordningen) of 1810, 1812. Denmark and Sweden, in contrast to the UK, have codified constitutions in the form of ‘fundamental laws’ or ‘basic laws’ (Grundlov/Grundlagar). Nevertheless, these legal texts have been relatively unimportant for the political development of the Scandinavian member states.72 Within the evolutionary constitutional imagination, the ‘real’ or ‘positive constitution’ of the state is not identical to the written constitution.73 The ‘real’ constitution of the state is understood as a political rather than a legal creature, which evolves with political and societal developments and constitutional conventions.74 It is a ‘living being’ that is slowly transformed without the written constitution necessarily changing. With regard to the United Kingdom, Walter Bagehot famously argued that the British monarchical constitution had been transformed into a ‘disguised republic’.75 Within evolutionary constitutionalism, the constitution can be fundamentally transformed without a single constitutional law necessarily being repealed or amended. In contrast to both post-fascist and revolutionary constitutionalism, the formal written constitution is not necessarily a means of introducing a new system of government. The Swedish Instrument of Government of 1974 was seen not so much as the introduction of a new system of government but more as a codification of the constitutional praxis that evolved without any formal change to the constitution.76 The schism between the formal written constitution and the real constitution had become so great that is was deemed necessary to ‘modernize’ the constitution, and the period between 1922 and 1974 is now known as the ‘constitution-less’ period.77 The constitutional amendment was in this sense an attempt to close the gap between the formal and the real constitutions of Sweden, rather than a revolutionary event starting a new era.

72 For a discussion, see Signe Rehling Larsen, ‘Constitutional Pathways in Scandinavia’ in Marco Dani, Marco Goldoni, and Agustín José Menéndez (eds), The Legitimacy of European Constitutional Orders: Questioning the Revolutionary, Establishment and Elite Pathways (Edward Elgar forthcoming). See also Olof Petersson, ‘Constitutional History’ in Jon Pierre (ed), The Oxford Handbook of Swedish Politics (OUP 2015). 73 This is clearly expressed by Albert V Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund 1982) 38. In the introduction to Danish constitutional law currently used at the University of Copenhagen, it is expressed in the following manner: ‘constitutional law is not exclusively concerned with grundloven [the Danish Basic Law] as a text. This formal criteria must be supplemented by a material, ie, substantive, criteria according to which constitutional law [forfatningsretten] is concerned with the “constitution”, that is, the fundamental legal structure, the legal system as a skeleton, or political jurisprudence [politisk ret]’: see Henrik Zahle, Dansk forfatningsret, vol 1: Interstitutioner og reguleringer, 2: Regering, forvaltning og dom (Christian Ejlers’ forlag 2007) 28 my translation. 74 Petersson (n 72) 95. For Dicey’s discussion of constitutional conventions, see Dicey (n 73) ch XIV. See also Zahle (n 73) 29. 75 Walter Bagehot, Bagehot: The English Constitution, Paul Smith and Raymond Geuss eds (CUP 2001) 183 n 6. 76 Petersson (n 72) 97. Following Jon Elster, ‘Legislatures as Constituent Assemblies’ in Joakim Nergelius (ed), Constitutionalism: New Challenges—European Law from a Nordic Perspective (Brill Nijhoff 2008) 49. 77 Petersson (n 72) 98.

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In the United Kingdom there have been calls for a constitutional modernization in the form of a written constitution since the end of the Second World War, and since the 1970s the need for reform has been understood as even more pressing.78 However, this has not come about—at least not in the form of the drafting and ratification of a formal written British constitution. Nevertheless, through its membership of the EU, Britain has undergone a process of profound constitutional transformation. Without any ‘revolutionary’ event, the UK has undergone an incremental modernization over the four decades of its membership in the EU and, in this way, it has developed something akin to a ‘written’ constitution.79 Membership of the EU has led to the introduction of a system of judicial review, a fundamental distinction between ordinary legislation and ‘constitutional statutes’, the adoption of something akin to a Bill of Rights, and the introduction of a Supreme Court. Moreover, it has created the foundations for both the devolution of governmental powers from Westminster to the devolved parliaments and assemblies in Scotland, Wales, and Northern Ireland and the cross-border arrangement between Northern Ireland and the Republic of Ireland.80 EU membership, in the words of the European Union Select Committee of the House of Lords, ‘has been, in effect, part of the glue holding the United Kingdom together since 1997’.81 European integration has been a way for British elites to solve the impending crisis and ‘conceptual sclerosis’ of the British constitution without any significant involvement of the public and without any revolutionary event.82 This process of ‘modernization’, however, cannot easily be reconciled with the constitutional ideology of evolutionary constitutionalism, namely parliamentary sovereignty. Being an EU member state means governing oneself as a ‘constrained democracy’. It means that, at least for the duration of membership, there is something above Parliament, namely EU law. European integration, somewhat paradoxically, has allowed for the perpetuation of ‘insider constitutionalism’ in the UK, and for that reason it has indirectly allowed for the perpetuation of a constitutional project whose core ideology, the sovereignty of Parliament, cannot easily be reconciled with EU law. The irony of Brexit, in this light, is that the rallying cry of ‘take back control’ by restoring the sovereignty of Parliament has resulted in a weakening of the foundations of the UK’s current constitutional settlement and thereby put the ideology of Parliamentary sovereignty under new strains. The question of the UK’s territorial constitution after Brexit, and in particular the place of Scotland and Northern Ireland in the Union, might be what finally leads to the end of the ‘shibboleth’ of Parliamentary sovereignty in the UK. The ‘evolutionary democracies’ of the UK and Scandinavia have a radically different constitutional relationship to the project of European integration than the post-fascist

78 See, e.g., Nevil Johnson, In Search of the Constitution: Reflections on State and Society in Britain (Pergamon Press 1977); Lord Hailsham, The Dilemma of Democracy: Diagnosis and Prescription (Collins 1978). 79 Martin Loughlin, ‘The British Constitution: Thoughts on the Cause of the Present Discontents’ (2018) 16 New Zealand Journal of Public and International Law 4; Vernon Bogdanor, Beyond Brexit: Towards a British Constitution (IB Tauris 2019). 80 Loughlin (n 79) 12ff. 81 Bogdanor (n 79) 267–68. 82 Loughlin (n 79) 5.

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member states. Yet EU law is no less central to the constitutional systems in these countries. Rather, European integration has stabilized these regimes via a process of modernization. They are, however, not the only exception to the post-Second World War constitutional project of constrained democracy.

IV. The Return to Europe The constitutional projects and regimes of the former communist Central and Eastern European member states do not belong to the project of post-fascist constitutionalism and constrained democracy, despite the fact that they share many of its characteristics. Like post-fascist constitutionalism and unlike evolutionary constitutionalism, post-communist constitutionalism is founded on a rupture in time, a ‘new beginning’. The fall of the Berlin Wall marks the symbolic end of post-war history and the end of the ‘short twentieth century’.83 Moreover, the idea of Europe is central to the postcommunist constitutional project. Post-communist constitutionalism has an internal and intimate relationship to the project of European integration, but it has unique features that warrant its treatment as a separate form of constitutionalism. As is the case for the evolutionary democracies, the post-communist member states’ constitutional relationship to the project of European integration is rife with tensions and contradictions. From the very beginning, becoming part of ‘Europe’ was central to the constitutional project of the former communist states in Eastern Europe. The central political banner under which the transition to democracy was conducted was the idea of the ‘return to Europe’. A central aspect of this ‘return’ was membership in the European Convention on Human Rights (ECtHR) and the EU.84 ‘Europe’ came to symbolize the end of authoritarianism, or even totalitarianism, and the pathway to democracy and human rights. As is the case for the post-fascist member states, and in sharp contrast to the evolutionary democracies, ‘Europe’ is one of the most important ‘constitutional myths’ for post-communist constitutionalism. Nevertheless, for the post-communist member states, the EU is not part of a project of ‘constrained’ or ‘militant democracy’. The EU is not seen as an extra layer of counter-majoritarian institutions created in order to combat ‘hyperdemocracy’. The Central and Eastern European member states did not draw the same lesson from their experience of authoritarianism as the post-fascist states had done. Authoritarianism and totalitarianism were not understood as a product of an ‘excess of democracy’ leading to the collapse of the legal and political order. Rather, Nazism and later Communism were perceived as something imposed by a foreign imperial power. Irrespective of the historical realities, Communism and the communists are ‘them,’

83

Eric J Hobsbawm, Age of Extremes: The Short Twentieth Century, 1914–1991 (Michael Joseph 1994). Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (OUP 2012); Jacques Rupnik and Jan Zielonka, ‘Introduction: The State of Democracy 20 Years On: Domestic and External Factors’ (2013) 27 East European Politics and Societies and Cultures 3. 84

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not ‘us’. Post-communist constitutionalism is not founded on a ‘fear of the people’. Rather, post-communist constitutionalism is founded on a tale of victimhood.85 Nor is European integration understood as way to combat nationalism and the inherent problems of the nation-state and sovereign power, as it is within post-fascist constitutionalism. On the contrary, for the post-communist member states, the ‘return to Europe’ entails the promise of creating sovereign nation-states in Eastern Europe. Becoming part of Europe was understood as a way of restoring the pre-communist regimes and traditions. The transitions to democracy of 1989 were described as acts of restoration or ‘rectifying revolutions’.86 It was like turning back the clock to the glorious time before the Soviet and Nazi invasions, erasing all traces of foreign occupation. The ‘East’ had been ‘abducted’;87 now it could return to its ‘native Europe’.88 Becoming a part of the EU and the ECHR was in this way a part of the project of reconstituting sovereign nation-states in Central and Eastern Europe. From a historical perspective, the tale of a ‘restoration’ or ‘return’ to the regimes and traditions of pre-communist era nation-states is somewhat dubious. The narrative informing the political discourse of the ‘return to Europe’ belongs to the world of ‘memory’ rather than history; a world structured by myths rather than facts. 89 What the post-communist member states aspired to return to was not historical reality but rather a world constructed by the myths of ‘national memory’; the continuation of proud histories dating back many centuries that had been abrogated by the invasion of hostile empires, whether Nazi or Communist. In contrast to the core Western European states of the EU that overwhelmingly were failed or declining empires when they embarked on the project of European integration, several of the Central and Eastern European states that emerged after the fall of Communism had been proper ‘nation-states’ before the Nazi and Communist occupations. That being said, the experience of being ‘nation-states’ in Central and Eastern Europe to which these countries aspired to return was a temporary and fragile

85 That ‘victimhood’ is a constitutional ‘myth’ does not of course mean that the peoples of Eastern Europe did not suffer or that they were in fact not invaded, in some cases more than once: Timothy Snyder, Bloodlands: Europe between Hitler and Stalin (Basic Books 2010). The point is merely that the construction of political identity is built on a complete exclusion of all forms of collaboration and complicity in past atrocities. As demonstrated by Jelena Subotić, Yellow Star, Red Star: Holocaust Remembrance after Communism (Cornell University Press 2019) 205ff, this has recently manifested itself in policies on ‘Holocaust remembrance’. From a historical perspective, it is undisputable that various political and social groups collaborated with both the Nazis and the Communists in order to further their own aims or strand of nationalism: see for instance Timothy Snyder, The Reconstruction of Nations: Poland, Ukraine, Lithuania, Belarus, 1569–1999 (YUP 2003). Moreover, in the immediate post-war years, communism represented economic modernization and not dictatorship for many people in both Western and Eastern Europe (Gilbert (n 39) 12). ‘The attraction of Communism was real’, Judt (n 54) 88 writes. 86 Jürgen Habermas, ‘What Does Socialism Mean Today? The Rectifying Revolution and the Need for New Thinking on the Left’ (1990) I/183 New Left Review 3. 87 Milan Kundera, ‘Un Occident kidnappé: ou la tragédie de l’Europe centrale’ (1983) 27 Le Débat 3. See also Tony Judt, ‘The Past Is Another Country: Myth and Memory in Post-War Europe’ in Jan-Werner Müller (ed), Memory and Power in Post-War Europe: Studies in the Presence of the Past (CUP 2002). 88 Adam Michnik, Letters from Prison and Other Essays (UCP 1985) 150. See also Jirí Přibáň, Legal Symbolism: On Law, Time and European Identity (Ashgate 2007). 89 Timothy Snyder, ‘Memory of Sovereignty and Sovereignty over Memory: Poland, Lithuania and Ukraine, 1939–1999’ in Jan-Werner Müller (ed), Memory and Power in Post-War Europe (CUP 2002); Judt (n 87).

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one.90 This period of Central and Eastern European nation-states lasted for about two decades: from the collapse of the European land-empires after the First World War—the Austro-Hungarian empire, the Ottoman Empire, the German Empire, and the Russian Empire—to the annexations of these young nation-states by the imperial powers of the Soviet Union and the Third Reich.91 In this period, authoritarianism, not constitutional democracy, was the dominant form of government in the Central and Eastern European states. The ‘return to Europe’ as the restoration of a long tradition of nation-states governed as constitutional democracies is historically more or less fictitious. Nevertheless, it is one of the most important myths that informed the reconstitution of Central and Eastern Europe after the fall of Communism. Within post-communist constitutionalism, democracy is not conceived of as ‘militant democracy’, nor is the EU seen as a constitutional self-binding. During Nazi and Communist rule, ‘the people’, understood as ‘the nation’, had been deprived of sovereignty to the detriment of democracy. The ‘return to Europe’ was thus overwhelmingly understood as a path to a form of regime and an international system that post-fascist constitutionalism, including the project of European integration, aspired to overcome: the system of sovereign nation-states characterized by internal and external self-determination.92 For that reason, the Central and Eastern European states, as a rule, constituted themselves as ‘closed’ to the outside world without the constitutional possibility of ceding sovereign power to organizations beyond the state. In order to accede to the EU, they therefore had to amend their constitutions.93 In this way, the constitutional relationship of post-communist constitutionalism to the project of European integration is characterized by a fundamental contradiction. European integration is understood as the all-important means to the realization of the domestic constitutional projects. Yet the constitutional order of the EU contradicts the constitutional projects of post-communist constitutionalism. As long as a member state is part of the EU, something stands above the ‘sovereign nation’, namely, EU law. By acceding to the EU, the former communist satellite states became ‘member states’ rather than fully independent ‘nation-states’.94 For that reason, the EU is not merely understood as a path to democracy but also as a threat to democracy within postcommunist constitutionalism. The EU, with its demands for supremacy and direct effect of its laws, even against the constitutional norms of the member states, is looked upon with suspicion within post-communist constitutionalism as a potential new form of empire.95 For that reason, the EU cannot be conceived of as a form of transnational ‘militant democracy’ within post-communist constitutionalism. 90 See, eg, Robert Gerwarth, The Vanquished: Why the First World War Failed to End, 1917–1923 (Allen Lane 2016). 91 Timothy Snyder, ‘Integration and Disintegration: Europe, Ukraine, and the World’ (2015) 74 Slavic Review 695. 92 Anneli Albi, ‘Postmodern versus Retrospective Sovereignty: Two Different Discourses in the EU and Candidate Countries?’ in Neil Walker (ed), Sovereignty in Transition (Hart Publishing 2003). 93 The Polish Constitution of 1997, however, did include provisions for European integration, namely Articles 89–91. Estonia’s constitution was not formally amended but ‘supplemented’ by an independent constitutional act, see Anneli Albi, EU Enlargement and the Constitutions of Central and Eastern Europe (CUP 2005) 19, 111. 94 Christopher J Bickerton, European Integration: From Nation-States to Member States (OUP 2012). 95 For an account of the EU as a form of empire, see Jan Zielonka, Europe as Empire: The Nature of the Enlarged European Union (OUP 2006).

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V. Conclusion The rise of authoritarianism in Poland and Hungary is the constitutional threat that the EU was created to protect member states from. For that reason, the Union must repress the ‘anti-constitutional behaviour’ in order to save the member states, and the citizens of the Union, from the ‘dark side’ of democracy: authoritarianism, fascism, and totalitarianism, and their inherent tendency towards mass killings.96 This is the heart of the argument that the EU is a form of transnational ‘militant democracy’, advanced most consistently by Jan-Werner Müller.97 Like Ulysses making his men bind him to the mast while they sailed past the Sirens, so have the member states constrained themselves, not merely via domestic constitutions but equally at a transnational level via European integration, encompassing both the EU and the ECHR. Following this argument, the EU is an additional layer of constitutional guarantee of liberal democracy. The member states looked to the EU in order to entrench a specific constitutional model, to provide themselves with ‘rigid constitutions’. For that reason, the EU has political, if not legal, authority to intervene in Poland and Hungary to save them from themselves. That the dominant post-Second World War constitutional project in Western Europe encompasses both the domestic constitutional orders and the project of European integration has still not been fully incorporated into constitutional scholarship. This chapter has demonstrated that the dominant post-Second World War constitutional project in Western Europe, ‘post-fascist constitutionalism’, encompasses both the domestic constitutional projects and the project of a ‘European constitution’. Post-fascist constitutionalism is founded on a fear of the people and seeks to constrain political and revolutionary power. As such, this chapter supports the thesis that the EU is a form of transnational militant democracy. Nevertheless, the chapter also demonstrates that post-fascist constitutionalism is not dominant in all the member states. At least two other forms of constitutionalism influence the EU member states: ‘evolutionary constitutionalism’ and ‘postcommunist constitutionalism’, neither of which are founded on a fear of the people or political power. Evolutionary constitutionalism dominates the UK and the Scandinavian member states. Here, democracy is understood in political terms as expressed by the supreme will of Parliament. The constitution is understood is interpreted primarily by political institutions rather than courts. Parliament is its own guardian. For that reason, there is little acceptance of the possibility of transnational institutions claiming supremacy over domestic constitutions in the name of a set of constitutional values. For the Scandinavian social democrats and legal realists that shaped Danish and Swedish post-Second World War constitutionalism, natural law and human rights were understood as impediments to democracy rather than expressions of ‘democratic values’. Nevertheless, at least for the duration of EU membership, something stands above the will of Parliament, namely, EU law. By being member states in the EU, the 96 97

Michael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (CUP 2005). See especially Müller (n 16); Müller, ‘Safeguarding Democracy inside the EU’ (n 15).

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evolutionary democracies have undergone a process of constitutional ‘modernization’ that have brought them broadly, but not unproblematically, in line with the core member states of the EU. Through EU membership, judicial review has to a large extent been introduced in these member states together with a Bill of Rights. Via EU membership, the UK and the Scandinavian member states govern themselves as ‘constrained democracies’. Nevertheless, it would be a mistake to think of this as ‘externally imposed’ on the evolutionary democracies. Rather, the constitutional modernization, perhaps especially in the UK, has been a means of solving domestic problems, such as the question of Northern Ireland and the relationship between the devolved nations. EU membership has allowed the UK to introduce a new constitutional order and as such provided a solution to the call for a new British constitution that has been demanded since the 1970s. As is the case for the post-fascist member states, the evolutionary member states have an internal and intimate constitutional relationship to the project of European integration, albeit of a different kind. The post-communist member states do not belong to the project of post-fascist communist constitutionalism either; nor do they understand the EU as a form of transnational militant democracy., ‘Europe’ plays as important a role for the postcommunist member states as it does for the post-fascist member states. The transition to democracy after the fall of Communism was achieved under the banner of the ‘return to Europe’. This meant, simultaneously, membership of European institutions and a return to traditions and constitutional orders that are supposed to have existed before the ‘East’ was kidnapped by the Soviet Union: a system of sovereign nation-states with internal and external self-determination. This project, however, is internally contradictory because membership of the EU is meant to check the ‘excesses’ of national sovereignty, by, for example, fundamental rights, demands for sound public finances, and competition law. In this way, the EU plays an uneasy role within post-communist constitutionalism. It is simultaneously the path to democracy and national self-determination and a threat to democracy by imposing checks on the sovereign will of these states. The post-communist member states did not join the project of European integration to make a ‘Ulysses pact’. In contrast to the post-fascist member states, they are not afraid of their own peoples. For that reason, they cannot understand the EU as an extra layer of constitutional guarantee. The member states of the EU are not all of the same ‘type’ and for that reason the EU is characterized by a fundamental constitutional heterogeneity and a constitutional asymmetry. Only some of the member states belong to the same post-fascist constitutional project as that of the Union. The constitutional heterogeneity and constitutional asymmetry presents the Union with a fundamental problem of which the recent constitutional developments in Poland and Hungary, extreme as they are, are merely an example.

5

Ideologies and Imaginaries of Legitimacy from the 1950s to Today Trajectories of EU-Official Discourses Read against Rosanvallon’s Democratic Legitimacy Claudia Schrag Sternberg

I. Introduction A breakdown of legitimacy occurred in modern democracies in the 1980s, Pierre Rosanvallon suggests in Democratic Legitimacy: Impartiality, Reflexivity, Proximity.1 This saw people lose faith in both of the two traditional foundations of democratic legitimacy: the ballot box and the bureaucracy; neither parties and elected representatives nor public administrators could any longer credibly claim to represent the general will or interest—the ‘generality’—of a people. Rosanvallon suggests that three ideal-types of alternative modes of legitimation developed in response, namely the impartiality, reflexivity, and proximity of the book’s subtitle. They represent three ‘new, more indirect ways’ of realizing social generality, and are embodied in corresponding indirect institutions. Impartiality achieved this through detachment from particularities and institutions that cannot be appropriated (such as authorities of surveillance or regulation). Reflexivity realizes social generality by ‘multiplying’ the expressions of social sovereignty and making the subjects and forms of democracy more complex (for example, when a constitutional court determines the constitutionality of decisions made by the majority party). Proximity, finally, is associated with an ‘art of government’ that works through attention to, and recognition of, the particularity and multiplicity of all social situations.2 The institutions corresponding to this type of legitimacy include new forums of participatory and ‘interactive’ democracy such as citizen juries and issue-based conventions.3 In this chapter I relate Rosanvallon’s analysis of democratic legitimacy at the national level to the EU level. He himself concentrates on changes in how democracies operate domestically, drawing particularly on examples from France and the US and not discussing in much detail legitimacy in European Union politics, nor the effects 1 Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity (Princeton University Press 2011); see also his ‘The Metamorphoses of Democratic Legitimacy: Impartiality, Reflexivity, Proximity’ (2011) 18 Constellations 114. I would like to thank Jan Komarek and the participants of the 2018 Copenhagen conference, as well as Oliver Gerstenberg and the participants of the UCL Laws Research seminar, for their interesting and helpful comments. All errors are my own. 2 Rosanvallon (n 1) 117. 3 Rosanvallon (n 1) 203–18.

Claudia Schrag Sternberg, Ideologies and Imaginaries of Legitimacy from the 1950s to Today In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0005

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that European integration has had on domestic politics.4 I explore how the decline and reconstruction of legitimacy that Rosanvallon describes for national democracies has related to the specific, and in many ways radically different, constellation of the European Union (EU) and European integration. To this end, I retrace changes and shifts in EU-official discourses constructing and contesting EU legitimacy from the 1950s to today, offering a long-term historical account of key modes of legitimation that shaped constructions and contestations of EU legitimacy over time, and of the challenges to which they were responding. I analyse the relevant discourses of the EU institutions as reflected in a diverse mix of sources including white papers, treaty preambles, council conclusions, press statements, official websites, and so on. Drawing eclectically on analyses presented previously, my reflections are based on nonquantitative interpretive textual analysis, by which I mean analysis that is concerned, empirically, with meaning and that works through close readings of texts identified, in iterative circles of reading large textual corpuses, as exemplary of discursive positions, patterns, or shifts relevant to the questions under study.5 Did the EU’s specific legitimacy challenges and the related shifts in legitimation strategies, discourses, and practices partake of the same underlying transformations of modern political life as national democracies, or did they play to a different tune? To what extent did the EU function as a ‘laboratory’, a ‘space of experimentation’ with new forms of democracy, feeding back perhaps into the legitimacy revolution in the national democracies,6 and to what extent did the emerging alternative modes of legitimation identified by Rosanvallon serve as a playbook for masterminds of directive utopias, pragmatic critiques, and discursive rationalizations of EU legitimacy? By focusing on imaginations of the EU’s legitimacy more broadly, including but not limited to legitimacy arising from constitutional elements, this chapter places the constitutional imaginations under investigation in this book in their wider context. Moreover, casting its net even wider, it approaches the rival visions of legitimate authority and power that compete for enactment, institutionalization, and constitutionalization in the EU’s struggle for legitimacy as grounded on embedding ‘social imaginaries’ through which ‘people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations’. It is these imaginaries that constitute ‘that common

4 His lecture entitled ‘The Transformation of Democracy and the Future of Europe’, delivered in 2001, mainly discussed changes he observed nationally, suggesting that the same dynamics that transformed domestic legitimacy dynamics may have affected politics at the EU level. In Samuel Moyn (ed), Democracy Past and Future (Columbia University Press 2006) 218–34. 5 Claudia Sternberg, The Struggle for EU Legitimacy: Public Contestation, 1950s–2005 (Palgrave Macmillan 2013); Claudia Sternberg, ‘Political Legitimacy between Democracy and Effectiveness: TradeOffs, Interdependencies, and Discursive Constructions by the EU Institutions’ (2015) 7 European Political Science Review 615; Claudia Sternberg, Kira Gartzou-Katsouyanni, and Kalypso Nicolaidis, The GrecoGerman Affair in the Euro Crisis: Mutual Recognition Lost? (Palgrave Pivot 2018); see Dvora Yanow and Peregrine Schwartz-Shea, Interpretation and Method: Empirical Research Methods and the Interpretive Turn (ME Sharpe 2006). 6 Rosanvallon (n 4) 232–34.

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understanding that makes possible common practices and a widely shared sense of legitimacy’.7 In common with the book’s overall approach, I treat imaginations of EU legitimacy as ideologies, as in clusters of ideas that ‘provide directives, even plans, of action for public policy-making in an endeavour to uphold, justify, change or criticize the social and political arrangements of a state or other political community’.8 They are intended to orient and inform political praxis. Like political philosophies, such ideologies are constellations of concepts. In contrast to political philosophies, however, they are not reducible to a specific author or set of authors, but rather are characteristic forms of ‘group thinking’.9 I approach EU legitimacy pragmatically in that I investigate contests over normative beliefs and ideas through the lens of standards to which actors commit themselves, both in their political language and in their attempts to cope with practical problems and challenges. In addition to this more analytical, neutral understanding, moreover, competing visions of political legitimacy are ideologies in the more critical sense of concealing the negative impact and the inherent contradictions of their constitutive ideas. They are ‘necessary fictions’ on which people rely when making sense of their experience of collective life—and they make political rule possible in the face of inescapable contradictions, clashes, and compromises involved wherever ideals are pursued.10 We can either be cynics about this, or decide not to see certain things. Our imaginations of political legitimacy are ideologies not least in that they use meaning ‘to establish and sustain relations of domination’, not least by favouring certain plans of action over others and ‘mak[ing] the products of human activity appear natural and fixed, excluding any possibility to change them’.11 This chapter explores ways in which the discussed discourses and modes of legitimating the EU and European integration rest on fictions that conceal contradictions, negative impacts, and power relations, and how these fictions contributed to their respective rise and decline over time.

II. The Dual Foundation of Democratic Legitimacy: Elections and Bureaucracy Rosanvallon’s ‘dual foundation’ of modern democratic legitimacy—elections on one hand; public administration on the other—from the turn of the twentieth century is a case in point for how the underlying ‘foundational fictions’ already mapped out challenges to the perceived legitimacy of modern democracy of the 1980s.12 7 Charles Taylor, Modern Social Imaginaries (Duke University Press 2003) 23; see Yaron Ezrahi, Imagined Democracies: Necessary Political Fictions (CUP 2012). 8 Michael Freeden, ‘Ideology, Political Theory and Political Philosophy’ in Gerald F Gaus and Chandran Kukathas (eds), Handbook of Political Theory (Sage 2004) 6. On ideologies in the EU context, see Carlo Invernizzi Accetti and Jonathan White, ‘Special Issue: Ideologies and the European Union’ (2020) 27 Journal of European Public Policy 5. 9 Michael Freeden, Ideologies and Political Theory: A Conceptual Approach (OUP 1998). 10 Ezrahi (n 7). 11 John B Thompson, Ideology and Modern Culture: Critical Social Theory in the Era of Mass Communication (Polity Press 1994) 56; see Jan Komárek’s chapter in this volume. 12 Rosanvallon, Democratic Legitimacy (n 1) 3, 15–72; Rosanvallon, Metamorphoses (n 1) 114–16.

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Rosanvallon is particularly critical of electoral democracy, which in his reading always rested on a ‘necessary but insufficiently acknowledged’ fiction that ‘assimilated the majority to the unanimous whole’ and the related idea of a general will; that a majority could stand for the people as a whole, and a fictitious ‘people’ symbolically for the whole of society.13 Yet as early as 1890–1920, he proposes, the idea that the interests of the whole of society could somehow be expressed through a majoritarian electoral system ‘lost all credibility’; as legislatures and party systems emerged and universal suffrage spread, elections ‘ceased to be a kind of sacrament marking the kind of social unity that prevailed in the moment that a people achieved autonomy’, becoming ‘instead a means of expressing social division’.14 He supports this view by describing how parliaments and parties came to be seen by many as prone to incompetence, corruption, and above all capture, establishing a ‘system of bargaining in thrall to special interests’ and the ‘rivalries of personalities and clans’—making antiparliamentarism a powerful force.15 In searching for ‘more realistic and objective ways’ of grounding their democratic legitimacy, he continues, democratic regimes looked to ‘the bureaucratic machine’ as a better force to achieve social generality and realize the general interest (which had replaced the ‘common good’ as an aspiration). Rooted in a cultural background of early twentieth-century theories of scientific management and mystiques of rationality, this mode of legitimation involved rethinking the concept of political legitimacy in ways that meant public power was no longer legitimated (solely) by its origin but by the ‘services it renders’.16 The idea took hold of an independent, objective power, identified with the general interest. Across post-Second World War Europe, civil servants ‘dedicated to an agenda of modernization’ portrayed themselves ‘as the representatives of a new type of legitimacy based on efficiency and competence’, rationality, and disinterestedness.17 Bureaucracy, Rosanvallon suggests, came to be seen as a counterweight to the shortcomings of electoral democracy, a ‘means of combating parliamentarism and the party state’ (here Rosanvallon refers to Carl Schmitt) as well as the associated incompetence. Crucially, it was situated outside the sphere of politics and the temporality of the electoral cycle, minimizing ‘the inconveniences of elections’, while being kept virtuous and efficient by parliamentary control.18 Before long, however, bureaucracy too succumbed to its own contradictions and limitations as a source of legitimacy, compounded not least by a ‘neoliberal rhetoric’ that damaged the credibility of the state by proposing the ‘market as the new regulator 13

Rosanvallon, Democratic Legitimacy (n 1) 2, 13. Rosanvallon, Democratic Legitimacy (n 1) 2–3, 29–30. Rosanvallon, Democratic Legitimacy (n 1) 2–3, 36. 16 Rosanvallon, Democratic Legitimacy (n 1) 2–3, 39, 45. In this chapter, I use the term ‘bureaucracy’ to refer to both ‘bureaucracy’ in its classical sense denoting the state administration of the ideal-typical liberal state of the nineteenth and the beginning of the twentieth centuries, and ‘technocracy’ or the early-to-midtwentieth-century development of the welfare state and industrial management. See Jennifer M Hudson, The Bureaucratic Mentality in Democratic Theory and Contemporary Democracy (Columbia University PhD Thesis, 2016) 14ff.; Jürgen Habermas, ‘Technology and Science as “Ideology” ’ in Jürgen Habermas (ed), Jeremy J Shapiro (trans), Toward a Rational Society (Beacon Press 2014). 17 Rosanvallon, Democratic Legitimacy (n 1) 50–53. 18 Rosanvallon, Democratic Legitimacy (n 1) 48–50. 14 15

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of collective well-being’.19 By the time the efficient provision of services by the state had faltered, around the 1970s, administrative power lost both its moral legitimacy, based on the recognition of its disinterestedness, and its professional legitimacy, based on competence; economic theory called attention to the informational dysfunctions of state administration and, more broadly, the ‘the aura of rationality that had once legitimated the power of civil servants had dissipated’.20 For Rosanvallon, then, the collapse of national democratic legitimacy in the 1980s then, resulted from the contradictions and fictions inherent to both the bureaucratic and the electoral modes of democratic legitimation. How crisis-proof was the legitimacy of the European Communities in comparison?

A. European integration and the post-war constitutionalist ethos To begin: were the early European Communities (ECs) less encumbered by the need to claim electoral-majoritarian legitimacy, and therefore possibly less exposed to its inherent problems and its subsequent crisis? According to the academic argument, ‘non-majoritarian standards of legitimacy should be sufficient to justify the delegation of necessary powers’ to the European level, given the particular functions that its essentially ‘regulatory system’ performed.21 This reasoning extended far into the public and political spheres well into the 1990s and 2000s. Indeed, the ubiquitous motif in early defences of supranational integration was that integration was strictly limited to specific sectors and politic tasks that were particularly suited to the technocratic, bureaucratic, elitist, and administrative rationalities which underlay much of the Communities’ institutional setup, actions, and rhetoric.22 In the early days of integration, many deemed electoral democracy not particularly suited in any case to legitimating the nascent European construct.23 Neither the 1950 Schuman Declaration nor the Paris or Rome Treaties even contained the word ‘democracy’ (or ‘democratic’). Existing rival blueprints that envisioned European unity as resulting, say, from the impetus of a directly elected European parliament were up against important odds.24 Informed by the experience of authoritarianism, the social, intellectual, and political imaginaries of political legitimacy during the early years of integration exposed a deep-seated distrust in unrestricted mass democracy; ‘whether the democratic nature of the regimes of post-war Western Europe rendered them legitimate in the eyes of their populations’ was a complex question.25 Only gradually, 19

Rosanvallon, Democratic Legitimacy (n 1) 4. Rosanvallon, Democratic Legitimacy (n 1) 67–68. For example, Giandomenico Majone, ‘Europe’s Democratic Deficit: The Question of Standards’ (1998) 4 European Law Journal 5. 22 See Sternberg, Struggle (n 5) 235, fn 10; Claudia Sternberg, ‘Democracy Narratives’ in Mathieu Segers et al (eds), The Cambridge History of the European Union (CUP forthcoming). 23 Michael Burgess, Federalism and European Union: The Building of Europe, 1950–2000 (London: Routledge 2000), 31–36. 24 See Michael Burgess, Federalism and European Union: Political Ideas, Influences, and Strategies in the European Community, 1972–1987 (Routledge 1989) 31–36. 25 Martin Conway and Peter Romijn, ‘Introduction to Theme Issue: Political Legitimacy in MidTwentieth Century Europe’ (2004) 13 Contemporary European History 377, 380. 20 21

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over the course of the fifteen years following the Second World War, had democracy emerged as the key element of political legitimacy in post-war Western Europe.26 If there was a crisis of electoral democracy as a source of political legitimacy in the 1980s, it was certainly not the first existential crisis of majoritarianism. European integration was part and parcel of Europe’s particular new ‘constitutionalist ethos’ after the Second World War, marked by an integral suspicion of popular sovereignty.27 Western Europe’s post-war ‘constitutional settlement’ was defined by the perceived imperative to constrain peoples and check the dangers of potentially totalitarian democracy. Countermajoritarian safeguards, including constitutional courts and provisions for ‘militant democracy’, were created and eventually broadly accepted.28 The idea of unrestricted parliamentary supremacy ceased to be seen as legitimate outside Britain, and parliaments were deliberately weakened, not least in their self-destructive ability to delegate power, leading to an important role for the national executives. In addition, the post-war decades were the age of the ever-expanding welfare and regulatory state, and many of its functions were delegated to administrative agencies, subject to strong judicial and administrative—but no longer parliamentary— oversight.29 The European states gave powers not only to unelected domestic institutions, but also to supranational bodies under the close supervision of national governments (rather than parliaments). The motivation was to ‘lock in’ liberaldemocratic arrangements, prevent backsliding towards authoritarianism, and make another European war ‘not only unthinkable, but materially impossible’.30

B. Bureaucratic champions of peace, prosperity, and progress In this sense, European integration in its first decades was very much the embodiment of Rosanvallon’s other, non-electoral, bureaucratic type of legitimacy. This type of legitimacy arose from being ‘helpful’ in serving people’s interests or the common good. Against the experience of Europe’s history of bloodshed, and the trauma and perceived ongoing threat of totalitarianism, European integration was cast as ‘indispensable’; a matter of no alternative, even of survival.31 Some of the discourses celebrating integration had a moralizing undertone, a sense of overcoming past horrors resulting ‘from within ourselves’, which often combined with an emphasis on hope,

26 Martin Conway, Western Europe’s Democratic Age: 1945–1968 (Princeton University Press, 2020); Martin Conway and Volker Depkat, ‘Towards a European History of the Discourse of Democracy: Discussing Democracy in Western Europe 1945–60’ in Martin Conway and Kiran Klaus Patel (eds), Europeanization in the Twentieth Century: Historical Approaches (Palgrave Macmillan 2010) 132–56. 27 Peter L Lindseth, Power and Legitimacy: Reconciling Europe and the Nation-State (OUP 2010). 28 Jan-Werner Müller, Contesting Democracy: Political Ideas in Twentieth-Century Europe (Yale University Press 2013) 146–50. 29 Müller (n 28) 148–49; Lindseth (n 27). 30 1950 Schuman Declaration; see Lindseth (n 27) 104; Müller (n 28) 149. 31 Sternberg, Struggle (n 5) 16–22.

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agency, and determination in bringing about the ‘greatest voluntary and purposeful transformation in the history of Europe’.32 The central substantive promises behind integration, throughout the 1950s and 1960s, were peace and prosperity, or ‘economic progress’ and ‘improved living conditions’.33 Foundational legitimation discourses here linked peace, prosperity, and integration to each other; one was not to be had without the other.34 The ubiquitous anti- totalitarian imperative, and the presence of a totalitarian alternative in Central and Eastern Europe, helped to downplay not only any existence of economic ideological choices, but also even the possibility of a different political system and ideology of legitimacy. 35 All this of course changed radically in the 1970s but, for a certain initial period of grace, the road to the universally shared aspirations of higher standards of living, as well as of personal and political freedom, could with relative plausibility be framed as passing through European economic integration, in its emerging ideological and institutional- constitutional setup. The Communities’ bureaucratic legitimacy was implanted in a widely shared belief in government intervention and an active state, particularly strong in France but characteristic of Western Europe more broadly, whereby a ‘caring state’ was generally conceived to be the ‘most suitable means for the promotion of “the good” of both the individual and the collective’. 36 Early legitimation discourses represented the Communities as the apex and ‘the natural extension of the processes of social and political rationalization already well advanced in the historical evolution of modern states’. 37 In this imaginary, good and legitimate government was government that was effective in solving concrete problems, professional, impartial, predictable, as in following clear procedures. 38 This bureaucratic, sober nature of the integration project was central to helping the Europeans to leave behind the divisive passions, impulses, and ‘excited demands’ associated with ‘politics’, and to achieve social and economic progress and peace. 39 This was a vision of a Europe united by a bureaucracy, at the centre of which was the Commission’s professional civil service recruited through merit- based competitive exams.

32 Respectively, Italian Foreign Minister Gaetano Martino and Belgian Foreign Minister Paul-Henri Spaak in their addresses upon signing the Rome Treaties, Rome, 25 March 1957 accessed 14 May 2019. 33 See for example EEC Treaty Preamble, ECSC Treaty Article 2, or the 1955 Messina Declaration. 34 Sternberg, Struggle (n 5) 21–22. 35 Müller (n 28). 36 David Held, Models of Democracy (Stanford University Press 2006) 186. 37 Lene Hansen and Michael C Williams, ‘The Myths of Europe: Legitimacy, Community and the “Crisis” of the EU’ (1999) 37 Journal of Common Market Studies 233, 243. 38 William Walters and Jens Henrik Haahr, Governing Europe: Discourse, Governmentality and European Integration (Routledge 2005) 21–41. 39 Ernst B Haas, ‘Technocracy, Pluralism and the New Europe: International Regionalism’ in Joseph S Nye (ed), International Regionalism (Little Brown 1968) 159.

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C. European generality and the ‘European common good’ Bureaucratic legitimacy, Rosanvallon proposes, flows from the realization of a new, ‘substantive vision of the general interest’.40 Now, any substantial or output-based legitimacy claim requires some substantive conception of, or way of formulating, the guiding goals of performance outputs.41 Yet, if the point of bureaucracy, as Rosanvallon points out, was to offer an alternative to ‘discredited’ party politics,42 the specific conception of the general interest that ought to be translated into public policy would not necessarily be constructed through democratic procedures of parliamentary deliberation or electoral competition. Rather, a substantive vision of its nature was part of many discourses defending and defining the legitimacy of the early European Communities. These discourses were engaged not only in establishing that there was such a thing as a European ‘common good’ or ‘common interest’ (often used interchangeably), but also in projecting substantive ideas as to its precise nature—and that this was (or could be) furthered by European integration.43 These substantive visions of the European common good typically started from the growing and inescapable interdependence of Western European nation-states under conditions of Cold War international relations, modern technology, and mass production and moved on to praise the interlocking—by deliberate design—of the interests of the European peoples into a common destiny.44 This ‘grand design for Europe’ was often framed as a win–win enterprise: crucially, it was ‘not a game in which one side wins and the other loses’.45 The Commission had a particular interest in entrenching the image of a European common good, and its specific visions of what it consisted in. It quickly positioned itself ‘as the repository of the European General Will’; the guardian not only of the treaties it administered but also of ‘the basic European consensus for progress, peace, and federation’, or, in other words, the basic consensus on the very substance of the European common good.46 Competing voices, to be sure, saw the European common interest as best served by intergovernmental cooperation or different versions of federalism, but Commission discourse and action presented it as most effectively pursued through action in the Community framework.47 Imagining the guiding purpose of the integration project as subject to an overall permissive consensus was central to framing bureaucrats as best placed to deliver on this promise. It allowed the Commission to fashion itself as the Communities’ ‘champion of generality’, as the ‘initiator, planner and mediator for the common good’, who provided independent, impartial, and technically sound proposals. Its role was 40 41 42 43 44 45 46 47

Rosanvallon, Democratic Legitimacy (n 1) 50–53. Sternberg, Trade-Offs (n 5). Rosanvallon, Democratic Legitimacy (n 1) 50–53. Sternberg, Struggle (n 5) 20ff. For example, ECSC Treaty, Preamble. ‘Une Europe empirique’, Le Monde, 26 March 1957, p 1. Haas (n 39) 456. Ibid; see Sternberg, Struggle (n 5) 46–67.

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to give concrete meaning to the supposed European general will, interpreting the general interest and, in this, going far beyond mere compromise or lowest common denominators.48 Such substantive projections of the general European interest, and of a supposed consensus on the guiding goals and purpose of integration, worked in hand with the Communities’ technocratic approach, whereby ‘government action follow[ed] the advice of experts’.49 Together, they de-politicized innately and undeniably political institutional and policy choices, taking many of them out of the more politicized realms of political will-formation grounded in the electoral process and wider public debate.50

D. Electoral legitimacy after all? At the same time, counteracting the Communities’ technocratic modus operandi and the prevalent use of the bureaucratic mode of legitimation were deliberate efforts, rhetorical as well as political and institution-building, to more firmly anchor the integration process in the electoral legitimacy domain. One can be subsumed under the heading of intergovernmentalism. The electoral legitimacy and accountability of nationally elected representatives, and an association of ‘the political’ with intergovernmentalism and domestic political processes, were important tropes in justifications of the Communities’ strong intergovernmental elements.51 Charles de Gaulle staked out in the mid-1960s that ‘nothing which is important . . . should be decided and, even more, applied, by anyone but the responsible public authorities in the six States, that is, the governments controlled by the parliaments’.52 Beyond French Presidential rhetoric, the ‘establishment of nationalexecutive leadership over the integration process’ could be mapped from the creation of the Council of Ministers in the 1951 ECSC Treaty, through the strengthening of its institutional role in the 1957 EEC Treaty, to the creation of the European Council in 1974. Combined with a dense bureaucracy of nationally dominated committees staffed by national civil servants to oversee the Commission’s implementation of delegated acts, this effectively ‘marginalised the Commission as an autonomous technocratic policy maker’.53 It also de-legitimated it in this role, and instead rooted electoral legitimacy firmly on the discursive map of how one could credibly talk about Community legitimacy. Electoral legitimacy furthermore came into play prominently as regards the ‘lawful legislative enactment’ or ‘loi cadre’ for the delegation of tasks to the EU as a ‘regulatory 48 Here Commission ‘Report of the Working Party examining the problem of the enlargement of the powers of the European Parliament, “Vedel Report” ’ [1972] BEC Supplement 4/72; see Sternberg, Struggle (n 5) 29. 49 Kevin Featherstone, ‘Jean Monnet and the “Democratic Deficit” in the European Union’ (1994) 32 Journal of Common Market Studies 149, 150, 154. 50 Sternberg, Struggle (n 5) 14–44; see Luuk van Middelaar, Alarums and Excursions (Agenda Publishing 2019) 228. 51 Sternberg, Struggle (n 5) 63. 52 Charles de Gaulle, Press conference, 9 September 1965 accessed 17 July 2019. 53 Lindseth (n 27) 91, 100.

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state’ and its semi-autonomous authorities such as the European Court of Justice, the EU regulatory and administrative agencies, and later the European Central Bank.54 There was a sequencing logic to this normative-legal principle of delegation, whereby legislative enactment would be followed by a change to a bureaucratic (or constitutional) register ‘on the basis of governments giving a remit to experts and for them to get on with it’, as UK Prime Minister Edward Heath commented in a 1972 BBC interview.55 It was first and foremost domestic democratic and constitutional procedures that democratically legitimated delegation, but a role in fixing the standards ‘within which the Community can act’ would also be claimed for the European Parliament.56 The campaign for direct elections to the European Parliament (EP) gathered pace in the 1960s (with the first taking place in 1979). Advocacy of a strong and elected EP took on early de-politicization and technocratic discourses and techniques, promising nothing less than the end of ‘the reign of the technocrats’.57 A commonly made case turned on the ‘eminently political’ nature of what the Communities were doing, which clashed with their reliance on efficient governance by experts or technocrats largely protected from popular interference.58 The ‘daily experience of the Communities in all sectors’ and the empty chair crisis of the 1960s had made clear that not everyone agreed on what the Communities should be doing and how. Therefore, some method of legitimating choices of objectives, as well as ways of pursuing them, was called for. Since ‘free elections’ were the only known means for ‘expressing the will of the people’, only a strong and directly elected EP could produce and legitimate ‘act[s] of political will’ that were ‘the only way out of dead ends’ once ‘the experts’ resources are exhausted’.59 Perhaps the most important and vocal argument put forward in favour of European elections, however, played on what Rosanvallon refers to as the lost function of elections as a ‘kind of sacrament marking . . . social unity’.60 This framed EP elections as a sort of forge for demos-hood; a way to associate the peoples to the building of Europe and to each other in a European Leviathan,61 as possessing the diffuse power of inciting an emotive, unifying response on the part of the electorate, making citizens ‘feel more concerned by the enterprise’ and ‘want to live together’.62 Echoing nineteenth-century advocacy of universal suffrage on the grounds of its substantive consequences for the adoption of ‘correct policy’,63 EP elections were canvassed further on the basis that they would allow for the EP to act as a ‘motor for integration’. Some of the advocacy for European elections reverberated, further, with

54

Lindseth (n 27) 2, 104; see Sternberg, Struggle (n 5) 38–39 for source references. Featherstone (n 49) 160. 56 Eg Commission Vedel Report (n 48) 17. 57 Frankfurter Allgemeine Zeitung, 14 July 1976. 58 EPA, ‘Rapport fait au nom la commission des affairs politiques et des questions institutionnelles sur l’élection de l’Assemblée parlementaire européenne au suffrage universel direct. Rapporteurs Emilio Battista, Fernand Dehousse, Maurice Faure, W.J. Schuijt, and Ludwig Metzger’ EP Session Documents 1960– 61, 30 April 1960, Document 22, 16–17. 59 All ibid. 60 Rosanvallon, Democratic Legitimacy (n 1) 29–30; see above. 61 EPA (n 58) 16. 62 Le Monde, 12 June 1979. 63 Rosanvallon, Democratic Legitimacy (n 1) 30–31. 55

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Gaullist and older notions of ‘elections of recognition’, or of acclamatory as opposed to partisan elections; of votes that served to express and incite popular endorsement, and to express social unity rather than divided interests.64 Surprisingly or not, neither the introduction of European elections in 1979 nor the concurrent and subsequent gradual expansion of the EP’s powers had quite these effects on popular feelings, yielding instead disappointing and famously falling turnouts in the years and decades to come. Was this because EC electoral legitimacy was falling victim to a much broader process moving across modern democracies?

E. Democratic legitimacy collapsing? What Rosanvallon calls the ‘de-sacralization’ of elections involved a blurring of the lines of party confrontation and weakened party ties. Whereas in ‘the “golden age” of the representative system’ elections had bestowed an ‘incontestable mandate’ and legitimated future policies a priori, their function was now ‘whittled down’ to ‘simply the process by which we designate those who govern’.65 EP elections, of course, to this day do not legitimate policies based on the claim that future policies were implicit in clearly understood, predictable, and sufficiently different electoral choices between disciplined parties and well-defined programmes, and do not even have a very strong claim to designate those who govern.66 Perhaps expectations had always been lower in the case of EP elections, and hence their fall as a source of legitimacy was from a lesser height than in the national context. If the electoral legitimacy of the EC was affected indirectly, in that it depended on the legitimacy of its Member States’ delegating and controlling electoral-democratic systems, the desacralization of elections everywhere may effectively have taken some pressure off the EP and EP elections as they continued to fail in magically boosting integration and the Community’s social and normative legitimacy (precisely these diffuse, symbolic, and unifying powers of electoral democracy would have been hardest hit by the desacralization of elections). The more existential threat to Community legitimacy was that, by the 1970s, its bureaucratic or output dimension came under significant pressure as well, just as it did for the Member States. Following the oil shocks and ensuing financial and economic crises, economies across Europe were in recession. East–West relations were tense again. Delivery on the promise of peace and prosperity was faltering. ‘Overloaded government’ and the ‘legitimation crisis’ of the capitalist welfare state were much debated in the public spheres across Europe,67 the administrative system was seen to fail in reconciling the pressures coming from the economic system,68 and economic ideologies were now fiercely debated.69 All this manifested itself in as a loss of confidence in governmental as well as Community institutions, including in the impartiality and 64

Rosanvallon, Democratic Legitimacy (n 1) 18–20, 68. Rosanvallon, Democratic Legitimacy (n 1) 4, 69–79. 66 Peter Mair and Jacques Thomassen, ‘Political Representation and Government in the European Union’ (2010) 17 Journal of European Public Policy 20. 67 Held (n 36) 190–6; Jürgen Habermas, Legitimation Crisis (Beacon 1973). 68 Habermas (n 67). 69 Müller (n 28). 65

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rationality of the bureaucracy. ‘Eurocracy’ became a dominant emblem in depictions of European integration in the 1970s, with the fiction that the EU bureaucracy and its policies were apolitical, technical, or politically neutral unravelling.70 Just how dire the situation had become by the late 1970s and early 1980s was encapsulated in an Economist cover in March 1980 depicting the Community’s gravestone.

III. Revolutionizing Legitimating Ideologies, Decentring Democracy? How did official rhetoric try to revitalize the seemingly moribund integration project, to maintain and rebuild its legitimacy? If the Communities as a technocracy in essence suffered disproportionately from the decline of bureaucratic legitimacy, and if its electoral legitimacy had always been one part delegated and one part problematic, was this used as an opening for experimenting with alternative modes of legitimation, more creatively and earlier perhaps than for national democracies? In Rosanvallon’s book, the weakening of electoral and bureaucratic legitimacy ushered in a ‘veritable revolution in the conception of legitimacy’, a ‘decentering of democracy’ whereby ‘[d]emocratic politics became something more than merely electing representatives’.71 A comparable stretching of what democracy might mean can be observed for EU-official discourses, in dialogue with developments in the Member States. There is a striking resonance between the involved legitimation strategies and Rosanvallon’s alternative modes of legitimation of particularity, reflexivity, and impartiality.

A. Proximity, the People’s Europe, and openness and transparency In Rosanvallon’s ideal-type of proximity, legitimacy springs from the state or authority’s ability to respond to the particular and immediate concerns of individuals, delving into the irreducible diversity and complexity of society by ‘forgetting no one and attending to everyone’s problems’.72 Such proximity or ‘closeness’ to the citizens has been a key trope in EU-official legitimating rhetoric ever since the late 1970s and the 1980s, when there was a distinct turn from the earlier emphasis on the top-down delivery of what was right and good for Europe to a new focus on the European citizens and their particular needs, sensitivities, and expectations: ‘We must listen to our people. What do the Europeans want? What do they expect from a united Europe?’73 This turn was firmly anchored, in the 1980s, in the EU institutions’ concerted campaign and system of policies designed

70 Sternberg, Struggle (n 5) 69–71; Myrto Tsakatika, ‘Claims to Legitimacy: The European Commission between Continuity and Change’ (2005) 43 Journal of Common Market Studies 193; Featherstone (n 49). 71 Rosanvallon, Democratic Legitimacy (n 1) 7. 72 Rosanvallon, Metamorphoses (n 1) 117. 73 Commission, ‘European Union. Report by Mr. Leo Tindemans, Prime Minister of Belgium, to the European Council, 27 December 1975’ [1976] BEC Supplement 1/76, 11–35 (here 11).

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to re-imagine the European Communities as a ‘People’s Europe’ or ‘Citizen’s Europe’, used often synonymously.74 Defined in essence as a Europe ‘close to its citizens’, the People’s Europe was to reach deeply into the life worlds of individual citizens in all their diversity and complexity. Making Europe relevant to citizens personally, giving it a ‘human interest’, has been a central trope in EU-official legitimation technologies and discourses ever since.75 The People’s Europe was to be present and tangible in people’s everyday lives in the forms of material benefits connected for instance to freedom of movement, such as Erasmus stipends or cheap petrol across the border, and of symbols such as the European flag or anthem. Cultural policies, moreover, were geared to make people associate Europe with culture, and this culture intimately with themselves in their self-understandings.76 All this was to balance out the negative images of the ‘trader’s Europe’, excessively focused on the market and addressing citizens mainly as ‘market citizens’, as well as the ‘technocrat’s Europe’, remote from the people and determined by expert rationalities.77 The People’s Europe, by contrast, addressed people holistically, as socially and culturally embedded human beings in the multiple threads weaving them into the social and cultural fabric of Europe. In its focus on particular citizens and their experiences, the People’s Europe campaign also went beyond their concurrent recreation as political (eventually ‘Union’) citizens with protection as well as political rights specific to the European Community—part of flanking efforts to strengthen the electoral legitimacy register for the EC context. In all this, EU legitimation strategies were attuned to what Rosanvallon refers to as ‘the advent of the individual’ or the ‘age of particularity’, as regards not only modes of production and consumption under post-Fordist capitalism, but also conceptions of the role of the state and citizen expectations in politics, not least given postmodern perceptions of the future in terms of risk rather than progress. In a world where social bonds and identities were no longer defined by generic categories or relations of production, he suggests, a people could no longer ‘be apprehended as a homogenous mass’ where the interests of the greater number could be identified with the interest of the majority and of the people as a whole. In this world, ‘winning an electoral majority is no longer enough to legitimate a government’, so modes of legitimation alternative to electoral democracy gained ground.78 The focus in discourses around the People’s Europe on particular citizen experiences took up these sensitivities—readily, perhaps, given the particular difficulties in the EU case of claiming electoral legitimacy, given the specific challenges of its 74 See, for example, Commission, ‘Reports from the Ad Hoc Committee on a People’s Europe, Brussels, chaired by Pietro Adonnino, 25 and 26 June 1985, and 29 and 30 March 1985’, Bulletin of the European Communities Supplement 7/85, 2–33; Commission, ‘A People’s Europe. Communication from the Commission to the European Parliament (7 July 1988)’ COM 88 331/final, Bulletin of the European Communities Supplement 2; Council. ‘Conclusions of the Fontainebleau European Council (25 and 26 June 1984)’, Bulletin of the European Communities June 1984, 11–12; see Sternberg, Struggle (n 5) 76–102. 75 For a more recent reformulation, see Commission, White Paper on a European Communication Policy COM(2006) 35 final, 1 February 2006. 76 Sternberg, Struggle (n 5) 89–100; see Cris Shore, Building Europe: The Cultural Politics of European Integration (Routledge 2000). 77 Commission, People’s Europe (n 74) 1. 78 Rosanvallon, Democratic Legitimacy (n 1) 60–65, 69–70.

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representative system. The ‘democratic deficit’ critique firmly established itself in the European public and political debates around the time of the difficult ratification of the Maastricht Treaty in the early 1990. So did the question of whether democracy on a European scale was possible at all given the lack of a European demos; in Germany, for example, the no-demos critique spilled over from the legal into the wider public debate around that time, and in France an important discourse confined the practice of democracy and citizenship, or simply ‘the political’, to the nation-state, on the grounds that there was no European nation that could have a volonté générale.79 A democratic imaginary transcending the requirement of a homogenous state-people, in which a ‘people’ existed ‘as a narrative, a collection of stories, rather than a fixed voting bloc’,80 was attractive under these discursive conditions, offering an alternative to the demos-building techniques that were a dominant complementary approach in EUofficial legitimation strategies from early identity-building attempts in the 1970s over the project of the 2000s of an EU constitution complete with constitutional patriotism, which were always at least ambitious.81 A people conceived of as a collection of stories and particularities also went some way towards a response to the crumbling of projections of a consensual European common good or the possibility of a European social generality, all of which could not undo or even sustainably paper over the fact of fundamental conflicts of interests, values and identity among and within the Member State demoi. Appealing directly to citizens in their daily life and immediate life world was a way of bypassing the problematic and tenuous level of a somehow coherent body politic. In the case of the EU, the legitimation mode of particularity further expressed itself in a focus, in the paradigms of EU ‘governance’ and participatory democracy (discussed in the next section under the rubric of reflexivity), on subsets of citizens or ‘a series of minority conditions, which are in turn “diffracted expressions of social totality” ’.82 The cultural policies of the 1980s and 1990s, and the central focus on ‘unity in diversity’ in constructions of European identity from the 1970s and intensified in the 1990s, also played to that tune, even if they persisted in the teleology of unity, and often in the assumption of cohesiveness within Member State nations.83 Communication and information were further key tools in the approximation of the EU and the people, and a clear policy focus. A key motif in the People’s Europe imaginary was that of a ‘dialogue’ between the European Community and the European citizens. The latter had not only to be listened to, and to be taken seriously, but they also had to be informed and persuaded.84 This meant that communication with the citizens worked in both directions: finding out what they expected from the European level, and which policies and legitimation strategies would appeal to them in their respective particular situations, but at the same time educating and providing information to them so as to combat what Rosanvallon calls ‘feelings’ of a ‘loss of control’, which ‘are in fact a consequence of ignorance’.85 The Eurobarometer had been 79 80 81 82 83 84 85

Sternberg, Struggle (n 5) 119; Sternberg, Trade-Offs (n 5). Rosanvallon, Democratic Legitimacy (n 1) 69–70. Sternberg, Struggle (n 5) 145–51. Rosanvallon, Democratic Legitimacy (n 1) 69–70. Sternberg, Struggle (n 5) 145–50. Sternberg, Struggle (n 5) 82–9. Rosanvallon, Democratic Legitimacy (n 1) 210.

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introduced in 1974 to gauge (and construct) European public opinion, in order to inform policy-making, but also communication strategies.86 Put cynically, the poll scrutinized what people wanted so that they could be told more effectively that they were already getting it.87 In discursively managing the EU’s much-noted legitimacy crisis ushered in by the difficult ratification of the Maastricht Treaty in the 1990s, finally, EU-official discourse framed the EU’s legitimacy gap to an important degree as an ‘information gap’, leading to a radical multiplication of efforts and resources dedicated to addressing this gap.88 The presumption was that ‘the public do not understand European affairs’, and better information and communication would ‘help it understand’ as well as develop positive attitudes towards the EU and a sense of closeness to it.89 Besides information, Council, Commission, EP, and national governments focused their post-Maastricht discursive crisis management very much on the EU’s ‘democratic deficit’, now on everybody’s lips. They effectively and tactically redefined what democracy might mean in the EU context, as well as diverting attention away from very considerable popular concerns with Economic and Monetary Union and whether democracy was conceivable at all beyond the confines of the nation-state. The two central pillars of their ‘crusade for democracy’ were the ‘openness’ or ‘transparency’ of EU decision making, on one hand, and the principle of ‘subsidiarity’ on the other.90 Both elements were crucially defined as means of creating proximity. Improving the transparency and openness of the EU’s legislative and bureaucratic procedures, the promise was, would bring the EU closer to its citizens and rally lost, and much-needed, popular support.91 There were some more specific arguments, that transparency would increase ‘public scrutiny’ and ‘ensure a better informed public debate’ on the EU’s activities,92 in addition to improving the national parliaments’ scrutiny of the EU.93 Mainly, however, the transparency discourse lay claim to an implied

86 See Bernard Manin, The Principles of Representative Government (Cambridge University Press 1997) 231 on this general point about opinion polls. 87 Jacques-Rene Rabier, Entretien avec M. Jacques-René Rabier, fondateur de l’Eurobarmomètre, 21 octobre 2003, European University Institute, Oral History Collections, Historical Archives of the European Union, interview by G Bossuat, NULL 06/1998; see Sternberg, Struggle (n 5) 82–89; Claudia Sternberg, ‘Public Opinion in the EU Institutions’ Discourses on EU Legitimacy from the Beginnings of Integration to Today’ (2016) 54 Politique européenne 24. 88 For example, Eurobarometer Nr 38, December 1992:x; see Sternberg, Struggle (n 5) 129. 89 Walters and Haahr (n 38) 75; see for example Commission, ‘European Governance. A White Paper’, COM (2001) 428 final, 25 July 2001, 11. 90 Jacques Delors, ‘Address to the European Parliament, 10 February 1993, on the occasion of the investiture debate following appointment of the new Commission’ retrieved 16 September 2020 from ; see Sternberg, Struggle (n 4) 128–41. 91 Council Conclusions of the European Council Summit in Birmingham, 16 October 1992, 407–10 in Finn Laursen and Sophie Vanhoonacker (eds), The Ratification of the Maastricht Treaty: Issues, Debates and Future Implications (Martinus Nijhoff 1994) 396, 409–10; EP, Reflection Group’s Report. A Strategy for Europe (1995) accessed 17 July 2019, 4. 92 For example, Romano Prodi, Speech by Romano Prodi, President of the European Commission to the European Parliament, 14 September 1999, SPEECH/99/114 . 93 Council (n 91) 409; Council Conclusions of the European Council Summits in Edinburgh, 11–12 December 1992, 411–441 in Laursen and Vanhoonacker (n 91) 412–13.

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associated sense of ‘accessibility, openness, and receptiveness to others’ as well as ‘an absence of formalism’.94 Subsidiarity, in turn, was presented as part of the answer to a widespread popular and political discourse according to which the greater the number of citizens included in the electoral process, the less their individual votes counted. Subsidiarity was to limit the number of decisions taken at the supranational level, suggesting that, at lower levels of decision making, decisions would be taken under the citizens’ critical gaze, scrutiny, and control.95 The subsidiarity discourse typically implied a natural link between subsidiarity and transparency—and between both democratic control and public support.96 Indeed, subsidiarity in particular was often simply equated with ‘nearness’ or ‘closeness’ to the citizens.97 On the whole, however, if official EU rhetoric since the late 1970s turned on closeness and openness to the European citizens in their diverse particular situations, this did not necessarily mean that these citizens got more of an actual say. They remained objects, spectators, and addressees, rather than authors, of EU action. Yes, the citizens and their particular expectations, needs, and sensitivities were at the epicentre of these discourses. But they had a double status: as both an independent source of legitimacy and, at the same time, an object of manipulation. Giving the citizens what they wanted, in many official discourses pre and post-Maastricht, remained a matter of efficient policy-making—only now this was framed in terms of citizen expectations. It was a matter of greater sophistication in mapping, as well as tweaking, particular citizens’ expectations; of bringing the citizens closer to the EU, as much as bringing the EU closer to them.

B. Reflexivity, the Court of Justice, and EU Governance Rosanvallon’s ideal-type of reflexive democracy, in turn, is ‘democracy’s attempt to correct and compensate’ the flawed assumptions supporting electoral-representative democracy, specifically the equation of the voters’ choice with the general will and of the voters with the people, and the idea that from the moment of the vote flows all subsequent political and legislative activity. Legitimacy in reflexive democracy hence arises from a ‘generality of multiplication’, which has ‘two components: adding complexity to democratic forms on the one hand, and regulating the mechanisms of the majoritarian system on the other’.98 Reflexive legitimacy arises from combining multiple representations of the people—which, in the singular, is ‘unlocatable’: • the demos or electoral people as it takes on ‘numerical reality at the ballot box’;

94

Rosanvallon, Democratic Legitimacy (n 1) 203. For instance, Commission, ‘Report on the Operation of the Treaty on European Union (presented by the Commission)’ [1995] SEC 95 731 final, 10 May 1995. 96 Ibid 5; Council (n 91) 410; EP (n 91) 2. 97 See ibid 5. 98 Rosanvallon, Democratic Legitimacy (n 1) 123. 95

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• the social people, which can be seen as ‘an uninterrupted succession of active or passive minorities’; • and the people as principle, which means bringing to life basic rights and individual and collective freedom and equality.99 There were of course vocal concerns regarding the existence or, to some, even the possibility of a European people as demos, and suggestions that the EU’s electoral process in itself was insufficient to legitimate the EU as a polity or political system, or its policies. Efforts to increase EU legitimacy have hence devoted significant attention to the latter two expressions of the people. In modern democracy at large, the importance of the third guise of the people, the ‘people as principle’, is steadily increasing in the ‘new world of singularity’ that Rosanvallon describes. Here, the ‘rights-bearing subject’ is ‘the basic figure of this people’, and ‘the most obvious representation of the idea of a political community’. If her ‘rights are respected, all voices will be heard’. The people as principle is represented and embodied by constitutional courts, whose primary function as reflexive third parties is ‘social and political representation’, in addition to the regulation of majority rule.100 The imaginaries, explored in this volume as a whole, of EU constitutionalism and judicialization of EU politics over time and the role assumed by the European Court of Justice in shaping integration, including economic and monetary integration, all played to this mode of legitimation. These developments were embedded in the generally increasingly active role of constitutional courts in the Member States, including all of the new Central and Eastern European democracies, whereby judicial review ‘has actually supplanted the original doctrine of separation of powers as a way of guaranteeing liberties and regulating majority rule’.101 In the EU polity, with its challengeable lines of electoral accountability for policy choices, and in light of recurring critiques (despite all efforts to achieve and claim the contrary) that actions and policies at the European level were insufficiently responsive to citizen demands, the judicialization of EU politics and access to the European Court of Justice (ECJ) offered important alternative modes of legitimation, and somewhat satisfied the desire for greater accountability.102 In Rosanvallon’s account, constitutional courts provide legitimacy for the political regime as a whole by guaranteeing the promises that a community makes to itself, preserving the identity of democracy and the people over time.103 The ECJ, in a parallel argument, produces legitimacy by interpreting the self-referential, or reflexive, process by which the European demoi have moulded themselves into some kind of whole through expressing their will. As discussed above, the Commission has joined the Court in assuming this function in its self-declared role as ‘guardian of the treaties’, treating them as the promise made by the Europeans to future generations. 99

Rosanvallon, Democratic Legitimacy (n 1) 129–30. All Rosanvallon, Democratic Legitimacy (n 1) 123, 131, 140. 101 Rosanvallon, Democratic Legitimacy (n 1) 137. 102 Pierre Rosanvallon, Counter-Democracy: Politics in an Age of Distrust (Cambridge University Press 2008) 191–248. 103 Rosanvallon, Democratic Legitimacy (n 1) 142. 100

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Rosanvallon’s second manifestation of generality, the social people, a ‘container filled with’ all the diverse elements and movements of ‘the society’, is ‘the problematic truth of being together, of its abysses and lies, its promises and unrealized goals’. Representing this social people was the aspiration of ‘EU governance’, the central paradigm of EU legitimacy of the 1990s formulated in the Commission’s 2001 White Paper on European Governance.104 ‘European governance’ focused attention on the top-down consultation of civil society organizations and organized interests as opposed to individual citizens or ‘the people’. In tune with the spreading perception of society as a configuration of minorities, justifications of ‘participatory democracy’ understood in this way centred on the assumption that such civil society consultation would ensure the representation of and fair and equal deliberation among those concerned by the policy in question.105 Rosanvallon notes that civil society organizations, social movements, and academics ‘perform reflexive functions when they denounce discrepancies between the fundamental principles of democracy and the reality’ or when they represent future generations, which can be done only ‘in the mode of knowledge or concern’, essentially by being a factor in present-day discussions.106 A multiplication of representation, in the sense of being present as such a factor in discussions, was a central trope in legitimations of EU governance and participatory democracy—alongside functional or instrumental arguments about increased policy efficiency and effectiveness due to stakeholder involvement mobilizing buy-in, compliance, and expert resources.107 The reliance of EU participatory democracy and governance on organized interests was, however, problematic due to its elitist bias, citizens’ uneven access to such participation, and the insufficiently democratic internal structures of civil society organizations themselves—all criticisms that, in particular, the citizens’ initiative introduced with the Treaty of Lisbon in 2007 was meant to address.108 As did the transparency and openness paradigms, EU governance and participatory democracy furthermore positioned the people as ‘watchdog’, with civil society inspecting, monitoring, investigating, and evaluating the actions of government.109 Again, influence or accountability was here ensured not through electoral accountability but through reputational accountability in the nonliteral sense that policy makers could anticipate having to justify their decisions to those affected, and would therefore feel responsible to them and adapt their actions accordingly.110 The EU governance discourse and the related ‘modes of governance’, including ‘open methods of coordination’, were a prime example of official rhetoric seeking to expand the imaginary of political legitimation. They sought to make democratic forms more complex, while aspiring to modes of legitimation and representation beyond electoral

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Commission (n 95). Sternberg, Trade-Offs (n 5) 624 for references. 106 Rosanvallon, Democratic Legitimacy (n 1) 148ff. See Antoine Vauchez, Democratizing Europe (Palgrave Pivot 2015). 107 See Sternberg, Trade-Offs (n 5) 624 for source references. 108 Sternberg, Trade-Offs (n 5) 624. 109 Rosanvallon, Counter-Democracy (n 105) 13, 29–120. 110 Thomas Risse, ‘Transnational Governance and Legitimacy’ in Arthur Benz and Ioannis Papadopoulos (eds), Governance and Democracy (Routledge 2006) 192–212 (192–93); see Sternberg, Trade-Offs (n 5) 624. 105

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majoritarianism. In fact, EU governance has been referred to as the pinnacle of ‘procedural depoliticization’, on the grounds that those responsible for making a decision are removed from view, obscured by a game of decision making ‘so complex that only experts among the public can keep track of who is playing and where the ball has got to’.111 Governance prioritized responsiveness to citizen expectations over democratic control, representation, or accountability, as had the People’s Europe discourse before (and even some of the advocacy of EP elections). Although all these discourses highlighted the need for the visibility, understandability, and transparency of government, they ultimately rated such responsiveness as an even higher aim.112 Much of ‘EU governance’ moreover plugged into discourses of proximity, transparency, and closeness to the citizens (and the paradigm could have been included above in the section on proximity). ‘EU governance’ turned on an explicit aspiration to a new type of democracy, superior to the classic majoritarian, electoral, and particularly parliamentary models of democracy—all of which suffered from a ‘growing crisis of faith’ and ‘disenchantment’,113 and had led to citizens’ ‘alienation from politics’.114 Governance, in a departure from these, claimed to embody the ‘kind of democracy our fellow-citizens want’:115 a more ‘genuine’ type of democracy, which was ‘much more participatory, “hands-on” ’.116 Governance and ‘participation’ in this paradigm were not about majoritarian representation, ‘not about institutionalising protest’, but ‘about more effective policy shaping’.117

C. Impartiality The legitimacy of impartiality, finally, in Rosanvallon’s ideal-type is associated with independent authorities of surveillance and regulation, central banks being a classic example. This type of legitimacy is grounded in ‘negative generality’, or a ‘detachment from particularities’. An impartial authority is structurally independent but it also behaves in a certain way, maintaining an equilibrium and ‘a rational and organized distance from the different aspects of a question’ as well as ‘adopting all conceivable points of view’.118 The mode of legitimation, again, is grounded in an apprehension of ‘the people’ that is not in an electoral perspective. It rests on an understanding of ‘democracy as the 111

Van Middelaar (n 50) 242. See Sternberg, Struggle (n 5) 55, 75, 84, 101, 190. Romano Prodi, Speech to the European Parliament on 04 September 2001. ‘The European Union and its Citizens: a Matter of Democracy’, SPEECH/01/365 . 114 Commission (n 95) 32. 115 Prodi (n 113). 116 Romano Prodi, Speech to the European Parliament on 15 February 2000. ‘Shaping the New Europe’, SPEECH/00/41 . 117 Commission (n 95) 14–15. 118 Rosanvallon, Metamorphoses (n 1) 117, 119; see Rosanvallon, Democratic Legitimacy (n 1) 89, 07 and 73–120. 112 113

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power of everybody’ not in the ‘arithmetic and aggregative’ sense expressed in universal suffrage. Rather, such a political subject is apprehended socially, ‘coming from a capacity to take into account everybody’s problems’.119 This way of understanding ‘the people’ resonates, again, with the explicit self-understanding of the Commission, refreshed in its governance paradigm, as guardian of the common European interest and ‘sympathetic ear’ and impartial mediator between contrasting political views, national interests, and interest group pressures, as well as the centre of technocratic expertise.120 Alongside the European Central Bank (ECB), moreover, there now exist more than forty independent agencies of the EU, who regulate, consult, or facilitate dialogue in such politically sensitive areas as monetary policy, migration, medicines, food safety, and so on. Endowed ‘with powers of variable scope’, they all ‘derive their political authority essentially from their technical expertise and their status as independent instances’.121 In contrast to the modest powers granted to the earlier agencies, a growing number of decentralized agencies have been established and given increasingly significant powers over the past two decades in particular.122 ‘Sweeping competences have been delegated’ not least in the context of the euro crisis, as for the troika, the European Stability Mechanism, or ECB banking supervision.123 This ‘agencification of the EU administration’ has been described as ‘hardly controlled’, with reference to a lack of clear criteria or a sound legal basis or framework as to when and how recourse to the agency instrument may be justified in either the Treaties or secondary law.124 At the same time, the mandates of some of these bodies have become extremely politically salient, whether owing to practical need, as for the question of Frontex’s role in rescue at sea; to ‘practical overreach’, as in implementing the reception or distribution of asylum seekers across Member States in the autumn of 2015; or to the respective body’s creative interpretation of their mandate. 125 The ECB’s mandate to defend price stability ‘may seem very narrow and technical but in the wake of intense interpretative work carried out by the ECB, this mandate has enabled the bank to take action in areas ranging from pensions, wage policies and labour law to State organization, and more’.126 In Rosanvallon’s book, independent administrative authorities proliferated in response to demands for regulation where existing bureaucratic structures had run into difficulty owing to technical complexity, overlapping competences, a multiplication of affected parties, and/or a diffusion of responsibilities.127 As an earlier advocate of autogestion and a fervent critic of bureaucracy within both the civil service and parties during the 1970s, Rosanvallon is careful to differentiate the impartial institutions he promotes from bureaucracy, suggesting that bureaucracy runs an inherent risk of 119

Ibid. Tsakatika (n 70) 199–200; see Sternberg, Struggle (n 4) 145 for source references. 121 Antoine Vauchez, Democratizing Europe (Palgrave Pivot 2015) 40. 122 Merijn Chamon, EU Agencies: Legal and Political Limits to the Transformation of the EU Administration (Oxford University Press 2016). 123 Vauchez (n 121) 3. 124 Chamon (n 122). 125 Van Middelaar (n 50) 94–101. 126 Vauchez (n 121) 71. 127 Rosanvallon, Democratic Legitimacy (n 1) 80. 120

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becoming ‘ossified’ and ‘mechanized’, its rules and procedures automatic and difficult to change even when proving ineffective.128 To him, the proliferation of independent regulatory authorities across the world reflects ‘new social expectations’, with people wanting ‘a more open and interactive process of policy making’ with ‘more input from conflicting points of view’. The ‘ “technical” requirements of certain types of regulation’ combined with ‘ “democratic” aspirations for more public justification of policy decisions, greater openness, and above all, greater impartiality’ in fostering the emergence of independent agencies across modern democracies.129 In contrast to the promises of the ideal-type of impartial independent agencies, the agencification of the EU was arguably a way of allowing less, rather than more, democracy. It has, it has been warned, worked to shield certain policy areas from electoral and public accountability and scrutiny as well as from direct Commission influence, while still allowing for administrative co-ordination and co-operation and EU-level capacity building.130 Notwithstanding, there is a close resemblance between Rosanvallon’s ideal-type of impartial independent authorities, particularly as regards their commitment to greater openness and interactive elements, and corresponding tropes in the EU governance and participatory democracy discourses. The ECB, for one, intensified its ‘accountability practices’ during the financial crisis in response to ‘public demand for increased scrutiny’. It staked out accountability as the ‘crucial cornerstone’ of its legitimacy as a ‘very powerful and independent yet unelected’ body, and as crucial in building the trust among the European citizens that was indispensable to fulfilling its mandate. What it defined as central bank accountability, though, was ‘the legal and political obligation of an independent central bank to explain and justify its decisions to citizens and their elected representatives’.131 Again, this is accountability of the reputational kind referred to above, of power-holders ideally adapting their choices and policies with a view to how they could present them to their constituencies.132 Further, rather than abdicating its responsibility, the Court of Justice of the European Union (CJEU) can create accountability in monitoring how the ECB justifies its monetary policy decisions in terms of proportionality analysis, thus functioning as a hinge between the ECB, the EP, and democratic publics that can enhance deliberation and invite contestation.133 To many, however, the accountability of the bank and the enforceability of its impartiality, particularly in the euro crisis, went nowhere near far enough. Many commentators, politicians, and citizens—especially those on the losing end of its policy decisions—did not feel that their viewpoints had 128

Hudson (n 16) 157, 174; Rosanvallon, Democratic Legitimacy (n 1) 97. All Rosanvallon, Democratic Legitimacy (n 1) 82. Chamon (n 125) chapter III. 131 All ECB, ‘The Evolution of the ECB’s Accountability Practices during the Crisis’, prepared by Niccolò Fraccaroli, Alessandro Giovannini, and Jean-François Jamet [2018] ECB Economic Bulletin 5 accessed 17 July 2019, citing Draghi for the double inverted commas, emphasis added. Specifically, the ECB here highlighted its deepened interactions with the EP, as well as its ‘network of interactions with institutions such as the European Ombudsman, the European Court of Auditors (ECA), the European Anti-Fraud Office and the European Data Protection Supervisor’. 132 See also David Beetham, The Legitimation of Power (Macmillan 2013) 9, 19, 258. 133 CJEU, Weiss and Others, Case C-493/17, ECLI:EU:C:2018:1000. 129 130

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been duly recognized in the bank’s decision making, and experienced its policies as far from impartial.134 Note, besides, that Rosanvallon’s impartiality-based legitimacy may be closer to bureaucratic legitimacy than he concedes. To begin with, bureaucracy itself has adapted and often become more flexible and decentralized, embracing openness, transparency, and public reason-giving.135 As developed above, the European Commission is a paradigm case of a bureaucratic institution adapting to changes in the discursive landscape of what might plausibly pass as conferring legitimacy. It has espoused many constitutive elements of the impartiality as well as proximity and reflexivity modes of legitimation. Moreover, many European civil servants across the ranks would likely include both impartiality and independence in their professional self-understanding and ethos. European Commissioners, for example, take an oath of independence from national or private interests and from political-ideological bias.136 One might further argue that impartiality as a mode of legitimation continues to rely on claims to technical expertise and skills, and to universality and objectivity, ‘in order to produce results and promote consensus and social change’—which, together, could be defined as the essence of ‘bureaucratic thinking’.137 In practice, moreover, as Rosanvallon notes, both independent agencies and bureaucratic bodies risk being ‘ “captured” by interest groups or manipulated by politicians and bureaucrats’.138 This is not least to do with these bodies’ ‘claim to scientific objectivity in their analysis’ and in the underlying doctrines, models, methodologies, and instruments. This claim can work to obscure values and interests behind policy decisions, presenting them instead as neutral, technical, and fact-based. Examples include the new public management theories used by the Commission since the 1990s to legitimize the proliferation of agencies mentioned above, or the economic theories on which the troika based its austerity policies in Greece and Portugal.139 The policies of the troika, and the fierce public and political reactions to them, brought to light, finally, that the policy decisions taken on these supposedly objective and impartial grounds were a far cry from being neutral in their effects. Instead, they undeniably created winners and losers in acutely felt and vocally admonished ways.140 The same argument can be made for central bank independence as well as for the EU and Economic and Monetary Union’s own brand of economic constitutionalism— likewise the object of prominent critique.141 Rosanvallon recognizes this danger, giving economic constitutionalism as an illustration of the need to complement impartiality as a mode of legitimation and governance with reflexivity.142 Elements of proximity, in turn, are crucial in his delineation of impartiality from bureaucracy’s orientation towards generality. Impartiality hence

134 135 136 137 138 139 140 141 142

Sternberg et al, Mutual Recognition (n 5). Hudson (n 16) 156. Tsakatika (n 70) 199–200. Hudson (n 16) 4–5. Rosanvallon, Democratic Legitimacy (n 1) 99. Vauchez (n 121) 40, 71, 74–75. Sternberg et al, Mutual Recognition (n 5). See Christian Joerges’ chapter in this volume. Rosanvallon, Democratic Legitimacy (n 1) 150–3.

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is embedded in the other two ideal-types of his alternative modes of democratic legitimacy. All three are mutually intertwined.

IV. Unpolitical Democracy? What about partisan electoral democracy? Has Rosanvallon ‘given up’ on its reactivation, as has been proposed?143 Might this even be why his analyses chime so well with many discourses and supporting practices around the legitimacy of a polity that, despite all attempts to redeem this, continues to struggle to build an electoral party politics that can go further than the current setup in providing legitimacy for the EU and its policies? The gravest critique of Democratic Legitimacy144 and Counter-Democracy145 is that Rosanvallon falls for the appeal of ‘unpolitical democracy’.146 On the basis of his critique of party democracy, Democratic Legitimacy has been used as the exemplary text of ‘the contemporary case for technocracy’: according to this reading, by emphasizing the indirect institutions of impartiality, reflexivity, and proximity, Rosanvallon’s account at best distracts from the role of majoritarian elections ‘as part of a broader process through which an overarching conception of the “common good” is progressively extrapolated and defined out of the plurality of particular interests present within society’, and also arguably distracts from the role of political parties in reflecting social divisions or constituting them politically into competing visions of the common good.147 Furthermore, the indirect institutions of proximity, reflexivity, and impartiality have been blamed for encouraging passivity among citizens.148 Rosanvallon does recognize unpolitical democracy as an ‘omnipresent threat’.149 Note, however, that in his effort to contain the threat of populism, he proposes to politicize the spheres of indirect democracy rather than reinstating electoral politics as the central source of democratic legitimacy. He sees proximity, reflexivity, and impartiality, his alternative modes of legitimacy and the institutions of indirect democracy embodying them, as essentially political. Antoine Vauchez has developed this proposition by elaborating how the academic community or the interlocutors of the CJEU, the ECB, and the Commission, including lawyers, consultants, experts, and activists, can take up arms and mobilize against the depoliticizing ‘pretence to scientific objectivity’ of these bodies’ judgements and 143 Hudson (n 16) 155; Christopher Bickerton and Carlo Invernizzi Accetti, ‘Populism and Technocracy: Opposites or Complements?’ (2017) 20 Critical Review of International Social and Political Philosophy. For example, Rosanvallon, in discussing the factors that led to the formation of independent bureaucracies as ways of compensating for the inherent deficiencies of electoral democracy, writes that ‘political parties were not instruments for representing the public interest, but for enabling private interests to capture the public sphere’ (Rosanvallon, Democratic Legitimacy (n 1) 37). 144 Rosanvallon, Democratic Legitimacy (n 1). 145 Rosanvallon, Counter-Democracy (n 102). 146 Nadia Urbinati, ‘Unpolitical Democracy’ (2010) 38 Political Theory 65. 147 Bickerton and Invernizzi Accetti, Populism and Technocracy (n 143) 186, 188, 198; see Jonathan White and Lea Ypi, ‘Rethinking the Modern Prince: Partisanship and the Democratic Ethos’ (2010) 58 Political Studies 809, 816. 148 Hudson (n 16) 3. 149 Rosanvallon, Democratic Legitimacy (n 1) 222.

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policy choices. Vauchez underlines the role of those actors in breaking open ‘the black box of doctrines, methodologies and instruments’ and scrutinizing the data, facts, arguments, ‘and ultimately the decisions put forward by these institutions’.150 Even in the fields of conventionally technocratic, impartial, and reflexive politics, forms of opposition and deliberative politicization are thus conceivable.151 Theories of democratic experimentalism, furthermore, conceptualize how the constitutional frameworks at the foundation of the European project are constantly open to deliberation in the process of contextualization. Similarly, at the policy level, democratic experimentalism envisages a recursive process of provisional goal-setting and revision based on a comparative review of implementation.152 The CJEU’s process-based review can routinize self-revision and deliberation. This recursive process, which involves plaintiffs, national and EU courts and parliaments, EU institutions, civil society institutions, and a wide range of stakeholders, can at its best be forum-creative and deliberation-enhancing, fostering European discourse on what the proportionality principle requires. Even if it does not always succeed, the CJEU, and judicialization, can thus enable and instigate processes of democratic justification and normatively orient these processes—and politicize rather than depoliticize.153 Another danger, of course, in looking for “the political” in the indirect institutions of particularity, reflexivity, and impartiality is that deliberation may be strategically used ‘as an antidote against democratic procedures themselves (like voting and majority rule)’.154 Rosanvallon, anticipating this objection, states that democracy ‘must make room for both conflict and consensus’; that it must both restore ‘the clash of platforms and values’ or the partisan divisions of majoritarian democracy ‘to a position of respect’, and acknowledge the role of independent agencies, constitutional courts, and other authorities and the ‘value’ of their ‘more unanimous decisions’.155 Party politics, Rosanvallon vows, is ‘absolutely essential and entirely legitimate’ where choices are to be made, options to be selected, and conflicting interests and judgements to be reconciled. Impartiality, by contrast, is essential in guaranteeing and approaching equality, as well as ‘when dealing with basic aspects of the social contract (as opposed to the “majoritarian contract”)’. 156 The difficult question, however, ‘at the heart of democratic life’, is where to draw the line ‘between majoritarian politics and the politics of impartiality’. The example that Rosanvallon gives is monetary policy, which in Germany is part of this basic social contract for historical reasons, whereas in other countries it is properly a matter of partisan politics.157 It is also an example of the need for partisan politics in assigning the policy to the appropriate mode of legitimation. European monetary policy and the handling of the euro crisis are examples of decisions of utmost political and social 150

Vauchez (n 121) 74–75. Van Middelaar (n 50) 241. 152 See e.g. Bernardo Rangon and Jonathan Zeitlin, ‘Is Experimentalist Governance Self-Limiting or SelfReinforcing? Strategic Uncertainty and Recursive Rulemaking in European Union Electricity Regulation’ (2021) 15 Regulation & Governance 822. 153 See Oliver Gerstenberg, Euroconstitutionalism and Its Discontents (OUP 2019). 154 Urbinati (n 146) 65. 155 Rosanvallon, Democratic Legitimacy (n 1) 224. 156 Rosanvallon, Democratic Legitimacy (n 1) 215, 119. 157 Ibid. 151

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consequence being partly usurped into a zone operating under claims to technical objectivity, independence, and impartiality, as well as possibly to particularity and reflexivity (the German Constitutional Court got its say, after all)—when in many Member States, including those most painfully affected, it was partisan politicization and electoral procedures that were vocally demanded.158

V. Conclusion In conclusion, the juxtaposition of Rosanvallon’s trajectory of the crisis and recovery of democratic legitimacy through new avenues with my discourse-historical narrative of shifting EU-official constructions of EU legitimacy has pointed to some important differences, in particular in the balance between electoral and bureaucratic legitimacy in the earlier years of integration. It has also found abundant similarities and interaction. The legitimation challenges specific to the EU constellation seem to have made it a particularly suitable playing field for experimentation with alternative modes of legitimation of the types that Rosanvallon discusses, which do at times almost read like a playbook for EU-official legitimation paradigms and public relation campaigns. Furthermore, the ways in which Rosanvallon’s modes of legitimation have played out in the EU context point to dangers connected to them, individually and as a whole: of highlighting openness, transparency, and closeness (proximity) over actual influence and control (People’s Europe, 1980s); of making democratic forms so complex (reflexive) that they become unintelligible and hence unaccountable; of emphasizing participatory democracy as in the top-down consultation of civil society organizations and organized interests at the expense of party democracy and the electoral representation of individual citizens (EU governance, 2000s); or of replicating bureaucratic logics that work to obscure choices and judgements behind claims to objectivity, independence, and impartiality, while claiming to overcome bureaucracy’s problems. The EU’s discursive history of legitimation thus serves to illustrate how efforts, or claims, to politicize the sphere of impartiality, reflexivity and proximity, and deliberation can be used strategically as an alternative to democratic procedures of voting and majority rule—even if, of course, electoral democracy cannot carry the weight of legitimating the EU on its own either. The challenge, as for modern democracy at large, lies in drawing the line between majoritarian politics and the ‘politics of impartiality’.

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Sternberg et al, Mutual Recognition (n 5).

PART II

AT T HE OR IGINS OF C ONST IT U T IONA L IM AG I NA RY— THE WOR K OF SE LE C T E D EUROPE A N C ON ST IT UT IONA LI ST S R EV ISIT E D

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Why Read The Transformation of Europe Today? On the Limits of a Liberal Constitutional Imaginary Jan Komárek

I. Introduction Most in the field of European studies would probably agree that Joseph Weiler’s article ‘The Transformation of Europe’, published first in 1991,1 has been one of the most influential pieces written on European integration and its law.2 But should we read the essay today? Is it a true classic, in the sense that despite its age it still speaks to us—today? The answer to this question relates to what I will call here ‘European constitutional imaginaries’—sets of ideas and beliefs that help to motivate and at the same time justify the European integration process and particularly its current form, the European Union as transformed by the series of crises that began in 2008. Reading Transformation today may help us understand the limits of liberal constitutional imaginary, on which Transformation builds, and which it helped to establish in the 1990s. Now, when ‘Western liberalism’ is on retreat,3 such critical reading may be indispensable for those who look for alternatives. Transformation is revealingly ambiguous about Europe. It partly builds on a constitutional imaginary that borrows from liberal, United States-inspired constitutionalism which resonated globally at the time of its publication in 1991.4 It was a structure for a new world order at the ‘end of history’5 that put emphasis on individual freedom, its juridical guarantees, and the free market. The unique context of that era made this imaginary particularly influential. There is a second part to the article, however, much more critical of the European Community’s development after the adoption of the Single European Act in 1986. Here Joseph Weiler builds on a different imaginary, which seems to contradict Transformation’s first, analytical part. It calls for building a community, rather than a unity, where ‘nationality and state affiliation of 1 Joseph HH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403. Throughout this chapter I refer to it as Transformation. 2 See particularly Miguel Poiares Maduro and Marlene Wind (eds), The Transformation of Europe: TwentyFive Years On (CUP 2017) 100. 3 Edward Luce, The Retreat of Western Liberalism (Little Brown 2017). 4 For a triumphalist statement illustrating this thesis see Bruce Ackerman, ‘The Rise of World Constitutionalism’ (1997) 83 Virginia Law Review 771. 5 See Francis Fukuyama, The End of History and the Last Man (Free Press 1992).

Jan Komárek, Why Read The Transformation of Europe Today? In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0006

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the individual, so divisive in the past’ will be removed ‘as the principal referent for transnational human intercourse’.6 European constitutionalism—of all sorts—was in decline after the failure of the Constitutional Treaty.7 The need to adopt a new constitutional settlement has not been seen as a further step in European integration, but as an obstacle better to be avoided. Remarkably, the recently published ‘Franco-German non-paper on key questions and guidelines for the Conference on the Future of Europe’ does not mention the word ‘constitution’ at all.8 This is hardly surprising if it is true that even a Treaty change must not be mentioned in the debate on the future of Europe.9 The decline of European constitutionalism however does not mean that we cannot learn from reading Transformation. To the contrary, uncovering the article’s ‘deep structure’, and resurrecting its imaginary, can help us avoid falling into the same traps, such as celebrating the European Court of Justice’s bold judgments concerning the rule of law crisis10 or making legalistic attempts to tackle the growing disagreement about constitutional fundamentals in the EU.11 This is the aim of this chapter, as part of a wider project that seeks to identify constitutional imaginaries of Europe. It also seeks to contribute to the debate on the crisis of liberal constitutionalism in the West.12 The chapter is structured as follows. Section II explains the central concept used here to shed new light on Transformation: constitutional imaginary. Section III provides a brief genealogy of Transformation, from a PhD thesis to an article published in a top US law review more than a decade later. This part also offers a critical reading of the whole essay, which prepares the grounds for section IV, where Transformation’s constitutional imaginary based on liberal-legalist ideology combined with a communitarian utopia is outlined. Section V addresses two additional components of Transformation’s imaginary: first, its rendering of European integration’s history, reduced to the narrative of Europe’s founding fathers’ reflective choice for Europe; second, the ignorance of the questions of political economy. The conclusion finally connects these findings to the current issues facing the EU and liberal constitutionalism as such.

6

Weiler (n 1) 2481. The Treaty establishing a Constitution for Europe, concluded by the high contracting parties in 2004, was rejected in the French and Dutch referenda in the following year. After a ‘period of reflection’ the European Council officially abandoned the ‘constitutional concept’—see Council of the European Union, Brussels, 20 July 2007, 11177/1/07, Brussels European Council of 21 and 22 June 2007, Presidency Conclusions, 15. On the whole process see eg Thomas Christiansen and Christine Reh, Constitutionalizing the European Union (Palgrave Macmillan 2009). 8 The link to the non-paper and related documents is available at accessed 22 June 2020. 9 See Maïa de la Baume, ‘Conference on the Future of Europe: Don’t Mention the T Word’ (Politico, 21 January 2020) accessed 22 June 2020. 10 See Armin von Bogdandy, ‘Principles of a Systemic Deficiencies Doctrine: How to Protect Checks and Balances in the Member States’ (2020) 57 Common Market Law Review 705, 712–13. 11 See R Daniel Kelemen, Piet Eeckhout, Federico Fabbrini, Laurent Pech, and Renáta Uitz, ‘National Courts Cannot Override CJEU Judgments: A Joint Statement in Defense of the EU Legal Order’ (Verfassungsblog, 26 May 2020) accessed 22 June 2020. 12 See Luce (n 3). 7

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II. Reading Transformation as a Constitutional Imaginary Before we turn to Transformation itself, we need to briefly define the key concept used here: constitutional imaginary.13 The term has been recently used by legal theorists14 and sociologists,15 each tapping into various intellectual traditions and disciplines. It is used here in a rather idiosyncratic way, which is based on these works but does not follow their definitions slavishly.16 I understand constitutional imaginaries as sets of ideas and beliefs that help to motivate and at the same time justify the practice of government and collective self-rule. They are as important as institutions and office-holders. They provide political action with an overarching sense and purpose recognized by those governed as legitimate. Constitutional imaginaries can be seen as ‘necessary fictions’ that make political rule possible,17 or as ideologies understood in (post-)Marxist terms as a ‘means of domination’.18 Constitutional imaginaries may conceal from citizens some negative impacts of their central principles. Unconstrained commitment to international free trade agreements (as part of a neoliberal imaginary)19 can make some people (feel) ‘left behind’— and dominated by those who profit from intensive international cooperation.20 Beneficiaries of such an imaginary may not even realize their domination—until it is revealed by a radical result in a referendum or a presidential election, as we saw after the Brexit vote or in the election of Donald Trump to the presidency of the United States.21 Constitutional imaginary is therefore built on a tension, recently explored by Martin Loughlin in his Chorley lecture at the LSE.22 Imaginary—both at the level of an individual person who is co-producing it, and at the level of a society where such imaginary forms part of its collective experience—is both ideological and utopian. It is 13 A note on terminology: some authors make a distinction between imaginary and imagination, or use the term imagery. In this chapter I use the first, without however committing to any of the possible distinctions. 14 See particularly Martin Loughlin, ‘Constitutional Imagination’ (2015) 78 Modern Law Review 1, who bases his account on Paul Ricoeur, Lectures on Ideology and Utopia (Columbia University Press, 1986). This has been the main inspiration for this chapter (and the whole project). 15 See Paul Blokker, ‘The Imaginary Constitution of Constitutions’ (2017) 3 Social Imaginaries 167. 16 For a more detailed—yet preliminary—exploration of the concept see Jan Komárek, ‘European Constitutional Imaginaries: Utopias, Ideologies and the Other’, IMAGINE Working Paper No. 1 (iCourts Working Paper Series, No. 172) accessed 22 June 2020. 17 See Yaron Ezrahi, Imagined Democracies: Necessary Political Fictions (CUP 2012) 37. 18 See Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (CUP 2000) 10. 19 See Andrew Lang, World Trade Law after Neoliberalism: Re-imagining the Global Economic Order (OUP 2011). 20 See eg Dani Rodrik, The Globalization Paradox: Why Global Markets, States, and Democracy Can’t Coexist (OUP 2011). 21 For a revealing reflection of this by ‘a member of elite’ see Robert Shrimsley, ‘Brexit Blues, or Life as a Victim of Democracy’ (Financial Times, 4 November 2016), who notes: ‘For many, myself included, the referendum was the first real example of democracy being something that is done to us’ (emphasis added). 22 Loughlin (n 14). For a very useful account of the relationship between ideology and utopia in the work of various thinkers see Lyman Tower Sargent, ‘Ideology and Utopia’ in Michael Freeden, Lyman Tower Sargent, and Mark Stears (eds), The Oxford Handbook of Political Ideologies (OUP 2013) Chapter 24.

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ideological since, in the interest of creating the society (or community), it suppresses the individual and her preferences, needs, or experience. Any belonging to the collective is such, the alternative being the aggregate of individuals, each different in their own sphere, not shared with others except through contracting.23 It is also utopian, since it gives the society a direction or horizon—although it remains out of reach. A number of central concepts—‘contested truths’—form part (not the whole) of a constitutional imaginary.24 They are essential to the practice of government, and yet unsettled. It is around them that important political (and also legal–constitutional) arguments turn—be it the nature of statehood and sovereignty, the constitution and its identity, democracy, rights (human and/or fundamental), institutions that implement and protect them, or others. As Edward Rubin notes in his attempt to provide a new constitutional imaginary for the administrative state of the twentieth century, ‘these words and concepts possess inherent ambiguities because they encompass our deepest value conflicts, and are sedimented with the multiple meanings that have been attached to them over many centuries of use’.25 They are part of the conceptual vocabulary of modern public law and politics.26 Lawyers, and especially more philosophically oriented lawyers with a foot in legal and political practice, are important co-producers of constitutional imaginaries.27 Joseph Weiler represents one of them—arguably the most influential in the two decades between 1989 and the beginning of the euro crisis in 2010. His intellectual trajectory is therefore of interest not only for biographical reasons. The development from Transformation (as published in 1991) to Weiler’s late writings on Europe exemplifies Europe’s constitutional path, its sonderweg.28 It is a path from Weiler’s hope (and belief) in supranational ‘integration through law’ of the 1980s to his critique of ‘integration through fear’29 made in the aftermath of the euro crisis. It therefore provides an ideal starting point for a much wider inquiry into European constitutional imaginaries (in the plural) that dominated the period from 1989 to 2008.

23 This of course refers to the communitarian critique of liberalism, a debate that was ongoing in the United States at the end of 1980s and of which Weiler was clearly aware—see Weiler (n 1) 2480. 24 See particularly Daniel T Rodgers, Contested Truths: Keywords in American Politics since Independence (HUP 1987) and Edward L Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton University Press 2005). Constitutional imaginary is formed by words—since law (similarly to politics) is ‘a linguistically constituted activity’ (see Terence Ball, James Farr, and Russel L Hanson (eds), Political Innovation and Conceptual Change (CUP 1989)). It however comprises images, architecture, visual arts, and many other artefacts. See eg Kathleen R McNamara, The Politics of Everyday Europe: Constructing Authority in the European Union (OUP 2015). 25 Rubin (n 24), 6. 26 Explored eg by Martin Loughlin, Foundations of Public Law (OUP 2010) or Ball et al (n 24). For an attempt in the context of European integration see András Jakab, European Constitutional Language (CUP 2016). 27 As Rubin (n 24) notes at 11: ‘scholarship can be understood ass an explicit expression of the conceptual process by which a modern society understands itself, and formulates its policies and plans.’ 28 Joseph HH Weiler, ‘In Defence of the Status Quo: Europe’s Constitutional Sonderweg’ in Joseph HH Weiler and Marlene Wind (eds), European Constitutionalism beyond the State (CUP 2003) 7–23. 29 Joseph HH Weiler, ‘Editorial: Integration through Fear’ (2012) 23 European Journal of International Law 1.

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III. The Essay: Interpreting and Making the Community Constitutional A. Transformation’s brief genealogy The original essay appeared in 1991, but was in fact a culmination of Joseph Weiler’s work on European integration that started in 1978. In that year, after graduating from the LLM programme of the Faculty of Law at the University of Cambridge, Weiler joined the project Integration through Law, led by Mauro Cappelletti at the European University Institute in Florence, as a research assistant.30 As the early correspondence between Cappelletti and Weiler shows, the latter’s interest in European integration was initially motivated by his concern with the Israel–Palestine conflict.31 As he wrote some years later in an article that resulted from this original interest, ‘[p]articularly inspiring [was] the rehabilitation, of which the European Communities Common Market [was] a major facet, that brought former enemies together in a regional joint venture’.32 Through Weiler’s involvement in Integration through Law (and other policyoriented projects conducted in Florence at that time),33 however, his focus was shifting more and more towards Europe, especially after having received very encouraging feedback from lawyers from within the field.34 The first elaboration of some major themes that form the core of Transformation then appears as a working paper of the EUI Law Department in 198135 and as an article published in the very first volume of the Yearbook of European Law in the same year.36 The Middle East

30 On the history of this project and Joseph Weiler’s role in it see Rebekka Byberg, ‘The History of the Integration through Law Project: Creating the Academic Expression of a Constitutional Legal Vision for Europe’ (2017) 18 German Law Journal 1531. I would like to express my deepest gratitude to Rebekka and her PhD thesis supervisor Morten Rasmussen for sharing with me the archive of Mauro Cappelletti, held by the Historical Archives of the European Union. 31 The original title of his dissertation was thus ‘The Potential Application of Supranational Principles in the Middle East’ and it was co-supervised by two Israeli scholars, Nathan Feinberg, then Professor Emeritus at the Hebrew University, and Professor David Vital of the Tel-Aviv University. See letter from Nathan Feinberg to Terence Daintith, 16 May 1982 and letter from Joseph Weiler to Mauro Cappelletti, 27 October 1980, both on file with the Historical Archives of the European Union, Mauro Cappelletti. 32 See Joseph HH Weiler, ‘Israel and the Creation of a Palestinian State: The Art of the Impossible and the Possible’ (1982) 17 Texas International Law Journal 287, 330. 33 Particularly Control of Foreign Policy in Western Democracies: A Comparative Study of Parliamentary Foreign Affairs Committees, research project directed by Antonio Cassese, University of Florence. See Joseph HH Weiler (with quantitative analysis by François Petry), The European Parliament and Its Foreign Affairs Committees (Oceana Publications 1982). It is worth exploring the very history of the EUI’s Department of Law of that time, and the influence that Integration through Law had on its future identity as the central institution promoting constitutional imaginary set in motion by Transformation. 34 See especially letter from Weiler to Cappelletti, 27 October 1980, where Weiler mentions expressly Neville Brown and Francis Jacobs. 35 ‘Supranationalism Revisited: Retrospective and Prospective: The European Communities after Thirty Years’, EUI Working Paper No. 2 accessed 22 June 2020. 36 Joseph HH Weiler, ‘The Community System: The Dual Character of Supranationalism’ (1984) 1 Yearbook of European Law 267. The PhD dissertation was defended only in June 1982, after these two pieces were published. It was entitled Supranational Law and the Supranational System: Legal Structure and Political Process in the European Community. The thesis is available at accessed 22 June 2020.

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never disappears from Joseph Weiler’s academic agenda, but it becomes rather marginal.37 Another important element in Transformation’s genealogy is a piece written as a reaction to political scientists’ and international relations scholars’ scepticism towards supranationalism and the prospects of European integration in general. Such scepticism was widespread at the time when Weiler worked on his doctoral dissertation.38 The conference of ‘Europeanists’ in Washington, DC in October 1980 was perhaps the moment when he realized the gap in the understanding of European integration between lawyers, such as him, and the other two disciplines. He therefore started to ‘teach’ the latter about the importance of law.39 The piece, and the entirety of Joseph Weiler’s encounter with the other two disciplines, was crucial for Transformation’s later scholarly influence. This is because what Weiler described as ‘the “constitutionalisation” of the Community legal structure’ was taken few years later (in the early 1990s) by a new generation of political science and international relations scholars (Anne Marie Slaughter, Andrew Moravcsik, Karen Alter and others) as something that correctly describes the state of law (which they, as outsiders to the discipline, could not independently assess, only accept).40 Transformation undoubtedly helped to put law and international cooperation/integration through law on the agenda of these disciplines.41 Eventually Transformation was published as part of the Yale Law Journal international law symposium, which had been organized to commemorate the journal’s centenary in 1991. Weiler was suggested to the student editors by Harold Koh, who then taught a course on international business transactions at Yale. One of the student editors recently recollected the spirit of the time: ‘ “International law” in a US academic institution was very different then than it is today. It was considered a speciality that most lawyers wouldn’t know much about or run into in their daily practice, but there was growing interest in the subject.’42 They did not expect that the essay would have that much impact outside the United States. There is a clear break in the middle of the essay, separating what may be seen as a more analytical part, building on all these earlier works published in the 1980s, and 37 The part of Weiler’s original research devoted to the Middle East was first published as Weiler (n 32) and later as a book, Israel and the Creation of a Palestinian State: A European Perspective (Croom Helm 1985). See also Ilan Greilsammer and Joseph HH Weiler (eds), Europe and Israel: Troubled Neighbours (Walter de Gruyter 1988). 38 Joseph HH Weiler, ‘Community, Member States and European Integration: Is the Law Relevant?’ (1982) 21 Journal of Common Market Studies 39. See also Weiler’s observations in Weiler (n 32), 331–33. 39 The piece referred to in n 38 begins (at 39), without reference, with a direct quotation from Stanley Hofmann, ‘Reflections on the Nation-State in Western Europe Today’ (1982) 21 Journal of Common Market Studies 21–37—‘as Stanley Hofmann aptly suggests, ‘[t]oday’s reality is complex and messy’. In one of the lectures in the Total Law course of 2006 Weiler referred to this conference as the moment when he realized the gap. 40 I owe this point to Karen Alter. See Morten Rasmussen and Dorte Sindbjerg Martinsen, ‘EU Constitutionalisation Revisited: Redressing a Central Assumption in European Studies’ (2019) 25 European Law Journal 251 for a view that in the actual legal and political practice this was far from true. 41 See particularly Anne-Marie Slaughter, Andrew S Tulumello, and Stepan Wood, ‘International Law and lnternational Relations Theory: A New Generation of lnterdisciplinary Scholarship’ (1998) 92 American Journal of International Law 367, which reviews this development. 42 Email to the author from Nancy Dickinson, Yale Law School, Class of 1991 (JD), 11/06/2020. I am very grateful to her for sharing these memories with me.

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the part entitled ‘Beyond 1992: Two Visions of the Promised Land: The Ideology, Ethos and Political Culture of European Integration’, added to this original analysis much later—probably when the essay was being drafted for the Yale Law Journal. If the nexus between law and politics of European integration was the primary focus of the first part, the second part deals with ‘the modern contribution of Europe to the civilization of interstatal and intrastatal intercourse’.43 The first part is very much about ‘equilibrium theory’ and European law’s authority, whereas the second argues for the vision of integration as a community rather than unity and concerns European law’s legitimacy. Both chiefly contributed to the vision of European Communities (and later the Union) as a constitutional entity, a view that became mainstream in the 1990s. It is for this reason that the focus of this chapter remains the version published in 1991. It was further published with afterwords in 1999 and 2017,44 when Transformation’s imaginary was already firmly embedded in European studies (and also practical politics). Weiler’s later works on European integration will occasionally be referred to, but the point of this paper is to understand Transformation’s role in setting up a constitutional imaginary that was dominant—at least in EU academic circles—from the 1990s until the failure of the Constitutional Treaty in 2005 and which, as will be discussed in the conclusion to this paper, still informs the view of many in the discipline. After briefly revisiting the content of the original essay, its imaginary will be unfolded in the following section.

B. 1958–92: Changing equilibrium between Exit, Voice, and Loyalty The analytical part of Transformation is organized in chronological order, distinguishing several periods in the EU’s development between 1958 and 1992. It uses a specific methodological tool to demarcate the different periods: the interaction between law and politics is presented as a changing dynamic between Selective Exit, that is, the possibility of an individual Member State to depart from the commonly agreed rules, and Voice, which stands for individual states’ power to influence the content of such rules. The concepts of Exit and Voice are taken from Albert Hirschman’s influential book Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States.45 Importantly, Weiler proposes ‘first to discuss in legal categories the Exit option in the European Community . . . [and] then introduce Voice in political categories’,46 a disciplinary distinction that has a bearing on the overall analysis, as I explain below. The ‘Foundational Period’ (1958 to mid-1970s)47 is marked by the gradual closure of Selective Exit (‘selective’ as it refers to ‘exiting’ from particular obligations resulting 43

Weiler (n 1) 2483. The first was published in Weiler’s collection of essays, The Constitution of Europe: ‘Do The New Clothes Have an Emperor?’ and Other Essays on European Integration (CUP 1999) 96–101; the other in Maduro and Wind (n 2), 333–51. 45 HUP 1970. 46 Weiler (n 1) 2412, emphasis edited. 47 Note the year with which the analysis begins: 1958—something I take issue with below in section 5. 44

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from the Community membership rather than leaving the Community altogether)48 and the related pressure by national governments to get an enhanced Voice. Weiler calls this interaction between Exit and Voice the ‘equilibrium theory’, which in his view could even be part of a general theory of international law-making . . . and posits a relationship between ‘hard law’ and ‘hard law-making.’ The ‘harder’ the law in terms of its binding effect both on and within states, the less willing states are to give up their prerogative to control the emergence of such law or the law’s ‘opposability’ to them. When the international law is ‘real’, when it is ‘hard’ in the sense of being binding not only on but also in states, and when there are effective legal remedies to enforce it, decision- making suddenly becomes important, indeed crucial.49

‘Hard law’ established in the Foundational Period was formed by ‘four doctrines that fixed the relationship between Community law and Member State law’:50 direct effect, supremacy, implied powers, and human rights. In Weiler’s view, these doctrines rendered the relationship between the Community and its member states ‘indistinguishable from analogous legal relationships in constitutional federal states’.51 The ‘constitutional federal state’ Weiler had in mind was most likely the United States, as some express references,52 but also less direct allusions dispersed throughout the text, suggest.53 The political side of the equilibrium gets comparatively less attention in the analysis of the Foundational Period. It focuses mostly on governments’ pressure to enhance their control over Voice, which materialized through the Luxembourg compromise.54 Already there, however, the essay raises some difficult questions about the legitimacy of the whole construct, especially the democratic deficit, consisting in the dominance of the executives over the decision-making process, and the lack of accountability of 48 In ‘Alternatives to Withdrawal from an International Organization: The Case of the European Economic Community’ (1985) 20 Israel Law Review 282, Weiler argues that unilateral withdrawal from the EEC is legally not permitted, although ‘it is unlikely that other Member States would use legal means to try and prevent such withdrawal’ (at 288). Moreover, it is not likely that a withdrawing member state would leave without protracted negotiations, given its embeddedness in the Community structures. 49 Weiler (n 1) 2426, emphasis in the original. For the reception of this theory in IR see eg Anne-Marie Slaughter Burley, ‘International Law and International Relations Theory: A Dual Agenda’ (1993) 87 American Journal of International Law 205, 234–35. 50 Weiler (n 1) 2413. 51 Ibid. 52 For example at 2403: ‘In public discourse, “Europe” increasingly means the European Community in much the same way that “America” means the United States’, at 2413: ‘Effectively, individuals in real cases and controversies (usually against state public authorities) became the principal “guardians” of the legal integrity of Community law within Europe similar to the way that individuals in the United States have been the principal actors in ensuring the vindication of the Bill of Rights and other federal law’, or at 2441, explaining the term ‘incorporation’ as ‘borrowed from the constitutional history of the United States’. 53 For example at 2443, where Weiler calls Article 235 TEEC the Community’s ‘necessary and proper provision’—whereas the US Constitution has its ‘necessary and proper clause’ in Article I, Section 8—or at 2481: ‘the life of the Community . . . is not logic, but experience’—alluding to the famous quote from the US Supreme Court Justice OW Holmes’ book, The Common Law (first published in 1881), which read: ‘The life of the law has not been logic: it has been experience.’ It is true that such allusions and invocations were most likely due to the place where Transformation was published—an American law review. 54 Weiler (n 1) 2423. The Luxembourg compromise gave every member state an effective veto over the decisions to be adopted by the Council, if they run counter to its ‘very important interests’.

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national governments. Weiler notes that ‘it was not simply the Voice of the Member States that was enhanced, but the Voice of “governments” ’55—at the expense of elected bodies. The Foundational Period is followed by the ‘Period of the Mutation’ of the Community’s jurisdiction, dated by Weiler from 1973 to the mid-1980s. While this period was ‘traditionally considered a stagnant epoch in European integration’,56 ‘another large-scale mutation in the constitutional architecture of the Community took place’,57 according to Weiler. This was because the Community started to intervene in far more policy areas previously left (or reserved) to the member states. This occurred through both expansion by legislation, principally through the generous use of the ‘implied powers clause’ (then Article 235 TEEC), and through the decisions of the European Court of Justice, which interpreted the scope of the Community’s competences rather generously. These ‘mutations’ led Weiler to engage in a number of normative reflections. First, he raised ‘the question of constitutionality’, which essentially amounted to questioning the collapse of the division of competences between the member states and the Community. The concern here seems to be the acceptance by ‘a new community of interpretation, in which the European Court and Member State courts play complementary roles’58 and, again, accountability. The second question was much deeper and had to do with the distortion of ‘the balance of social and political forces in the decisional game at both the Member State and Community level’.59 As we shall see, however, Transformation refrains from analysing these various forces—a feature of the essay (and, I would argue, of most of the scholarship which builds on Transformation’s constitutional imaginary) to which I will return.60 The final period examined by Transformation begins with the adoption of the Single European Act (SEA) and the launch of the 1992 internal market programme in 1986. The key change was the turn from unanimity to qualified majority voting introduced by Article 100a TEEC—a provision that was intended to have (and then actually had) a large impact on the overall decision-making structure of the Community.61 For Weiler this meant that ‘the foundational equilibrium, despite attempts to rescue it in the actual drafting of the SEA, seem[ed] to be shattered’.62 The combination of effects brought about by the two previous periods (hardening of their obligations and the loss of control over the Community’s jurisdictional limits) meant that ‘Member States thus face not only the constitutional normativity of measures adopted often wholly or partially against their will, but also the operation of this normativity in a vast area of public policy’.63 55

Ibid 2403. Ibid 2431. 57 Ibid 2431. 58 Ibid 2451. 59 Ibid 2453. 60 See section V. 61 Weiler (n 1) 2459. 62 Ibid 2462—the attempts mentioned by Weiler refer mainly to Article 100a (4), which provided for an exception from the general harmonizing measure. Weiler explains the limited use of it in the light of the overall decision-making structure in the Community. 63 Ibid 2463. 56

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This change brought about two challenges: one of compliance and the other consisting of the double challenge of ‘democracy’ and ‘legitimacy’.64 Regarding compliance, Weiler raises another concept inspired by Hirschmann’s book: Loyalty.65 In Weiler’s view, loyalty can replace the foundational equilibrium and ‘become the constitutional reflex of the Member States and their organs’.66 Importantly, ‘A Loyalty to the institution may have developed that breaks out of the need for constant equilibrium’,67 resulting in a lower pressure to enhance Voice in response to the further reduction of (selective) Exit. Regarding the challenge of democracy and legitimacy, Weiler argues that ‘[v]ery frequently in discourse about the Parliament and the Community the concepts of democracy and legitimacy have been presented interchangeably although in fact they do not necessarily coincide’.68 Here we get to one of the questions that Joseph Weiler has never ceased to ask with regard European integration. Although at times Weiler is rather sceptical as regards the usefulness of the concept of legitimacy,69 here he uses it to explain why the increase of powers of institutions that formally provide the Community with democratic legitimacy70 may in fact make matters worse when it comes to the Community’s social legitimacy—‘a broad, empirically determined, societal acceptance of the system’.71 Such legitimacy ‘occurs when the government process displays a commitment to, and actively guarantees values that are part of the general political culture, such as justice, freedom, and general welfare’.72 Drawing on the literature on political legitimacy in federal polities and international law,73 Weiler identifies the key problem of the increasingly powerful integrated Community in the ‘loss of democracy’ as perceived by citizens of individual member states, which have lost control over certain kinds of policies and see the Community as less responsive to their demands than their own governments. Such citizens do not accept the Community as their relevant polity, in which they would accept the decisions of a majority (contrary to what they habitually do in the context of their own national polities). In Weiler’s view, there are two ways to address this kind of legitimacy problem: The first is a visible and tangible demonstration that the total welfare of the citizenry is enhanced as a result of integration. The second answer is ensuring that the new integrated polity itself, within its new boundaries, has democratic structures. But more important still is giving a temporarily enhanced Voice to the separate polities.74

64

Weiler puts these two concepts in quotation marks himself. Hirschman (n 45). 66 Weiler (n 1) 2465. 67 Ibid. 68 Ibid 2468. 69 Joseph HH Weiler, ‘Epilogue: Judging the Judges—Apology and Critique’ in Maurice Adams et al (eds), Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Hart 2013) 235. 70 In the 1980s discourse of ‘democratic deficit’ the European Parliament was believed to be such an institution. 71 Weiler (n 1) 2468. 72 Ibid 2469. 73 See ibid 2466 in fn. 181 for the works cited by Weiler. 74 Ibid 2471, emphasis added. 65

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The two answers would today probably be presented as the need to provide for input and output legitimacy.75 The last sentence in the paragraph quoted above adds a particular twist, however: it suggests that generating social legitimacy is a process. To determine whether the enhanced Voice (which amounts to a veto by individual member state) is still necessary is a matter not of theoretical but of practical judgement.76 Weiler thus asks ‘whether the time is ripe for a radical change toward a more federal structure, or whether the process should continue in a more evolutionary fashion’.77 The question is left unanswered, but Weiler’s later opposition to the adoption of the ‘Constitutional Treaty’78 indicates what Weiler thought already in 1991: he rejected the radical change.

C. Beyond 1992: The ideology, ethos and political culture of European integration The final part of the original essay, entitled ‘Beyond 1992: Two Visions of the Promised Land: The Ideology, Ethos, and Political Culture of European Integration’, is devoted to the kind of reflection that the readers of Weiler’s work got used to in the 1990s.79 Weiler acts as a ‘living conscience’ of the integration process providing it with a very strong (and critical) moral (or moralizing) compass. Weiler reflects on the change quite openly: In the earlier parts of this chapter I rested my interpretation, as much as possible and at least in its factual matrix, on an ‘objective’ reality rooted in ‘empirical’ and consequently ‘refutable’ data. Likewise, my analytical moves were transparent enough to open them to rational critique. Obvious and inevitable limitations on the resulting ‘scientific objectivity’ of the chapter exist. Clearly, to give the most banal example, my own prejudices, overt and less overt, shaped the selection of factual data, and, of course, their perception and analysis. Readers are always better placed than the writer to expose those prejudices and discount them in assessing the overall picture. In turning to ethos, ideology, and political culture, the screening process of the ‘self ’ (my ‘self ’) plays an even bigger role in the narrative. To try to ‘document’ my assertions and conclusions here would be to employ the semblance of a scholarly apparatus where it is patently not merited. I do not, and cannot, claim to root this part of the chapter on the kind of painstaking research and complex tools that characterize the work of the social historian or the historical sociologist. Caveat lector!80

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On these notions see Fritz Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999). Weiler (n 1) 2471, fn. 192—Weiler’s approvingly quoting Robert A Dahl, ‘Federalism and the Democratic Process’ in James Roland Pennock and John W. Chapman (eds), Liberal Democracy XXV Nomos (NUY Press 1983), 106 77 Ibid 2472. 78 See ‘On the Power of the Word: Europe’s Constitutional Iconography’ (2005) 3 International Journal of Constitutional Law 173. 79 Collected in Weiler (n 44). 80 Weiler (n 1) 2474, fn. 195. 76

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It is telling that Weiler does not want to pretend that even the analytical part is completely free of bias. It reflects the crisis in social sciences that resonated throughout American law schools in the 1980s81—precisely at the time when Weiler left Europe and started his career there as a professor at the University of Michigan Law School, where he served as a successor to Eric Stein.82 A sort of ‘hermeneutic of suspicion’83 pervades the essay—and yet there are ideological elements that need to be highlighted in order to understand the effect of Transformation in terms of the particular constitutional imaginary it established. Weiler observes the absence of the right–left ideological debate in the Community (especially in the pre-1992 Community), while at the same time there is an ‘abundant discourse on the politics and choices of the integration model itself ’84 (translated into much more practical and salient questions, such as how much power to leave for the member states, or to particular institutions of the Community). Weiler predicted this state of things would change, since [a] ‘single European market’ is a concept which still has the power to stir. But it is also a ‘single European market’. It is not simply a technocratic program to remove the remaining obstacles to the free movement of all factors of production. It is at the same time a highly politicized choice of ethos, ideology, and political culture: the culture of ‘the market’.85

It is remarkable both how prescient—and at the same time how wrong—was Weiler’s prediction about the change in the terms of the debate. Europe was turning into a market society, a process few people reflected on in the period of the uncontested reign of neoliberalism (early 1980s until 2008).86 But even after the euro crisis many Europeans still contest ‘Brussels’ rather than international financial capitalism and the all-pervading market culture, which the EU represents, but certainly does not cause (alone).87 Turning from the analytical mode of the preceding parts of his essay, Weiler presents the utopian side of his constitutional imaginary, ‘the two competing visions of the promised land’—‘Europe as unity and Europe as Community’.88 The first shall result, ‘finally, in full political union, in some version of a federal United States of Europe’.89 But that is not the preferred option, and Weiler continues:

81 See Laura Kalman, The Strange Career of Legal Liberalism (Yale University Press 1996) Chapter 4 or Arthur Austin, ‘The Postmodern Infiltration of Legal Scholarship’ (2000) 98 Michigan Law Review 1504. 82 See Anne Boerger and Morten Rasmussen, ‘Transforming European Law: The Establishment of the Constitutional Discourse from 1950 to 1993’ (2014) 10 European Constitutional Law Review 199. 83 Duncan Kennedy, ‘The Hermeneutic of Suspicion in Contemporary American Legal Thought’ (2014) 25 Law Critique 91. 84 Weiler (n 1) 2474. 85 Ibid 2477. 86 See Vivien A Schmidt and Mark Thatcher (eds), Resilient Liberalism: European Political Economy through Boom and Bust (CUP 2013). 87 See Jan Komárek, ‘Waiting for the Existential Revolution in Europe’ (2014) 12 International Journal of Constitutional Law 190, 205–06. 88 Weiler (n 1) 2478. 89 Ibid 2479.

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The alternative vision, community, also rejects the classical model of international law which celebrates statal sovereignty, independence, and autonomy and sees international legal regulation providing a ‘neutral’ arena for states to prosecute their own (‘national’) goals premised on power and self- interest. The community vision is, instead, premised on limiting, or sharing, sovereignty in a select albeit growing number of fields, on recognizing, and even celebrating, the reality of interdependence, and on counterpoising to the exclusivist ethos of statal autonomy a notion of a community of states and peoples sharing values and aspirations.90

The key question—which is still relevant, almost thirty years since Transformation was published—is whether we can achieve such community with the kind of law analysed—and, as I will show, also created—in the first part of Weiler’s essay. Put into the key in which this chapter is written: can we build a community of states and peoples with a liberal-legalist constitutional imaginary? The following section seeks to answer this question, which goes to the very heart of not only Joseph Weiler’s work on European integration, but also much of the scholarship that builds on it.

IV. Communitarian Utopia with Liberal-Legalist Ideology Transformation seems to be embedded in two different—and, as will be shown, two conflicting—imaginaries. It appears as if the first, analytical, part of Transformation fought against the second, prescriptive part (which had been written and, more importantly, thought through at a later date). This may be a trite finding—why read it today, then (other than to learn that even great scholars may not be fully consistent in their thinking)? However, there is more at stake here. The tensions between the two parts of Transformation reveal something much more important: how the desire to build a community can be hampered by a liberal-legalist imaginary, which had first made it possible. The question for today therefore is whether the realization of the Community of Law (Walter Hallstein’s Rechtsgemeinschaft)91 can be prevented by the very law which at first had set the whole process in motion (and even made it possible to imagine). That is of course something far more important, and it should concern anybody who still invokes a liberal-legalist imaginary today—in Europe or even globally. It may suggest that the time has come to move away from this imaginary and search for something different. This section begins that task by first shedding more light on the notion of liberal legalism and its roots in the particular period of American law that Weiler entered when he moved from Florence to Michigan. Secondly, we will explore in more detail what makes (or has made) liberal legalism so attractive. In the third step, we move towards the communitarian utopia outlined by Transformation, and discuss how liberal legalism stands as an obstacle to it becoming a new constitutional imaginary.

90 91

Ibid 2479. See Kaarlo Tuori, European Constitutionalism (CUP 2015) 212–14.

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A. Transformation’s liberal legalism Overall, despite being written about Europe, Transformation is embedded in the American culture of liberal legalism that had been dominant at law schools in the United States until the mid-1980s.92 As the legal historian Laura Kalman describes it, ‘legal liberalism’ refers to ‘trust in the potential of courts, particularly the Supreme Court, to bring about “those specific social reforms that affect large groups of people . . . in other words, policy change with nationwide impact” ’.93 It reflected the apparent success of the Warren Court in the Civil Rights Revolution of the 1960s,94 the third ‘constitutional moment’ in the constitutional history of the United States.95 Kalman uses the term legal liberalism rather than liberal legalism, since she finds the latter, ‘as a political and legal liberal . . . unduly pejorative’.96 There is however a deeper distinction between the two. Kalman’s politics is liberal, in the sense that would be probably identified with the politics of the Democratic Party today.97 Legalism, and liberal legalism in particular, has been the term used by critics who may have had all sorts of politics in mind, however, some of them rejecting the constitutional system of the United States and the kind of politics (and political economy) it has helped to sustain completely.98 Related to the exalted role for the Supreme Court, there are a number of other assumptions made by liberal legalism: that law and politics are and should be separate, that legal judgments should be made impartially and should adhere to rules articulated and known in advance, that power should be exercised in accordance with the rule of law, that governments should

92 See Nomi Maya Stolzenberg, ‘Book Review: A Book of Laughter and Forgetting: Kalman’s “Strange Career” and the Marketing of Civic Republicanism’ (1998) 111 Harvard Law Review 1025, 1025, an extensive review of Kalman (n 81). ‘Dominance’ does not mean that it was the only approach to law during that time. Another review of Kalman’s book is titled, tellingly, ‘Legal Liberalism at Yale’ (Stephen M Griffin [1997] Constitutional Commentary 535–55) and characterizes (at 535) the book as ‘an account of the reaction of ten legal scholars to the Supreme Court’s conservative turn in the 1970s and 1980s’. For several decades, however, liberal legalism framed the terms of the debate over the Constitution—even if its conclusions (and prescriptions) were hotly contested by its opponents. See also Steven M Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (PUP 2008) for an account of how the liberal dominance provoked a counter-movement. 93 Kalman (n 81) 2, emphasis in the original, quoting from Gerald Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (University of Chicago Press 1996) 4. This latter book was one that helped to shatter that trust with a rigorous empirical analysis of the impact of some key Supreme Court decisions on American society. 94 See Kalman (n 81) Chapter 1. 95 ‘Constitutional moment’ was the term coined by one of the prominent legal liberals, Bruce Ackerman, in his influential trilogy We the People. For a critical review see Michael J Klarman, ‘Constitutional Fact/ Constitutional Fiction: A Critique of Bruce Ackerman’s Theory of Constitutional Moments’ (1992) 44 Stanford Law Review 759. 96 Kalman (n 81) 265, fn. 52. 97 Ibid 247, fn. 1, refers to William A Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (CUP 1991). 98 See ibid 85–86. For a representative collection of essays dealing critically with liberal legalism, as represented by Ronald Dworkin’s Law’s Empire (Belknap Press 1986), see Alan Hunt (ed), Reading Dworkin Critically (Berg 1992).

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recognise and respect rights, and that freedom rather than equality should be the highest political value.99

At first, it seems that Transformation aims at going beyond the legalist ideology exposed by its critics. Weiler seems to have taken a proper lesson from the (now rather over-quoted) observation by the US political scientist Martin Shapiro, for whom most writing on Community law represent[ed] ‘constitutional law without politics’, ‘a stage of constitutional scholarship out of which American constitutional law must have passed about seventy years ago’.100 However, ‘constitutional law without politics’ is only replaced by liberal legalism,101 which makes much of its politics invisible and closes it to contestation. First, the analytical part of Transformation exhibits the trust in courts (especially the European Court of Justice, or ECJ) similar to that of legal liberals discussed by Kalman. Consider, for example, the following observation concerning the role of courts in the ‘Foundational Period’ and the question of how the profound changes of that period could ‘occur with a minimal measure of political (i.e., Member State) opposition’: Part of the answer rests, of course, in the fact that constitutionalization during the foundational period was judicially driven, thus attaching to itself that deep- seated legitimacy that derives from the mythical neutrality and religious-like authority with which we invest our supreme courts.102

Second, Transformation significantly overestimates the force of law (and legal institutions), when it assesses the impact of the ECJ’s rulings on the behaviour of other actors:

99 Austin Sarat, ‘Going to Court: Access, Autonomy, and the Contradictions of Liberal Legality’ in David Kairys (ed), The Politics of Law: A Progressive Critique, 3rd ed (Basic Books 1998), 97. 100 Martin Shapiro, ‘Comparative Law and Politics’ (1980) 53 Southern California Law Review 537, 538. Weiler quotes this passage in the opening pages to his PhD thesis (n 36, 1–2), where he states: ‘The primary goal of my own study will be precisely to meet this critique of, and challenge to, European legal literature.’ For a spirited reaction, which may be read as a response to Weiler too, see Anthony Arnull, ‘The Americanization of EU Law Scholarship’ in Anthony Arnull, Piet Eeckhout, and Takis Tridimas (eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (OUP 2008) 415–31. 101 It goes beyond the scope of this chapter to examine the influence of Joseph Weiler’s move to the United States; another indication of that influence, however, may be the title of an article that dealt with the legitimacy of the ECJ: ‘Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities (1986) 61 Washington Law Review 1103, whose title is clearly inspired by John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (HUP 1980), one of the most influential defenses of the Warren Court and its liberal legalism. 102 Weiler (n 1) 2428. One may question to what extent this exalted role given to courts could fit the Europe of the 1960s or 1970s. With the possible exception of the German Federal Constitutional Court, which had been only slowly building its authority at that time (see Justin Collings, Democracy’s Guardians: A History of the German Federal Constitutional Court, 1951–2001 (OUP 2015) Chapter 2), courts had been seen in Europe as bodies possessing the kind of formal–legal rationality that made them almost part of state bureaucracies. There was nothing mystical or religious about them. For extremely pertinent legal–cultural observations concerning the US and France, see Antoine Garapon and Ioannis Papadopoulos, Juger en Amérique et en France: Culture juridique française et common law (Odile Jacob 2003).

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A national court opinion takes care of the most dramatic weakness of the Article 169 procedure: the ability of a Member State, in extremis, to disregard the strictures of the European Court. Under the Article 177 procedure this disregard is impossible. A state, in our Western democracies, cannot disobey its own courts.103

Third, law is portrayed throughout Transformation as a means to close the ‘Selective Exit’: in other words, to constrain member states’ freedom of action. However, law does the opposite too—it makes politics possible by structuring its processes and creating institutions where politics can be conducted.104 It is misleading to portray the law as something that only limits the ‘Voice’ of (international) politics. Law is one of the languages that the Voice speaks—and has impact on what is going to be prescribed. The kind of law used to express politics then influences policy outcomes, and, more widely, the whole culture in which law is embedded. In the case of the EU, it is sometimes compared to the American culture of ‘adversarial legalism’: a regulatory style that relies on litigation as the key mode of governance.105 It puts emphasis on individual rights and lawyers who defend those rights in front of courts. It fits the kind of politics that is possible in the EU—but also constrains it in ways that Transformation probably did not see.106 There are other markers of liberal legalism in the essay: the emphasis on judicial remedies as a measure of constitutionalization;107 the reference to the human rights scrutiny as a ‘surrogate’ for democracy;108 or the praise for the Court for its ‘stepp[ing] in to hold the construct together’ when the ‘political will among the Member States to follow the decision-making processes of the Treaty and to develop a loyalty to the European venture’ was declining.109 One may even argue that the key methodological premise of the analytical part (Weiler proposes ‘first to discuss in legal categories the Exit option in the European Community [. . . and] then introduce Voice in political categories’)110 is based on an 103 Weiler (n 1) 2421, emphasis in the last sentence added. Article 169 refers to what is now Article 258 TFEU setting out the infringement procedure, whereby the Commission can take a Member State failing in its obligations under EU law to the ECJ. Article 177 is now Article 267 TFEU, concerning the preliminary ruling procedure, whereby a national court may (and sometimes must) refer questions concerning EU law to the ECJ. Transformation adds that ‘the attempts of Member States to practice selective Community membership by disregarding their obligations have become regularly adjudicated before their own national courts’ (at 20) and ‘The combination of the “constitutionalization” and the system of judicial remedies to a large extent nationalized Community obligations and introduced on the Community level the habit of obedience and the respect for the rule of law which traditionally is less associated with international obligations than national ones’ (at 21, emphasis in the original)—these were unproven propositions in 1991 and they remain so today. 104 See especially Martin Loughlin, Political Jurisprudence (OUP 2017), 20. For this point made in the context of EU law see Gráinne de Búrca, ‘Rethinking Law in Neofunctionalist Theory’ (2005) 12 Journal of European Public Policy 310, 319. 105 On the notion see Robert A Kagan, Adversarial Legalism: The American Way of Law (HUP 2001). R Daniel Kelemen, Eurolegalism: The Transformation of Law and Regulation in the European Union (HUP 2011) makes this analysis in the context of EU law. 106 See Scharpf (n 75). 107 Weiler (n 1) 2419: ‘The constitutionalization claim regarding the Treaties establishing the European Community can only be sustained by adding one more layer of analysis: the system of judicial remedies and enforcement’ (emphasis added). 108 Ibid 2417: ‘This scrutiny is important given the “democracy deficit” in Community decision-making.’ 109 Ibid 2425. 110 Ibid 2411–12, emphasis added.

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idea of the autonomy of law from politics, which came under attack from many sides. Legal liberalism had been in deep crisis precisely in the period when Transformation was being turned from a PhD thesis into one of the most influential pieces on European integration. Laura Kalman, mentioned above, describes the crisis as coming mainly from within: from the continuous failure to find some ‘objective’ grounds for interpretation of the Constitution; from the realization, prompted by hermeneutics and the linguistic turn in philosophy, that legal scholars are inevitably part of the game of the creation of the law’s meaning, no matter how ‘scientifically’ they want to work and how detached from the object of their analysis they want to appear; and finally, from the kind of politics promoted by the successors to the Warren Court, which ceased to be ‘liberal’ in the sense preferred by Kalman and the legal liberals discussed by her.111 Weiler seems to be acutely aware of all these problems with legal liberalism and yet does not want to give up its goods, especially the establishment of the formal rule of law into the relationships among the Member States and their citizens—no small achievement in post-war Europe. But there is more to liberal legalism than this, which is what makes it so hard to abandon it, as the following section shows.

B. Liberal legalism’s ideology: creating the community of law Weiler himself characterizes the ‘concept of law’ employed in Transformation in the following way: ‘my synthesis and analysis are truly in the tradition of the “pure theory of law” with the riders that “law” encompasses a discourse that is much wider than doctrine and norms and that the very dichotomy of law and politics is questionable.’112 The rejection of the dichotomy between law and politics does not imply the critical legal studies (CLS) credo ‘all law is politics’—and therefore illegitimate. Rather, it maintains the legitimacy of law by embracing—and internalizing—its political element. At the same time, it insists that law has its own rationality and that it is able to shape action and exercise agency autonomously from politics conducted outside the legal system. This idea is expressed by Weiler’s reference to the autopoietic theory of law, which to him ‘acknowledges a much greater role to internal discourse of law in explaining its evolutionary dynamics’.113 External events are said to be ‘mediated through the prism of the system and do not have a reality of their own’.114 In my view, however, Weiler does not subscribe to systems theory any more than he does to the pure theory of law.115 The important point he wants to make is one about the power of legal discourse—even on those who are its subjects and seasoned

111

See Kalman (n 81) Chapter 4. Weiler (n 1) 2409. 113 Ibid 2410, fn. 15. Weiler was probably influenced by a colleague at the EU, Günther Teubner. See Günther Teubner (ed), Autopoietic Law: A New Approach to Law and Society (Walter de Gruyter 1988), collection of essays produced at the EUI. 114 Weiler (n 1) 2410, fn 15. 115 On this point see also Jakob VH Holtermann and Mikael Rask Madsen, ‘Toleration, Synthesis or Replacement? The “Empirical Turn” and its Consequences for the Science of International Law’ (2016) 19 Leiden Journal of International Law 1001, 1008–09. 112

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practitioners. Law is something that transcends them—and has effects on them. In short, law (and legal doctrine) is ideological. As noted in section II above, ‘ideology’ is not taken in a pejorative sense as a ‘false consciousness’, which needs to be displaced by some enlightened reason. Ideology, as part of constitutional imaginary, is inevitable, as it makes collective rule possible. It forms part (together with culture, language, and social institutions) of what Jack Balkin calls the ‘objective aspect of social life’, which constrains social actors, including lawyers (in practice and academia alike).116 Ideology makes law intelligible (as it hides the contradictions on which law is built and turns law into a coherent system) and provides legal actors with a sense of constraint.117 The problem with ideology, however, is that very often its partisan (and partial) character is not realized and reflected upon. The prevailing view in the ‘community of interpreters’ (a term also employed by Transformation) will be considered as ‘moderate’ or ‘balanced’, whereas ‘persons who deviate too much from the political norm are seen as ideologically driven or “radical”, or even “unreasonable” ’.118 Transformation oscillates between the liberal trust in courts (and law and legal rationality) and its critique. This reminds one of what Duncan Kennedy termed ‘the Paradox of American Critical Legalism’: ‘an odd combination of utter faith and utter distrust in law.’119 One of the central preoccupations of this kind of legalism was to maintain the distinction between law and politics (and courts and legislators), even in the context of ‘high stakes’, since too much—for both sides of the conflict (described by Kennedy as liberals and conservatives)—has stood on maintaining such distinctions. Put succinctly, ‘if [Americans] did not have a common civic religion of law their heterogeneous society might fly to pieces’.120 Belief in law holds America together. Transformation exhibits this paradox too. Although it puts the law and politics nexus (and the relationship between the ECJ and national governments) at the heart of its analysis,121 it does so in a way that in fact makes the understanding of this relationship dependent on normative assumptions about law and politics that are never fully revealed. The reason for this may consist in Joseph Weiler’s faith in the integration project as a new way to organize inter-state and inter-human relationships, the hope with which he came to study Europe.122 This, however, is not only due to such faith. As I will argue, it is inevitable if we understand Transformation as a ‘law piece’, rather than one about law.123 In other

116 Jack M Balkin, ‘Ideology as Constraint’ (1991) 43 Stanford Law Review 1133, 1143 (a review essay on Andrew Altman, Critical Legal Studies: A Liberal Critique (Princeton University Press 1999)). 117 See Balkin (n 116) and also Jack M Balkin, ‘Taking Ideology Seriously: Ronald Dworkin and the CLS Critique’ (1987) 55 UMKC Law Review 392, especially at 423–26. 118 Balkin (n 116) 1152. 119 (1997) 3 European Law Journal 359, 359, reprinted from Chapter 4 of Duncan Kennedy, A Critique of Adjudication [fin de siècle] (HUP 1997). 120 Kennedy (1997, n 119) 361. 121 The whole ‘equilibrium theory’ and the periodization of European integration stands on it. See n 49. 122 See the text at n 32. 123 This refers to the distinction between ‘law books’ and ‘books about law’—see Richard A Abel, ‘Law Books and Books about Law’ (1973) 26 Stanford Law Review 175.

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words, we must understand it as primarily a legal argument written for lawyers, not an ‘external analysis’ intended solely for the scholarly discourse.124 When Transformation says that constitutional discipline was introduced to the relationship between the Community and its member states or that ‘[o]ne by one, the highest jurisdictions in the Member States accepted the new judicial architecture of Europe’,125 it does not provide a mere analysis. It contributes to the discipline’s actual working, together with its acceptance by member state courts and their institutions. This is further exemplified by several argumentative moves, such as the one about the almost logical inevitability of direct effect and supremacy in the construction of the Community’s legal order. Consider this note, made by Weiler on this account: ‘If one accepts, as one must, the principle of the uniform application of Community law throughout the Community, a clear link exists whereby a holding of direct effect compels a holding of supremacy.’126 Uniformity in application of Community law is used as an axiom, on which everything else stands—regardless of its dubious implementation in most legal orders.127 Such ‘internal’ analysis is insufficient, however. Transformation builds on constitutionalism’s appeal as a ‘higher law’, not in terms of hierarchy, but as a civilizational achievement which stands on deep ideas and not ‘mere’ legal technicalities and bureaucratic rationality. Alexander Somek’s recollection of his first reading of Transformation speaks a great deal about the understanding of Community law among those yet uninitiated (that is, those who have not read Transformation): From the pillar structure all the way down to the exposition of the co-decision procedure, I felt reminded of the most insufferable quarters of administrative law or commercial law. Not a trace of constitutional ideals, not even the cosmopolitan spirit of public international law. All that I encountered was the grey in grey of bureaucracy.128

Then, Somek adds, a colleague suggested to read Transformation and Somek ‘beg[a]n viewing the Union from the perspective of political philosophy’.129 The Union and its law suddenly appeared colourful and worth attention.130 It thus may be paradoxical to understand the enduring influence of Transformation only in terms of its analysis. Its aesthetics and, one may say, phenomenology—both in terms of the picture of European integration it offered and also as regards the style in which the essay is written—were equally important.131 124 For how problematic this distinction can be, see Charles L Barzun, ‘Inside-Out: Beyond the Internal/ External Distinction in Legal Scholarship’ (2015) 101 Virginia Law Review 1203. 125 Weiler (n 1) 2418. 126 Ibid 2424, fn. 49, emphasis added. 127 See Jan Komárek, ‘ “In the Court(s) We Trust?” On the Need for Hierarchy and Differentiation in the Preliminary Ruling Procedure’ (2007) 32 European Law Review 467, 471–72. 128 Alexander Somek, ‘Unity and Community: A Tale of Two Monsters and One Unanswered Question’, in Maduro and Wind (n 2) 249. See also Julio Baquero Cruz, ‘Joseph Weiler and the Experience of Law’ in Maduro and Wind (n 2), 139. And the same applies to the author of this paper . . . 129 Somek (n 128) 250. 130 See eg Alexander Somek, Individualism: An Essay on the Authority of the European Union (OUP 2008). 131 Phenomenology is concerned with subjective experience—and is therefore not currently very popular in the study of law, which is geared towards more positivistic social science. That is a mistake. For an exploration of EU law in this vein see ‘Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination’ (2003) 9 European Law Journal 14.

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Liberal legalism may persuade many lawyers (as it has done), and some others too. For Weiler (at least the Weiler writing Transformation), however, this has never been enough. Hence the turn in the middle of the essay to ‘ideology, ethos and political culture of European integration’, where analysis gives way to an argument about the very nature and purpose of European integration. The realist analysis of politics as power and interests in the EU (the ‘Voice’) is replaced by political moralism or even political theology.132 As will be shown, however, it still remains attached to the liberal-legalist ideology, which is never fully overcome.

C. Communitarian Utopia Drawing on Maarti Koskenniemi’s From Apology to Utopia,133 Weiler observes that ‘the classical model of international law is a replication at the international level of the liberal theory of the state’,134 whereas the state ‘is implicitly treated as the analogue, on the international level, to the individual within a domestic situation’.135 For Weiler, ‘[t]he idea of community is thus posited in juxtaposition to the international version of pure liberalism and substitutes a modified communitarian vision’.136 Here, Weiler is concerned with two huge conceptual (and practical) leaps at the same time: first, redefining inter-statal relationships, at least among the member states of the Community, whereby each constituent part pursues simultaneously its own interest and the interest of the community, which is distinct from the former and not only its extension. This requires no less than a redefinition of the national self.137 At the same time, and much more profoundly, the community vision concerns the interpersonal level. Weiler refers to several provisions of the Treaty that seek to ‘remove nationality and state affiliation of the individual, so divisive in the past, as the principal referent for transnational human intercourse’.138 Weiler’s campaign against old nationalism and the nation-state is even more pronounced in his warnings against the ascendancy of the unity vision (which materialized with the Union’s attempt to adopt its own formal constitution): The potential corrosive effect on the values of the community vision of European integration are self-evident. Nationality as referent for interpersonal relations, and the human alienating effect of us and them are brought back again, simply transferred 132 I use this term purposively, since to some extent Transformation seems to be preoccupied not to use the conceptual categories brought to political sociology by Carl Schmitt. For an explanation why see Joseph HH Weiler, ‘Epilogue: Europe’s Dark Legacy. Reclaiming Nationalism and Patriotism’ in Christian Joerges and Navraj Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (Hart 2003), 389–402. 133 From Apology to Utopia: The Structure of International Legal Argument: Reissue with a New Epilogue (CUP 2005). 134 Weiler (n 1) 2479. 135 Ibid 2479. 136 Ibid 2480. 137 For a remarkable analysis of this process—as it has actually happened, although probably differently from what Weiler envisaged—see Christopher J Bickerton, European Integration: From Nation-States to Member States (OUP 2012). 138 Ibid 2480–81.

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from their previous intra-Community context to the new inter-Community one. We have made little progress if the us becomes European (instead of German or French or British) and the them becomes those outside the Community or those inside who do not enjoy the privileges of citizenship.139

In essence, what Weiler argues for here is a sort of cosmopolitan citizenship, where in some important sense people can make a community without circumscribing it by borders or exclusion.140 These, however, may simply be indispensable and no matter how much Transformation claims that the Community vision does not involve the negation of the (nation) state, it may be doing precisely that, while it does not (contrary to what Transformation seems to believe) substitute its achievements with something else. The ‘something else’, which is the Community vision of Europe, must not involve the creation of a European super-state or a new European nation and European nationalism: ‘It would be more than ironic if a polity with its political process set up to counter the excesses of statism ended up coming round full circle and transforming itself into a (super)state.’141 The question is, however, whether anything like this can ever succeed.142 No wonder that the major part of Weiler’s writing after Transformation is devoted to this issue—and still seems to be unresolved.143 More importantly, however, contrary to what Transformation claims, it remains embedded in ‘the international version of pure liberalism’, even when putting forward ‘a modified communitarian vision’ as a model for the EU.144 International law based on the ‘liberal doctrine of politics’ is not interested in states’ inner impulses; their values, identities, or reasons for their actions.145 Similarly to this, the liberal conception of the self and her autonomy is not concerned with the inner processes and beliefs of individuals. These are part of their private sphere and protected from encroachment by the public sphere, which is meant to provide space for free contracting among individuals, who, viewed from the outside, only have interests that need to be negotiated.146 139

Ibid 2482, emphasis in the original. For an incisive conceptualization of this problem, related directly to the discussion here, see Alexander Somek, The Cosmopolitan Constitution (OUP 2014) Chapter 5. 141 Weiler (n 1) 2481. 142 See Jan Komárek, ‘Rethinking Constitutionalism and Democracy . . . Again?’ (2019) 17 International Journal of Constitutional Law 992. 143 Most tellingly, compare Joseph HH Weiler, ‘Europe: The Case against the Case for Statehood’ (1998) 4 European Law Journal 43, replying to G Federico Mancini, ‘Europe: The Case for Statehood’ (1998) 4 European Law Journal 29, with Joseph HH Weiler, ‘Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy’ (2014) 12 International Journal of Constitutional Law 94, 102, where Weiler notes: ‘There were many, myself included, who shied away from Mancini’s remedy, a European state, and shied away from his contention that this remedy was the only one which was available.’ 144 See the text at n 136. 145 We must make an important terminological note: Koskenniemi’s analysis (and my argument here) is based on the history of political liberalism and its doctrine of politics, which also shaped international law. This ‘political liberalism’ must not be confused with what has become the ‘liberal theory of international relations’, represented by Anne-Marie Slaughter and, in the context of European studies, by Andrew Moravcsik. These are, contrary to what the idea of liberal autonomy and pluralism prescribes (peoples’ preferences as given and not to be shaped by public authority), based on an understanding of state preferences as those ensuing from their internal social processes. 146 For a critical analysis of liberal autonomy as ideology see David Weberman, ‘Liberal Democracy, Autonomy, and Ideology Critique’ (1997) 23 Social Theory and Practice 205. 140

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Transformation’s communitarian vision—although it concerns both states and individuals—is thus not able to see that the state-qua-individual, represented by the government, is in fact only a symbolic representation, which assumes unity when there are in fact conflicts running through it. Such unity, moreover, is only temporary, since it depends on a momentary constellation that gave rise to the expression of the state’s will at a given moment (when the government, for example, votes for a certain measure, or supports a fundamental change in the Community’s structure). Communitarian vision cannot account for changes within the state and the various conflicts that shape its international policy.147 Liberalism also assumes equality among individuals within its legal sphere, which means that individuals are equal in law—regardless of their actual social status or wealth.148 Translated to the doctrine of international law—and EU law as well—states are assumed to be equal and homogeneous. Transformation treats all of them as if they were the same, had the same reasons for participating in the integration project, and could influence EU policies in the same way. Germany is equal to Greece in this rendering, a picture that may fit legal prescriptions written in the Treaties,149 but not the actual political practice.150 Transformation’s notion of politics—which is mostly the politics of Member State governments vis-à-vis the Community—is based on interests. These interests are mostly reduced to each player’s desire to keep (or maximize) power in the decisional balance. Politics, which would allow for articulating such interests, is treated as something given, or, better put, existing as a matter of course. It is not something that needs to be generated by a complex processes and which is after all a major culturally and historically contingent achievement of a successful polity.151 This achievement may be seen in more descriptive, ostensibly neutral terms, such as the presence of necessary cleavages that generate politics, or a public sphere.152 More controversially, politics is possible only when exercised in a polity tied together by a common identity or ‘demos’,153 and its legitimacy (and durability) derives from some transcendental source—something that reaches beyond its participants’ life horizons.154 147 On this see also extremely pertinent observations by Bo Stråth, Europe’s Utopias of Peace, 1815, 1919, 1951 (Bloomsbury Academic 2016) 1–22. 148 For a critical account of this liberal construction (represented by Ronald Dworkin) see Colin M Macleod, Liberalism, Justice, and Markets: A Critique of Liberal Equality (Clarendon Press 1998). 149 ‘The Union shall respect the equality of Member States before the Treaties’—Article 4(2) TEU. 150 For a superb analysis of this question see Bickerton (n 137). 151 See especially Weiler (n 1), 2423–24, 2452–53, 2462–63. Weiler’s discussion of the ‘challenges of “democracy” and “legitimacy” ’ (see the text at n 68) is in line with this observation in that it focuses on democracy ‘measured by the closeness, responsiveness, representativeness, and accountability of the governors to the governed’ (Weiler (n 1), 2470). Nothing in this definition refers to the conditions of what makes ‘governors’ tied to the ‘governed’, or how the latter can understood themselves as a collective body. On politics (and democratic politics) as an achievement see especially Pierre Rosanvallon, ‘Toward a Philosophical History of the Political’ in Pierre Rosanvallon (Samuel Moyn ed and transl), Democracy Past and Future (Columbia University Press 2006) 59–76. 152 On these two notions of politics see various contributions in Thomas Risse (ed), European Public Spheres: Politics Is Back (CUP 2014). 153 As discussed (but not embraced) by Joseph HH Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’ (1995) 1 European Law Journal 219. 154 This last condition relates to the Schmittian notion of ‘political theology’—something that Transformation’s afterword from 2017 calls ‘political messianism’. On political theology and the attempts

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Transformation came about at a moment when these questions had only just begun to be debated by political scientists and within normative political (and democratic) theory dealing with European integration.155 The point of this and the following section of this chapter is therefore not to criticize Transformation for its lack of sophistication.156 That would be an anachronism going directly against the methodological presuppositions of this chapter. The aim here is different: to highlight the problematic elements that still survive in the constitutional imaginary created by Transformation.

V. Ideology Critique: Making Visible What Transformation Conceals As shown in the previous part, Transformation stands on two conflicting constitutional imaginaries. Moreover, each of them is incomplete: the first mostly consists of liberal-legalist ideology and does not offer any utopia (unless the rule of law—or more precisely, the rule by the ECJ—is considered one). Such utopia—the Union’s ‘promised land’—is offered by the second, communitarian imaginary. The traditional nation-state and international law, which deals with states, is replaced by a system in which states and people relate in ways that surpass nationality and the nation-state. This utopia, however, is tied to the liberal-legalist ideology with its conception of personhood and autonomy. It is made plausible only through remaining blind to a key issue that would need to be addressed: material inequality—among both Member States and their citizens, with their diverse histories and identities. What is offered instead, is a highly moralizing vision of a redefined national self, which ignores these key issues. The following two sections can be seen as an attempt at ideology critique—not in the sense that would condemn Transformation as ideological (since all social construction of reality is),157 but rather through revealing what its imaginary keeps from sight, or what gets distorted by it.158

to ground democratic legitimacy on other structures see Carlo Invernizzi Accetti, ‘Can Democracy Emancipate Itself From Political Theology? Habermas and Lefort on the Permanence of the TheologicoPolitical’ (2010) 17 Constellations 254. 155 See Richard Bellamy and Dario Castiglione, ‘Legitimizing the Euro-“Polity” and its “Regime”: The Normative Turn in EU Studies’ (2003) 2 European Journal of Political Theory 7, who note in the massive fn. 1, which lists this literature, that ‘By and large the lawyers promoted this turn, perhaps because law— especially constitutional law—is explicitly a normative order’. 156 To the contrary, by distinguishing (formal) democratic legitimacy and social (empirical) legitimacy, Weiler was able to challenge the then widespread belief that the democratic deficit rests in the lack of powers of the European Parliament (and can be cured by giving more powers to it). See Weiler (n 1) 2466–74. 157 See the text at n 116. 158 See Balkin (n 116) 1142. On such understanding of ideology critique see Matthias Lievens, ‘Ideology Critique and the Political: Towards a Schmittian Perspective on Ideology’ (2012) 11 Contemporary Political Theory 381, 394–95.

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A. History as argument Few people, if any, have ever noted that Transformation’s analysis of the integration process starts in 1958. This is remarkable given that the period between the establishment of the European Coal and Steel Community in 1951 and the European Economic Community (and Euratom) in 1957 (if one counts from the time when the respective treaties were signed) was characterized by a significant retreat of the high ambitions of supranationalism, symbolized by the complete erasure of the term from the text of the Treaty of Rome. This was done in order not to provoke hostility against the new organization, or so warned one of the ‘Founding Fathers’ of the European Economic Community (EEC), Paul-Henri Spaak.159 The same period saw the end of two ambitious integration projects: the European Defence Community and its corollary the European Political Community, both rejected by the French National Assembly in 1954.160 At the same time, however, the Schuman Declaration from 1950 is invoked in the second part of the essay, to support the view that the Declaration (and the Treaty of Paris) despite their economic content, are best seen as a long-term and transformative strategy for peace among the states of western Europe, principally France and Germany. This strategy tried to address the ‘mischief ’ embodied in the excesses of the modern nation state and the traditional model of statal intercourse among them that was premised on full ‘sovereignty’, ‘autonomy’, ‘independence’, and a relentless defense and maximization of the national interest.161

This reading of the Schuman Declaration presents one of the foundational myths of European integration: that it was intended primarily to address the excesses of the nation-state, exemplified by the war that exterminated a large part of Europe’s population, and that it sought to make a clear break with the past.162 It is of course a true part of the story, but only a part. It would give quite a different flavour to the project to say that it was also motivated by France’s desire ‘to ensure a reliable supply of high-grade coal from the Ruhr and thus to enhance the efficiency of its armaments industry’,163 as the political economist Barry Eichengreen put it. The historian Alan Milward’s assessment of the Monnet Plan—another foundational document from before 1958—is also blunt: ‘Far from being based on a liberal 159 See Bruno de Witte, ‘The EU as an International Legal Experiment’ in Joseph HH Weiler and Grainne de Búrca, The Worlds of European Constitutionalism (CUP 2011) 25. 160 On these two projects see Berthold Rittberger, ‘ “No Integration Without Representation”: European Integration, Parliamentary Democracy, and Two Forgotten Communities’ (2006) 13 Journal of European Public Policy 1211. 161 Weiler (n 1) 2478, emphasis in the original. 162 On a critique of such reading of the Declaration see eg Antonin Cohen, ‘Why Call It a “European Community”? Ideological Continuities and Institutional Design of Nascent European Organisations’ (2018) 27 Contemporary European History 326. 163 Barry Eichengreen, The European Economy since 1945: Coordinated Capitalism and Beyond (Princeton University Press 2007) 167.

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internationalism, the Monnet Plan was based on the crudest possible expression of mercantilist principles. It was aimed at seizing German resources in order to capture German markets.’164 Examining the true origins of the European Communities could therefore reveal that the motivations for establishing close economic cooperation between France and Germany were rather far from those presented in Transformation. Secondly, seen from Africa, the Treaty of Rome looked like an attempt by the declining colonial empires of Europe to maintain their control over ‘their’ territories.165 For Kwame Nkrumah, the first prime minister of Ghana, the Treaty ‘mark[ed] the advent of neo-colonialism in Africa’.166 Transformation glosses over this issue in the second afterword, first published in 2012: ‘Some old habits, such as the White Man’s Burden and the missionary tradition, die hard’, it notes, in quoting from the Schuman Declaration the following sentence: ‘With increased resources Europe will be able to pursue the achievement of one of its essential tasks, namely, the development of the African continent.’167 An additional piece of the geopolitical context was the role of the United States of America, with its desire to make Europe (or, better put, France and Germany) ready to stand at its side in an expected conflict with the Soviet Union and its satellites.168 The United States’ intention was, ‘through furthering the process of economic recovery in Western Europe, to develop a bloc of states which would share similar political, social, economic and cultural values to those which the United States itself publicly valued and claimed to uphold’.169 In Transformation’s narrative, the United States does not however play an important role at all (except for its constitutional imaginary, noted above). The key moment seems to be the one of European ‘founding fathers’ selfreflection, not their acceptance of ideas coming from outside.170 Finally, given that Transformation was published in 1991, the absence of discussion of 1989—the fall of the Iron Curtain and the momentum this provided for the transformation (with a small ‘t’) of Europe—is also remarkable. It may be due to the reluctance of the then twelve Member States to conceive the enlargement of the Community to the ‘Other Europe’, well documented by an early comment on Transformation

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Alan S Milward, The Reconstruction of Western Europe 1945–51 (Routledge 2005 [1984]) 104. Peo Hansen and Stefan Jonsson, Eurafrica: The Untold History of European Integration and Colonialism (Bloomsbury Academic 2014), 270. 166 Ibid quoting ‘Address to the Ghana National Assembly’, 30 May 1961. 167 Joseph HH Weiler, ‘The Transformation of Europe Revisited: The Things that Do Not Transform’ in Maduro and Wind (n 2) 333–51, 347. 168 See Mark Gilbert, ‘Partners and Rivals: Assessing the American Role’ in Wolfram Kaiser and Antonio Varsori (eds), European Union History: Themes and Debates (Palgrave Macmillan 2010) 171–77. 169 Milward (n 164) 94. Milward at 95 however adds the following qualification: ‘About so complex and varied a set of politico-economic relationships it seems vain to generalize. Yet it can certainly be said that the idea that the United States sought no extra political or economic gain in return for Marshall Aid is nonsense, that the idea that the gains achieved were so large as to have shaped the politico-economic future of Western Europe is nonsense also, that the gains made by the United States can only be judged in relation to specific issues and specific countries, and that the limitations to the exercise of American power and influence through the [European Recovery Programme] were subtle, complicated, but always present and often narrow. In the end it is, at least as far as Western Europe is concerned, for the story might be very different in Greece, those limitations that are the most striking aspect of the story.’ 170 In this relation it is interesting to note that the word ‘integration’ was promoted by the US chief of the European Economic Co-operation Administration, Paul Hoffman. See Stråth (n 147) 354. 165

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published in the same issue of the Yale Law Journal.171 But the absence of it in the later afterwords only reinforces the impression that Member States and even the idea of Europe remain a rather abstract idea, uprooted from their geopolitical and historical context. Based on the foregoing observations, one could conclude that Transformation is based on bad history, or that European post-war history got misused in its narrative. That would however miss the point. As argued above, Transformation is a piece written by a lawyer for lawyers. Lawyers do not study history: they use it as argument. As put most bluntly by a prominent legal historian from the United States, this would be ‘judging as history a use of the past that is not history but advocacy’.172 That historian continues: ‘The purpose of the advocate, unlike that of the historian, is to use the past for the elucidation of the present, to solve some contemporary problem or, most often, to carry an argument. It is the past put in the service of winning the case at bar.’173 Here the (selective rendering) of Europe’s past is put in the service of its successful transformation. For this to succeed, however, at least one more step is needed: one must ignore the political–economic dimension behind it.

B. The neglect of political economy There is one more profound element of Transformation’s version of European integration history. By rendering its origins in the post-war context, it makes it almost natural to see the primary motivation to pursue integration as the need ‘to address the ‘mischief ’ embodied in the excesses of the modern nation state’174 or even to see it ‘as the beginning of a process that would bring about [its] elimination’.175 It is however important not to lose sight of a longer-term perspective. Before ‘excessive nationalism’, there was the Great Depression and the crisis of inter-war capitalism, which gave rise to fascism and national socialism.176 Karl Polanyi has described this process in his Great Transformation, published in 1944.177 It echoed arguments made in the Weimar context by the social democrat and prominent constitutional theorist Hermann Heller, who took the view (already in 1928!) that ‘conditions of extreme socioeconomic inequality were incompatible with the survival of a constitutional democracy, because democracy requires a certain degree of social homogeneity, or at least the prospect of such, to sustain political legitimacy’.178 171 Romana Sadurska, ‘Reshaping Europe. Or “How to Keep Poor Cousins in (Their) Home”: A Comment on The Transformation of Europe’ (1991) 100 Yale Law Journal 2501. 172 John Phillip Reid, ‘The Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries’ in Ellis Sandoz (ed), The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law (Liberty Fund 1993) 214. 173 Ibid 215. 174 Weiler (n 1) 2478. 175 Ibid. 176 See Michael Wilkinson, ‘Authoritarian Liberalism: The Conjuncture Behind the Crisis’ LSE Legal Studies Working Paper No. 5/2018 accessed 22 June 2020. 177 Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Beacon Press 1957 [1944]) 71. For a summary of Polanyi’s analysis see Martin Höpner and Armin Schäfer, ‘Embeddedness and Regional Integration: Waiting for Polanyi in a Hayekian Setting’ (2012) 66 International Organization 429, 432–34. 178 Wilkinson (n 176) 13.

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The post-war elites however took lessons from another German liberal thinker, Karl Loewenstein, and his argument for ‘militant democracy’. As Michael Wilkinson puts it, ‘In constitutional enquiry, the focus undoubtedly was on the dangers of strong (unfettered) democracy, rather than, as Heller and Polanyi had warned, of unfettered capitalism and its tendency towards socio-economic inequality’.179 Transformation’s history of European integration is put firmly in this liberal tradition, repressing the memory of the Great Depression with that of the War. It confirms an avoidance of substantive questions of political economy, typical of most writing set in the constitutional imaginary established by Transformation. This observation opens up a whole set of issues that cannot be addressed here; it relates to the general neglect of political economy in the mainstream legal thinking of the West, which dates back to the post-war era and which has only recently, in the wake of the global financial crisis of 2008, started to change.180

VI. Conclusion: So, Why Read It Today? The short answer is: because Transformation’s imaginary and central ideas remain influential, without much reflection provided on the contradictions between liberal ideology and communitarian utopia. Moreover, the ideological effects of Transformation’s imaginary make us blind to issues that cry out for articulation. Only if we see through these contradictions and identify Transformation’s ‘blind spots’ can we begin to think of a different imaginary that may keep the European integration process going—although this does not necessarily mean that it becomes deeper or wider. This imaginary will have to be different from the liberal-legalist one, which still informs much thinking about a new order that will come ‘at the end of globalization’.181 Several incidents—events of the ongoing crisis of the EU—illustrate this need. The first is the crisis of authority in the EU and the increasing number of challenges to the ECJ’s prerogative to have the final say on questions of constitutionality in the EU. In reaction to the ruling of the German Federal Constitutional Court,182 which declared the ECJ’s judgment in Wiess ultra vires,183 a group of European academics composed a ‘joint statement’ condemning the German court and calling on the Commission to initiate infringement proceedings against Germany.184 There is no reflection on how such a legalistic approach may ever save the authority of the ECJ (and

179

Ibid 14. See also Stråth (n 147) 361. See particularly Michael Wilkinson’s numerous publications, eg ‘The Specter of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the European Union’ (2013) 14 German Law Journal 527; ‘Authoritarian Liberalism in the European Constitutional Imagination: Second Time as Farce?’ (2015) 21 European Law Journal 313 and ‘The Reconstitution of Postwar Europe: Liberal Excesses, Democratic Deficiencies’ in Michael Dowdle and Michael Wilkinson (eds), Constitutionalism Beyond Liberalism (CUP 2017) 38–79. 181 Stephen D King, Grawe New World: The End of Globalization, the Return of History (Yale University Press 2017). 182 BVerfG, judgment of the Second Senate of 5 May 2020, 2 BvR 859/15, paras 1–237 accessed 22 June 2020. 183 ECJ (Grand Chamber), judgment of 11 December 2018, Weiss and Others, C-493/17, EU:C:2018:1000. 184 See Kelemen et al (n 11). 180

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EU law), rather than escalating conflict further.185 The proposal on creating a special chamber of the ECJ, where European judges would sit together with their colleagues from national constitutional courts, fares only slightly better,186 as it assumes that the constitutional conflict in the EU can be solved in a legal way, by a judicial institution. The trust in courts to solve complex social problems—in other words, liberal legalism187—also informs some responses to the ‘rule of law crisis’, as the turn to illiberal authoritarianism is often called.188 The crisis gave rise to a number of rulings by the ECJ which have further shifted the balance of competences towards the Court.189 For some people ‘these decisions amount to a veritable stepping stone towards a “Union of values” and stand on a par with the Court’s constitutionalizing jurisprudence in van Gend en Loos and Costa/ENEL’.190 However, once again, this puts so much burden on law and legal institutions that they may not be able to bear it. Finally, the exalted moralism adopted by some actors in the course of the economic191 and migration crises192 simply overlooks the complex and complicated histories of the states that came to form the Union as it exists today. An imaginary of ‘peace and prosperity’ is not enough (if it ever was) to justify—and make invisible— the various dimensions of domination within Europe, especially if prosperity is given only to some while others suffer its opposite: austerity. The ‘old’ way of organizing relationships between individuals and their collectives—citizenship, statehood, social or welfare state based on bounded and not cosmopolitan solidarity—may seem to be lost. However, before we condemn them to the dustbin of history, we should seriously examine whether the alternatives are (not) such as to cover new forms of injustice and domination. Reading Transformation (and, of course, this chapter) may help us in this search.

185 For a much more reflexive contribution to the debate, which argued for the initiation of the infringement procedure, see Daniel Sarmiento, ‘An Infringement Action against Germany after its Constitutional Court’s ruling in Weiss? The Long Term and the Short Term’ (EU Law Live, 12 May 2020) accessed 22 June 2020. 186 Joseph HH Weiler and Daniel Sarmiento, ‘The EU Judiciary after Weiss—Proposing a New Mixed Chamber of the Court of Justice’ (EU Law Live, 1 June 2020) accessed 22 June 2020. The same idea was proposed by Weiler, together with Ulrich Haltern and Franz Mayer, in ‘European Democracy and its Critique: Five Uneasy Pieces’, EUI Working Paper RSC No. 95/ 11, at 46 (accessed 22 June 2020). 187 See the text at n 93. 188 For critical comments on this crisis see Jan-Werner Müller, ‘Reflections on Europe’s “Rule of Law Crises” ’ in Poul F Kjaer and Niklas Olsen (eds), Critical Theories of Crisis in Europe: From Weimar to the Euro (Rowman & Littlefield 2016) 161–75. 189 See Bogdandy (n 10) 712. 190 Ibid 712–13. 191 See Marion Fourcade, Philippe Steiner, Wolfgang Streeck, and Cornelia Woll, ‘Moral Categories in the Financial Crisis’ (2013) 11 Socio-Economic Review 601. 192 See eg Jan T Gross, ‘Eastern Europe’s Crisis of Shame’ (Project Syndicate, 13 September 2015), accessed 22 June 2020, who said that in the course of the migration crisis (in summer 2015) ‘Eastern Europeans have revealed themselves to be intolerant, illiberal, xenophobic, and incapable of remembering the spirit of solidarity that carried them to freedom a quarter-century ago’.

7

Messianism, Exodus, and the Empty Signifier of European Integration Alexander Somek and Jakob Rendl

I. Weiler’s Claim In a recent review of his own work,1 J.H.H. Weiler identified a further source that he believes to confer—de facto, but possibly also de jure—legitimacy on the European Union. Even though Weiler’s relevant observation is reminiscent of rhetoric that he has employed repeatedly in his work—such as the ‘promised land’2—it is only here that he specifies more clearly what it is that he has in mind by distinguishing the three sources of legitimacy that the EU seeks to tap.3 To the usual suspects of ‘input’ and ‘output’ legitimacy (democracy and accomplishments, respectively) he now adds a third, which he calls4 ‘Telos Legitimacy or Political Messianism whereby legitimacy is gained neither by process nor output but by promise of an attractive Promised Land’. Weiler’s major exhibit is the Schuman Declaration, which he regards as the equivalent of America’s Declaration of Independence. In his eyes, it seems to hold out a promise of redemption. Yet, while Weiler concedes that, unlike in the case of fascist and communist predecessors or monarchies and empires, the overall spirit of the Declaration is liberal and noble,5 the substance is messianic:6 ‘[A] compelling vision which has animated now at least three generations of European idealists where the “ever closer union among the people [sic] of Europe”, with peace and prosperity an icing on the cake, constitutes the beckoning promised land.’ The problem is that there is scarcely any substantive vision in the Schuman Declaration other than the promise of ‘world peace’ and the anticipation of incremental movement towards this end by achieving ‘de facto’ solidarity.7 There is, 1 Joseph HH Weiler, ‘The Transformation of Europe Revisited: The Things that Do Not Transform’ in Miguel Maduro and Marlene Wind (eds), The Transformation of Europe: Twenty-Five Years On (CUP 2017) 333–52. 2 See Joseph HH Weiler, The Constitution of Europe (CUP 1999) 86 (‘promised land’), 240–41 (on sitting under ‘vines and fig trees and lambs and wolves, the classic biblical metaphors for peace’). Amazingly, the same paragraph with the identical language on the role of peace in European integration reappears, with a new interpretation added, in the article cited in note 59. See p.347. See Micah 4:4: ‘but they shall all sit under their own vines and under their own fig trees, and no one shall make them afraid’; Isiah 11:6: ‘The wolf also shall dwell with the lamb, and the leopard shall lie down with the goat; and the calf and the young lion and the fatling together; and a little child shall lead them.’ 3 See Weiler (n 1) 337. 4 Ibid. 5 Ibid 346. 6 Ibid 347. 7 Here are the portentous words: ‘Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity.’

Alexander Somek and Jakob Rendl, Messianism, Exodus, and the Empty Signifier of European Integration In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0007

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interestingly, mention of the role that Europe ought to play with regard to the development of the African continent,8 but Weiler debunks this as an embarrassing reminiscence of ‘the White Man’s Burden’.9 In spite of the apparently meagre substance, Weiler claims to have unearthed something profound, for to him ‘it is readily apparent in the historical context . . . [that] the notion of peace as an ideal probes a far deeper stratum than simple swords into ploughshares’.10 It is a peace that, after enormous destruction and unspeakable atrocities, ‘required courage and audacity’.11 At a ‘deeper level’ it drew on, and combined, the Enlightenment heritage and the Christian tradition, which are both, even though having been frequently at odds with one another, of core significance for European civilization. While Enlightenment values provided the very rough outline of what ought to be done, Christian virtues made it possible to get the project off the ground. The civilized interaction among nations in a Kantian federation, which had been hitherto unthinkable, was brought about as a result of Christian attitudes of forgiveness and a firm belief in the powers of repentance and renewal.12 The most potent visions of the ‘idyllic “kingdom” ’13 were coalesced into one ideal of ‘ever closer Union’ that both the right and the left could embrace. According to Weiler, it is due to the pull of the messianic model that the European Union initially ignored democracy and human rights. The Schuman Declaration reveals a ‘thunderous silence’14 on these issues. The ‘let’s-just-do-it’ type of programme inspired a tireless activism of ‘praxis, achievement, ever expanding agendas’.15 But Weiler also reminds us that it is, generally, part of the ‘very phenomenology of political messianism’ that it ‘always collapses as mechanism for mobilization and legitimization’.16 The project collapses either for because it does not arrive at the promised land or by causing its own downfall when it is successful, for example, by giving rise to byzantine complexity.

II. The Original Polemical Concept It is not easy to extract from Weiler’s observation what the core of the allegedly messianic project is. It is, arguably, composed of a substance and by a form. The substance is ‘the ever closer Union among the peoples of Europe’ and the form is the admonition to move ‘forward’, even though it is unclear what it really takes to travel the road towards an ‘ever closer Union’.

8 See, recently, on ‘Eurafrica’ qua project to give African nations preferential treatment out of a sense of post-colonial responsibility, Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Harvard University Press 2018) 183, 197, 216. 9 See Weiler (n 1) 347. 10 Ibid 347. 11 Ibid 347. 12 Ibid 348. 13 Ibid 349. 14 Ibid 350. 15 Ibid 350. 16 Ibid 351.

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Disappointingly, though, this is not much for a messianic project to begin with. What is, therefore, somewhat surprising is Weiler’s outright disregard for the manner in which the term had been used so far among political scientists and historians of political thought. We sense that the term can be used in at least a polemical and a more nuanced fashion. If we are not completely mistaken, the concept of ‘political messianism’ goes back to Jacob Talmon, a Jerusalem-based political scientist writing mostly in the 1950s and 1960s. It is to him that we owe not only the polemical understanding of this concept, but also the minting of its close relative ‘totalitarian democracy’. Talmon introduces the concept of political messianism by setting out three distinguishing features.17 First, political messianism ‘postulates a preordained, harmonious and perfect scheme of things, to which men are irresistibly driven, and at which they are bound to arrive’. Hence, a movement is messianic only if it has a relatively clear vision of the future awaiting humanity at the end of times. Secondly, it recognizes ultimately only one ‘plane of existence’, namely the political. The political encompasses all human life and is its essence. No sphere of human activity is considered to be exempt from its reach and irrelevant for the coordinated pursuit of common objectives. Thirdly, political ideas are an integral part of an all-encompassing and coherent philosophy. Evidently, what Talmon has in mind is theories that claim to pass as scientific and serve as the backbone of socialist or authoritarian ideologies. It is obvious that the type of legitimacy that Weiler alleges the Schuman Declaration to tap does not at all coincide with Talmon’s conception. Not only does the Schuman idea give us no clue as to the final goal of integration,18 but it also does not suggest that the grip of the political is necessarily total. Even if the European Union may have made attempts to create committed Europeans, it has never endorsed a view of European men and women by contrasting them with, for example, typically Asian personalities (such as European rugged competitiveness, resilience, or imperviousness to pity). A ‘politicized’ system of education, though, would concern itself with human character. Finally, as Weiler himself suggests by pointing to the late marriage of Enlightenment rationalism and Christian virtues, European integration is not at all, and has never claimed to be, based on a certain theory of human nature and society. There is, however, one respect in which Talmon and Weiler converge; namely, in the broad manner in which they actually use the term ‘messianism’. According to Weiler, everyone whose actions are animated by a belief in a brighter future seems to count as politically messianic, at least as long as the pursuit of values such as democracy and human rights is treated as secondary with regard to this future. The pursuit of national prosperity at the expense of individual rights would, under such a description, qualify as messianic. This is, to say the least, a very broad use of the term. Talmon used, contrary to his own precise definition, the concept very broadly also in the successor volume to Totalitarian Democracy, namely Political Messianism: The Romantic Phase.19 It is in this book that he contrasts the occasional jacqueries and revolts of 17

See Jacob L Talmon, The Origins of Totalitarian Democracy (Mercury Books 1952) 1–2. It rather is, as Weiler himself indicated in the title of an article of his on the European Court of Justice, a journey to an unknown destination. 19 Jacob L Talmon, Political Messianism: The Romantic Phase (Secker & Warburg 1960) 26–27. 18

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peasants and labourers with messianic politics. In his view, the decisive distinguishing characteristic is that transient outbursts or upheavals do not avail of a programme or an ideal. This should change with the French Revolution, which marked a ‘turning point’ in this respect: An alternative programme was born. The dumb savage resentment changed into a realization of rights and into a Messianic expectation, the dread of riot into a never receding fear of some total upheaval. Every riot seemed a token of the approaching Day of Judgment.20

Evidently, Talmon becomes guilty of using the concept more broadly than would have been supported by his own approach.

III. The More Nuanced Concept Nevertheless, there is a more nuanced and quite intelligible way of speaking of political messianism. We owe this to Michael Walzer,21 whose work is also critical of Talmon’s broadly sweeping use of the concept.22 In his short book Exodus and Revolution, in which he explores the biblical beginnings of revolutionary politics, Walzer distinguishes carefully between a politics of the exodus and political messianism.23 The relation between the two is compounded by the fact that messianism is, arguably, a spin-off of the exodus and indeed a reaction by those who were disappointed in its result and its aftermath.24 According to Walzer, the exodus, which has its foundational myth in the Jewish egress from Egypt, is marked by a number of stages.25 It begins with a situation of oppression from which the people become eventually liberated. In the course of concluding a compact among themselves and—in the case of the original story—with God, they are transformed into a people.26 The story ends with the institution of a new political society. It is clear from the outset that in the aftermath of the founding, the people are bound to struggle constantly with the risk of backsliding into their old ways and readopting the mindset of the oppressed.27 The politics of the exodus may have utopian overtones since it promises ‘milk and honey’. It is also guided by a vision, for at the end of a process, the people would supposedly comprise a holy nation.28 Nevertheless, it is decidedly this-worldly in its overall orientation. 20

Ibid 27. Michael Walzer, Exodus and Revolution (Basic Books 1984). Ibid 145–46. 23 Ibid 16. 24 Ibid 146. 25 Ibid 133. 26 Walzer, ibid at 53, quotes Rousseau, who observed that it had been Moses’ achievement to transform a group of wretched fugitives into a people. 27 Ibid 141. 28 Ibid 109. The ‘holy nation’ stands for the affluence of Egypt without the corruption (40). It also means that material abundance is depended on the observance of ethical principles. It is supposed to be a kingdom of priests: ‘What is required of a holy nation is that its members obey divine law, and much of that law is 21 22

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This is the case for the following reasons: First, it is clear that reaching the destination—arriving at Canaan—does not involve a historical hiatus into a different aeon. Rather, it is a process that unfolds in historical time. It is, therefore, not immune to the vagaries of human affairs. Even though, in the course of the developing story, human beings must transcend themselves,29 what this means is that they have to overcome their slavish way of thinking and acting—with all its deference, cunning, ingratiation, alacrity, and insincerity. The Israelites have to begin to comport themselves like people who do not recognize a master and are capable of taking responsibility for themselves. Second, the arrival at the promised land does not alter human nature into something altogether different. Rather, even after the journey is completed, the new society has to be concerned with staying the course: God brings the Israelites out of Egypt, but they themselves must make the trek across the desert and conquer Canaan and work the land. And God gives the Israelites laws, which they must learn to live by. Since the laws are never fully observed, the land is never completely possessed. Canaan becomes Israel, and still remains a promised land.30

By contrast, political messianism—indeed, messianism itself—seems to have arisen out of disenchantment with the mundane soberness of this vision.31 Messianists believe that redemption involves a leap into another aeon.32 This leap is not to be brought about in the course of a gradual transition—a march through the wilderness—but rather as a result of a massive destruction of the world as it exists today. The messianic idea, at any rate according to Scholem, is closely associated with envisioning the apocalypse.33 The destruction wrought at the End of Days is considered to be the prelude to the coming of the King that will re-erect the Kingdom of David or, in a Christian reading, direct the new millennium. This explains why political messianists have no difficulty with perpetrating violent acts, for it is the means ‘to force the end’34 and to prepare mankind for the coming of the other and final age.35 What awaits humankind on the other side of history, which is thus marked by radical discontinuity, is not worldly Canaan but Eden,36 a paradise that is inhabited by spirits that possess

concerned with the rejection of Egyptian bondage. In such a nation, then, no one would oppress a stranger, or deny a Sabbath rest to his servants, or withhold the wages of a worker’ (108). 29

Ibid 65, 146. Ibid 102. 31 This, at any rate, is what we extract from Walzer, who views messianism as on the rise after the Babylonian exile. See ibid 16. 32 See Gershom Scholem, The Messianic Idea in Judaism and Other Essays on Jewish Spirituality (Schocken Books 1971) 5–6, 10–12. 33 Ibid 4–5. 34 See Walzer (n 21) 121. 35 Paradoxically, however, in the Jewish view people cannot trigger the coming of the Messiah. It is beyond their control. 36 Ibid 121. 30

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what Immanuel Kant would call a ‘holy will’.37 They do not experience moral laws and God’s commands as an alien constraint that they are bound to observe. Rather, they spontaneously want to enact in their deeds the common will. This conjures up the picture of a world of universal harmony, even if this harmony is essentially anarchical.38 Small wonder that in some Jewish versions of messianism the second aeon, the age of the Messiah, involves nothing short of recreating creation itself.39 According to Walzer, messianic promises are ‘heightened exodus promises’40—the exodus on steroids, as it were—for they mark the end of historical time, whereas, by contrast, the promise of the exodus comes with cautionary admonitions concerning backsliding and the necessity of periodical renewals.41 Political messianism, according to Walzer, seeks to bypass the long way through the wilderness and the interminable struggle for holiness:42 ‘History itself is a burden from which we long to escape: a deliverance not only from Egypt but from Sinai and Canaan, too.’ If it makes sense at all to transfer messianism to secular political projects—such as, choosing an obvious example, Leninism—the core idea is subject to a number of modifications, one of which is that political movements are believed to have the power to bring about the radical transformation that leads to the end of history. This end would be marked, conceivably, by the withering away of the state, the realization of a classless society, and economic abundance. Nevertheless, secular political messianism also has no problem with precipitating catastrophic events. It treats, as Talmon rightly suspected, politics as absolute and enemies as satanic, and regards compromise as impossible.43 As much as the messianic conception of time and its vision of a leap into a different dimension is fascinating and as much as these religious ideas have left an imprint on this-worldly political projects, we do not think that messianism is a terribly helpful category when it comes to classifying political projects. As the case of Talmon has shown, the use of the term tends to become too all-inclusive. What is more, it seems to share with ‘secularization’ the problem that Blumenberg identified for this notion, namely that it is a category of an alleged historical injustice.44 Secular forward-looking politics is charged with misunderstanding its true religious roots. This misunderstanding is then explained with reference to a set of semblances between religious and secular ideas. But we suspect that it is too facile to claim that the secular idea is merely the washed-out copy of the religious archetype. Often it does not reveal anything that would help us to improve our understanding of the secular idea. For example, the distinction between ordinary and absolute royal prerogative used to be explained with reference to God’s potestas ordinata and potestas absoluta.45 Whereas the first power 37 See Immanuel Kant, Groundwork of the Metaphysics of Morals (trans M Gregor and J Timmermann) (CUP 2012) 4: 414, 4: 439. For an introduction, see Robert Stern, Kantian Ethics: Value, Agency and Obligation (OUP 2015). 38 See Scholem (n 32) 20–21, 24. 39 Ibid at 30. 40 Walzer (n 21) at 124. 41 Ibid 131. 42 Ibid 136. 43 Ibid 147. 44 See Hans Blumenberg, Die Legitimität der Neuzeit (3rd ed, Suhrkamp 1997) 73–86. 45 See Francis Oakley, ‘Jacobean Political Theology: The Absolute and the Ordinary Powers of the King’ (1968) 29 Journal of the History of Ideas 323, 330–33; Francis Oakley, ‘The Absolute and Ordained Powers

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was supposedly manifest in the laws of nature, one encountered the latter whenever God worked miracles. Whether a reference to divine powers truly illuminates the powers of a monarch or whether the illumination is in fact mutual remains open to debate. At any rate, the interaction of these ideas casts into doubt the conviction dear to political theologians that core ideas of public law are essentially ‘secularized’ concepts. This more fundamental question aside—and returning to Weiler—two matters seem to emerge clearly enough. If anything, the EU is not a messianic project, not least because a messianic project cannot be liberal. The community of holies is not a liberal society, for it does not recognize sin. Sin would have disappeared from the face of the earth. Also, the Schuman plan never hinted at an end of history at which human relations would presumably take on an altogether different quality. What is more, if one contrasts—following Walzer—messianism with the exodus, one realizes why the latter may have been, if anything, a better allegory for describing the temporal structure of European integration. This, at any rate, is what Weiler did in 1999, when he referred to the Mosaic maxim of ‘we will do, and hearken’ in order to reconstruct the action-driven ethos of European integration or attempted to unpack the paradox inherent in a Covenant that is signed by slaves in blind faith for the purpose of exploring the temporarily deferred authority of the Treaties.46 Even the Golden Calf has made an appearance in earlier writings, in addition to the ubiquitous ‘promised land’. Indeed, what has always been part of both the more puzzling and more fascinating aspects of Weiler’s writings is the poignancy with which he redescribes European ambitions with concepts that are taken from the Hebrew Bible or what Christians call the Old Testament. It gives rise to a productive Verfremdung to see European integration described not only from the perspective of a powerful narrative that is one among many myths we can resuscitate in order to make sense of our own experiences, but that is also a central story for the people whose ancestors were brutally sidelined, persecuted, and eventually almost extinguished during the rise and fall of European civilization. There is much to recasting European integration from the perspective of a rich cultural tradition whose adherents had to suffer the most from the evil that unfolded on ‘the dark continent’,47 ranging from segregation, subjugation, and pogroms all the way down to the Holocaust. Weiler’s invocation of biblical sources suggests that even from the perspective of Europe’s age-old victims the project of integration can be perceived as a sign of progress. We had better understand Weiler’s religious analogues as humbling gestures. However, with this latest intervention, Weiler sells his own poetics short. Had he stuck to the exodus as his preferred model, he would not have ended in resignation but rather perceived Europe still on its march through the wilderness, with the people remembering the ‘fleshpots’ of their national traditions and ready to return to their old idols for consolation. What Europe would require, then, would amount to a renewal of

of God and King in Sixteenth and Seventeenth Centuries: Philosophy, Science, Politics, and Law’ (1998) 59 Journal of the History of Ideas 669. See also Glenn Burgess, Absolute Monarchy and The Stuart Constitution (Yale University Press 1996) 84, 158. 46 47

See Weiler (n 1) 5–7. See Mark Mazower, Dark Continent: Europe’s Twentieth Century (Penguin 1999).

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a covenant that promises to combine more perfectly affluence and decency. But Weiler appears to have grown pessimistic. Europe is a messianic project and therefore bound to fail.

IV. The Empty Signifier Our inquiry should not come to a close by charging the grand master with a mistake without asking why the misattribution happens in the case of one of the most solicitous students of European integration. We should treat Weiler’s thesis, therefore, as an aberration that may well be indicative of underlying social facts. Should it not amaze us that Weiler finds it important to identify political messianism as a major legitimating factor? What type of intellectual situation gives rise to the ambition to defend such claim? At this point we can only speculate, of course. Apparently, Weiler wishes to elucidate why it is essential to the European Union to present itself as a forward-looking project. Loyalty is to be elicited by pointing to some unspecified objective that is denoted in the phrase of the ‘ever closer union among the peoples of Europe’. That’s right; that is what the phrase is all about. It is a signifier. But in that capacity, it is, borrowing language from Ernesto Laclau, also empty.48 Paradoxically, it designates the openness of what might ground such union. In a broader context, postmodernist political theory speaks of the absence of such a ground. At the same time, this absence is nonetheless present, for it animates the political struggle over how to fill the void of the empty signifier with some particular vision of agenda. Claims persist that there is a ground; but the political struggles over what this ground is are rationally interminable. Or this is what Laclau, at any rate, seems to believe. But what would such a ‘ground’ be all about? Above all, it would concern society as a whole and not just some special form of human association. Furthermore, it would offer us an account of what is or ought to be the ‘cement of society’ (Jon Elster’s felicitous phrase)49 in the sense of what holds societies together or explains the shape of social relations. Such cement may be the economic dealings of the people qua ‘base’ of social life, patriarchy, the pursuit of the self-interest, or, normatively understood, some principles of justice. Postmodernist political theory accounts for political social integration by suggesting that a universal cement of society, the ‘ground’, cannot be found. Neither from an explanatory nor from a normative perspective is it possible to discover the universal principles of social life. But this does not suggest that the quest for such principles is not the essential feature of politics. This explains why they claim that the absence of the ground is present in social life. What we experience is the

48 We need to confess that we are struggling to make sense of Laclau’s political theory and must rely also on secondary sources. We are, in particular, indebted to Oliver Marchart, ‘Gesellschaft ohne Grund: Laclaus politische Theorie des Post-Fundamentalismus’ in Ernesto Laclau, Emanzipation und Differenz (3rd ed, Turia & Kant 2018) 7–18. We would also like to thank Jakob Gaigg for helpful discussions. 49 See Jon Elster, The Cement of Society: A Survey of Social Order (CUP 1998).

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quest on the part of partial explanations or justifications to assert their dominance, in particular on the level of discourse (‘hegemony’). Any such attempt is, of course, in and of itself preposterous, a matter that is revealed in the fact that whatever is offered as ‘the ground’ is bound to remain ‘essentially contested’.50 As Laclau explains: In a situation of radical disorder, order is present as that which is absent; it becomes an empty signifier, as the signifier of this absence. In this sense, various political forces can compete in their efforts to present their particular objectives as those which carry out the filling of that lack. To hegemonize something is exactly to carry out this filling function.51

Possibly, the logic of the empty signifier helps to elucidate how European integration has worked and that it has worked only as long as its activism did not trigger political controversy. The ultimate objective qua ‘ground’ is indeterminate. The signifier is empty. Nobody knows what an ‘ever closer Union’ might amount to. At the same time, every more specific account of the ‘finality’ of the Union is invariably either cloudy—and hence a replica of the empty signifier—or contested. Uncontested are only the substitutes for the empty signifier, such as the tiresome commitment to ‘more Europe’, or the firm belief in the irreversibility of European integration—or the euro, qua its most notorious synecdoche. Being faithful to the empty signifier and its substitutes requires unrelenting activism and engagement on various specific projects of moving forward. This does not give rise to political strife as long as the contest over the meaning of the ground can be avoided, for any such contest would divide rather than unite the peoples of Europe. That which Majone has subtly called ‘Crypto-Federalism’ is not by accident a defining feature of European integration. This is the method of integration that he attributes to Jean Monnet.52 Cryptofederalism is federalism short of a plan for a federal constitution. The forces and players driving the integration process do not work openly towards a federal constitution—a goal that neofunctionalism still had in mind—but pursue a strategy of ‘minor steps and grand effects’ (Monnet).53 This strategy lacks, however, a final orientation. The movement towards ‘more Europe’ takes the place of the goal. It becomes everything.

50 For once, we would also like to cite Walter B Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167. 51 Ernesto Laclau, Emancipation(s) (Verso 1996) 53. See also the following remark by Anthony M Clohsey, ‘Provisionalism and the (Im)possibility of Justice in Northern Ireland’ in David Howard et al (eds), Discourse Theory and Political Analysis: Identities, Hegemonies and Social Change (Manchester University Press 2000) 70–85 at 72: ‘This theoretisation of justice as an empty signifier is important. It is precisely because it is a signifier that it can accommodate so many different interpretations that it must always be understood as empty, or at least, partially empty in that, although its meaning will always be contested, at any time there will always be a dominant discourse that will be controlling and delimiting its meaning.’ 52 Giandomenico Majone, Europe as the Would-be World Power: The EU at Fifty (CUP 2009) 72. 53 Cited in Philip Schmitter, ‘Ernst B. Haas and the Legacy of Neofunctionalism’ (2005) 12 Journal of European Public Policy 255, 257.

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V. Messianism After All? Scholem’s ‘Validity Without Significance’ Placing Laclau’s concept of the empty signifier into the context of a discussion of messianism must invite our attention to versions of messianism that one encounters in the works of Walter Benjamin54 and Giorgio Agamben.55 According to Agamben, the messiah is the figure with which monotheistic religions seek to master the problem of law.56 Every normative order—not only the religious law—invariably ends up in a crisis in which the law is still in force, while its content is not ascertainable. Rather, it turns out to be radically indeterminate.57 In order to address this phenomenon, Agamben ponders over the rather puzzling idea of a law that is in force without signifying anything at all. It is an idea that he inherits from Scholem’s interpretation of Franz Kafka’s parable Before the Law.58 Scholem developed this interpretation in his correspondence with Walter Benjamin. Building upon Scholem, Agamben claims, quite boldly, that the solution to any political or legal crisis lies in the way humankind deals with the problem of a law that is in force without significance. Admittedly, this claim must strike the uninitiated as somewhat bizarre. In Kafka’s parable, a man from the country arrives in front of the opened gate to the Law. A gatekeeper guards the entrance. The man dare not enter. Agamben views the situation as follows:59 ‘[N]othing . . . prevents the man from the country from passing through the door of the Law if not the fact that this door is already open and that the Law prescribes nothing.’ Agamben draws up the exchange between Scholem and Benjamin by focusing on the combined effect the open gate and the gatekeeper have on the man. The openness signals that the law is in force and can be complied with. The man could simply walk through and, hence, pass as righteous. At the same time, the law amounts only to the pure form of obligation, for the man is unsure whether entering is the right move to make in the face of the gatekeeper’s forewarnings. The imposing gatekeeper strips the law of its significance. Effectively, it is devoid of content. Scholem explains this phenomenon as the Nothing of Revelation . . . a stage in which revelation does not signify, yet still affirms itself by the fact that it is in force. Where the wealth of significance is gone and

54 See Walter Benjamin, ‘Critique of Violence’ in Peter Demetz (ed), Reflections: Essays, Aphorisms, Autobiographical Writings (Schocken Books 1986) 277–300. 55 See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (trans D Heller-Roazen, Stanford University Press 1998). 56 See Agamben (n 55) 56. 57 Such indeterminacy may be manifest that one can always ‘argue’ either way. The rational interminability of legal controversies may in turn reveal that legal consciousness is morally deeply antinomic. This is the classical claim of critical legal scholars. See Duncan Kennedy, ‘Form and Substance in Private Law Adjudication’ (1976) 89 Harvard Law Review 1685. 58 Franz Kafka, Before the Law accessed 6 April 2021. 59 See Agamben (n 55) 49.

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what appears, reduced, so to speak, to the zero point of its own content, still does not disappear (and Revelation is something that appears), there the Nothing appears.60

The Law ‘appears in the form of its unrealizability’.61 While Scholem seems to affirm this state, Agamben views it as a symptom of the crisis of the law. In their correspondence, Benjamin and Scholem explored a messianic solution of this impasse.62 Agamben extracts from it the momentous distinction between an ‘imperfect’ and a ‘perfect’ messianism.63 He thus recalibrates the idea of ‘validity without significance’ from a cabbalistic and a legal perspective, of which the latter concerns the status of the law in the state of exception. In his essay ‘The Messiah and the Sovereign’, Agamben compares Scholem‘s position with the cabbalistic doctrine of the two states of the Thora. The Jewish-cabbalistic tradition distinguishes between the first or original Thora before God, the Thora atziluth, and the Thora beri‘a, which is the form of the Thora after the creation, the Thora for the unredeemed world. The latter is substantively determinate. Prior to the creation of the world, the Thora is in force, but does not have any particular content nor particular significance.64 The task of the Messiah is to restore the Thora atziluth—the Thora that is in force without significance. Arguably, this would be a world in which the substance of the law disappeared. If things were already and invariably as they ought to be, all normativity would evaporate into thin air. This is, at any rate, how what Agamben calls ‘imperfect messianism’ conceives of the issue. The ‘perfect’ alternative focuses on the state of exception. In such a state the law is suspended, but still in force.65 It is set aside, ‘disapplied’ as the language of European Union law would have it. Hence, Agamben regards the state of exception as tantamount to a situation in which the valid law lacks practical significance.66 In his view, the state of exception is the paradigmatic form of ‘being in force without significance’.67 In both the imperfect and perfect messianic contexts, however, the power of law and its specific character reside in its openness; more precisely, in the meaninglessness of purity in pure form.68 As we have seen already, the consequence is the impossibility to distinguish between law and life.69 As Agamben explains: One of the paradoxes of the state of exception lies in the fact that in the state of exception, it is impossible to distinguish transgression of the law from execution of

60

See Walter Benjamin and Gershom Scholem, Briefwechsel (Suhrkamp 2018) 175. Agamben (n 55) 50. 62 Agamben (n 55) 53. 63 Agamben (n 55) 53. We sense that there is a leaning towards Christianity underlying Agamben’s distinction, not least since ‘perfect’ messianism appears to match the conception of the Messiah developed by Paul. 64 See Giorgio Agamben, ‘The Messiah and the Sovereign’ in Daniel Heller-Roazen (ed), Potentialities: Collected Essays in Philosophy (Stanford University Press 1999) 172. 65 See Agamben (n 55) 38. 66 Agamben (n 64) 172. 67 Agamben (n 64) 172. 68 Agamben (n 64) 176. 69 Agamben (n 55) 53. 61

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the law, such that what violates a rule and what conforms to it coincide without any remainder.70

The coincidence of transgression and compliance resembles the cabbalistic imagination of the situation brought about by the advent of the Messiah.71 All normativity will evaporate. In the cabbalistic imagination, the thora beri‘a is fulfilled and consummated.72 But Agamben points out that the restauration of the original Thora, the thora atziluth, would be a nihilism that would let the Nothing subsist indefinitely in the criticized pure form.73 Agamben characterizes this nihilistic situation with reference to Walter Benjamin, who, according to Agamben, arrives at a ‘messianic nihilism that nullifies even the Nothing and lets no form of law remain in force beyond its own content’.74 Messianic nihilism fights against the law as such. Agamben points out—against Scholem—that Kafka‘s parable could even be taken to provide an example of such nihilism. At the end of the parable, the gatekeeper closes the door. It may seem as though the man from the country had merely pursued a strategy to make the doorkeeper close the gate and hence to make an end to validity without significance. This would mark the end of the law as such. No new law would be established. Hopefully, it has become abundantly clear that even against the backdrop of Agamben’s and Benjamin’s conceptions of messianism, any portrayal of the European project in these terms must also fail to be convincing. The reason is simple. Even though the European legal system confronts the various national legal systems with a seemingly messianic gesture of suspension, ‘setting aside’ and ‘disapplication’,75 the final aim is to transform or to replace, but never to abolish, national legal systems. Indeed, the apocalypse precipitated by the Messiah would result in the abdication of all law. It would be farfetched, to say the least, to attribute to European integration such an objective. Any closing of the gate of the national law is followed by new European law and not by the abdication of the authority of law as such. The formula of the Schuman Declaration remains, at best, an empty signifier, in the sense adumbrated by Laclau.

VI. Conclusion At the end of the day, Weiler’s attribution of political messianism to European integration turns out to be both obscuring and revealing. It obscures the logic of the empty signifier by calling the aimless activism that it inspires ‘messianic’; but it also reveals, at least to a certain extent, how the pursuit of partial agendas is animated by the belief that one observes a universally valid track. Weiler has captured the perlocutionary 70

Agamben (n 55) 57. Agamben (n 55) 57. 72 Agamben (n 55) 57. 73 Agamben (n 55) 53. 74 Agamben (n 55) 53. 75 The result of this gesture is a situation exactly like that in Kafka’s parable: the national rule is still in force but unrealizable. 71

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effect of the ‘ever closer Union of the peoples of Europe’, without realizing, however, that he is still under the spell of the empty signifier when he identifies one of the partial agendas as ‘messianic’. We may have to concede, however, that with the ascription of a messianic ambition to the European project, the empty signifier is no longer only empty in itself but also of itself. Messianic Europe is the empty signifier in and of itself. Hegel would have been so pleased.

8

From Constitutional Pyramid to Constitutional Pluralism The Transformation of the European Constitutional Imaginary Hugo Canihac

I. Introduction This paper is concerned with a recent transformation of the European constitutional imaginary.1 It is well known that the European Communities (EC), and later the European Union (EU), have increasingly been represented as constitutional entities.2 Although the EU, like the EC, lacks a formal constitution, the claim that its law is an autonomous and superior legal order, equivalent to an actual supranational constitution, has been widely acknowledged over the years. To account for the success of this representation, several works have shown how, during the early years, it was ‘coproduced’ by various European activists, civil servants, private lawyers, politicians, and scholars.3 They have strongly contributed to establishing it, in practice as in theory. This imaginary has fostered the legitimation of the EC, while challenging the established order of sovereign nation-states. However, these works have paid less attention to more recent developments. In particular, it will be contended here that the original constitutional imaginary has undergone a deep change since the Maastricht Treaty with the rise of constitutional pluralism. Constitutional pluralism has been widely discussed among jurists since the Maastricht debate.4 It is not a coherent school, and hardly even a unified theory. But it refers to the theories of a group of legal scholars who reject as outdated traditional concepts of sovereign power, that is, the unitary and hierarchically organized right to make laws over a territory. The EU is no longer imagined as a pyramid, crowned by a 1 For the sake of brevity, ‘European’ will here refer only to the EC and the EU as a whole, excluding for instance the Council of Europe. 2 Joseph HH Weiler, ‘The Transformation of Europe’ (1991) 100 The Yale Law Journal 2403; Berthold Rittberger and Frank Schimmelfennig, The Constitutionalization of the European Union (Routledge 2009). 3 Antoine Vauchez, Brokering Europe: Euro-Lawyers and the Making of a Transnational Polity (CUP 2015); Anna Boerger and Morten Rasmussen, ‘Transforming European Law: The Establishment of the Constitutional Discourse from 1950 to 1993’ (2014) 10 European Constitutional Law Review 199; Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (OUP 2001). 4 For instance, Klemen Jaklic, Constitutional Pluralism in the EU (OUP 2013); Matej Avbelj and Jam Komárek (eds), Constitutional Pluralism in the European Union and Beyond (Hart Publishing 2012); Neil Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 The Modern Law Review 317.

Hugo Canihac, From Constitutional Pyramid to Constitutional Pluralism In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0008

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law with indisputable primacy, from which derives the legitimacy of all other norms; rather, it is a heterarchical organization. Today, constitutional pluralism has spread among Community law specialists.5 Moreover, the Court of Justice has to some extent welcomed these ideas, as illustrated by former Advocate General Luis P. Maduro, or judge and now President of the Court Koen Lenaerts.6 While they arguably hold rather different views of its meaning and of how it relates to the older EU’s constitutional imaginary, both claim to support it. In other words, constitutional pluralism has become a (possibly the) legitimate constitutional theory of the EU—and, I will argue, has conveyed a new constitutional imaginary. While constitutional pluralism has been extensively analysed in a theoretical perspective, the conditions (how it happened) and implications (what it meant) of its emergence have been less scrutinized.7 To this aim, I will focus on the early days of this transformation. I will not be concerned with the genealogy of constitutional pluralism, nor with the detailed discussion of its theoretical underpinnings; rather, I will try to highlight its significance by placing it in the broader context of the European constitutional imaginary. The chapter will analyse what pluralist ideas did to this imaginary, and how they contributed to redefining it. Before exploring this shift in more detail, though, it will be useful to define more carefully what I will mean by constitutional imaginary and imagination. The French philosopher Gaston Bachelard, in a study of poetic discourse, once drew a distinction between ‘reproductive imagination’, the ability to mentally recreate objects previously perceived, and ‘creative imagination’, the ability to distort perceptions to produce new images.8 While the first type operates by rearranging actual perceptions in a meaningful way, the other is a process of altering these perceptions. Imagination can be a reconstruction of a given reality; it can also be regarded as a process of redefinition of this very reality. The same could perhaps be said of constitutional imagination—except that it is, usually, not to be found in the writings of poets and novelists, but in more austere sources. By constitutional imagination, I generally mean the process through which a ‘collective self-representation’ of any given political community and of its institutions is produced.9 As a result of a long professionalization, not only politicians or judges but also legal scholars have come to play a crucial role in this process.10 Legal 5 Eg Matej Avbelj and Jan Komárek (n 4) 5–7; see, however, Martin Loughlin, ‘Constitutional Pluralism: An Oxymoron?’ (2014) 3 Global Constitutionalism 9. 6 Ana Bobic, ‘Constitutional Pluralism Is Not Dead: An Analysis of Interactions between Constitutional Courts of Member States and the European Court of Justice’ (2017) 18 German Law Journal 1395; Koen Lenaerts, ‘EU Values and Constitutional Pluralism: The EU System of Fundamental Rights Protection’ (2015) 34 Polish Yearbook of International Law 135; Miguel Maduro, ‘Three Claims of Constitutional Pluralism’ in Matej Avbelj and Jan Komárek (n 4). 7 Agustín Menéndez and John E Fossum (eds), Law and Democracy in Neil MacCormick’s Legal and Political Theory: The Post-Sovereign Constellation (Springer 2011); however: Neil Walker (ed), MacCormick’s Scotland (Edinburgh University Press 2012); Julio B Cruz, ‘The Legacy of the Maastricht-Urteil and the Pluralist Movement’ (2008) 14 European Law Journal 389. 8 Gaston Bachelard, La terre et les rêveries de la volonté (Corti 1948). 9 Martin Loughlin, ‘The Constitutional Imagination’ (2015) 78 The Modern Law Review 11. 10 Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (PUP 2016); Pierre Bourdieu, On the State (Polity 2014).

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theories, among others, carry such representations and contribute to shaping them. The outcome of this process will here be labelled a constitutional imaginary.11 It takes the form of a relatively structured account of a community and its institutions, specifying in particular the boundaries, the shape, and the organization of power. It can eventually circulate beyond the narrow circles of those constitutional professionals who produce it.12 Constitutional imagination—the process of devising such a collective representation—is crucial to the legitimation of modern ‘imagined communities’.13 Much like the reproductive imagination defined by Bachelard, it can be seen as a mental recreation, formalizing the arrangements existing in a community, and thus providing ‘ways by which [they] can be “explained” and justified’.14 But, it should be noted, constitutional imagination can also come closer to ‘creative imagination’. That is to say, it can also directly challenge the existing order. For constitutional imagination can also be the process of scrutinizing existing institutional arrangements and devising solutions to actual or potential problems. Therefore, while constitutional imaginaries can play a legitimizing role in a political community, they can also perform a delegitimizing function. In short, they can have at the same time an ideological and a utopian dimension.15 A fruitful approach to constitutional imaginaries is thus to combine an ideational analysis of their contents and an analysis of the social processes through which they are produced and used in the context of actual debates. This context encompasses ‘not just the representation or embodiment of ideas’ carried by legal texts (the constitution or its functional equivalents), but also the broad range of interpretations produced about it by a variety of ‘policy communities and entrepreneurs’16 (politicians, judges, lawyers, and so on) claiming to possess legitimacy on constitutional matters, and struggling to define the legitimate constitutional imaginary.17 The rest of this chapter will proceed in three steps. First, I will sketch out the construction of the European constitutional imaginary until the 1990s. I will then turn to the specific conditions that made the emergence of constitutional pluralism possible in the European debates of the early 1990s: on the one hand, the fluid political and 11 Understood as a special case of social imaginaries. Social imaginaries can, of course, be produced by other means and groups. In the particular case considered here (constitutional imaginaries), though, it is more likely to be produced by small groups of professionals dealing with constitutional matters. Charles Taylor, ‘Modern Social Imaginaries’ (2002) 14 Public Culture 91. 12 As Charles Taylor puts it, ‘what start off as theories held by a few people may come to infiltrate the social imaginary, first that of elites, perhaps, and then of society as a whole’. Taylor (n 11) 106. Here, the distinction between imagination and an imaginary is thus both chronological (imagination is a process, whose outcome is an imaginary) and sociological (the process of constitutional imagination mainly involves constitutional experts, while a constitutional imaginary can be more widespread in a given society—even though constitutional matters usually remain confined to relatively narrow circles). Yet, in both regards, there is more continuity than opposition between these two terms: imaginaries are produced by imagination. 13 Benedict Anderson, Imagined Communities (Verso 1983). 14 Peter Berger and Thomas Luckmann, The Social Construction of Reality (Anchor Books 1990) 79. 15 Loughlin (n 9). 16 Vivien A Schmidt, ‘Discursive Institutionalism: Understanding Policy in Context’ in Fran Fischer, Douglas Torgerson, Anna Durnová, and Michael Orsini (eds), Handbook of Critical Policy Studies (Edward Elgar Publishing 2015). 17 See for instance Markus Kotzur and Peter Häberle, Peter Häberle on Constitutional Theory: Constitution as Culture and the Open Society of Constitutional Interpreters (Nomos 2018).

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academic context of the time will be highlighted; on the other, the career and work of its ‘inventor’, the Scottish professor and politician Neil MacCormick (1941–2009), will be analysed. In the final part, I will discuss what constitutional pluralism did to the pre-existing European constitutional imaginary. I will argue that it deeply altered it, without fundamentally breaking up with it.

II. The ‘Co-Production’ of the European Constitutional Imaginary: Between Political Utopia and Professional Ideology The very fact that one can speak of a constitutional imaginary in the EC, and later the EU, constitutes a riddle—for European integration was launched in the 1950s as cooperation under international treaties ratified by the first member states. Nevertheless, the view that these treaties were to be regarded as a functional equivalent of a constitutional text gradually gained ground. It was theorized from the 1980s by prominent legal scholars in the field of Community law.18 It has since the late 1980s become a doxa among advocates of European integration and many specialists of Community law—even though it is still firmly contested by others. The making of this constitutional representation of Europe has been abundantly studied in law, political science, and sociology. Drawing on these works, I will underline that it functioned both as a political utopia (a political project challenging the existing order of European nation-states) and as a professional ideology (meant in a non-evaluative sense, as ‘the body of thought and practices through which a profession . . . develops and promulgates ideas about the nature of its work and the identities of its practitioners’).19

A. European constitutionalism as political utopia Establishing a European constitution was at first a utopian political project. Although it is generally identified with federalist plans drafted between the inter-war period and the early 1950s, it should not be forgotten that these plans were themselves connected to an older utopia: that of establishing the ‘sovereignty of law’, more precisely of international law, over the turbulent and bellicose European states.20 Throughout the second half of the nineteenth century and in the early twentieth century, movements advocating better legal regulation of international relations emerged in the Western world. They promoted a law aimed at curbing the will of sovereign states, whose rivalry had extended to the world through colonization. Law was conceived as an instrument of ‘civilization’ of states.21 The French jurist Georges Scelle, for instance, theorized in 18 Eric Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (1981) 75 The American Journal of International Law 1; Weiler (n 2). 19 Robert Nelson, David Trubek, and Rayman Solomon (eds), Lawyers’ Ideals/Lawyers’ Practices: Transformations in the American Legal Profession (Cornell University Press 1992) 22. 20 Mark Mazower, Governing the World: The History of an Idea (Penguin Books 2013). 21 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (CUP 2001).

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the 1930s a ‘unified inter-social law’ which could even be regarded as ‘international constitutional law’.22 In this perspective, national legal orders were found to be taken into a universal law, to which, far from totally controlling it, they had to submit. After the Second World War, this utopia was partly taken up by European federalist movements. They were generally eager to point out the intimate connection between federalism and constitutionalism, defined not only by the existence of a higher norm but more generally by limited government under the law.23 Yet, they no longer attempted to create a global constitutional law. Rather, their focus was on Europe: as the case of Scelle illustrates, advocates of a global constitutional law increasingly reconverted into European activists.24 Indeed, in the post-war situation, many proposals of federal European constitutions were drafted.25 The proposed constitutions were conceived as the expression of a fundamental decision to institute a new sovereign political being. A constitution, federalists believed, was the medium by which the problem of national sovereignty could be solved in Europe: states should be submitted to a higher-level legal rule, that is, to a European constitution. Such plans for a European constitution at first met with relative success. They culminated at the Hague conference in 1948 and, most importantly, in 1952, when negotiations for a European Political Community were officially launched by the six members of the European Coal and Steel Community (ECSC). Between 1952 and 1954, hopes for a European constitution were very high, with a constitutional committee created within the ad hoc Assembly in charge of drafting the treaties creating the European Political Community and the European Defence Community. But these hopes were to be severely dampened when France rejected the proposed treaties, without even a vote: it was clear after 1954 that the prospect of a ‘constituent moment’ which would establish a European federation was no longer relevant. Nevertheless, far from disappearing, the constitutional project would gradually be transferred to the European Economic Community (EEC). The most famous example of a transfer to the EEC of the European constitutional project was perhaps given by the first President of the European Commission, the convinced federalist and German professor of private law, Walter Hallstein. The making of a European constitution would not, in his view, be achieved through a great constituent ‘moment’ (an idea that the ‘empty chair crisis’ was to prove very accurate); rather, it was to result from a process in which law played the central role. As he was to famously put it, the EEC was a ‘community of law’ (Rechstgemeinschaft): a creature of law, it was inherently bound to the constitutionalist ideal of limited government, equated with that of federalism;26 a creator of law, it formed an autonomous, supranational

22

Georges Scelle, Précis de Droit Des Gens (Editions du CNRS 1932). See in particular CJ Friedrich, both a theoretician of federalism and an actor of early European integration. Carl J Friedrich, ‘Nationaler und Internationaler Föderalismus in Theorie und Praxis’ (1964) 5 Politische Vierteljahresschrift 154; Michael Burgess, Federalism and European Union the Building of Europe (Routledge 2000). 24 Hugo Canihac, ‘From Nostalgia to Utopia: A Genealogy of French Conceptions of Supranationality (1848–1948)’ (2019) 17 Modern Intellectual History 707. 25 Walter Lipgens, 45 Jahre Ringen Um Die Europäische Verfassung (Europa Union Verlag 1986). 26 This idea of constitutionalism as limited government also resonated with ordoliberalism and its concept of ‘economic constitution’. I cannot develop this dimension here, but see Stefano Bartolini, ‘Taking 23

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legal order, necessarily evolving towards hierarchical supremacy over national legal orders.27 Even though Hallstein was not the sole thinker to theorize European integration as a constitutional process, he thus provides a fairly clear example of the continuities of the European constitutional imaginary: the horizon remained the construction of a hierarchical organization, in which Community law was to gradually become the supreme norm—much like a federal constitution indeed.

B. Constitutionality as professional ideology The interpretation of European integration as a process of constitutionalization was crucially strengthened by the emergence and support of a disciplined body of legal knowledge on the European Communities. This performed an important ideological function: it legitimized the view that the EEC was constitutional and not international in nature; its legal interpreters, in turn, were not international jurists but rather professionals of a new kind of law. Yet, this professional legal knowledge at first hardly emphasized the constitutionalist element (limited government) of the European constitutional imaginary; it focused instead on a technical and functional representation of the constitutionality of EC law. Contrary to what Hallstein might have liked to think, the success of the constitutional interpretation of the EEC was by no means a preordained process. On the contrary, it resulted from the long-lasting mobilization of legal scholars, European civil servants, politicians, and activists. In fact, efforts to build up a European legal profession were themselves politically encouraged, with the hope that it would legitimize the idea of a sui generis European order, independent from the member states and open to autonomous development.28 Civil servants and politicians tried to foster academic research and teaching about European unification, especially in the field of law, because it was perceived as an old, respectable, and neutral knowledge, whose social authority was hardly disputable. In this context Community law emerged as a ‘weak field’, with porous borders between academic and political concerns and actors:29 the European legal imaginary gained its strength precisely because it was constructed as a field of intermediation between holders of specialized professional knowledge and political actors. A crucial moment in these early efforts took place at the first European-wide legal congress, promoted by the legal service of the European Communities and held in

“Constitutionalism” and “Legitimacy” Seriously’, European Governance Papers (EUROGOV), Discussion Paper No. 1-2008 accessed 5 November 2022. 27

Walter Hallstein, Europäische Reden (Deutsche Verlags-Anstalt 1979). Julie Bailleux, Penser l’Europe par le Droit: L’invention du Droit communautaire en France (Dalloz 2014); Morten Rasmussen, ‘Establishing a Constitutional Practice of European Law: The History of the Legal Service of the European Executive’ (2012) 21 Contemporary European History 375. 29 Antoine Vauchez and Stephanie Mudge, ‘Building Europe on a Weak Field: Law, Economics, and Scholarly Avatars in Transnational Politics’ (2012) 118 American Journal of Sociology 449. 28

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Stresa in 1957.30 There, several jurists claimed that, although created according to the standard international law procedure, the ECSC had already evolved into something different from traditional international organizations. Its law was independent from, and in case of conflict superior to, that of the member states. As a consequence, it was said, the Community law was of a new, supranational, type, which was constitutional in all but name. But in Stresa, the outcome of the discussions and the reports presented severely disappointed the civil servants and activists who had organized the conference. Indeed, many international law scholars systematically attacked the sui generis nature of Community law, acknowledging its political role but denying its legal soundness. This criticism was largely driven by the need to reassert the relevance of their discipline: extremely weakened by the events of the first half of the twentieth century, international law, they expected, would gain new legitimacy if they could define the new Communities as its jurisdiction.31 It resulted in a long-lasting ‘doctrinal schism’ in legal conceptions of European integration: the opposition between ‘internationalists’, holding a rather traditional view of Community law, and ‘supranationalism’, holding that it was superior and autonomous to national legal orders. However, in this debate to define Community law, a new player progressively emerged, instigating a ‘quiet revolution’, as Weiler was to put it:32 the European Court of Justice (ECJ). It had been meant to play a limited role in European integration: following the example of the ECSC—in which no court had originally been provided for by Monnet—it was expected to deal with technical economic issues. Yet, it decisively contributed to imposing the distinctive nature of Community law, identified with its constitutional character, as a fact. The process is well known and need not be recalled in detail here.33 Suffice it to say that the Court, in a series of famous cases, defined the essential features of Community law: primacy, direct effect, autonomy. Far from being identified with traditional international treaties between sovereign states, the Court came to construe them as agreements between the peoples of Europe, thus granting to Community law a direct legitimacy, independent from its recognition by national legal orders. To this aim it adopted a ‘teleological’ method of interpretation, reading the treaties in light of their general objective of an ‘ever closer union’. Eventually, it went so far as to describe the treaties as the ‘constitutional charter’ of the EEC, enjoying primacy over even the national constitutions. The court’s judgments were widely discussed. This was the case at the European Parliament, where it found vibrant support among federalists such as Fernand Dehousse, who drafted two reports in 1965 and 1967 advocating primacy and direct effect of Community law. But the judgments were also disseminated in the European legal profession—through their reception by national courts, of course, but also through a dense network of professional associations, publications, conferences, and 30 Here, I draw on Julie Bailleux, ‘Comment l’Europe vint au Droit: Le premier Congrès international d’études de la CECA’ (2010) 60 Revue Française de Science Politique 295. 31 On these professional battles, Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (Chicago University Press 1988). 32 Joseph HH Weiler, ‘A Quiet Revolution: The European Court of Justice and Its Interlocutors’ (1994) 26 Comparative Political Studies 510. 33 Alter (n 3); Morten Rasmussen, ‘The Origins of a Legal Revolution—The Early History of the European Court of Justice’ (2008) 14 Journal of European Integration History 77; Vauchez (n 3).

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reports.34 As early as 1963, another conference was organized in Cologne to celebrate the first ten years of activity of the Court of the ECSC. There, the majority of the guests (academics, politicians, and practitioners carefully selected from among the advocates of European integration) expressed their support for the constitutional thesis. One working group was specifically dedicated to discussing the Court of Justice as a ‘constitutional court’35—for, they claimed, in practice it was necessary for Community law to be regarded as superior to all national laws, that is, as a functional equivalent to a constitution. Otherwise, different rules would apply to similar situations in the Common Market, and its economic viability would be seriously threatened. As Pierre Pescatore emphasized, this was not only an economic necessity: such an interpretation was a professional requirement for jurists traditionally ‘in need for system’ and of a clear hierarchy of norms.36 Consequently, Community law was to be accepted as supreme. While many acknowledged that it was not yet fully constitutional, given its limited scope, they generally insisted that it was clearly its vocation to become so: echoing Hallstein, the constitutionalizing of the EEC was described as an ineluctable process. Tellingly, it was also Pescatore who was among the first to point out an issue that was to become central in the debate about the constitutional status of Community law: fundamental rights.37 Against the constitutional thesis, an objection was raised that the limited scope of the treaties was far from equivalent to that of a constitutional text. This problem was soon taken up by courts. Famously, during the following years, the German constitutional court first endorsed the constitutional character of Community law in 1967, before adopting a much more nuanced position in the Solange decision in 1974. There, the German judges stressed that Community law did not provide for a sufficient protection of fundamental rights, and therefore affirmed their constitutional right to review it. This was to claim that Community law fell short of meeting the material requirements of constitutional law. But, at the same time, this jurisdictional confrontation paradoxically confirmed that the discussion about Community law was constitutional in nature, since its relevant interlocutors were the highest national courts. Gradually, it prompted legal and political action to extend the scope of the problems dealt with by the EEC. At first limited to mostly economic matters, the stakes of the debates rose to become materially constitutional, through the question of the guarantee of fundamental rights and the issue of the highest jurisdictional authority it triggered. This brief historical survey has highlighted two main points. The European constitutional imaginary was at first associated with a political utopia: roughly, that of creating a superior, autonomous, federal-like order. Aimed at ‘civilizing’ European states, it directly challenged the traditional organization of power in Europe. 34 Karen Alter, ‘Jurist Advocacy Movements in Europe: The Role of Euro-Law Associations in European Integration’ in Karen Alter (ed), The European Court’s Political Power (OUP 2009); Alexandre Bernier, ‘Constructing and Legitimating: Transnational Jurist Networks and the Making of a Constitutional Practice of European Law’ (2012) 21 Contemporary European History 399. 35 Karl Carstens and Bodo Börner (eds), Zehn Jahre Rechtsprechung Des Gerichtshofs Der Europäischen Gemeinschaften (Carl Heymanns Verlag 1965) 141. 36 Pierre Pescatore, ‘La Cour en tant que juridiction fédérale et constitutionnelle’ in Carstens and Börner (n 35) 553. 37 Pierre Pescatore, ‘Les droits de l’homme et l’intégration européenne’ (1968) 6 Cahiers de Droit Européen 629.

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Through the development of a body of professional legal knowledge of European integration, originally permeated by political actors, this utopia found support in a professional ideology, a theorization of the specific character of Community law emphasizing its functional equivalence to a constitution and shared by part of the European legal profession. Over the years, the constitutional imaginary was indeed built in EC legal scholarship: in numerous publications, textbooks, and commentaries, EC law was reconstructed as a systematic, pyramidal legal order standing above national laws and directly applicable to the citizens of the member states. Of course, not all jurists accepted this understanding. Far from becoming hegemonic, it remained confined to relatively narrow circles of supranational ‘entrepreneurs’38—but those were also among the most active interpreters of the EEC. It is against this background that the emergence of constitutional pluralism is to be understood.

III. The Conditions of Change: Crisis and Hybridization The ‘constitutionalizing’ thesis was formalized—though not invented—in the 1980s.39 However, it was to be severely questioned during the early 1990s. The 1990s may indeed be regarded as a ‘critical juncture’ in the socio-history of European legal thinking. A critical juncture is a period of crisis. Institutionalized frameworks are ‘relaxed’, prompting an increased ‘fluidity’ between usually distinct areas of social life.40 As historical institutionalist analysis has pointed out, during such periods the role of individual actors in producing innovative solutions to the crisis is greatly amplified. Even though this concept was developed to account for political institutional change, it can prove useful to understand innovations in the constitutional imaginary of European integration during the 1990s. In this case, the weak field of Community law was affected by political events (the fall of the USSR, the ‘relaunch’ of European integration and the creation of the EU) as well as academic transformations (a scientific crisis, a changed academic configuration) that fostered intellectual change. Indeed, facing new challenges, the institutionalized interpretations of Community law were put into question; in this context, individuals coming from outside the field but possessing highly legitimate resources were able to enter the debate and to propose new ways of thinking. It is, I will argue, precisely what made the emergence of constitutional pluralism possible. The ‘weakness’ of the European legal field—the porosity of its internal and external borders— operated as a facilitator of intellectual change—a change of which Neil MacCormick was one of the brokers.

38 Morten Rasmussen and Dorte Martinsen, ‘EU Constitutionalisation Revisited: Redressing a Central Assumption in European Studies’ (2019) 25 European Law Journal 251. 39 Stein (n 18); Weiler (n 2). 40 Mark Blyth, Oddný Helgadottir, and William Kring, ‘Ideas and Historical Institutionalism’ in Orfeo Fioretos, Tulia G Falleti, and Adam Sheingate (eds), The Oxford Handbook of Historical Institutionalism (OUP 2016) 127.

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A. The early 1990s as a ‘critical juncture’ In spite of its constitutional claims, before the 1980s Community law tended to be framed as a narrowly defined, essentially technical discipline. This was in part aimed at asserting its academic legitimacy. It also resulted from the fact that many of the first jurists with academic training in Community law retained a strong link with the legal practice of European integration. This proximity can, for instance, be seen in the first textbooks dedicated to Community law during the 1960s–1970s: they generally tended to adopt a technical perspective, well suited to the problems encountered during the first years of the EEC. Indeed, they often limited themselves to the exegesis of the founding texts or of the Court’s judgments. This narrow focus in turn contributed to strengthening the idea that the EEC was essentially a technical, unpolitical organization. As the American scholar Martin Shapiro bluntly summarized in a review in 1980: It is constitutional law without politics. [The standard view] presents the Community as a juristic idea; the written constitution (the treaty) as a sacred text: the professional commentary as a legal truth; the case law as the inevitable working out of the correct implications of the constitutional text; and the constitutional court (the ECJ) as the disembodied voice of right reason and constitutional teleology.41

But, from the mid-1980s, this situation was to change, for political as well as academic reasons. First, politics forced its way into Community law, which became a more salient and controversial issue.42 From the mid-1980s, efforts led by European institutions to ‘revive’ European integration, with the Spinelli project in 1984, the Single Act, and the Maastricht Treaty, were aimed at reinforcing Community powers. Yet, they triggered a genuine ‘constitutional crisis’. Indeed, while the collapse of the USSR made the legitimacy of the EU a little more difficult to express in terms of security, the discourse on the democratic deficit developed. French President Giscard d’Estaing had already in the early 1980s criticized ‘illegal acts’ of the ECJ, and instilled suspicions of a ‘government of judges’. Shortly after, the Danes voted against the Maastricht Treaty, and the debate was heated in other countries. The politicization of Community law also resulted from salient jurisdictional controversies. For instance, the Factortame case, and the ECJ decisions it generated in 1990 and 1991, raised an important public debate in the UK about the continuing sovereignty of national legislative bodies in the EC and EU.43 However, the most visible controversy was undoubtedly triggered by the ‘Maastricht judgment’ delivered by the German constitutional court (FCC) in 1993. It basically revived the problem of sovereignty: while authorizing the ratification of the Treaty by Germany, the Court of

41 Cited in Rebekka Byberg, ‘The History of the Integration Through Law Project: Creating the Academic Expression of a Constitutional Legal Vision for Europe’ (2017) 18 German Law Journal 553. 42 On this definition, Pieter De Wilde, ‘No Polity for Old Politics? A Framework for Analyzing the Politicization of European Integration’ (2011) 33 Journal of European Integration 559. 43 Neil MacCormick, ‘Beyond the Sovereign State’ (1993) 56 The Modern Law Review 3.

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Karlsruhe criticized the extensive interpretations produced by the ECJ and affirmed the necessity to guarantee the ‘principle of democracy’ in the EU. This judgment, as well as that delivered by the French Constitutional Council, was a direct challenge to the constitutional interpretation of Community law: far from acknowledging the gradual constitutionalization of the EEC and the normal superiority of the ECJ, it put them into question in the name of democracy and national sovereignty. On the other hand, for advocates of the constitutional interpretation of Community law it not only undermined the legitimacy of European integration as a whole, but also set the ECJ and the FCC on a potential collision course. The two views appeared irreconcilable. Thus, the politicization of European legal issues created a strong demand for fresh conceptualizations to trace a way out of the crisis. This political context met with a remarkable transformation in the academic field of Community law: reflecting simultaneous trends towards professionalization and opening of the discipline, a new collective of younger specialists of Community law, often with a transnational education, emerged and took up this political demand. Community law was by then a discipline taught in most European legal curricula and producing a steadily increasing number of specialized studies.44 By the late 1980s, with regard to the broader aim of building a ‘People’s Europe’, the European Commission decided to increase the presence of Community-related university courses by launching the Jean Monnet Action.45 This new strategy in part diverted Community funding from the older academic channels and fora built up during the early years. It also resulted in new specific resources and rewards for those academics specializing in European studies and law. However, in national universities Community law often remained a small subfield of international or economic law.46 This relatively weak position contrasted with the situation of Community law in a few transnational places dedicated to its study that had emerged and gained legitimacy throughout the 1970s—the most important example of which certainly is the European University Institute (EUI), which opened in Florence in 1976.47 Explicitly encouraging a ‘denationalization’ of European legal training, the EUI law department not only gathered researchers from different European legal traditions. It also developed strong transnational academic exchanges, in particular with North American universities, contributing to opening Community law to new influences—such as the law in context movement that had been gaining pace in the English-speaking legal world. Finally, its unique status as a ‘European university’ quickly designated it to European officials as a privileged provider of the kind of constitutional expertise that was so much needed at the time. For instance, Weiler and his team in Florence contributed to the drafting of the Spinelli constitutional project in the mid-1980s.48 As the case of the European Policy Unit—an academic think tank led by Weiler at the EUI in 44 Hugo Canihac, ‘La Fabrique Savante de l’Europe: une Archéologie du Discours de l’Europe communautaire’ (PhD Thesis, 2017). 45 Oriane Calligaro, Negotiating Europe: EU Promotion of Europeanness since the 1950s (Palgrave Macmillan 2013) 18–38. 46 On the French and German cases, see Bailleux (n 28); Bill Davies, Resisting the European Court of Justice (CUP 2012). 47 Vauchez (n 3) 203–06. 48 Boerger and Rasmussen (n 3).

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the 1980s—also illustrates, these new specialists were directly engaging with the new demand raised by European integration. The emergence of this new professional collective fostered a redefinition of the boundaries of the field. The new European legal scholarship was no longer satisfied with the kind of narrow exegesis described by Shapiro. Rather, it sought new intellectual resources in order to renew the theoretical approaches to European constitutional problems. To this aim, they favoured a broader approach to the EEC. This was illustrated by the research programme known as ‘Integration through Law (ITL)’, which insisted on the need to develop a more comprehensive vision of Community law, borrowing from other branches of legal studies—such as comparative law—but also from social and political sciences.49 In close co-operation with the European Commission and the EUI law department, researchers such as Mauro Cappelletti and the young Weiler endeavoured to build this vision, and thus fostered an opening of the field of Community law. This was later illustrated by the creation of the European Law Journal in March 1995 (the journal in which MacCormick was to publish his famous piece on the Maastricht decision). Among its founding editors, six then held a position in, or associated with, the EUI law department (including Weiler). But if one looks at the advisory board, the openness of the project of this journal of ‘European law in context’ is striking: it included political scientists (Kohler-Koch, Scharpf, Majone) as well as legal philosophers (MacCormick, Arnaud)—and, it should be noted, European officials (Ehlermann of the DG IV and Noël, who had retired from the Presidency of the EUI after spending about thirty years as General Secretary of the European Commission). As Francis Snyder made clear in the first editorial, the aim of the journal was indeed to ‘trace a new path’, calling on interdisciplinary work to go beyond the ‘black-letter tradition of law teaching and research’50—a tradition deemed unable to deal with the new problems raised by the evolution of European integration. In spite of growing professionalization, in the early 1990s Community law thus remained a ‘weak field’, at the intersection of different disciplines and strongly linked to political debates. However, the legitimate academic credentials required to take part in the European legal debate had slightly changed: the new scholarship that developed was more thoroughly specialized in Community law, due to the increasing presence of the discipline in curricula; at the same time, it was borrowing less from international or economic law and more from comparative law, legal theory, and social sciences— a situation which made it possible for professionals in these disciplines to step into the European debate. It was, one could say, a case of ‘professionalization through hybridization’.51 Gradually, a new role emerged in European legal academia—that of the European constitutional lawyer, less concerned with the exegesis of European treaties than with the discussion of their theoretical and political implications. In the following years, European constitutional law was indeed gradually constituted as a subdiscipline of Community law. This was to be manifested with the creation of institutes

49

Byberg (n 41). Francis Snyder, ‘Editorial’ (1995) 1 European Law Journal 1. 51 For a discussion of the concept of hybridization, in a different context, Joseph Ben David and Randall Collins, ‘Social Factors in the Origins of a New Science: The Case of Psychology’ (1996) 31 American Sociological Review 451. 50

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(the Walter Hallstein-Institut für Europäisches Verfassungsrecht created by Pernice in 1997 in Berlin), hybrid networks (the European Constitutional Law Network, created in 2001), or journals (The European Constitutional Law Review, created in 2005).

B. A broker of innovation It is in this context that the basic ideas of constitutional pluralism were formulated. They were coined by a Scottish legal philosopher, Neil MacCormick. I will here highlight some aspects of his career prior to this intervention, in order to outline the trajectory that led him to be interested in contributing to the European debate and to be perceived as legitimate to do so.52 Focusing on this period entails some limitations: in particular, his thought changed over time, especially regarding the definition of the pluralism he promoted. He evolved from an early ‘radical pluralism’ to a ‘pluralism under international law’ often regarded as more conventional.53 But, although this evolution should not be overlooked, insisting on the ‘radical’ version of his theory as it was initially expressed during the early 1990s provides, I believe, a clearer sense of the challenges he posed to the European constitutional imaginary. The first thing to be noted about the career of MacCormick until the 1990s is that he was an almost complete outsider to the field of Community law. After a MA in literature and philosophy obtained in Glasgow, MacCormick had pursued brilliant studies in jurisprudence at Oxford. There, he met with H.L.A. Hart, who was to become a major influence on his thought. He then, at an unusually early age, was appointed as Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh, where he remained for the rest of his career. These early achievements provided him with the opportunity to develop his work and to strengthen his legalphilosophical profile. His works in this field were well and broadly received. By the early 1990s, for instance, his first book had been cited by such authors as Luhmann, Habermas, Alexy, and Posner. Interestingly, it was also cited by an American court of appeal as early as 1982.54 Reflecting this success, his famous essay ‘Beyond the Sovereign State’ was originally written as the prestigious annual Chorley lecture of The Modern Law Review, which had been organized at the London School of Economics since its inauguration in 1972 by H.L.A. Hart. Even though he taught in Scotland for most of his professional life, this reputation rapidly provided MacCormick with a strong international profile; he was regularly invited abroad to present his work, and translated into several languages including French, German, Spanish, Italian, and Chinese. Some of his works touched upon issues that would prove very relevant to European debates of the early 1990s. In particular, he engaged with the topic of ‘law in context’, regularly publishing in the British Journal of Law and Society and in political and

52 Biographical information is based on the remarkable work done by Dr Del Mar, available at accessed 31 March 2021. 53 Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (OUP 1999) 118. 54 United States v Jannotti, 673 F.2d 578 (3d Cir. 1982).

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social science journals and editing a book on Lawyers in their Social Setting in 1976. Nevertheless, MacCormick was decidedly anchored in the field of jurisprudence, where he had secured strong national and international legitimacy. This is confirmed if we take a look at the references he cited in his articles, and the articles which cited him.55 In MacCormick’s rich bibliography, his most cited articles are all from the series about European issues published between 1993 and 1997.56 Unsurprisingly, then, the articles citing these works are mainly to be found in the field of European legal studies. For instance, the journal in which most references to these four articles are to be found is the European Law Journal (thirteen references), and the author who referred to them the most is Joseph H.H. Weiler (six articles). Yet, a look at the references used by MacCormick provides a completely different picture. These articles hardly feature any reference to authors writing in the field of Community law. Beside case law, cited authors are classics (Kelsen, Hume, Bentham, Blackstone, Austin); authors with whom MacCormick had been engaged in an intellectual conversation since his studies (Hart, Dworkin); and other contemporary theorists of law (Luhmann, Ackerman) or of nations (Gellner, Tamir). Authors specializing in Community law stricto sensu are conspicuously absent. Among the few exceptions are Joxerramon Bengoetxe, a former doctoral student at the University of Edinburgh, and Frank E. Dowrick, a professor of law at Durham who wrote an article entitled ‘A Model of the Communities’ Legal System’ in 1983. This echoes the mainly technical character of Community law as it must have appeared at the time to a professional legal philosopher. Therefore, he was rather drawing inspiration from philosophical and theoretical works—clearly departing from the ‘black-letter tradition’ of Community law. Yet, it would be wrong to assert that MacCormick had no interest in European issues before the 1990s. Another crucial dimension of his legal work might have led him to European concerns: his interest in Scots law, which pervades most of his writing about Europe.57 This is not the place to discuss in great length the influence of the Scottish intellectual and legal tradition on his thought, but it should at the very least be noted that it was a strong one. Indeed, he regularly acknowledged the importance of this tradition to him—be it the philosophical tradition of David Hume and Adam Smith,58 or more specifically the distinctive legal tradition of Scots law. A look at the chapter he gave on ‘Law’ in a collection of essays about the history of Scotland, published in 1993 (the very year his essay ‘Beyond the Sovereign State’ was published), should convince that he was not only deeply attached to this tradition, but also a profound expert of its history.59 In particular, he insisted that Scots law was originally 55 In order to do so, I have identified his most cited articles (books were left aside) according to the database Scopus and extracted the cited references, as well as the articles themselves citing these works and other basic bibliometric data. For classic, but still stimulating remarks about the use of references, see Bruno Latour, Science in Action (Harvard University Press 1987). 56 In decreasing order of times cited: MacCormick (n 43); Neil MacCormick, ‘The MaastrichtUrteil: Sovereignty Now’ (1995) 3 European Law Journal 264; Neil MacCormick, ‘Democracy, Subsidiarity, and Citizenship in the “European Commonwealth” ’ (1997) 16 Law and Philosophy 331; Neil MacCormick, ‘Liberalism, Nationalism and the Post-Sovereign State’ (1996) 44 Political Studies 553. 57 On the Scottish context of his life and thought, Walker (n 7). 58 See for instance Neil MacCormick, Legal Reasoning and Legal Theory (Clarendon Press 2003) 2–6. 59 Neil MacCormick, ‘Law’ in Paul H Scott (ed), Scotland: A Concise Cultural History (Mainstream Publishing 1993) 350.

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closer to the continental tradition of civil law than to the English common law. This emphasized the ‘European’ character of Scotland, which, as we shall see now, imported to the political N. MacCormick. For his interest for European issues was greatly stimulated by his political engagement with Scottish nationalism. Due to his father, who was a major actor in the creation and early years of the Scottish National Party (SNP) in 1934 (and who later challenged the right of the monarch Elizabeth to be called ‘II’ in reference to Scotland, in the famous MacCormick v Lord Advocate case), he was deeply involved in political matters from early on. He himself joined the SNP in 1967. Already in the 1960s he had taken part in a university debate on the need ‘to establish a separate Parliament for Scotland; and as the Government of Scotland, to join the Common Market regardless of British and Commonwealth ties’. Likewise, in 1975 he had given a lecture about (Scottish) ‘Independence and Federalism after the Referendum on the accession to the Common Market’. In the increasingly nationalist mood of 1970s Scotland,60 he authoritatively contributed to political debates within the party, the executive body of which he became a member of in 1978. After the failed independence referendum of 1978, his ‘gradualist’ position— advocating a progressive autonomy—gained much ground. The SNP’s position towards Europe changed during the 1980s, so that the party’s motto became that of ‘independence in Europe’. Instrumental in this change, MacCormick became even more active politically, and he contested elections throughout the 1980s—all of which he lost. He nevertheless continued to support the SNP in diverse mobilizations during the years leading up to the creation of a Scottish Parliament in 1998. This political experience accumulated over the years eventually opened a path to European politics. He would indeed run and be elected as a MEP under the flag of the SNP in 1999. He then was appointed an alternate member of the Convention on the future of Europe, in charge of drafting a Constitution for Europe. During the 1990s, MacCormick thus not only developed his theoretical interest in European integration: he also entered the game of European politics. The point of this survey of his academic and political career is to stress that MacCormick was, before the 1990s, an outsider in the field of Community law debates. However, he had developed a keen political interest in European integration, and possessed all the academic credentials required, at this particular moment, to take part in the European debate. A leading jurisprudential figure, he was able to offer a much needed fresh view on European integration by importing its intellectual tools into the European debate; a Scottish political activist, he had a strong political vision for Europe. This made him a very legitimate outsider in a context of increased porosity of the European legal field. It is in this context that the basic ideas of constitutional pluralism were formulated by MacCormick—and, maybe most importantly, were audible in the European debate.

60 See Nathalie Duclos, ‘The 1970s: A “Paradoxical Decade” for the Scottish National Party’ (2017) 22 Revue Française de Civilisation Britannique 1; Atsuko Ichijo, Scottish Nationalism and the Idea of Europe: Concepts of Europe and the Nation (Routledge 2004).

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IV. The Challenge of Constitutional Pluralism: Transforming the European Constitutional Imaginary Following Augustin J. Menendez, I will concentrate here on two main theses of constitutional pluralism: ‘the differentiated but equal standpoint thesis’, stating the absence of supreme legal authority in Europe, and ‘the stability beyond sovereignty thesis’, that is, the idea that ‘the stability of the European legal order is rooted on non-legal bases’.61 I will take these theses as starting points to summarily reconstruct the imaginary provided for by constitutional pluralism. Both theses can be read as complementary answers to the crisis of the 1990s. The first thesis reasserted the constitutional character of Community law but deeply altered its meaning, thus reconfiguring the professional ideology supporting the EU’s constitutional imaginary. The other provided European constitutionalism with a redefined political utopia stating that, ultimately, European integration cannot be the entirely legal project of Walter Hallstein. In so doing, constitutional pluralism transformed the European constitutional imaginary.

A. Constitutionalism reformalized: From pyramid to network The ‘differentiated but equal standpoints’ thesis directly confronted the professional ideology of the European legal profession, which until then mostly revolved around the idea of EC–EU law as a supreme norm. Yet, it opened a path to transforming it, rather than simply deeming it irrelevant. This thesis was grounded on Neil MacCormick’s previous works. Since the 1970s, elaborating on the teaching of Hart, he had developed his theory of law as a social fact, as opposed to a ‘brute fact’ of nature. In this perspective he had drawn a distinction between ‘institutional-normative’ orders,62 the paramount example of which is given by national legal orders, and normative but non-institutional orders, such as morality. His major move, then, was to stress that, while state law constitutes the most obvious example of such an order, not all institutional-normative orders are state law:63 churches, sports, and so on are organized by institutionalized norms as well. In other words, ‘the institutional theory detaches law conceptually from state’.64 It opens a path ‘to escape from the idea that all law must originate in a single power source, like a sovereign . . . to discover the possibility of taking a broader, more diffuse, view of law.’65 One need not think about law as a pyramid: it is in fact better understood as a network. 61 Agustín Menéndez, ‘From Constitutional Pluralism to a Pluralistic Constitution? Constitutional Synthesis as a MacCormickian Constitutional Theory of European Integration’ in Agustin Menéndez and José Fossum (eds), Law and Democracy in Neil MacCormick’s Legal and Political Theory (Springer 2011) 225. 62 Neil MacCormick and O Weinberger, An Institutional Theory of Law: New Approaches to Legal Positivism (Springer 1986); MacCormick (n 43) 11. 63 MacCormick (n 43) 14. 64 MacCormick (n 53) v. 65 MacCormick (n 43) 9.

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Importing his philosophical conceptual apparatus into the ‘black-letter’ tradition of Community legal scholarship allowed MacCormick to answer questions raised by the legal situation of the European Communities in the early 1990s. It first provided a description of the legal situation in Europe. Its aim, reflecting on the Factortame case, was to answer a simple question: ‘How does the European Community affect our own sovereignty?’66 To do so, he attempted to move the debate beyond the traditional divide between international and constitutional interpretations of Community law. Focusing either on states or on European institutions, both views were criticized as ‘monocular’67 and thus provided an inadequate description of reality. Instead, MacCormick analysed the European legal practice brought about by European integration through the lens of his legal theory. In particular, in Hartian fashion, he stressed the need to take into consideration the different perspectives available on European law: the national and the Community. What he saw, then, was the coexistence in Europe of a multiplicity of legal orders without a ‘single source of power’—or, more precisely, without any order being in the position of claiming ultimate, all-encompassing supremacy over the others. It was not only possible, but also explained by a more general theory of law. It also suggested a normative solution to the Maastricht crisis. Reflecting on the Maastricht case, MacCormick concluded that, in a pluralist perspective, the German constitutional court was right to assert that the EEC or the EU was not the ultimate authority in Europe; yet it was wrong to believe that such an ultimate authority remained in the hands of the German state, or the German people.68 This was an elegant but firm qualification of both claims: on the one hand, it was not wrong to regard Community law as, in effect, a legal order of its own with primacy over national orders in the appropriate context; on the other hand, this did not wipe out the claims made in the name of national constitutions. Or, as he put it, ‘the doctrine of supremacy of Community law is not to be confused with any kind of all-purpose subordination of member state law to Community law’.69 The ‘differentiated but equal standpoints’ thesis thus provided a much-wanted fresh conceptualization of EU law. It was possible to think of it as at the same time constitutional and coexisting with equally supreme national constitutions: it confirmed its constitutional character, and thus reasserted the professional ideology of many EU legal professionals, while strictly limiting their claims. This, however, came at a price. It also involved a major change in the utopian element of the European constitutional imaginary: since there need not be a single ultimate authority in Europe, the political horizon of European integration is that of coordination rather than subordination.

66 67 68 69

ibid 2. ibid 4. MacCormick, ‘The Maastricht-Urteil: Sovereignty Now’ (n 56) 264. ibid.

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B. A new utopia for Europe: From federation to commonwealth While the first thesis defined the theoretical coordinates of constitutional pluralism, the ‘stability beyond law’ thesis dealt with its conditions of possibility. Practical concerns were, from the early 1990s, central to the development of constitutional pluralism. The constitutional crisis was after all prompted by conflicts between courts, as well as political contestations of the democratic legitimacy of European integration. Any answer to this crisis would thus have to be able to provide a practical solution to these challenges. But if there is no ultimate authority, no ‘single source’ of law and power, how in practice could such a pluralist order be stable? To answer this question, MacCormick suggested that we need to look beyond integration through law. Law cannot provide a solution to all legal, not to mention social, conflicts.70 Instead, MacCormick recommended that judges make use of ‘circumspection and [of] political as much as legal judgement’. They should not be blind to the political consequences of their decisions; rather, they should adopt a broad understanding of the matter they have to decide on. Law needs to constantly be apprehended in its broader social and political context. This does not imply that law becomes, in his thought, an inherently political matter. On the contrary, he strongly insisted that law and politics are two ‘distinct, but related’ areas of social life.71 This, however, emphasized that certain problems require a political rather than a legal solution: law is a tool of European integration, but its integrative power is limited. European integration cannot be a creature of law only. This limitation of the realm and powers of legal integration has a positive side complementing it: the strengthening of (democratic) politics in the EU. Indeed, MacCormick developed throughout the 1990s an elaborate political project for Europe, trying to reconcile European integration and democratic legitimacy in a pluralist setting. He insisted that democracy was not necessarily connected with the state. As he put it, ‘the state-sovereignty version of popular sovereignty can be itself an enemy of other democratic rights’, such as minority rights.72 On the other hand, European integration did already possess a relative democratic legitimacy: it was a ‘lawfully constituted’ organization, submitted to the control of member states, of courts, and of a democratically elected (albeit with limited powers) Parliament.73 This was, of course, directly engaging with the problem, raised by the German constitutional court, of the absence of a European demos, preventing, in the Court’s view, the emergence of a full-fledged European democracy. But against this MacCormick opposed a ‘civic’ conception of the demos.74 Similarly to the ‘constitutional patriotism’ theorized by Habermas, he argued that the people did not need to share any ethnic or cultural ties; it was enough that they be bound by ‘a common loyalty to a common constitutional order’. 70

ibid 265. MacCormick (n 43) 11. 72 MacCormick (n 53) 134. 73 MacCormick (n 53) 147. 74 MacCormick, ‘Democracy, Subsidiarity, and Citizenship in the “European Commonwealth” ’ (n 56) 341. 71

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Such a loyalty by no means implied a loss of national feelings—something that this lifelong member of the SNP would have deplored; quite to the contrary, he also pleaded for the rehabilitation of nations and nationalism, in a liberal version he theorized in parallel.75 In his view, the democratic legitimacy of European integration was not only dependent on reforms at the European level; it was to be improved only by taking seriously a principle put forward by the Maastricht treaty: subsidiarity, and the opportunities not only for national but also for regional entities—such as Scotland. A strong principle of subsidiarity would not only safeguard state powers, but would also allow for a better repartition of power within the states themselves. But, contrary to federalists (also keen on insisting on subsidiarity), he warned against ‘the weakness of any “grand design” approaches to constitution-making for Europe’.76 Strengthening democracy in Europe did not imply the construction of either a unitary or even a federal state. Europe was in fact seen as a ‘mixed constitution’, combining elements of several types of regimes. He proposed labelling this organization a ‘Commonwealth’, a concept he defined as an organization comprising a group of people to whom can reasonably be imputed some consciousness that they have a ‘common weal’, something which really is a common good, and who are . . . striving after it through some form of organized political structure, embodied in some common constitutional arrangements.77

Such a loose organization was a far cry from a federation. This was not only a theoretical project. It was also deeply intertwined with his political concern for regional government. During his time at the European Parliament (EP), he actively pushed forward these ideas about subsidiarity and the rights of ‘stateless nations’—the name of the parliamentary intergroup to which he belonged. It comes as no surprise that this intergroup explicitly called for a ‘constitutional pluralism’ in the EU, and its ‘logical corollary’: an increased subsidiarity.78 The legal theory of constitutional pluralism and the political defence of regional government went hand in hand. This is a suggestive illustration of the porosity between academic and political discourses in the European constitutional debate: legal theories are used as weapons in political battles, while these political battles are fought in legal terms. This cursory reading of the ‘stability’ thesis and its political corollaries suggests how deeply constitutional pluralism challenged the utopian element of European constitutional imaginary. First, it departed from the narrative that Community law was bound to develop into an all-encompassing legal order. It underlined that ‘integration through law’, too, was of limited reach. Secondly, it proposed to replace the federalist horizon of European legal integration with that of a ‘Commonwealth’ organized by a strong principle of subsidiarity. It thus not only offered a new formalized description of the European legal situation; it also deeply altered its political horizon.

75

MacCormick, ‘Liberalism, Nationalism and the Post-Sovereign State’ (n 56). MacCormick (n 53) 155. 77 ibid 143. 78 European Parliamentary Intergroup ‘Stateless nations’, ‘Constitutional Theses’, 12 September 2001, UEF-788, Historical Archive of European Integration, Florence. 76

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V. Conclusion This paper has attempted to provide a contextualized reading of the shift in the EU’s constitutional imaginary that was initiated in the early 1990s. It has argued that the mainstream European constitutional imaginary had until then represented Community law as evolving towards full supremacy, reflecting both a political utopia (a federal Europe) and a professional ideology (a rationalization of law as a pyramid). Constitutional pluralism can be read as a redefinition of this European constitutional imaginary. In a critical context, it proposed a new description of the European legal situation. While the constitutional claims of EU law were not denied, hierarchy was crucially replaced by heterarchy; supremacy was acknowledged but limited. It also redefined the political horizon of European integration, replacing the federalist project with that of a European ‘Commonwealth’ in which no supreme, all-encompassing power was meant to emerge. In this sense, it radically challenged the pre-existing constitutional imaginary of the Community in its ideological as well as utopian dimensions. A more complete study should of course not remain limited to the work of Neil MacCormick: to account for the importance of constitutional pluralism, it would be necessary to examine in detail its reception. Yet, by locating these theoretical and political moves in the context of the time, I have suggested that Community law was a ‘weak field’ indeed. This relative openness of Community law is precisely what made possible the emergence of pluralism in a critical moment. This is not to say that European constitutional imagination is shaped by political considerations only. Rather, the thought of MacCormick illustrates the continuous interdependence of political and theoretical discourses in European constitutional matters.

9

The Imaginary and the Unconscious Situating Constitutional Pluralism Amnon Lev*

I. Introduction It is remarkable how few little attention has been given to the ideas that inform the constitutionalism of the European Union .1 After all, what inspires commitment to the project of European integration is, for most, the idea of what Europe could become, not the reality of what it is now. If the intellectual foundations of European integration remain under-studied, it is, at least in part, due to a reluctance to admit that ideas play a role in how the law operates, and in how we should study it. Going back to the sensualist school of philosophy around Destutt de Tracy that coined the term ideology, theorists have worried that ideas distort the reality they order.2 This fear underlies the quest of Karl Marx, and the different strands of theory he inspired, to unmask the ideological distortion of social reality.3 We cannot provide answers to these formidable questions of epistemology. Indeed, it is by recognizing that they are not our questions that we give ourselves the opportunity to pursue the more modest aim of trying to understand how ideas inform the constitutionalism of the European Union. The point of the exercise that we undertake here is methodological. We shall want to say something about how, by what methods, we can study the role of ideas in constitutional theory. This is a question of some consequence. At present, what holds back the efforts to study the imaginary of EU constitutionalism is a naïve belief that we can access ideas through the self-reporting of the theorists that employ them, which explains the often quite florid, freewheeling style EU constitutionalists are wont to employ when they reflect on their own theoretical practice. The point we shall make is that more rigorous methods of analysis are needed, methods that require us to situate * I would like to thank Jan Komárek and Michael A Wilkinson for their insightful comments to this chapter. 1 For two exceptions, see András Jakab, European Constitutional Language (CUP 2016); Andrew Williams, The Ethos of Europe: Values, Law and Justice in the EU (CUP 2010). 2 Antoine-Louis-Claude Destutt de Tracy, Élémens d’idéologie, I: Idéologie proprement dite (Paris: Librairie Philosophique J.VRIN, 1970) (1817) xvi 349. On the (dis)continuity between French sensualist philosophy and Marx’s materialism, see Patrick Quantin, Les origines de l’idéologie (Economica 1987) 174–83. 3 Marx was acutely aware that ideology was a function of language. His work on the German ideology fell back on the philosophically untenable idea of a wholly transparent language that would not be susceptible to ideological distortion; materialism represents, he tells us, the ‘language of life’; man’s ‘mental discourse’ is a ‘direct efflux’ of his material conditions (Karl Marx, The German Ideology (Lawrence & Wishart 1976) 36). On this point, see Étienne Balibar, La crainte des masses. Politique et philosophie avant et aprés Marx (Galilée 1997) 174–89.

Amnon Lev, The Imaginary and the Unconscious In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0009

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constitutional theory in history, or rather in two histories: the history of that discourse on the one hand, and the history it purports to govern on the other. We shall approach EU constitutionalism through a reading of one of its most influential and rigorous positions: Neil Walker’s theory of constitutional pluralism. Much has been written on the subject of constitutional pluralism, most of it concerned with assessing whether it picks out something essential about how the EU Member States order their legal relations and how they distribute rights and competencies within the union jurisdiction. We shall take another approach: rather than assessing the accuracy of constitutional pluralism as a description of institutional practices or self-understandings ‘out there’, or considering its merits as a format for how to integrate different constitutional orders, we shall use constitutional pluralism as an object lesson in how to analyse the place and function of ideas in constitutional theory. We shall argue that constitutional pluralism is best understood as a constellation of ideas that are ordered around a historically specific intuition of social life that constitutional discourse cannot articulate, or even acknowledge, but without which it cannot operate.4 Not long ago, this way of approaching constitutional theory would have been alien to most, but thanks to the work of theorists like Martin Loughlin we have become familiar with the idea that intuitions of the social are a component part of the theory of political right. Political jurisprudence involves appraising how well the body of rules that govern social life in a given polity align with the material, or substantive, power formations in society.5 This intuition holds the key to calibrating governmental intervention so as to maintain a balance between competing conceptions of social justice. We shall, however, take a less harmonious view of constitutional theory than Loughlin, for whom constitutional discourse, in all its different forms and iterations, is concerned with managing the same fissure between the formal/legal and the substantive/social. The account he gives of those efforts constitutes a unitary, albeit ambivalent, history of political modernity that begins in the mid-sixteenth century and continues right up to the work of Michael Oakeshott. We shall, on the contrary, want to stress how constitutional theory changes as we move between epistemic regimes that frame distinct intuitions of the social. So: a story of rupture and discontinuity. The account we shall give of the trajectory of theory relies on two key terms: the imaginary and the unconscious. According to a definition that is fast becoming standard, the social imaginary is concerned with the common meanings that make common practices possible.6 We shall use the term in the more restricted sense given to it by Cornelius Castoriadis, for whom the social imaginary deals not with practice but with a collectivity’s prior

4 The notion of constellation used here builds on Walter Benjamin’s seminal reflections on methodology in his work on the origin of German tragic drama (see Walter Benjamin, Ursprung des deutschen Trauerspiels in Rolf Tiedemann and Hermann Schweppenhäuser (eds), Walter Benjamin. Gesammelte Schriften (Suhrkamp Verlag 1980) I, 1, 210–15). 5 Martin Loughlin, Foundations of Public Law (OUP 2010) 161–64. For another account of European integration as a story of secularisation, see Nathan Gibbs, ‘Post-Sovereignty and the European Legal Space’ (2017) 80 The Modern Law Review 833. Gibbss’ account demonstrates the loss of analytical purchase that comes with such a comprehensive historical sweep. 6 Charles Taylor, Modern Social Imaginaries (Duke University Press 2004) 23.

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institution of itself as a reflexive agent.7 The unconscious, or political unconscious—a term we borrow from the work of cultural theorist Fredric Jameson—designates the ways in which the social contradictions that constitute specific historical conjunctures condition the work of a text. The argument we shall make is that we require both approaches to understand the work that ideas are doing in constitutional pluralism. The demonstration is quite pedestrian in that we consider each term in turn. The chapter starts by situating Walker’s theory in relation to state-bound constitutional theory. It shows the steps he takes to attach his theory to the body of state-centric constitutional theory. As we shall see, Walker’s focus on theory leads him to neglect the question of practice, which comes back to haunt his work. The chapter goes on to identify the ideas and conceptual moves that Walker’s theory of constitutional pluralism shares with state-centric constitutional theory. What the analysis brings into view is a specific imaginary that enables constitutional pluralism to perform as theory. At the same time, the analysis demonstrates that we cannot, from within theory, account for the continuity between past and present formats of theory. To do that, we must take into consideration the way theory adapts itself to the historical situation it purports to govern. This is the subject of the following section, which shows that Walker’s theory rests on a determinate, and historically specific, intuition of political life. Seeing how theory links up with history allows us to understand how the idea of pluralism could make its way as a template for the constitutional discourse on the European Union. It also allows us to understand the meaning of the changes Walker makes to his theory, changes that reflect the passing of a historical conjuncture, in which law could transcribe politics and keep economic rationality at bay.

II. Constitutional Pluralism: An Exercise in Theory While there are earlier avatars of the idea of constitutional pluralism, its lineage as a constitutional theory goes back to a 1995 article by Neil MacCormick. In a comment on the Maastricht judgment of the German Constitutional Court MacCormick advanced the claim that, in the EU, final interpretive power remains with the various legal systems involved; the ‘most appropriate’ analysis of the relations between legal systems is ‘pluralistic rather than monistic’.8 Neil Walker, MacCormick’s successor as Professor of Public Law at the University of Edinburgh, elaborated this intuition into a philosophically articulate constitutional theory. Of Walker’s numerous interventions on constitutional pluralism, we shall focus on two decisive ones, written fourteen years apart, in 2002 and 2016. The point of the analysis of the 2002 intervention is, first, to identify the basic ambition of Walker’s theory, viz. to attach his work on European legal order to earlier, state-bound iterations of constitutional theory. We shall then consider how this continuity plays out in terms of basic ideas or concepts

7 Cornelius Castoriadis, The Imaginary Institution of Society (Polity Press 1997) 364. Our concern here is with the central imaginary, not with the secondary imaginaries that extend from it (at 129). 8 Neil MacCormick, ‘The Maastricht-Urteil: Sovereignty Now’ (1995) 3 European Law Journal 264. MacCormick presents a fuller account of the theory in Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (OUP 1999).

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of constitutional theory that serve as conduits between the different conjunctures to which constitutional theory is tied. This is the imaginary that features in the title of this chapter. As we shall see, the analysis of the imaginary cannot fully account for how constitutional pluralism operates as a theory. Thus, we are led to consider the unconscious, and the question of how the way a theory is situated in history works back on the theory. In the 2002 article, Walker is concerned to establish the theoretical pedigree of constitutional pluralism. The challenge he faces is to show that constitutional pluralism can deliver on the expectations that have grown up around the modern project of constitutional theory. To do so, constitutional pluralism would have to address a shift of authority away from the state, which has left those committed to the project of constitutionalism ‘fearing that they can no longer collectively do anything with it’.9 Walker wants to show that a constitutionalism fit for a world no longer dominated by the state would be continuous with the past constitutionalisms that have shaped our notions of what a right-ordering of political life entails: ‘We must be able to understand constitutionalism not only as a history of the response to and of the (re)shaping of events and structures, but also a history of a particular discourse, in which the core ideas of that discourse, however radically transformed, are meaningfully connected between different times and places.’10 Walker demonstrates the continuity of constitutionalist discourse by tying his pluralist theory to the state. To be sure, Walker’s resetting of constitutionalism looks and feels very much like a disruption of earlier state-centric formats of constitutional theory in that he dissociates constitutionalism from the domain of the state without tying it to another domain. But in this new open-ended setting, the state continues to be the primary unit of analysis—only now it is flanked, and to some extent overlaid, by constitutional phenomena that are neither bound to a polity nor fated to crystallize into one. Walker does not define these phenomena that are delimited not by territory but by sectoral and functional considerations. Instead he proposes a series of criteria by reference to which it can be determined whether these new constitutional phenomena can be treated in constitutional discourse. The most important of these criteria is polyvalence. Constitutional discourse is meaningful, and can be meaningfully engaged in, where the issue that falls to be considered is polyvalent, and ‘the agency charged with its treatment [is] empowered to have full regard to this polyvalence’.11 Polyvalence belongs to a semantic register we do not normally associate with law, but the meaning of Walker’s proposition is clear: polyvalence tracks the indeterminacy of an object or a state of affairs the qualification of which, under law, calls for the exercise of judgment. Walker’s concepts of polyvalence thus restates the need for, and the possibility of, resolving conflicts through a process that looks like adjudication. Given that sovereignty and public law have always been tied to the saying of the law, it stands to reason that pluralism, on this reading, is well placed to carry on the traditional functions of constitutionalism, even outside the domain of the state.

9 10 11

Neil Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 The Modern Law Review 333. Ibid 334. Ibid 348.

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At this high level of abstraction, we cannot assess whether, and to what extent, Walker’s pluralist theory successfully extends the normative expectations that have built up in relation to constitutionalism across the range of new phenomena it now needs to cover. For our purposes, what matters is that, at this point, Walker’s primary concern is with the capacity of constitutional pluralism to graft itself onto earlier formats of constitutional theory. He is sanguine about the prospects for success, telling us that constitutionalism is capacious enough to accommodate the shifting of authority away from the state, and so to preserve the unitary world of meanings of which we once believed the state to be the sole source and foundation. The ‘new questions’ of constitutionalism ‘are best considered as extending rather than eclipsing the older [state-centric] discourse’.12 Such is the concern with establishing the continuity of theory that a number of important questions relating to constitutional pluralism are not raised. The perhaps most important question concerns the status of the practice that underlies theory. In the 2002 article, Walker simply assumes that the practice which theory is supposed to reflect is already given. This shall change as he revisits his theory fourteen years later, a point to which we shall return. In 2002, the problem is, quite simply, that theory has not caught up to what is already a reality in practice. In the architecture that has replaced the Westphalian world of monadic states, state power is no longer tied to territory. It follows other differential matrices that situate it within, rather than against, constitutionalism. This intuition is the key to Walker’s hypothesis, developed in other work of the same period, that sovereignty has entered a late phase: ‘[Within] the more fragmented, fluid and contested configuration of authority of a multi-dimensional order, sovereignty too, like the other indices of constitutionalism, becomes more amenable to understanding as a graduated and tenuous property of normative order.’13 For most of the road it has to travel, the development of the idea of late sovereignty runs parallel to the demonstration that constitutionalism’s remit extends beyond the territory of the state to configurations of authority that are functional or sectoral. As we have seen, Walker relies on the judicially flavoured notion of polyvalence to show that constitutional discourse can engage with these new phenomena in a meaningful way. The demonstration that sovereignty too can be graduated proceeds on the assumption that, irrespective of how far back we retrench its domain , sovereignty will always and everywhere delimit the same terms. We should ‘view the sovereignty claim as being necessarily situated at the boundary between politics and law’.14 Retrenching sovereignty might generate new politics, but the configuration of authority will not change. Late sovereignty trades in the same currency as the Westphalian original, which is why Walker can assure us that the trajectory of sovereignty will be one of ‘continuous evolution rather than . . . demise.’15 12

Ibid 353. Ibid 347. 14 Neil Walker, ‘Late Sovereignty in the European Union’ in Neil Walker (ed), Sovereignty in Transition (Hart Publishing 2003) 20. 15 Ibid 28. The Treaty of Westphalia was in fact predicated on an imperial system of governance and so did not posit the state as a monad, a conception that would only develop in nineteenth-century state theory (see Randall Lesaffer, ‘Peace Treaties in the Formation of International Law’ in Bardo Fassbender and Anne Peters (eds), Oxford Handbook of the History of International Law (OUP 2012) 86; Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ (2011) 55 International Organization 13

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This is the belief that underpins the pluralist reconfiguration of constitutionalism, a belief that if reconfiguring constitutionalism is sure to give rise to a novel political form, it will not disrupt history. This belief ties constitutional pluralism to a body of theory it identifies as its past, and to a present/future that finds expression in theory and in practice. We shall consider each of these links in turn.

A. The imaginary Neil Walker alludes to the continuity between constitutional pluralism and earlier formats of public law theory in describing his own demarche as that of letting ‘traditional “international” relations between states develop in new “constitutional” ways’.16 As other scholars have noted, albeit in a perspective different from ours, the relations that Walker he posits as standard are those that obtained within the European state system.17 In what follows we shall consider how the European state system was theorized. The point of the exercise is to determine what constitutional pluralism takes from the tradition of European public law theory, and where it departs from the original. As we shall see, this shall take us to a limit of theory, and from the imaginary to the unconscious. From the sixteenth century, the theorizing of order in Europe proceeded on the assumption of a self-correcting mechanism that maintained equilibrium between states.18 It was believed that were a state to become too powerful, the imbalance would be met with concerted action by other states. Without fail, they would act to stop local supremacy from developing into global hegemony. States, it was believed, had no choice but to oppose action that threatened the existence of another state as their own survival was predicated on the continued existence of the system. Ultimately, the belief that the system would automatically self-correct rested on a politico-metaphysical article of faith which taught that, this side of eternity, authority would not again be gathered into a single point as it had been in the Roman Empire. This faith sustained early modern publicists as they fought to uphold the power of their temporal lords against the claims of the Holy Roman Emperor. It explains the confidence with which Montesquieu, in his reflections on universal monarchy, declares that, even if initially successful, attempts to unite Europe by conquest would inevitably lead to its fragmentation into an ‘infinity of Sovereignties’ as it had done in the time of Charlemagne.19 264–66, 269). This point is not only of historical interest. It suggests that Walker is mistaken about the context, and possibly about the drivers, of the transformation of sovereignty that opened up a venue for integrating governmental authority in Europe. We shall have more to say about that. 16

Walker (n 9) 355. See Julio Baquero Cruz, ‘The Legacy of the Maastricht-Urteil and the Pluralist Movement’ (2008) 14 European Law Journal 389, 418; Paul Kirchhof, ‘The Legal Structure of the European Union as a Union of States’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (Hart Publishing 2006) 794. 18 Heinz Duchhardt, Gleichgewicht der Kräfte, Convenance, Europäisches Konzert: Friedenskongresse und Friedensschlüsse vom Zeitalter Ludwigs XIV. bis zum Wiener Kongress (Wissenschaftliche Buchgesellschaft 1976) 68. 19 Charles-Louis de Secondat Montesquieu, Réflexions sur la monarchie universelle en Europe (Libraire Droz 2000) 84. On this point, see Maurizio Bazzoli, ‘L’idea d’ordine internazionale nell’Europa di 17

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The equilibrium system relied on the constant use of force to maintain its stability. Conflict was endemic, but it was not of a nature to overturn the system. In his reflections on perpetual peace, Rousseau noted that, while it was in a state of constant agitation, Europe was fundamentally immobile. It had a ‘degree of solidity that will keep it in a state of perpetual unrest without ever overturning it completely . . . henceforth great revolutions are impossible’.20 It is not hard to see why the equilibrium system inspired diffidence. Even its champions were concerned that the remedy might prove to be just as bad as the disease. Allowing countermeasures to be taken against ‘dangerous excesses of power’ did not offer assurance that such countermeasures would not in turn be used to promote self-serving ends and so give rise to new conflicts.21 In fact, it was all but certain that they would, seeing that the system had ‘no absolute principle, no fixed goal, [its] essence [being] that of never-ending oscillation, mutual self-suspension, and boundless disloyalty in the shifting of alliances and breaking of treaties’.22 This anarchic state, a function of the primacy of sovereignty, represents the formal reality of the state system. It is, however, only half the story of how the system operated. The theorizing of the equilibrium system relied on ideas of cultural unity between the states of Europe to constrain and align action that was unbounded in law. The workings of this stock of ideas, this imaginary, come into view in relation to what lay outside Europe’s borders. If sovereignty meant that the international state of nature was always a virtual state of war, as Hobbes argued, the fact of belonging to the same cultural air meant that anarchy could not be the final word within the state system, that is, between the states of Europe. In positing a civilizational divide between Europe and the rest of the world, theorists gave themselves the opportunity of anchoring a law that could not be imposed from without (as this would contradict the principle of sovereignty) in the moral personality of the state. Civilization would make states do of their own accord what they could not be compelled to do. The implication of civilization and rule-following is affirmed by Carl Bergbohm in terms that admit of no uncertainty: ‘Guided by deeper insight than the politically undeveloped peoples that habitually follow their instincts blindly, the states of European culture seek also to further their own interest, but it is a considered interest’ that aligns on the ‘firm principles and rules’ on which international community must be founded.23 One could multiply the examples of how notions of civilization and nature are invoked to justify Europe’s domination over other parts of the world.24 The pivotal role Montesquieu’ in Alberto Postigliola and Maria Grazia Bottaro Palumbo (eds), L’Europe de Montesquieu (Liguori Editore 1995) 62–63. 20

Jean-Jacques Rousseau, ‘Paix perpétuelle’ in Œuvres complètes (Éditions Gallimard 1964)III, 570. August Wilhelm Heffter, Das Europäische Völkerrecht der Gegenwart (Verlag von HW Müller 1882) § 6, 13; Theodore AH Schmalz, Das europäische Völkerrecht (Duncker & Humblot 1817) V, iv, 207. 22 Heinrich Bernhard Oppenheim, System des Völkerrechts (Kröner Verlag 1866) I, iii, § 4, 32. One finds the same analysis in Gabriel Bonnot de Mably, Principes des Négociations (London 1789) x, 91; ix, 79–81. 23 Carl Bergbohm, Staatsverträge und Gesetze als Quellen des Völkerrechts (C Mattiesen 1876) 2–3 (my translation), cf 110. 24 On this point, see Amnon Lev, ‘The Transformation of International Law in the 19th Century’ in Alexander Orakhelashvili (ed), Research Handbook on the Theory and History of International Law (Edward Elgar Publishing 2011) 130–33. 21

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which notions of nature and culture played in colonialism is so well established by now that we do not need to rehearse the argument. We bring it up only to illustrate that the imaginary of Europe presents two very different constitutional images. Depending on perspective, Europe appears as an anarchic state of nature, from which law will remain forever absent, or as a polity of peoples, in which right-ordering happens almost naturally. The latter image we find in the perhaps most influential manual of international law of the late eighteenth and nineteenth century, Georg Friedrich de Martens’s Droit de Gens Moderne de l’Europe, first published in 1789 with numerous subsequent reprints. In spite of the growing discord between its states, we should, de Martens tells us, look upon Europe as a whole that is separate from the rest of the universe, not only in terms of geography but as a specific assembly of states that, without having entered into actual society, has its own laws, its own mores, and its own customs and which can, in some respects, be seen as a people that has not yet given itself a constitution.’25

We have chosen the quote because it calls to mind Neil Walker’s description of constitutional pluralism, from which this section departed. On both approaches, the juxtaposition of the international and the constitutional aims at bringing the normative constraints of constitutionalism to bear on relations in which states were formerly thought to be subject to no, or only very few, constraints. And they do so in ways that are strikingly similar. The primacy of sovereignty means that the process of constitutionalizing proceeds without an identifiable mover because no one state can assert itself as the hegemon. Instead, movement is impelled by cultural inclination, which does its work in the context of the incessant, small-scale collisions that occur as states come up against each other in the pursuit of their self-interest. It is this movement borne by a thousand insignificant events, which reflect conflict as much as they do community, that Walker describes in saying that post-polity constitutionalism will come about in ‘an “agonistic” process of negotiation between alternative visions on the basis of consent and mutual respects’.26 Walker’s confidence that the agonistic form taken by interaction will not act as a solvent of consent and mutual respect trades on one of the key elements of the imaginary that nourished reflection on the state system, viz. a belief that antagonism, and conflict, opens up conduits for a culture of liberty to work itself out by surmounting its inherent contradictions. This idea, of which Hegel’s lectures on world history constitute the paradigmatic example, survived the demise of the European state system. It is alive in the anguished account of Europe’s political history that Benedetto Croce would produce in 1932 as storms were gathering over the continent,27 and it irrigates Walker’s theory of constitutional pluralism. 25 Georg Friedrich de Martens, Précis du Droit des Gens Moderne de l’Europe (Guillaumin et Cie 1838 (1796)) I, 84. 26 Walker (n 9) 354, 359. 27 Benedetto Croce, Storia d’Europa nel secolo decimonono (Adelphi Edizioni Spa 1991 (1932)) 15– 20, 433–34. On the function that this myth served in public law reflection on Europe, see Amnon Lev, ‘Federalism and the Ends of Europe’ in Amnon Lev (ed), The Federal Idea: Public Law between Governance and Political Life (Hart Publishing 2017) 193–94.

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We draw attention to the continuity not to take anything away from Walker’s work: on the contrary, the point is to show how completely constitutional pluralism realizes his ambition of ‘extending’ the discourse of state-bound constitutionalism. Working from an intuition (pluralism), and using a grammar (polyvalence) that has no place in state-bound constitutionalism, he nevertheless produces a theory that is continuous with it. If its legal structures are different, it perpetuates the same discrete movement of liberty through history. Because Walker’s theory , in many respects, represents a break with the past, it also reveals something about the nature of the conduits through which ways of thinking law are transmitted across time. More specifically, it shows just how much may be riding on the use of specific metaphors, which, like the often used image of a billiards table where objects collide within a closed space (and in the context of cultured society), take on an ideological function by naturalizing certain interactional patterns and casting certain outcomes as all but inevitable. The demonstration holds another implication that is essential for our purposes. It points to a limit of theory, a limit to what we can explain from theory. As the terms of Walker’s constitutional pluralism are so similar to those that structure nineteenthcentury reflection on the state system, we cannot just by looking at them explain why he is so confident that international relations between the states of Europe can be made to develop in constitutional ways, which is precisely what the publicists of the state system despaired of. It is clear that the answer must have something to do with sovereignty, which is the stumbling block for nineteenth-century publicists. This is where we have to look beyond theory, or rather we have to look differently at theory. To understand how ideas are made to do work that they previously could not, we have to determine how constitutional pluralism is situated, and how it situates itself, in history.

B. The unconscious and history We are attempting to grasp something intangible, a belief in how the world can, and should, be ordered. Often it is only in retrospect, when belief is lost, that we can assess its strength and determine the specific functions it performed in making sense of the world. On this proviso, we shall try to get a reading on constitutional pluralism by working backwards from the changes that Walker makes to his theory in his 2016 intervention. As will be remembered, Walker’s concern in 2002 with how constitutional pluralism performed as a theory was such that it blanked out other considerations, including the question of practice. In 2016, the inattention to practice gives way to a much more fine-grained, and much less harmonious, account of the circumstances under which constitutional pluralism rose to prominence. Assessing its relevance, we are now told, requires more than finding the right level of theoretical enquiry; it requires taking into consideration ‘the appropriateness or otherwise of the theory and practice of [constitutional pluralism] to changing historical circumstances’.28 Underlying this change in perspective is a realization that the questions to which constitutionalism proffers an

28

Neil Walker, ‘Constitutional Pluralism Revisited’ (2016) 22 European Law Journal 333, 337.

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answer do not interpellate us with the same strength at all times; their urgency is a function of history. In the early period of EU integration, the message of constitutional pluralism would have been of ‘limited political resonance’ only. What made it resonate were post-Maastricht institutional developments that expanded the compass of integration, which in turn gave rise to anxieties at the level of national judicatures that ‘there was more at stake in deciding and declaring the authoritative foundations of the European polity, and that these foundations had become precariously balanced’.29 The irruption of history into theory goes hand in hand with a changing conception of the nexus of law and politics. It is striking that, in Walker’s 2016 intervention, law occupies much the same place as it did fourteen years earlier. Politics, on the other hand, does not. Walker is keen to stress the continuity of his work, but by now, the bind constitutionalism has on the political has clearly grown precarious. In 2002, Walker could allay the fear that law was incapable of generating ‘a new ethics of belonging’ simply by noting that constitutional law is indispensable to the workings of any political imagination.30 That constitutional pluralism is a form of constitutional discourse warranted that it has (sufficient) purchase on political imagination to ensure that political life and constitutionalism would continue to align with and underpin each other. Fourteen years on, the faith in the power of constitutional theory to transcribe politics is lost. Law can no longer encompass all of politics. Walker now stresses that constitutional pluralism must reach ‘beneath the legal topsoil to deeper political roots’; it should be considered ‘as much a matter of political theory as of legal theory’.31 What has happened is that politics has been cut adrift from law. The most telling indication of the disconnect is the paradox of initiative that Walker now identifies as one of the primary obstacles to making a supranational Europe work; the fact that the contemplation of a project of collective self-determination requires a form of consensus to engage in deliberations, and to respect the outcome.32 Integration, in other words, requires community. This paradox is not peculiar to the EU. It conditioned another project of institution-building, namely that of the state. Hobbes too had to find ways of establishing a sense of community between agents who had no previous ties and everything to fear from one another. But Hobbes could paint the original position as a dystopia by comparison with which the commonwealth was infinitely preferable, even if the liberty it offered was conditional on subjection. That strategy is not available to Walker. For him, the alternative to the European project is not a dystopia; it is an already existing form of political life—the sovereign state—to which the EU must simply show itself superior. In making a case for constitutional pluralism, Walker trades on a belief that the Member States of the European Union will, as they strive to realize their particular, self-interested ends, remain mindful that at no point could they become so dominant as to exclude the irresolution on which the process of aggregative determination depends. This minimalist conception of political agency or political rationality, which

29 30 31 32

Ibid 347–48. Walker (n 8) 326–27. Walker (n 28) 335. Ibid 350.

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we commonly associate with Machiavelli but which goes back to Aristotle,33 is at the heart of the first iteration of constitutional pluralism. It warrants that a series of non-coordinated acts will converge around something like a common good, which explains the confidence with which Walker can assert that law’s Other, the result of the ‘agonistic’ process, will always be a form of politics. By coupling law always with politics in a process where agents can pursue their particular ends, establishing a common position between the Member States of the EU becomes an exercise in political liberty that, without enlisting an identifiable mover, moves them towards their common, destinal end. Against this backdrop, it is not hard to understand why Walker is so worried by the phenomenon of structural drift that he associates with the austerity measures imposed in the wake of the 2008 financial crisis. More than the specific nature of the measures, what worries him is that power has become unevenly distributed among Member States—he speaks of the rise of ‘executive federalism’—which he takes as a sign that the process of aggregative determination is not governed by political rationality, or that political rationality is not strong enough to neutralize the non-political forces that are at work. Structural drift may only manifest itself at the surface, but it implicates the very springs of constitutional pluralism. Constitutional theory proceeds on a belief that law is preceded, and informed, by an always prior commitment to the constitutional enterprise. Absent this belief, we cannot narrate the development of the EU as a story of constitutionalism, over and above the story of how the competition between opposing interests and forces played out, which is much closer to a story of the market.34 This, by the way, makes sense of why the references to the antagonistic nature of the process of integration disappear in the 2016 article, to be replaced by an emphasis on accommodation. These are, in short, the changes that Walker makes to his theory—changes that reflect a significant scaling back of the ambitions of constitutional pluralism. The question is how we should understand the arc he follows over this fourteen-year period; whether we can find a way, as I believe we must, to read this arc as tracking more than changes in how an author conceives of previous work. It is at this point that we relate constitutional theory to history, in the hope of showing that the best way to understand the shift is by placing it in the context of a transition between historical conjunctures. But before we can get to the nexus of theory and history, we need to become clear about what it means for theory to be in history, how we can see theory as determined by history. Once we have put these preliminary questions of methodology behind us, we can turn our attention to Walker’s intervention to get a picture of what changes between them. Only on the basis of that determination can we show how constitutional pluralism reflects and entrenches a historically specific intuition of social life. As for methodology, what we are looking for is a way to connect theory and history. To do that, we rely on the notion of the political unconscious that Fredric Jameson

33 The central passage is the tenth chapter of the third book of Aristotle’s Politics. See the analysis in Amnon Lev, Filosofi og Politisk Tænkning hos Aristoteles (Museum Tusculanum 2008) 109–25. 34 Michael A Wilkinson makes a similar point in his cogently argued analysis of the impact of the Outright Monetary Transactions on the EU’s constitutional equilibrium: see Michael A Wilkinson, ‘Constitutional Pluralism: Chronicle of a Death Foretold?’ (2017) 23 European Law Journal 213, 229–30.

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has developed as a means to analyse the linkages between literary texts and history. In a series of readings of classic and not-so-classic texts, he shows that, by correlating moments in the intrigue to material social contradictions, the text can be rewritten in terms of an antagonistic dialogue of class voices.35 We are not suggesting that this methodology could be adopted wholesale for the purposes of analysing constitutional theory. The textual objects studied by Jameson work, and can be invested, in ways that cannot be replicated at the level on which constitutional theory operates. Most importantly, in a literary text we can give voice, within one narrative setting, to different positions in a social hierarchy, and to social formations belonging to different historical conjunctures—something constitutionalism, always tendentially univocal, does not allow for. This is why we shall have to rely on cross-textual comparisons to bring out the tension between layers of constitutional theory that refer to different temporal strata. What we can take from Jameson’s work is the insight that history operates as an absent cause in how a text configures, and invests, the social reality it is about. Moving closer to the methodological issues that concern us here, this means that the work of identifying how an author presses into service the relevant imaginary has to be supplemented by an analysis of what the socially available meanings are, and how they cluster round existing more or less stable structures of authority. Seen in this light, the arc that Walker follows from his first to his second intervention on constitutional pluralism is not only a story about the rise of executive federalism; it is also a story about how the constituent spheres of society—the political, the constitutional, and the economic—shift in relation to each other. What this means for how we should understand the development of Walker’s theory is that we must correlate the rise of executive federalism, an intra-legal determination, with the emergence, in the second iteration of Walker’s theory, of the theme of economic rationality in the form of austerity regimes. The text itself invites the correlation, but to determine what is at stake we have to ask a question that might, at first glance, seem tangential but which holds the key to the problem that concerns us here. We have to ask why the theme of economic rationality did not feature in Walker’s 2002 intervention on constitutional pluralism. Merely pointing to the events to which austerity purports to respond is not a sufficient explanation. Walker’s concern is not with the austerity measures as such but with what they are a vehicle of, viz. a rationality of close-minded self-interest that acts as a solvent of commitment to the constitutional enterprise. Surely, to the extent that we identify this form of rationality with economic rationality, it would always have been operative in an order that developed around the free movement of goods, capital, services, and labour. It is therefore a real question why economic rationality was not seen to constitute a threat to the constitutional enterprise in 2002. Intuitively, we sense that this question implicates the very structure of constitutional pluralism; the level of threat must be a function of the equilibrium between 35 Fredric Jameson, The Political Unconscious (Routledge 2002 (1981)) 70, 168–69. Jameson insists that, ultimately, the meaning of a cultural form or artefact is determined by its link to a determinate mode of production (at 62, 78–80). At the same time, the thrust of his theory of the political unconscious is to distend the nexus between the means and forms of production and the determination of meanings, which opens up a space for analysing the work that certain abstract forms—forms of law—are doing in the determination of meaning.

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law and politics on which constitutional pluralism rests. Economic rationality appears against the backdrop of a loss of faith that constitutional theory can transcribe politics. But what we see in the transition between Walker’s interventions is not simply a passage from constitutionalism to economics; it is a more complex reconfiguration of the space of theory that involves the rise of economic rationality in EU governance and the appearance of a different kind of politics, one no longer coded by law but by the market. This is a movement, we might say, from a quasi-jusnaturalism where economic rationality is absent, and politics, overlaid by law, is only implicitly present to a full-blown triangulation of law, politics, and economic rationality. Tension between law, politics, and economic rationality is not a recent phenomenon. The events in Walker’s texts, if we can call them that, form part of a history, and it is by seeing these texts as moments within that history that we can appreciate wherein their significance lies. What is significant, and novel, about Walker’s texts is that the triangulation of law, politics, and economic rationality plays out without reference to sovereignty, which, in the ideology of the modern state, served to over-awe the forces of market society. It will be objected that Walker retains the concept of sovereignty, indeed that it structures his argument. But Walker’s late sovereignty is conceived in a way that strips it of the power to inspire awe, and to over-awe. From Hobbes to Hegel, sovereign power established its supremacy, and the supremacy of law over individual interest, by its exorbitant nature. It is the absence of a common measure between the power of the Leviathan and that of the individual’s power that enables the former to impose its domination on the latter, and, in so doing, end the state of nature. The prospect of a resurgence of violence in the form of war justified the subordination of market society by calling to mind the ephemeral nature of all worldly possessions which the gods of war would claim as their due.36 At instinct level, constitutional theory continues to move in the shadow of this foundational myth, as reflected in the persistent critique of constitutional pluralism that the irresolution of judicial supremacy will open up an avenue for the resurgence of violent conflict, if not outright civil war.37 Walker’s lLate sovereignty is not capable of such feats. He tells us that boundaries between different polities will remain deeply contested in a multi-layered polity such

36 Georg WF Hegel, ‘On the Scientific Ways of Treating Natural Law’ in Laurence Dickey and HB Nisbet (eds), G.W.F. Hegel, Political Writings (CUP 1999 (1802)) 140–41. Hobbes, to be fair, is more matter-of-fact in his approach. The threat of sliding back into the state of nature, which Hobbes sees realized first and foremost in interstate conflict, entails that the sovereign retains the ultimate right to property. Prior to the institution of a sovereign power, there is no distinction between mine and thine (Thomas Hobbes, Leviathan (Hackett Publishing 1994) I, xv, 3, p 89, cf xiii, 12, 79). At the level of political myth, the forces that the Leviathan keeps at bay are forces of interpersonal violence, but that violence moves in semantic proximity to the market. Hobbes knew that commercial transactions were shot through with domination, just as he knew that the sovereign had good reason to fear the rising class whose fortunes were tied to market society, ie the ‘merchants, whose profession is their private gain’, who had sided with the King’s enemies in the English Civil War (Thomas Hobbes, Behemoth or the Long Parliament (Simpkin, Marshall, and Co 1889) 126. 37 See, for example, Gareth Davies, ‘Constitutional Disagreement in Europe and the Search for Pluralism’ in Matej Avbelj and Jan Komárek (eds), Constitutional Pluralism in the European Union and Beyond (Hart Publishing 2012) 271; Martin Loughlin, ‘Constitutional Pluralism: An Oxymoron?’ (2014) 3(9) Global Constitutionalism 19; Diarmuid Rossa Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community (Round Hall Sweet & Maxwell 1997) 409. See also Joseph HH Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’ (1995) 1 European Law 219, 223.

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as the EU, but in contrast to the territorial state, contest over jurisdictional boundaries will not involve an opposition of sovereign wills always likely to escalate into the clash of arms.38 As if to impress upon us that late sovereignty, this avatar of the mighty Leviathan, has been well and truly domesticated, Walker undercuts the myth of the creation of sovereignty as the foundational event of the polity; the assertion of sovereignty will often present itself as a ‘big-bang single moment’, but this should not lead us into error. Such claims are ‘never more than provisional’ and remain ‘remorselessly dependent on an ongoing dialectic of law and politics in which the earlier claim in either political or legal register will inevitably be conditioned by and represented, refined and perhaps significantly reshaped in the other register’.39 In 2002, law was capable of standing its ground against economic rationality in the fight for the soul of politics, and it did so without having to rely on the myth of an ex nihilo creation of the polity. From the vantage point of Walker’s theory, we cannot account for how it maintains law’s supremacy, in the process excluding from view the entire economic sphere. It is here that we leave behind Walker’s theory to turn our attention to the historical conjuncture within which it moves, in the hope of finding an explanation of how it managed to do the work of state theory—maintaining law’s supremacy—without having at its disposal the most important conceptual resource of state theory, viz. a soverign power. The analysis of Walker’s interventions has yielded a negative but useful result. By identifying what his theory could not do on its own terms, it shows us where theory intersects with history. This way of speaking should not mislead us into thinking that there is an immediate mapping of theory onto history, as if action could take over from theory as one runner can take over from another in a relay. Theory and history are never wholly soluble in one another. Inin this case, however, the mapping is unequivocal. The occlusion of the economic sphere and the inoperation of sovereignty pick out a determinate, historically specific format of historical experience: on the one hand, the stakes have been raised to the point where it cannot be left to superior force to decide the outcome of conflict; on the other, political life has been redefined in a minimalist way so as to not appear in its difference from the freedom to pursue one’s self-interest. This is the experience of an existential crisis threatening not only the individual state and its way of life, but the very world in which different states come up against each other . The Cold War is exemplary of this experience. It reduced political life to survival in a context where the threat of mutually assured destruction made the idea of sovereignty, and of equilibrium between always antagonistic sovereign states, seem hopelessly outdated as governance mechanisms.40 The imperative need to ward off the threat of impending destruction warranted the political nature of a European construction that was always first and foremost about the market. As it had done in Hobbes’ theory of commonwealth some three centuries earlier, the supposition of an imminent existential threat meant that the building of order, any order, was already a political act, even 38

Walker (n 14) 23, 25 with note 60. Walker (n 14) 20. 40 A parallel argumentative strategy is deployed in developing global justice theory, a little more than a decade earlier. It bears saying that as Thomas Pogge, the most influential of global justice theorists, tries to find an institutional form to match his global justice theory, he looks to the European Union (see Amnon Lev, ‘To Every Thing There Is a Season: Theory, History, and Global Justice’ (2020) 23 Constellations 1). 39

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if the life that awaited within the commonwealth did not deliver on our expectations of what a political life should look like.41 Beyond the Cold War, the experience of existential threat reaches back to the catastrophes of last century. The indetermination of sovereignty claims and the belief in the capacity of law to transcribe politics that Walker fashions into his theory of constitutional pluralism reflect the formative experiences of an order that claims its birthright from the slaughter of untold millions, and that grew to maturity under the threat of total annihilation. In saying that history functions as an absent cause of Walker’s theory, we are close to stating a trivial fact inasmuch as the theory’s historical conjuncture reveals itself to be co-extensive with the history of its object. It is perhaps not the least significant indication of the extent of the challenge to which Walker’s theory rises that, in articulating a constitutional theory that is faithful to the lessons learned from the horrors of the previous century, he is using the language of the world that these horrors destroyed.

III. Conclusion We have situated Walker’s theory of constitutional pluralism in history, more precisely, in two histories between which it creates an unstable intersection: on the one hand, the history of constitutional theory and, on the other, the tormented political history of the twentieth century. If this entails a vindication of constitutional pluralism, albeit in terms not translatable into law, the deep embedding of Walker’s theory of constitutional pluralism in the history of the European Union also raises questions about how we should understand the inflection it undergoes in his 2016 intervention. How should we understand the disenchantment that comes through there, and what does it tell us about the European project it purports to describe? As we have seen, Walker’s sense of disenchantment is tied to the institution of austerity measures. Looking back on the past two decades, this choice may surprise some; as if nothing had happened between the end of the Cold War and the economic crisis that set in with the collapse of Lehman Brothers in 2008. However, on the interpretation we have suggested, it is not hard to see why economic rationality would pose a greater threat to the constitutional cohesion of the European Union than jihadist terrorism and the refugee crisis of 2014 and 2015. Both can be accommodated within— indeed, reinforce—the minimalist conception of survival politics where Europe is seen to be under constant threat. By discontinuing policies of redistribution, austerity measures, on the contrary, directly affect the way survival politics is felt by the people whose lives it governs. Austerity measures strike at the material comfort that the states of Europe were able to secure for their citizens, a comfort that is compatible with life in a survival mode. In this sense, we can see the 2016 intervention as the moment when one of the premier theorists of EU constitutionalism realizes that the European

41 On the absence of a substantive conception of political life in Hobbes’ theory of commonwealth, and the strategies he employs to remedy that absence, see Amnon Lev, Sovereignty and Liberty: A Study in the Foundations of Power (Routledge 2014) 77–80, 87–91.

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project lacks the existential and social underpinnings that alone would make it a political endeavour. Walker does not see that the root of evil runs deeper than the austerity measures; that it emanates from the conception of political life that is at the heart of European integration. His blindness is, in a part, a function of the way he understands the genealogy of sovereign power. The belief that the Other of late sovereignty is a ʿWestphalianʾ sovereignty, which Walker supposes to have been untroubled from its inception to the beginning of European integration hides from view the dis-aggregation of political life that takes place in the decades leading up to the First World War . Thus, he does not see that the disentanglement of polity and constitutional discourse is not a political movement but is premised rather on the demise of what made social life political. If polyvalence can serve as the criterion of integrability of institutional phenomena into constitutional discourse, it is not because the political plays out beyond the polity but because the polity is no longer a site of political life; rather, it is the site of a survival politics that is no less real for playing out in an affluent society.42 One might want to elaborate this analysis into a critique of the project of European integration. The temptation to do so is undeniable, and we may be wrong to resist it. However, our concerns here have been methodological. We hope to have shown that unpacking the ways in which ideas and political intuition underpin and sustain one another in a specific theory of EU constitutionalism requires us to adopt a twopronged method of analysis in which we consider both the imaginary and the unconscious, the ideas that structure our perception of the world and the intuitions of history that guide our actions in ity. Much more work will have to be done before we have a clear sense of how ideas have informed, and continue to inform, the project of ever closer union. What we can say is that constitutional pluralism is particularly instructive in its fearless exploration of the ideas and historical forces that determine the capacity of law to order social life in ways that we recognize as political. In this sense, the doubts Walker come to hold about constitutional pluralism have implications that go beyond this particular undertaking of theory. Constitutional pluralism could reach the political roots of social life in a conjuncture where the release of certain pressures, and the unreflected persistence of others, allowed for the linking of past and present through the same imaginary. This conjuncture allowed for the alignment of an equilibrium principle that was predicated on the domination of market forces through sovereign power on the one hand and, on the other, a pluralism of irresolution in which sovereignty is seen as an emergent feature of forces which constitutionalism could only assume were political. Ultimately, constitutional theory could not contain the tension between these forms of governance. Time will tell whether the European Union can. 42 For a lucid analysis of the political condition of the EU, see Michael A Wilkinson, ‘Beyond the PostSovereign State? The Past, Present, and Future of Constitutional Pluralism’ (2019) 21 Cambridge Yearbook of European Legal Studies 6, especially 9–11. The notion of survival politics can be glossed by reference to the idea of negative integration developed by Fritz W Scharpf in his analysis of European integration (see Fritz W Scharpf, ‘The Asymmetry of European Integration, or Why the EU Cannot Be a “Social Market Economy” ’ (2010) 8 Socio-Economic Review 211, 221–24, 236–38). As integration serves to dis-embed individual agency from the collective structures to which it was formerly tied, the centre of gravity of the new collective dimension that arises out of integration will remain tied to basic political goods.

PART III

RET HINKING C ON ST I T U T IONA L IMAG INA R IE S F OR T H E PR E SE NT

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The Constitutional Imaginary and the Metabolic Realities of European Integration Peter L Lindseth*

I. Introduction: Beyond Power and Legitimacy Understanding the European Union (EU) as an autonomously constitutional entity in its own right—what this volume evocatively calls the EU’s ‘constitutional imaginary’— has undoubtedly been central to judicial decision-making and legal scholarship on integration over many decades. As Jan Komárek puts it in this volume’s framing chapter, this constitutional ideology has done some ‘very important work for the whole construction to be sustainable and for supranational institutions to maintain authority over individual Member States’.1 Given this function, the present volume’s effort to make the EU’s constitutional ideology a central object of critical discussion is both welcome and essential.2 My own contribution to this project will, however, begin with one small quibble. In his otherwise excellent framing chapter, Komárek writes that my 2010 book, Power and Legitimacy: Reconciling Europe and the Nation-State,3 is basically correct ‘about the administrative, not constitutional character of the EU integration project’.4 But he also asserts that, even if one may ‘accept Lindseth’s characterization of the EU’, one could still ‘point to a missing element in it: the role of constitutional ideology in the more critical sense . . . as something that conceals the gap between the claim to authority by the EU and beliefs of its subjects as regards what can possibly justify such authority’.5 I thoroughly agree that European constitutional ideology has concealed many such gaps.6 Nonetheless, I would also assert that Komárek’s characterization of Power and Legitimacy requires an important measure of further nuance. * Thanks go to Jan Komárek for his patience and helpful comments, and to Maxx Berteletti for his able research assistance. 1 Jan Komárek, ‘European Constitutional Imaginaries: Utopias, Ideologies and the Other’, this volume, 6. 2 This project is arguably in line with a similar effort by Morten Rasmussen and his team of historians to trace the emergence of what they call the ‘constitutional practice’ in EU law. See eg Morten Rasmussen, ‘Establishing a Constitutional Practice of European Law: The History of the Legal Service of the European Executive, 1952–65’ (2012) 21(3) Contemporary European History 375 (part of a special issue, co-edited with Bill Davies, on developing a ‘new history’ of EU public law). 3 Peter L Lindseth, Power and Legitimacy: Reconciling Europe and the Nation-State (OUP 2010). 4 Komárek (n 1). 5 Ibid. 6 See eg nn 24–25, 40–41, 44–50, and 53–69 below and accompanying text.

Peter L Lindseth, The Constitutional Imaginary and the Metabolic Realities of European Integration In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0010

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The constitutional ideology of European integration is less ‘missing’ from Power and Legitimacy than it is ‘taken as a given’. Indeed, that ‘given’, as the present volume rightly seeks to show, is a very powerful ideology that has dominated discussion of EU public law and legal integration for decades (even as, for a variety of reasons, its grip may well now be slipping). Constitutional ideology thus serves as the foil against which the entire argument of Power and Legitimacy was constructed. Only by taking account of this fact can one understand the book’s central claim—that European integration is not ‘as autonomously constitutional as conventionally supposed’ (emphasis in original)7 but rather is ‘administrative, not constitutional’ (again, emphasis in original).8 The argument of Power and Legitimacy was perhaps more historical and sociopolitical than a legal scholar of integration might typically prefer; nonetheless, the book’s historical and socio-political insights certainly do have legal-normative implications. The book sought to describe what European governance actually is—an extension of administrative governance—rather than what the dominant discourse among lawyers, judges, and law professors asserts it should be—a new form of constitutional authority beyond the state. Indeed, one might say that the underlying socio-political reality of European governance—its ultimately administrative character—has also done, to borrow Komárek’s words, ‘very important work for the whole construction to be sustainable’.9 European governance depends, first and foremost, on a delegation of regulatory power from constitutional principals on the national level to primarily technocratic and juristocratic (ie ‘administrative’) agents on the supranational level. EU institutions also enjoy an electoral component by way of the European Parliament (EP)—something that many lawyers, judges, and law professors often see as essential to advancing the EU’s autonomously democratic and constitutional legitimacy. Nonetheless, this electoral dimension of European governance has in fact done little to alter the fundamentally administrative character of European integration.10 The essential purpose of delegating regulatory power to EU institutions has been to create mechanisms to police the member states’ fulfilment of their legal ‘pre-commitments’ to each other (most importantly, but hardly exclusively, in the area of free movement in all its forms). In fulfilling this function, these supranational agents—above all the European Commission and the European Court of Justice (CJEU), joined more recently by the European Central Bank (ECB)—possess considerable technocratic and legal legitimacy as well as normative autonomy (again, supplemented by an electoral component via the EP). Nonetheless, despite the constitutional imaginary often used by legal elites to describe these supranational agents, they have never attained autonomous democratic and constitutional legitimacy of their own, even as their pre-commitment 7

Lindseth (n 3) xiv. Ibid 1. 9 See text accompanying n 1 above. 10 Cf Anne Elizabeth Stie, Democratic Decision-Making in the EU: Technocracy in Disguise? (Routledge 2012). For an earlier formulation of this administrative/technocratic perspective, see Peter L Lindseth, ‘Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community’ (1999) 99 Columbia Law Review 1, 628. See also, more recently with regard to the EP, Peter L Lindseth, ‘Executives, Legislatures and the Semantics of EU Public Law: A Pandemic-Inflected Perspective’ in Diane Fromage, Anna Herranz-Surrallés, and Thomas Christiansen (eds), ExecutiveLegislative (Im)balance in the European Union (Hart Publishing 2021). 8

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function has had important consequences for the operation of democratic and constitutional power on the national level.11 The core aim of Power and Legitimacy was to show that the actual socio-political development of European governance over the past seven decades—again, despite the constitutional imaginary prevalent among legal elites—has conformed much more consistently with what I have called the ‘postwar constitutional settlement of administrative governance’.12 Most importantly, the delegation of power to European institutions has given rise to a disconnect that is quite typical of administrative governance—between the legitimacy of robustly democratic and constitutional principals on the national level (executives, legislatures, and courts) and the regulatory power that belongs to their increasingly far-flung agents in a diffuse administrative sphere, one that now extends to the supranational level. It is precisely because the EU lacks robust democratic and constitutional legitimacy of its own (in line with similar entities of an essentially delegated, administrative character) that the integration project has depended, in socio-political fact, on a broad range of legal and institutional mechanisms to channel the legitimacy of national institutions to the supranational level, thus helping to bridge that disconnect. These mechanisms of ‘mediated legitimacy’ include various forms of national executive, legislative, and judicial oversight that sit uncomfortably within any purportedly autonomous constitutionalism at the EU level. Of course, one might argue that such mechanisms are simply ‘features which distinguish European from national constitutionalism’.13 However, that sort of ‘definitional fiat’ seems designed, above all, to preserve the EU’s constitutional imaginary in the face of disconfirming evidence flowing from integration’s deeper socio-political realities as an extension of administrative governance.14 No doubt, as Komárek’s framing chapter suggests, Power and Legitimacy left aspects of this thesis under-elaborated, leaving room for future scholarship to do further important work (something the book’s preface specifically contemplated).15 Indeed, as the present contribution will describe, my own work over the past decade has tried to elaborate on two such under-developed aspects of the book’s argument in particular. The first, discussed in section II below, involves the theory of institutional change that animates the analytical narrative set forth in Power and Legitimacy.16 Although the book was meant to exemplify that theory in operation, it in fact only briefly outlined its basic dimensions—functional, political, and cultural—early in the Introduction.17 Several of my subsequent writings have illuminated those dimensions in greater

11 The rise of the administrative state over the course of the twentieth century has arguably had a similar impact on democratic and constitutional governance on the national level. See eg Peter L Lindseth, ‘The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s–1950s’ (2004) 113(7) Yale Law Journal 1341. 12 Lindseth (n 3) passim. See also Lindseth (n 11). 13 Kaarlo Tuori, European Constitutionalism (CUP 2015) 43. 14 Peter L Lindseth, ‘The Perils of “As If ” European Constitutionalism’ (2016) 22(5) European Law Journal 696, 699, n 8. 15 Lindseth (n 3) xv. 16 See eg Peter L Lindseth, ‘Between the “Real” and the “Right”: Explorations along the Institutional– Constitutional Frontier’ in Maurice Adams, Ernst Hirsch Ballin, and Anne Meuwese (eds), Constitutionalism and the Rule of Law: Bridging Idealism and Realism (Cambridge University Press 2017). 17 Lindseth (n 3) 13–14.

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depth,18 while also making more explicit how their interaction explains institutional change in the case of European integration.19 Most importantly for our purposes here, this additional work has made much clearer the place of constitutional ideology in European integration, operating as one of many competing conceptions of ‘right’ (legitimacy) operating in the third, cultural, dimension of institutional change.20 The second aspect of my work over recent years, discussed in section III below, has sought to further clarify the criterion by which one should distinguish constitutional from non-constitutional or sub-constitutional (ie administrative) domains of governance. This work has focused in particular on the ‘metabolic’ function of genuinely ‘constituted’ authority, that is, the capacity of a constitutional level of governance not just to produce regulatory norms (something administrative bodies can do as well) but also to mobilize human and fiscal resources in a legitimate and compulsory fashion, and then redirect those resources toward the ends that those constitutional institutions define as essential.21 This second aspect of my work points to perhaps the greatest weakness of Europe’s constitutional imaginary: its almost exclusive focus on the ‘constraint’ function of constitutionalism rather than on the actual ‘constitution’ of power to mobilize human and fiscal resources in a legitimate and compulsory fashion.22 The success of any fundamentally regulatory (ie administrative) regime such as the EU ultimately depends on whether and how this metabolic function has in fact been constituted in socio-political and not just legal terms.23 In the EU, as is well known, this metabolic constitution of power has historically remained almost entirely national, highlighting perhaps the most fundamental ‘gap’ concealed by Europe’s constitutional imaginary—something that European constitutionalists have consistently ‘ignore(d) at their peril’.24 The construction of a genuinely metabolic constitution at the European level—one characterized by an autonomous capacity to mobilize fiscal and human resources in a legitimate and compulsory manner, unmediated through the member states—is the true Rubicon that integration must cross in order to turn its constitutional imaginary into a socio-political reality.25 The struggles over the Next Generation EU (NGEU) recovery instrument, to which this contribution will turn at the end of section III, reveals the depth and breadth of this Rubicon quite nicely. As of this writing (December 18 In addition to Lindseth (n 16), see Peter L Lindseth, ‘Evolutionary Public Law: Constituting and Administering Human Ultra-Sociality’ in Peter Cane and others (eds), Oxford Handbook of Comparative Administrative Law (OUP forthcoming); Peter L Lindseth, ‘Institutional Change and the Continuity of Law’ (2021) 55 Connecticut Law Review 1473. 19 Lindseth (n 16); Peter L Lindseth, ‘Transatlantic Functionalism: New Deal Models and European Integration’ (2015) 2(1) Critical Analysis of Law 83. 20 See nn 36–38 below and accompanying text. 21 Lindseth (n 14); Peter L Lindseth, ‘The Metabolic Constitution and the Limits of EU Legal Pluralism’ in Gareth Davies and Matej Avbelj (eds), Research Handbook in Legal Pluralism in EU Law (Edward Elgar Publishing 2018); Peter L Lindseth, ‘The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance’ in Francesca Bignami (ed), EU Law in Populist Times: Crises and Prospects (CUP 2020). 22 Lindseth, ‘The Metabolic Constitution and the Limits of EU Legal Pluralism’ (n 21). 23 See generally Lindseth, ‘Evolutionary Public Law’ (n 18). 24 Lindseth (n 14) 702. 25 For more detail, see Cristina Fasone and Peter L Lindseth, ‘Europe’s Fractured Metabolic Constitution: From the Eurozone Crisis to the Coronavirus Response’, SOG Working Paper 61 (LUISS School of Government, October 2020) accessed 25 May 2021.

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2020), there are indications that the EU may finally be initiating a genuinely ‘constitutionalizing’ dynamic in the metabolic sense in which I am using the term here, based on the common borrowing of NGEU and the imposition of rule-of-law conditionality to distribute the proceeds. But, as will be explained further below, it is too soon to tell whether that dynamic will gain sufficient traction, notably in supplementing common borrowing with a genuinely autonomous taxing authority, to gain a durable institutional existence over the long term.26

II. Constitutional Ideology and the Cultural Dimension of Institutional Change One cannot understand the role of Europe’s constitutional imaginary without first appreciating the broader process of institutional change in European governance.27 Indeed, European integration can and should be understood as fundamentally a process dealing with institutional change; that is, the many ways in which the forms of governance inherited from the past (notably Europe’s polycentric, nation-state constitutional system) have been transformed by the establishment of a set of precommitment agents operating at the supranational level. Power and Legitimacy builds on a theory of institutional change operating in three dimensions—functional, political, and cultural—whose demands have shaped the shifting contours of European and national governance across time.28 Admittedly, the specific treatment of this theory in Power and Legitimacy was all too brief and left several key questions underelaborated: How should we properly understand how those dimensions interact to cause institutional change? And, more importantly for our purposes here, how should we understand the role of constitutional ideology within those various dimensions? To begin to answer these questions, let us start by outlining the three key dimensions of institutional change in a bit more detail. The first, as noted, is functional. By this I am referring to the idea, well known in the historical–institutionalist literature, that institutions often evolve as a function of the problems they seek to solve. From this classically functionalist perspective, actors are compelled to respond to objective demands (‘needs’) presented by their natural or social environment, subject to functional constraints on available resources, whether environmental or technological, among others. Supplementing these fundamental drivers of (and constraints on) change, however, are those relating to interest-based conflict in the second—political—dimension. The analysis here focuses on the fact that ‘the world is always already institutionalized’,29 and that actors necessarily struggle

26 See nn 56–65 below and accompanying text, as well as, more generally, Peter Lindseth and Cristina Fasone, ‘Rule-of-Law Conditionality and Resource Mobilization—the Foundations of a Genuinely “Constitutional” EU?’ (Verfassungsblog, 11 December 2020) accessed 28 April 2021. 27 The discussion in this section draws significantly from Lindseth (n 16). 28 Lindseth (n 3) 13–14. 29 Elisabeth S Clemens, ‘Rereading Skowronek: A Precocious Theory of Institutional Change’ (2003) 27(3) Social Science History 443, 446.

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over the allocation of scarce institutional advantages, whether existing ones that they seek to preserve or newer ones that others seek to realize. However, in this struggle over functional demands/constraints as well as the political preservation/realization of institutional advantages, actors will necessarily mobilize interpretive frameworks— conceptions of ‘right’ (or legitimacy)—in the third, cultural dimension. This mobilization provides emotional or psychological meaning to social actors seeking to justify, or resist, functional and political pressures for change. As we shall see below, it is in this latter dimension that the cultural mobilization of a constitutionalist ideology by European legal elites has played a key role in the process of European integration. These various dimensions of change, it should be stressed, are obviously not hermetically sealed from each other. Instead, they overlap and interact in complex ways over time and place. For this reason, any effort to isolate them for purposes of analysis is really just a heuristic device toward a broader historical synthesis, one that seeks to take full account of their overlapping and interactive character. With specific regard to European integration, for example, economic or social shifts in the functional dimension (eg the extension of markets beyond national borders) may, depending on the array of interests, trigger either support or resistance in the political dimension (eg the creation of, or opposition to, transnational forms of governance to regulate those markets). Moreover, this functional/political interaction will be subject to varying and potentially contradictory interpretations mobilized in the cultural dimension (eg theories of ‘constitutionalism’ or ‘democracy’ beyond the state, or invocations of ‘sovereignty’ to define the true locus of legitimate governance as ‘national’). Finally, the availability of cultural conceptions of right/legitimacy (or, conversely, their limited availability) can also be understood as a resource constraint that has evident functional and political consequences. In this way, the line of causation between these various dimensions will always be multidirectional, and there is no guarantee that new functional demands—or, for that matter, new arrays of political interests or even alternative conceptions of legitimacy that may emerge—will, in themselves, inevitably lead to institutional change. Consequently, if we could truly isolate changes in the functional dimension from the political or cultural dimensions (which we often cannot), then perhaps we would observe much smoother evolutionary development in legal and political institutions, in which changing functional demands would lead inexorably to political and cultural change. Instead what we find is notorious stickiness, in which institutions often show remarkable resilience in the face of functional, political, or cultural pressures. Pierre Bourdieu alluded to this effect when he spoke of ‘hysteresis’,30 borrowing a concept from the natural sciences, where it is used to describe dynamic systems whose outputs are time-dependent on present and past inputs.31 Overcoming such hysteresis often requires a ‘critical juncture’, as the historical–institutionalist literature puts it;32 that 30 See generally Cheryl Hardy, ‘Hysteresis’ in Michael James Grenfell (ed), Pierre Bourdieu: Key Concepts (2nd edn, Routledge 2014). 31 The concept now has a wide range of applications across several scientific fields (notably physics) as well as engineering and economics. See generally Mark A Krasnosel’skii and Aleksei V Pokrovskii, Systems with Hysteresis (Springer 1989). 32 Giovanni Capoccia, ‘Critical Junctures and Institutional Change’ in James Mahoney and Kathleen Thelen (eds), Advances in Comparative-Historical Analysis (CUP 2015).

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is, a relatively rare confluence of functional, political, and cultural shifts that radically undermine existing institutional settlements, thus opening the way for genuinely new institutional configurations. It is certainly true that European integration represents a profound change in the nature of governance as compared to what came before it—the quasi-anarchic European state system. But this polycentric reality in all its dimensions—functional, political, and cultural—has nonetheless operated as a significant drag on the process of integration even as it has also served as one of the central problems that European integration was designed to solve. The emergence of supranational forms of governance in the post-war decades undoubtedly benefited from the catastrophic events of 1914–45, which arguably entailed the sort of confluence of functional, political, and cultural factors that could (and partially did) radically undermine existing institutional and constitutional structures. The result, however, was as much about the ‘rescue’ of the nation-state as its transcendence.33 The most persistent manifestation of this ‘hysteresis’ was the consistent refusal of Europeans to transfer power of legitimate compulsory mobilization of fiscal and human resources to the supranational level. Rather, instead they gave extensive regulatory power to supranational pre-commitment bodies—again, most importantly, the European Commission and European Court of Justice—in order to police the member states’ compliance with various legal obligations to each other, especially with regard to free movement in its various manifestations. On the basis of that functional pre-commitment power, European judges, lawyers, and law professors have nonetheless argued, in the political domain, for an expansive understanding of supranational authority; one that they then buttressed, in the cultural domain, by recourse to a constitutionalist ideology. By establishing themselves, according to that ideology, as defenders of a new patrimony of seemingly constitutional rights (generally market-based) against national encroachments, the Court and its allies were able to draw on what Joseph Weiler famously called ‘the deep-seated legitimacy that derives from the mythical neutrality and religious-like authority with which we invest our supreme courts’.34 This constitutionalist ‘ethos’, however, was as much (if not more) the product of the special historical conjuncture of the post-war era as it was the expression of essential aspects of constitutionalism writ large.35 It is the historical contingency of the post-war era that gave special force to the cultural conception of right (legitimacy) that would become central to integration’s constitutional imaginary. This powerful cultural current allowed the CJEU to present itself as ‘simply a continuation of the traditional role of European courts and, indeed, liberal courts everywhere: the protection of individual rights against the state’.36 The constitutional framing of EU law proved similarly empowering to lawyers and legal scholars, who could now assert that they were no longer operating within the traditional paradigm of international law, with its questionable binding force. Rather, they were now

33

See, most famously, Alan S Milward, The European Rescue of the Nation-State (2nd edn, Routledge 2000). Joseph HH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403, 2428. 35 See generally Lindseth (n 11). 36 Anne-Marie Burley and Walter Mattli, ‘Europe Before the Court: A Political-Theory of Legal Integration’ (1993) 47 International Organization 41, 64. 34

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specialists in a new kind of genuinely ‘constitutional’ law—a ‘higher law’ over and above the member states37—which offered considerably more constraining authority on national conduct, not to mention professional prestige for the legal advocates and theorists advancing these claims.38 The problem with this understanding, however, has always been its hyper-legalism, which has led to an almost exclusive focus on the constraint function of constitutionalism to the exclusion of the actual constitution of power in a deeper socio-political sense. Above all, this constitutional imaginary conveniently ignored the fact that all law—including sub-constitutional (ie administrative) public law—also serves such a constraint function, and that the existence of a constraint function alone tells us nothing about what differentiates the realms of specifically constitutional from non- or sub-constitutional law, in the EU or otherwise.39 And yet, by providing a kind of interpretive lingua franca, the constitutional ideology socialized generations of European elites (many legally trained) to overlook the EU’s lack of the necessary socio-political underpinnings for genuine constitutional authority: the autonomous capacity to mobilize fiscal and human resources (about which more in section III below). In this way, Europe’s constitutional imaginary arguably contributed to deeply flawed institutional and policy choices that led to the many crises of the past decade. The common currency, for example, presupposed a degree of centralized political power and legitimacy, most importantly relating to shared taxing and borrowing authority. The EU obviously has long lacked such authority and only recently, via the NGEU pandemic recovery instrument, has seemed any closer to attaining it (and in that case only with regard to borrowing and only on a temporary basis). Moreover, the still tenuous border-free zone in Schengen, which was placed under great strain both by the migration crisis of the mid-2010s and by the coronavirus pandemic that overtook Europe in 2020, ultimately presupposed a degree of centralized political power and legitimacy to mobilize human resources (policing, defence, and border control) that the EU has been struggling to develop, albeit slowly.40 In this way, the past decade of crisis directs our attention to a fundamental contradiction which the constitutional imaginary has ultimately been unable to conceal in the face of the EU’s deeper socio-political realities: ‘National institutions are increasingly constrained in the exercise of their constitutional authority’—the classic 37

See eg Tuori (n 13) 10–11. Cf Turkuler Isiksel, ‘Functional Constitutionalism in the European Union’, EUSA Biannual Meeting, Boston, March 2015 accessed 25 May 2021, 5–6 (explaining the shift to a constitutional discourse in terms of ‘epistemic empowerment’ for scholars). For a further exploration of the implications of Europe’s ultimately ‘functional constitutionalism’, see Turkuler Isiksel, Europe’s Functional Constitution: A Theory of Constitutionalism Beyond the State (OUP 2016). 39 Lindseth (n 14) 704. 40 Frontex, which was re-established in 2015 as the European Border and Coast Guard Agency in response to the migration crisis, may suggest some modest movement in a positive direction. Its expanding powers include, inter alia, deployment of teams for joint operations with member states as well as rapid interventions where a member state’s border control proves deficient and an urgent need for EU assistance exists. This is an important if small step in the development of the EU’s coercive policing powers, leading the agency’s chief to say in a 2018 interview: ‘I would not object if you define us as a law enforcement agency at EU level.’ Nikolaj Nielsen, ‘Frontex: Europe’s New Law Enforcement Agency?’ (EU Observer, 22 February 2018) accessed 25 May 2021. For further discussion, see Lindseth (n 21). 38

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constraint function of constitutionalism on which this imaginary depends—‘but supranational institutions cannot fill the void because they are unable to transition to genuine constitutionalism—that is the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion’.41 Unless and until Europe transcends this ‘as if ’-constitutionalism and replaces it with the genuine article, the European project will continue to struggle to meet the many geopolitical and macroeconomic challenges facing it in the years to come.

III. Demos-Legitimacy and the Metabolic Constitution of European Integration To understand why this contradiction continues to exist in European integration inevitably requires us to return to the deeper socio-political consequences of the (alas persisting) ‘no-demos’ problem in EU public law. The ultimately national foundations of Europe’s political metabolism—the legitimate compulsory mobilization of resources—are intimately bound up with the sociological difficulty of constructing an autonomously constitutional demos-kratia at the EU level. This dimension of integration is something that the constitutional imaginary almost entirely ignores, or at least sees as a problem of institutional engineering and political will, not socio-political transformation. However, as Robert Dahl long ago reminded us, a constitutional demos-kratia cannot be simply engineered through mechanisms of representation in which an electorate (however randomly defined) is allowed to select its representatives to govern the polity.42 The more difficult and antecedent question is always whether and to what extent that electorate experiences itself as part of a demos; that is, as part of a historically coherent polity in which the power of the majority to rule over the minority can operate without that rule being experienced as domination by an ‘other’. The most important consequence of this need for robust demos-legitimacy is metabolic: in a democratic age, only when elected representatives possess this highest form of political legitimacy can they extract resources from society in a legitimate and compulsory manner and then redirect them, on behalf of the demos, toward public ends that those representatives define. This metabolic capacity to convert social resources into public goods goes well beyond the primarily regulatory power that the EU enjoys, whose underlying legitimacy need only be technocratic and juristocratic (even if supplemented by an electoral component in the EP). Genuine demos-legitimacy requires an antecedent socio-political transformation that we could analogize to a ‘phase transition’ from liquid to solid, to borrow a notion from the natural sciences.43 European governance may well eventually achieve such a transformation when or if Europeans begin to experience democratic self-government in truly supranational terms. Only then will EU institutions be able to exercise legitimate compulsory mobilization of 41

Lindseth (n 14) 701. Robert Dahl, ‘Can International Organizations Be Democratic? A Skeptic’s View’ in Ian Shapiro and Casiano Hacker-Cordón (eds), Democracy’s Edges (CUP 1999). For the classic effort to translate this concern into the European context, see Joseph HH Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’ (1995) 1(3) European Law Journal 219. 43 Lindseth (n 16). 42

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resources unmediated through the member states (contra what the requirements of Article 311 TFEU today require, for example, with regard to Europe’s purported ‘own resources’).44 The current limits of EU power, as well as its ultimate grounding in legal, technocratic, and juristocratic legitimacy, are a reflection of what we can call the ‘power– legitimacy nexus’.45 This nexus derives from the fact that the nature of a polity’s underlying socio-political legitimacy also ultimately determines the scope of power that the polity can effectively and durably exercise. As Dahl rightly suggested, for representative institutions to be experienced as robustly demos-legitimate, both the electorate and the broader polity require socio-political underpinnings which the polycentric character of European history makes quite difficult to realize at this point (at least in a metabolic sense). In a manner consistent with Dahl, Neil MacCormick also rightly recognized that democratic and constitutional legitimacy is tied to the sense that a particular political community, as a collectivity, sees itself as ‘entitled to effective organs of political self-government’46 through institutions that the community constitutionally establishes for this purpose. As MacCormick further taught us, a demos need not be grounded in exclusionary ethnic, religious, or linguistic affinities— in other words, demos-legitimacy can also be ‘civic’—but it still must be grounded in a ‘historical’ and indeed ‘cultural’ experience for a particular community.47 It was arguably out of concern for these socio-political underpinnings that MacCormick— himself a great pluralist—eventually developed deep reservations about excessively pluralist (or what he called ‘diffusionist’) theories of governance beyond the nationstate. In his view, these perspectives paid too little attention to problems of ‘societal insecurity that lie at the heart of Hobbes’s vision of the human condition . . . The diffusionist picture is a happy one from many points of view, but its proponents must show that the Hobbesian problems can be handled even without strong central authorities, last-resort sovereigns for all purposes.’48 The value of such sovereigns, if they are worth having at all, is precisely their capacity to mobilize fiscal and human resources in a legitimate and compulsory fashion to meet collective challenges that confront a given society.49 Unfortunately, the EU, as currently constructed, lacks such a ‘strong central authority’ in this metabolic sense. The EU depends, rather, on a constitutional metabolism operating almost exclusively at the national level, and in this crucial respect (to borrow a term from one avowed EU constitutionalist) it is ‘parasitic’ on the democratic and constitutional authority of its member states.50 While functional pressures seem to persistently favour 44 Article 311 TFEU requires unanimity in the Council and only the consultation of the European Parliament, and its entry into force is conditional upon the approval of the member states according to domestic constitutional requirements (ie normally the approval of individual national parliaments). 45 See eg Lindseth, ‘The Democratic Disconnect, the Power–Legitimacy Nexus, and the Future of EU Governance’ (n 21); Lindseth, ‘The Metabolic Constitution and the Limits of EU Legal Pluralism’ (n 21); Lindseth (n 14). 46 Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (OUP 1999) 173 (emphasis added). 47 Ibid 169–74. 48 Ibid 78. 49 Cf Lindseth (n 18). 50 Tuori (n 13) 3–4.

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‘more Europe’, as the saying goes, the robust demos-legitimacy tied to national institutions has acted as a clear counterweight to these functional pressures, reflecting Bourdieu’s hysteresis in action.51 This robust national legitimacy—best evidenced by the traditional concentration of compulsory mobilization powers at the national level—continues to define political interests and shape discourses in favour of a more incremental, sub-constitutional approach to European governance, even as the constitutional imaginary still broadly retains appeal in the legal domain. One might raise the question at this point as to whether the Next Generation EU (NGEU) pandemic recovery instrument constitutes an important step toward the Europeanization of fiscal capacity, at least in terms of borrowing if not of autonomous taxing authority. In this regard, it is important to remember that the treaty requirements on own resources under Article 311 TFEU—unanimity in the Council, EP involvement limited to consultation, and entry into force strictly subject to the approval of the member states according to domestic constitutional requirements (ie national parliaments)—apply both to taxes and to common borrowing under the Multiannual Financial Framework (MFF). NGEU did not change any of that; indeed, the instrument was in fact adopted on the basis of those requirements. The MFF has traditionally been financed by national contributions (nearly 80 per cent), while only the remainder has come from own resources—historically sugar levies, custom duties, and a percentage of the harmonized Value Added Tax (VAT)—all of which are in fact collected nationally.52 The pandemic response has altered this reality only slightly, by adding a layer of shared EU debt to these national contributions and nationally collected own resources, allowing the MFF to reach a level of roughly 2 per cent of gross national income (GNI) for a limited two-year period. Moreover, the entirety of the tax revenues needed to support the borrowing to finance the recovery fund will still be mobilized at the national level. There remains, in other words, no EU tax collection authority that ‘wears the EU badge’, so to speak, operating on the basis of the EU’s own autonomous legitimacy to extract fiscal resources from society. This fact, perhaps more than any other, shows why the financing of NGEU is not some kind of ‘Hamiltonian moment’ for the EU (a point on which there was considerable scepticism in any case).53 Many observers fixate on debt mutualization as the primary sign of such a moment, when in historical fact the true Hamiltonian innovation of the founding period in the United States was the conferral of taxing authority on the federal government in the US Constitution.54 The current situation in the EU—in terms of the actual mobilization of resources—might be analogized to the ‘pre-constitutional’ United States under the Articles of Confederation, in which the ‘confederal’ level, such as it was, remained entirely dependent on the polycentric 51

See n 30 and accompanying text. Cristina Fasone and Nicola Lupo, ‘The Union Budget and the Budgetary Procedure’ in Robert Schütze and Takis Tridimas (eds), Oxford Principles of European Union Law, vol I (OUP 2018) 809 and 814–16. 53 As Wolfgang Münchau (@EuroBriefing) tweeted soon after the Macron-Merkel agreement on joint debt in May 2020: ‘A useful first step, but please spare us all this Hamilton nonsense’ (9:02 CET, 19 May 2020) accessed 25 May 2021. See also Sony Kapoor, ‘This Isn’t Europe’s “Hamilton” Moment’ (Politico.eu, 22 May 2020) accessed 25 May 2021. 54 See generally Max M Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (Ebsco Publishing 2003 or OUP 2003). 52

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legitimacy of its constituent states to mobilize resources on the confederation’s behalf. Thus, in terms of the metabolic constitution that actually supports European integration, NGEU will not cross the crucial Rubicon, that of a Europeanizing taxation authority to accompany the increased borrowing under the MFF. The financial underpinnings of the new recovery fund are still entirely in keeping with how the member states financed the response to the eurozone crisis over the prior decade—ultimately through their own fiscal capacities, whether directly or indirectly (for example, through the capital backing such mechanisms as the European Stability Mechanism, or ESM, or the ECB).55 All that said, there may still be room for a measure of (very cautious) optimism regarding the constitutionalizing potential of NGEU, particularly when conjoined with the rule-of-law conditionality that raised such hackles among the Polish and Hungarian leadership in the lead-up to the European Council meeting of 10–11 December 2020.56 The massive borrowing operation needed to finance NGEU (up to 750 billion euro)—by far the most significant such operation in the history of the EU— will see the Union ‘transformed from occasional issuer to market stalwart’ in terms of public debt.57 This extensive borrowing, even if temporary, will give the EU a capacity to mobilize fiscal resources on a scale that it has never previously enjoyed. This programme may well give rise, in effect, to the long-sought European ‘safe asset’—a ‘Eurobond’ in all but name.58 These new bonds ‘could boost integration between national financial systems, reduce the risk of runs on national bond markets, and help detangle the “doom loop” of interdependence among banks and local sovereigns’.59 Given the functional benefits this borrowing offers, it will not be surprising to see significant pressure—despite resistance from the usual quarters60—to make similar operations a permanent feature of the EU fiscal landscape. Indeed, authoritative voices in Europe—namely ECB President Christine Lagarde61 and ESM Managing Director Klaus Regling62—quickly began advocating the use of NGEU-type borrowing as a permanent instrument in the EU budget. 55 See generally Lindseth, ‘The Democratic Disconnect, the Power–Legitimacy Nexus, and the Future of EU Governance’ (n 21). See also Fasone and Lindseth (n 25). 56 See generally Lindseth and Fasone, ‘Rule-of-Law Conditionality and Resource Mobilization’ (n 26). See also Eszter Zalan, ‘Poland and Hungary Say Rule-of-Law Link Needs Treaty Change’ (EU Observer, 27 November 2020) accessed 25 May 2021. 57 Rebecca Christie, ‘Thinking Big: Debt Management Considerations for the EU’s Pandemic Borrowing Plan’ (Bruegel Blog, 9 December 2020) accessed 20 April 2020. 58 Alexander Lehmann, ‘Common Eurobonds Should Become Europe’s Safe Asset—But They Don’t Need to Be Green’ (Bruegel Blog, 28 September 2020) accessed 20 April 2021. 59 Christie (n 57). 60 ‘Large-Scale Joint EU Borrowing Should Remain One-Off: Weidmann’ (Reuters, 19 October 2020) accessed 20 April 2021. 61 Interview with Christine Lagarde, President of the ECB, conducted by Marie Charrel and Eric Albert of Le Monde (19 October 2020) accessed 20 April 2021. 62 Klaus Regling, ESM Managing Director, ‘Europe’s Response to Covid-19’ (UniCredit European Conference Online, 21 October 2020) accessed 20 April 2021.

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This capacity will, of course, still depend on the backing of taxes imposed and collected at the national level, drawing on the member states’ more robust democratic and constitutional legitimacy. Nonetheless, NGEU will create tangible incentives to ensure debt sustainability through more extensive nationally coordinated tax legislation. And while this coordination will remain under the rubric of the own-resources decision adopted under Article 311 TFEU, the obvious functional advantages of common borrowing could be conducive to facilitate, over time, a de facto fiscal mobilization capacity in the EU that is much less fragmented among the member states than it is today. In this regard, the common borrowing of NGEU holds out the possibility of ‘reshap(ing) the EU’s political economy’.63 With that reshaping, moreover, also could come a kind of polity-building power that reaches well beyond the sort of technocratic and juristocratic pre-commitment authority that has underpinned European integration up to this point. No doubt ruleof-law conditionality is not new—it was widely used in the EU enlargement process and remains a tool in the distribution of structural funds. What is new, however, is the genuinely ‘constitutional’ scale of the supranational resource-mobilization that, via NGEU, this new conditionality mechanism will support, vastly increasing the EU’s collective leverage over the conduct of national governments. In so doing, the combination of NGEU and the rule-of-law conditionality may help to create a new constitutional dynamic toward a new kind of post-pandemic EU, one that will have the effect of defining the boundaries of full membership in a much more robust sense than Articles 2 and 7 TEU could ever achieve on their own. This arguably explains the intense resistance of the Hungarian and Polish governments, as well as their insistence that the conditionality compromise negotiated by the German Presidency and agreed by the European Council in December 202064 not come into effect until reviewed by the CJEU. In this respect, the German compromise, while certainly not beyond criticism,65 clearly moved the integration project in the right direction. And, as expected, the CJEU upheld the conditionality mechanism in February 2022 as a legitimate means of protecting the EU budget.66 This entire episode thus brought European integration right up to the banks of the genuinely constitutional Rubicon. On the opposite shore is a new socio-political terrain, one marked by several more demanding macroeconomic and geopolitical features, whether completing Economic and Monetary Union (EMU), developing a genuine European security and defence capacity, or meeting the demands of the climate emergency that will no doubt reassert themselves once the pandemic has passed. These new challenges require something beyond the traditional forms of 63 Martin Sandbu, ‘EU Crosses the Rubicon with Its Emergency Recovery Fund’ (Financial Times, 22 July 2020) accessed 20 April 2021. He argues that, because ‘what can be done once can be done again’, this means that national leaders ‘have boarded the train towards more common taxation and cannot get off and turn back’. 64 Conclusions, European Council Meeting (10–11 December 2020) accessed 20 April 2021. 65 Alberto Alemanno and Merijn Chamon, ‘To Save the Rule of Law You Must Apparently Break It’ (Verfassungsblog, 11 December 2020) accessed 20 April 2021. 66 Case C-156/21, Hungary v Parliament and Council, ECLI:EU:C:2022:97; and Case C-157/21, Poland v Parliament and Council, ECLI:EU:C:2022:98.

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supranational governance in the EU; that is, something more than regulatory power and technocratic-juristocratic pre-commitment mechanisms, combined with an electoral component in the EP. What these challenges will demand, in other words, will be something approaching both the power and the legitimacy of a genuinely autonomous metabolic constitution for the EU in its own right.

IV. Conclusion: Constitutional Imaginaries, Legal Semantics, and Socio-Political Realities There is of course nothing, in principle, preventing the EU from attaining its own demos-legitimacy to support its own autonomous metabolic constitution eventually (indeed, the terrible and shared experience of violence and destruction between 1914 and 1945 provided an important historical foundation for such an effort, as have the functional demands of the ‘polycrisis’ over the past decade).67 If such a transformation were ever to occur, then the EU would almost certainly come to possess genuine fiscal capacities (not just borrowing but also taxation), along with the autonomous legitimacy to exercise them, which in turn could lead to all sorts of net positives. For example, a true Eurobond—a European ‘safe asset’—could complement new forms of EU taxing authority, giving the EU macro-economically salient borrowing capacities while also reinforcing the EU’s fragile banking system and perhaps advancing the status of the euro as a potential reserve currency to rival the US dollar. Armed with taxing and borrowing powers at the EU level (again, unmediated through the ownresources rules of Article 311 TFEU), Europe-wide redistributive mechanisms would then become possible, allowing for a genuine recycling of surpluses from wealthier regions to the poorer (perhaps via unemployment insurance or some other solidaristic welfare mechanism), which in turn would help to address regionally asymmetric economic shocks. The eurozone could then become the genuinely ‘optimal currency area’ that it is far from being today. The broader EU could also then begin to mobilize human resources to project coercive and deterrent power both internally (through policing) and externally (through defence), crucial to the EU becoming a full-fledged geopolitical player. But the EU is not at this point, at least not yet, revealing something more than just a ‘gap’ in EU authority that is concealed by constitutional ideology, to borrow Komárek’s phrasing.68 Indeed, one might say that the gap is really a profound socio-political chasm between the imaginary and true nature of European governance as traditionally structured. The legal semantics of a purportedly already constitutional EU may make judges, lawyers, and law professors feel more empowered and more justified 67 Former European Commission President Jean-Claude Juncker coined the term ‘polycrisis’ to refer to the confluence of multiple, mutually reinforcing challenges facing the EU, from ‘the worst economic, financial and social crisis since World War II’ through ‘the security threats in our neighborhood and at home, to the refugee crisis, and to the UK referendum’, that ‘feed each other, creating a sense of doubt and uncertainty in the minds of our people’. See Jean-Claude Juncker, ‘Speech at the Annual General Meeting of the Hellenic Federation of Enterprises (SEV)’, Athens, 21 June 2016, available at accessed 20 April 2021. 68 See n 5 above and accompanying text.

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in their legal constraint functions—which is no doubt conducive to the success of European legal integration. But this cultural appeal to the professional identity of jurists should not distract us from seeing how ultimately misleading and thin this constitutional imaginary truly has been. To give socio-political backing to this cultural conception of ‘right’ in the most robust sense, the EU must go through the necessary ‘phase transition’.69 Only then will it attain the sine qua non of genuinely ‘constituted’ power: legitimate compulsory mobilization of fiscal and human resources.70 Backed by such authority, the EU will then be in a much stronger position to live up to the role that the constitutional imaginary currently ascribes to it: enforcing not just policy pre-commitments but also more open-ended political values such as the rule of law within and among the member states, not to mention on the international plane. If the EU were to go through such a constitutional phase transition, it might emerge on the other side capable of great things. The most important would be moving beyond a mere ‘ever closer union’ among the multiple ‘peoples of Europe’ to a polity in which a singular ‘We the people’ of Europe would become the true source of governing power. But that transition will not occur until something much closer to a coherent supranational demos is forged in Europe, one of the type that the meets the criteria articulated by Dahl and MacCormick.71 Only then will the EU attain a legitimacy to govern via something more than legally constraining technocratic and juristocratic bodies, moving to a form of governance capable of exercising genuinely constitutional power—that is, metabolic power—in the most robust sense.

69

See n 43 above and accompanying text. And for that, to borrow the words of one observer, the EU ‘will need nothing less than a federal political union. This cannot be fudged. If you conclude that a federal union is unfeasible or undesirable, it is probably better to take a step back rather than keep on resorting to hype.’ Wolfgang Münchau, ‘Beware of Smoke and Mirrors in the EU’s Recovery Fund’ (Financial Times, 20 September 2020) accessed 20 April 2021. 71 See nn 42–47 above and accompanying text. 70

11

The European Public Good and European Public Goods Neil Walker

I. Introduction Any discussion of the EU’s constitutional imaginaries—‘the constitutive ideas behind various conceptions of the EU’s constitutional (order)’1—must be alert to the ways in which they have always felt ‘the touch of stateness’.2 From the outset, how we think about the EU as a polity and articulate its constitutional character has been influenced by the models available from the national constitutional tradition. The nature of that influence, however, is complex. There are elements of borrowing, but also of distancing and even rejection, and these attitudes are more or less conscious or explicit. Compounding the complexity, the state tradition is not singular and monolithic but diverse and contested, and in its own diversity and contestation the emerging supranational imagination, though following a quite different trajectory, draws upon some of the same kinds of distinctions and oppositions that have supplied the faultlines within the state narrative. In this chapter, I want to focus on one such set of distinctions and oppositions affecting both the state constitutional narrative and the EU narrative; namely, that which holds between the public good and public goods. In an opening discussion I tease out the nature of this distinction, and look at the way in which these two key ideas stand in a double relationship of mutual tension and mutual support within the constitutional imagination of predominantly state-centred historical record. Subsequently, I examine how that same double relationship has played out in the EU context. In conclusion, some of the ongoing and emerging difficulties that this poses for the legitimacy of the supranational polity are considered.

II. Two Types of Good; Two Types of Political Association What do we mean by the public good and by public goods, and on what does the distinction between these two ideas turn? On the one hand, the public good, sometimes 1 Jan Komárek, ‘European Constitutional Imaginaries: Utopias, Ideologies and the Other’ IMAGINE Working Paper No. 1 (iCourts Working Paper Series, No. 172) accessed 10 May 2021. 2 Jo Shaw and Antje Wiener, ‘The Paradox of the European “Polity” ’ in Maria Green Cowles and Michael Smith (eds), State of the European Union vol. 5: Risks, Reform, Resistance and Revival (OUP 2000) 64, 65.

Neil Walker, The European Public Good and European Public Goods In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0011

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also called the common good or bonum commune, refers to what is deemed to be for the general good of a public. For this we require a prior sense of who that particular public is; which public, once identified, provides the reference point for what is good for it. Public goods, on the other hand—sometimes also called collective, communal, common, shared, or social goods—refer to particular products, resources, or conditions that are of value to individuals and are more effectively realized or better enjoyed on a collective basis. Here the specification of the goods, which range from material objects and attributes such as a bridge or railway network or clean air to more general institutions or forms of social organization such as democracy or the rule of law, or even more abstract states such as conviviality or solidarity, is prior to and indifferent to their sponsorship by any particular public. So whereas with the public good the good in question is community-dependent and singular, with public goods the goods in question are community-indifferent and plural. On the basis of that skeletal distinction, we can already connect our two notions, however tentatively, to two different models of collective organization. A useful starting point is Michael Oakeshott’s understanding of the history of modern political thought and practice as a tension between two kinds of political association, each characterized with terms drawn from Roman private law: between societas, or civil association, on the one hand, and universitas, or enterprise association, on the other.3 Or, to use the similar terminology more closely associated with Friedrich Von Hayek,4 the distinction lies between nomocracy and teleocracy.5 Put simply, the societas or nomocracy is based on the collective acceptance of common rules as grounding a notion of society ‘as an arena of relatively free-floating relationships’,6 while the universitas or teleocracy stands for a form of co-operation animated by some specified collective purpose or purposes. The contrast between the public good and public goods deepens our understanding of these two types of political association. We have the societas or nomocracy, whose raison d’être is not the achievement of any specific public purpose or purposes but a sense of being a single public sufficient to endorse common subscription to a set of rules of the social game. The good of any such single public is its public good rather than the diverse public goods that happen to be valued by individual members. Alternatively, we have the universitas or teleocracy, whose function is to realize or secure one or more specific collective benefits. That common benefit stands independently of its specification by any particular public, and, indeed, what identifies and joins the public qua public here need only be their common enterprise in pursuit and enjoyment of the relevant benefits. The discrete purposes and ends of such enterprises we think of as public goods rather than the public good. 3

Michael Oakeshott, On Human Conduct (OUP 1975) esp Parts II and III. On Oakeshott’s influence on Hayek see Perry Anderson, ‘The Intransigent Right: Michael Oakeshott, Leo Strauss, Carl Schmitt, Friedrich von Hayek’ in his Spectrum: From Right to Left in the World of Ideas (Verso 2005) 3. On continuities between Oakeshott and Hayek more generally, see eg Martin Loughlin, ‘Nomos’ in David Dyzenhaus and Tom Poole (eds), Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law (CUP 2015) 65. 5 Friedrich A Hayek, Law, Legislation and Liberty vol. 1 (Routledge, 1973) or, adopting Hayek’s Latinate opposition, between nomos and taxis. 6 Antony Black, Guilds and Civil Society in Modern European Political Thought (Cornell University Press 1984) 280. 4

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In drawing these distinctions, however, we need enter a number of caveats. We should not overstate the opposition between the societas and the universitas, but instead be alert to the connections between the types of good(s) paradigmatic of each. As Oakeshott readily acknowledges, the basic divide is a highly stylized one. Actual political communities, he declares of the modern state, will display ‘an unresolved tension’7 between the two ideal types. There are no pure cases, but only hybrids variously placed on a continuum. And in accounting for that hybridity, we have to pay close attention to the relationship between the two logics of association. Their starkly different points of departure implies competitive tension and trade-off, the societas perspective appealing to the community-as-public prior to and independent of the specification of its purposes and the universitas perspective to objective purposes prior to and independent of community—but these contrasting appeals also suggest the basis for a complementary relationship, or at least one of mutual stimulation. Communities with a prior sense of common publicness and a prior conception and vocabulary of their public good will often be well placed and strongly motivated to develop particular public goods. Conversely, a track record of collective pursuit of public goods might encourage and facilitate in any particular association a sense of itself as constituting a common public capable of developing a sense of its own general good. Or, to put it in the somewhat different terms favoured by Jeremy Waldron, the ‘adjacency’ of persons and groups in terms of geographical location or other forms of functional proximity creates the forms of mutual dependence that encourage the production of public goods among these persons and groups, which common enterprise can in turn foster an ‘affinity’ between these persons and groups, which can in turn consolidate their ‘adjacency’, and so on—with the causality between common enterprise and community running equally freely in either direction.8 What is more, the relationship between the two, between societas and universitas— public good and public goods—is not just a causal one, but also in some measure an internal normative one. For there is, in addition, a deal of substantive overlap in the coverage of both concepts. The common concerns, sentiments, and commitments that register in the making and sustaining of the public good of an association as societas overlap with the common concerns, sentiments, and commitments that register in the making and sustaining of the public goods of an association as universitas. Superficially, this might surprise. One might assume that the stuff of association in the public good of a societas is other-regarding just in virtue of the fact that there must exist a sufficient sense of affinity to constitute a common public independently of any set common purposes, Equally, one might assume that the stuff of association in the public goods of a universitas is self-regarding in that it speaks to matters where our discrete interests happen to converge around a particular goods-creating or goodssustaining enterprise. Yet neither assumption would be correct, which we can demonstrate by approaching the matter from both directions. On the one hand, the very idea of a societas—of an association bound by common rules rather than common purposes—is perfectly consistent with the public good 7

Oakeshott (n 3) 200–01. Jeremy Waldron, ‘The Principle of Proximity’, NYU School of Law, Public Law Research Paper No 1108 < https://papers.ssrn.com/abstract=1742413> accessed 10 May 2021. 8

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understood in welfarist terms as aggregate utility. On this view, the public good is no more than the sum of the value of the individual utilities of the members of the public in question. The commitment to societas, then, is from that perspective merely a commitment to the forging or acceptance of a social pact sufficient to allow individual interests maximum scope to flourish in a framework of voluntary relations—a view, incidentally, of which both Hayek and Oakeshott, given their political preferences, would approve.9 And so societas need not be indicative or productive of a ‘thick’ sense of community.10 Indeed, we might argue that not only the classical precepts of welfare economics but much of the broader tradition of modern liberalism, with its emphasis on protecting the diversity of individual interests and life-plans, is consistent with this kind of understanding of political society;11 one in which collective purposes are deemphasized not because they encompass too narrow a conception of publicness but, in marked contrast, because they tend to overreach the proper range and extent of any ambition for the public domain. Of course, alongside these influential views, there is a wider range of understandings of the singular public good that take a more communitarian approach. Here we refer to a spectrum of positions emphasizing the degree of social cohesion and commitment required to develop and sustain a robust sense of common publicness, and tending to view the political capacity for joint action thereby generated in more ambitious terms as including resource redistribution and other solidaristic measures.12 But it is important to register the fact that there are quite different and often rival accounts in play here, and we can make no simple equation between the public good and a thick bond of common values and other-regarding ends. On the other hand, the provision of particular public goods can also actively contribute to the tissue of common sentiment we find in a thicker understanding of the singular public good. To be sure, this is perhaps least directly so in the case of these material public goods defined in the classical economic sense. Public goods under this narrow title are socially assured or generated goods characterized, first and foremost, by non-excludability of access to their enjoyment—just as public ‘bads’ may be said to suffer from non-excludability of vulnerability to harm13—and, second, by nonrivalry of consumption.14 The conditions of non-excludability and non-rivalrousness are rarely fully in place, with street lighting and flood control systems among the few examples of ‘pure’ public goods. But even in their typically partial and imperfect form, where some exclusion or differential levels of ‘club’ access are technically possible, or

9 Albeit on somewhat different grounds, even though both are members of Perry Anderson’s so-called intransigent Right. See further, Anderson (n 4). 10 See Renate Mayntz, ‘Common Goods and Governance’ in Adrienne Heritier (ed), Common Goods: Reinventing European and International Governance (Rowman & Littlefield 2002) 15. 11 See eg Antonio Argandona, ‘The Common Good’, IESE Business School Working Paper, WP-937, July 2011 accessed 11 November 2022. 12 For a strong communitarian statement along these lines, see Amitai Etzioni, The Common Good (Polity 2004). As Mayntz (n 10) points out, there is also a wider sociological tradition of common good theorizing, encapsulated by Talcott Parsons, focused more on the structural conditions of (political and social) system maintenance than the forms of consciousness associated with the facilitation of common goals. 13 Fabrizio Cafaggi, ‘Transnational Private Regulation and the Production of Global Public Goods and Private “Bads” ’ (2012) 23 European Journal of International Law 695. 14 See eg Mancur Olsen, The Logic of Collective Action (Harvard University Press 1971).

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where the common resource pool may be subject to depletion beyond a certain level of exploitation,15 public goods so understood create a distinct structure of incentives. They are goods from which all may individually benefit. But they are also goods to the provision or production of which any particular private party may lack the incentive to contribute, or which, at least in some circumstances, any party may degrade by excessive use. That is so on account of the free-riding temptations and over-consumption opportunities supplied by the very fact of non-excludability. It is this structure of incentives and costs that makes the case for compulsory public provision, and, typically (though by no means exclusively), for the invocation of the territorially bounded state as the vehicle of such provision. Yet while such public goods can provide both the fruit and the reinforcing condition of a prior sense of common publicness—and so may be causally connected to the singular public good in the ways indicated above—their relationship to collective action and competence remains basically instrumental. Collective competence to act is a necessary means—or instrument—towards the provision of specific public goods, which provision, by demonstrating the shared benefits and supplying the shared experience of acting in common, can in turn be instrumental to the (re)production of the bond or pact that helps ground collective competence. But there are other public goods that, unlike the classical economic or other more broadly material variant, have an intrinsically social character, and where we may in addition discern, however tentatively, an internal normative connection to the singular public good. As Waldron has it, such intrinsically social public goods produce a value which cannot be ‘adequately characterizable in terms of its worth to any or all of the members of that society considered one by one’ but which instead ‘make essential and ineliminable reference to what all . . . enjoy together’.16 A further sub-division is required in filling out this category. There are certain social goods—Charles Taylor calls them ‘ “immediately” common goods’17—where the good of them lies in the simple fact that we share. Friendship, comradeship, and conviviality would be examples where the generation of the goods and their enjoyment by one person is wholly, directly, and reciprocally dependent upon its simultaneous generation for and enjoyment by certain others. Beyond this, however, there is a much larger category—and at the level of the political community a much more significant category—of what we might call mixed public goods, whose enjoyment is both a product of our enjoying them together and an instrument from which we may derive independent benefit. So, for example, all of us may derive specific advantages from participating in a democratic or rule of law-respecting culture, or from living in a society in which virtues such as solidarity, tolerance, and mutual respect are embedded. Yet part of the value we attribute to these things is again that we value them 15 In the classical literature, the term ‘common pool resources’ is reserved for goods that are nonexcludable but, unlike ‘pure’ public goods, also subtractable (rather than non-rivalrous), while ‘club goods’ are excludable but non-rivalrous; see eg Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (CUP 1990). 16 Jeremy Waldron, ‘Can Communal Goods Be Human Rights?’ in Liberal Rights: Collected Papers 1981– 1991 (CUP 1993) 339, 358 17 Charles Taylor, ‘Cross Purposes: The Liberal-Communitarian Debate’ in Philosophical Arguments (Harvard University Press 1995) 181, 190

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in common with others, each of us appreciating the very fact that that we live in a society where our fellow socii enjoy (and likewise appreciate the common enjoyment of) these benefits too. Equally, as regards more specific social goods such as security,18 or a common language,19 or an educated society, or a society with a rich artistic culture, many of these values we can also understand in instrumental terms—the sense of safety in one’s habitat; the capacity to communicate effectively with our neighbours and other relevant peer groups, or to enjoy fine arts—but again part of the benefit lies in the fact that we can do these things together—our enjoyment enhanced by our appreciation that it is experienced by all as a common enjoyment. What these intrinsically social public goods—immediate and mixed—have in common, and how they differ from the merely instrumental appeal of material public goods, is that they all in their own way contribute to the very fabric of society, to the very sense of a ‘we’ living together and also, however embryonically, of political community, of our doing a range of things together in common cause and concern. As public goods, in other words, they are not simply causal factors or instruments in the generation or reinforcement of a sense of common publicness, but are in fact directly constitutive elements of our social belonging, and perhaps in turn of that very common publicness. Hopefully the discussion so far has supplied some overall sense of the potential of the public good—which may itself encompass a more or less other-regarding ethic—and of public goods—which may be more or less instrumentally ‘thin’ or socially ‘thick’—to feed off each other in a virtuous cycle. This is so notwithstanding the different emphases between good and goods, between thick and thin, and indeed between societas and universitas, to be found in the general background political imaginary of the modern state at different times and places. To recall Waldron, the co-dependence that territorial or other functional proximity brings generates collective action problems and opportunities that may be addressed through the provision of instrumental public goods, and that provision can also help foster a sense of affinity—and so of the identitarian basis for a shared sense of the public good. In turn, the greater sense of affinity reinforces the preparedness to put things in instrumental common and so consolidate co-dependence, and so on. In all of this, constitutionalism figures significantly. It does so by providing not only a host for the imaginary—a prominent discourse through which the existence of the polity can be recognized and its basic form and orientation can be expressed—but also an institutional nexus—a set of concrete mechanisms through which the polity-so-imagined may be realized.20 For the basic architecture of the modern state, as organized through a canonical text—the pact of self-government made by the sovereign people—in which representative democratic institutions are given priority, but are also supplemented and limited by individual and group rights and by the functional and policy domains reserved to experts or disinterested

18

See eg Ian Loader and Neil Walker, Civilizing Security (CUP 2007) esp. Chapter 6. See eg Philippe Van Parijs, Linguistic Justice for Europe and for the World (OUP 2011). 20 On the two functions of constitutionalism—expressive and design—more generally, see Neil Walker, ‘Europe’s Constitutional Overture’ in Nick Barber, Maria Cahill, and Richard Ekins (eds), The Rise and Fall of the European Constitution (Hart 2019) 177. 19

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officials, provides the circuit through which the various forms of positive feedback between goods and good considered above are possible. Of course, this is again a highly stylized picture, and political sociology reveals significant variations on the theme of circular reinforcement and many tensions between the basic ideal and the empirical reality. Much is always at stake in constitutional debate over the precise mix of democratic institutions and between democratic and other elements, and the notion that ‘the people’ are and remain in practice the meta-democratic authority is a fragile and elusive construction. What is more, the very legal and political institutions of the democratic state, Parliament, Supreme Court, and so on, themselves offer a kind of high-order polity-referential category of mixed (social and instrumental) public goods, inasmuch as we endorse and value them as tokens of our common commitment and achievements as co-participants in the polity as well as for any instrumental benefits they may bring us. But it is a category of public goods, importantly, that is only capable of being realized and enjoyed once a certain level of interdependence and affinity-based sense of common cause has already been reached. We can, in other words, only derive added value from our constitutional architecture as a symbolic reminder of our common community to the extent that we already have achieved and have been able to sustain a track record of common community of which we would wish to be reminded. Yet, however precariously dependent upon a favourable historical background for its emergence, and however compromised in its development the ideal might be in practice, we should not doubt the resilient importance in principle of the kind of framework of engaged public discourse and institutional transmission belt that we associate with constitutional democracy to the generation and stabilization of a framework of positive engagement between the public good and public goods. That is the clear message we can take from the example of the modern state polity.

III. The Good(s) of the European Union What does the above analysis suggest for our understanding of the European Union? There is undoubtedly a strong tradition of imagining and pursuing a version of the EU that places primary emphasis on the pursuit of material public goods. That emphasis, in turn, has influenced the way in which the singular public good has been conceived, and in particular suggests why the thin utility-maximization perspective of welfare economics enjoyed early prominence. In both these respects, the distinctiveness of the EU is highlighted through its comparison with the modern state. If all political communities are hybrids of the logics of societas and universitas, then it is immediately clear that, as a broad generalization, the EU has historically occupied a point on the continuum closer to the universitas pole than does the state. Yet, while this provides us with a basic point of departure, the story of the European polity as a constitutional construction has always been more complex than this, in ways that we will elaborate below, and that complexity has deepened over the decades. In particular, how the general public good has been formulated and pursued in the supranational context speaks to the existence of various distinct but somewhat fragile strands within the European constitutional imaginary. The entanglement of these different strands

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serves to reinforce the distinctiveness of the EU context, but in so doing it also echoes some of the challenges faced in the state context.

A. Material public goods The primary emphasis on material public goods speaks both to the prominence of the economic dimension and to the close attention to its boundaries in the initial design of supranationalism. Its purest form can be found in the influential early perspective of German ordoliberalism.21 According to that approach, the purpose of the 1957 Treaty of Rome was to supply Europe with its own ‘economic constitution’, understood as a set of economic rights and freedoms directed towards the material prize—and public goods—of a common European market. But the distinction of the new construct lay as much in what it excluded as what it included, for in the ordoliberal vision the legitimacy of the nascent polity so established depended first and foremost on the direct linkage of the economic constitution to a narrowly materialist and thinly individualist sense of the general public good, which limitation would be guaranteed by the absence of democratically responsive will formation and consequential pressure towards market-interfering socio-economic legislative purposes at the European level. These matters were instead to be left to the Member States and their own thicker national sense of the general public good. Ordoliberalism’s narrow emphasis on negative integration tended to neglect the ways in which the EU, even from the outset, pursued its own market-correcting policy goals. Yet many other imaginings of the EU’s emergent polity continued to stress the discrete and modest character of such positive interventions. The neo-functionalism logic of the governance method associated with Jean Monnet (of which more shortly)—probably the most influential template of self-understanding of the EU’s bureaucratic class—focused upon the stepwise accumulation of discrete public goods within the supranational portfolio. Similarly, Hans Ipsen’s conception of Europe as a special purpose association (‘Zweckverbande funktionaler Integration’)22 saw supranational law as engaged in discrete functional activities which could and should be shielded from direct political interference. Ipsen’s theory, to which Giandomenico Majone’s contemporary work on the idea of a European ‘regulatory state’23 is a notable contemporary successor, shares with ordoliberalism the idea that supranationalism stands above partisan politics and a politically generated sense of the singular common good, but here the invisible hand of the market is generously supplemented by the expert hand of the technocrat. The scope of European law is not narrowly

21 See eg Ernst-Joachim Mestmäcker, ‘On the Legitimacy of European Law’ (1994) 58 Rabels-Zeitschrift 615; Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Harvard University Press 2018), Chapter 6. 22 Hans-Peter Ipsen, ‘Europaische Verfassung—Nationale Verfassung’ (1987) 22 Europarecht 195. 23 See eg Giandomenico Majone, ‘The Rise of the Regulatory State in Europe’ (1994) 17 West European Politics 77; see also his Dilemmas of European Integration (OUP 2005). On the connections between Ipsen and Majone, see Christian. Joerges, ‘ “Good Governance” in the European Internal Market: An Essay in Honour of Claus-Dieter Ehlermann’, EUI Working Papers, RSC No. 2001/29 accessed 10 May 2021.

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restricted to negative integration—to the market-making removal of obstacles to wealth-enhancing free trade—but extends to certain positive measures of an administrative nature. However, in Majone’s developed model these regulatory measures are concerned not with macro-politically sensitive questions of distribution, but with risk regulation in matters such as product and environmental standards, where expert knowledge is paramount and accountability best served by administrative law measures aimed at transparency and enhanced participation in decision-making by interested and knowledgeable parties, rather than the volatile preferences of broad representative institutions. More generally, those who have explicitly adopted, and continue to adopt, the language of material public goods in the EU context24 tend to be quite wide-ranging in their depiction of the supranational enterprise, while still treating these goods in selfcontained ‘specialist project’ terms. The initial act of European supranationalism, the 1951 making of the Coal and Steel Community, has been characterized as the making of a supranational public good in the carbon and steel production industry.25 In turn, the common market, Euratom, the Common Agricultural Policy, European defence and foreign policy, and internal security have been variously described as discrete additions to the menu of European material public goods. So too have many of its later explicitly market-correcting policy goals, such as industrial policy, currency and monetary policy, macroeconomic stabilization policy, climate change mitigation, and ‘digital sovereignty’.26

B. Varieties of the European public good Yet from the outset, the idea of Europe as founded on a commitment to closely defined, material public goods has also been associated with a conception of the general public good that goes beyond that narrow closely defined materialism. These wider conceptions can be organized into three broad strands. In the first place, as Claudia Sternberg has closely documented, the early emphasis on Europe as an economic project was reinforced by a series of narratives, prominent among the new European political and administrative classes, in which the common good of market-led integration figured as ‘an ostensibly indisputable, compelling message’.27 This message came in more or less passionate registers, but in all cases European integration was conceived of as something more than the mere concurrence of adjacent interests. One register saw the very survival of Europe and its recovery from the ravages of war as requiring Europe to harness its growing economic 24 For a recent overview and renewed analysis, see Clemens Fuest and Jean-Pisani Ferry, ‘A Primer on Developing European Public Goods’ (2019) EconPol Policy Report 16, November 2019 accessed 10 May 2021; see also Guido Montani, ‘The European Union, Global Public Goods and Post-Hegemonic World Order’ (2003) 8 European Union Review 1; Stefan Collignon (ed), The Governance of European Public Goods (Palgrave 2017). 25 Montani (n 24). 26 Fuest and Ferry (n 24). 27 Claudia Schrag Sternberg, ‘Public Opinion in the EU Institutions’ Discourses on EU Legitimacy from the Beginnings of Integration to Today’ (2016) 54 Politique Europeene 24, 27; see also Claudia Schrag Sternberg, The Struggle for EU Legitimacy: Public Contestation, 1950–2005 (Palgrave 2013).

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and technological independence in an effective manner in an increasingly globalized world. Another register spoke of convergence not in these existential terms, but nevertheless as an uncontroversial common aspiration—one that ought to be endorsed by all good Europeans. A third register spoke more to the ‘cold’ science of progress, and to Europe as uniquely positioned as a site of rational technocratic governance.28 These various emergent narratives of the general public good tended to involve the close embrace of two underpinning mixed public goods. Peace was invariably cited as one such good. Indeed, from the Schuman Declaration onwards, announcing the launch of the Coal and Steel Community, the link between economic convergence and lasting peace is often quite explicit in official discourse. ‘The pooling of coal and steel production’29 and the creation of common transnational producer and consumer markets were endorsed as the key to making violent conflict between nations both unfeasible and unthinkable. Prosperity too, if more controversially, was often treated as a category of social goods over and above its instrumental attractions for each individual who prospers, in that the making of a common market in which all the factors of production (goods, services, persons, and capital) were put into free circulation at the continental level also spoke to a general commitment to free Western Europe from post-war austerity. The general rise in living standards consequential upon the continent-wide rolling out of a social market economy could be presented and celebrated as a collective achievement—a European success to which many contributed, and which underscored an early growing consciousness and affirmation of common Europeanness.30 Whereas this approach turns on how these key mixed public goods have a polityfoundational value, and so are constitutive of the general public good, a second strand of imaginative projection of the common good relies on the other candidate relationship between goods and good, namely that of causality. This is an approach that is closely associated with the Monnet method and the neo-functional logic which animated it. Again the Schuman Declaration, whose effective author was Jean Monnet, supplies a key text. The idea that ‘Europe will not be made all at once, or according to a single plan . . . [but] will be built through concrete achievements which first create a de facto solidarity’ speaks to a gradual process of mutual reinforcement between goods and good. Ernst Hass, the original and most influential theorist of neo-functionalism, explained this as involving a dynamic through which ‘political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new centre, who institutions possess or demand jurisdiction over the pre-existing national states’.31 The core idea is that the pursuit of material public goods drives a deepening of political engagement and a strengthening of common cause at the European level, which in turn justifies an ongoing expansion of jurisdiction into areas separate from but implicated by the core economic domain.

28

Sternberg, ‘Public Opinion’ (n 27) 26–29. Declaration of 9th May 1950 delivered by Robert Schuman, accessed 10 May 2021. 30 On Peace and Prosperity, see esp. Joseph Weiler, The Constitution of Europe (CUP 1999)Chapter 7. 31 Ernst B Haas, The Uniting of Europe: Political, Social and Economic Forces, 1950–57 (Stevens 1958) 16. 29

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In their original conception, however, both the constitutive and the causal approaches to the generation of good from goods would confront considerable difficulties. These difficulties were not unrelated. One the one hand, over time, the foundational social goods of peace and prosperity clearly lost much of their immediate post-War resonance.32 On the other hand, despite various moments and phases of jurisdiction enlargement and the development from 1979 of a self-standing elected European Parliament, the record of integration has been far from one of seamlessly self-reinforcing functional expansion and deepening of common political culture.33 If common endorsement of certain manifest goods of integration fuelled the ‘permissive consensus’ of the early years, expansion of jurisdiction beyond these fading initial goals gradually brought the EU into more controversial policy territory. But here resilient national and other loyalties re-emerged as a ‘constraining dissensus’34 inhibiting the pursuit or achievement of just the kinds of other-regarding outputs that might stimulate or cement commitments to a self-standing European public good. A third strand of thinking about the European public good responds to the challenges faced by the foundational and functionalist schools. This identity-reinforcing approach involves the generation of new mixed public goods with a significant social dimension to supplement the foundational goods and to facilitate functional expansion. The additional goods in play sound at various levels of abstraction and ambition, in each case with only qualified success. Most concretely, in many areas of the emerging wider jurisdiction of ‘social Europe’35—from education to environment to anti-discrimination measures—the substantive policy goods deliver a double effect. As well as offering material support to the life chances of countless individuals, they may help engender a sense of common cause and social identity in particular fields and so contribute—though modestly, and often in a narrowly constituency-specific way—to the sense of Europe as a site for a distinct common public good. In other cases the candidate social goods are concerned with the EU holistically conceived, and are self-promoted as both index and vehicle of the transnational spread of a certain set of common values, with its associated form of common political life. The idea of European citizenship is central here. Introduced in 1992, most immediately as a consolidated expression of what members of the EU political community had already acquired and could advertise in common qua members,36 it is a key instance of a high-order, polity-referential mixed public good.37 Yet as EU citizenship must coexist 32

Weiler (n 30). Neo-functionalism has been the subject of much criticism over the years, including auto-critique by its main figures. Haas himself renounced the approach as ‘obsolescent’ in the 1970s, but in later life became persuaded again of its value; see eg Arne Niemann, Zoe Lefkofridi, and Philippe Schmitter, ‘Neofunctionalism’ in Antje Wiener, Tanja Borzel, and Thomas Risse (eds), European Integration Theory (3rd edn, OUP 2019) 43. 34 Liesbeth Hooghe and Gary Marks, ‘A Postfunctionalist Theory of European Integration: From Permissive Consensus to Constraining Dissensus’ (2009) 39 British Journal of Political Science 1. 35 Sofia Fernandes and Frank Vandenbroucke, ‘Social Europe: From Slogan to Reality’ Fondation Robert Schuman. European Issue No. 487 (2018) accessed 10 May 2021. 36 Originally introduced under the 1992 Treaty of Maastricht. See now Arts 2–24 TFEU. 37 The 2003–05 European constitutional project supplied a similarly legally formalized high-order polity referential public good. Like citizenship it can be seen as a largely expressive endeavour seeking to consolidate and advertise existing achievement, and its failure speaks to some of the same problems of seeming to 33

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with national citizenship—which supplies a more potent polity-referential public good at the state level—the question of the additional dividend of this new status, the value-added affinity-generative power that can be achieved from the EU citizenship platform beyond the pure expression of rhetorical self-attribution, remains an open and highly vexed one.38 A similar but more outward-facing polity-referential form of cultural expression and self-promotion is seen in the close link, first established in the 1993 Copenhagen criteria,39 between CCE enlargement and the endorsement of national democracy and the rule of law, and the consequent rejection of the authoritarian systems of government of Europe’s recent history. Again, however, the extent to which this proclaimed social good has traction beyond its proclamation remains doubtful. For here, of course, Europe’s own supranational political institutions struggle to be emblematic of democratic virtues. Europe, in other words, may help Europeans value their democracies as a common and mutually facilitated achievement, but the theatre of supranational democracy does not lead by unambiguous example.40 Another important, if less formal or institutionally specific polity-referential, category of public goods, citing the EU’s own motto adopted in the year 2000, concerns the notion of ‘Unity in Diversity’. This involves the claim that the EU as a social space is both distinguished and enriched by the very variety of its peoples, languages, cultures, and traditions. The sense of the common goods in question here is situated on a spectrum, from a general culture of tolerance41 and mutual respect to a more active embrace of difference. Of course, the very idea of Unity in Diversity creates its own paradoxes, not least in the increasing dominance of English42 as a default ‘unitary’ lingua franca through which Europe’s ‘diversity’ may be communicatively joined and enjoyed,43 and indeed by a more general tendency of a certain type of metropolitan experience to supply the very particular cultural conveyor belt through which an understanding and acceptance of Europe’s social plurality is achieved.

borrow the ceremonial clothes of statehood. On this, and more hopeful ways of conceiving of EU documentary constitutionalism, see Walker (n 20). 38 Notwithstanding the CJEU’s statement in Grzelczyk that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality’: Case 184/99 Grzelczyk [2001] ECR 1– 6193; see Niamh N Shuibhne, ‘The “Territory of the Union” in EU Citizenship Law: Charting a Route from Parallel to Integrated Narratives’ (2019) 38 Yearbook of European Law 267. 39 Set out by the Copenhagen European Council in 1993, and subsequently enshrined in the Treaties. See now Articles 6(1) and 49 TEU. 40 See eg Rachel Kleinfeld and Kalypso Nicolaidis, ‘Can a Post-Colonial Power Export the Rule of Law? Elements of a General Framework’ in Gianluigi Palombella and Neil Walker (eds), Relocating the Rule of Law (Hart 2008)Chapter 7. 41 See eg Joseph Weiler, ‘A Constitution for Europe? Some Hard Choices’ (2002) 40 Journal of Common Market Studies 563. 42 In the pre-Brexit years at least. 43 See Van Parijs (n 19).

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IV. Conclusion: The Future of the European Public Good Compared to the modern state, then, for whom, as a basic credo of public policy, the pursuit of particular public goods is predicated on a prior understanding of the primacy of the state’s overall public good, the EU has instead emphasized the pursuit of particular public goods within a gradually expanding portfolio and without close or unambiguous reference to any overarching sense of the general public good. And compared to the modern state—where the sheer range of government activity, including redistributive activity, in the area of material public goods, but also of conscious forms of culturally integrative policy and mixed public goods (citizenship, education, public media, language, etc), has significant feedback effects in terms of reinforcement of a general political capacity and national public consciousness—both the potential for jurisdictional expansion and the common social consciousness generated through the pursuit of European public goods is limited. But these are differences of degree, and certainly escape the categorical no-demos/ demos distinction and, indeed, other unhelpful dichotomies (‘liberal’ versus ‘republican’, ‘confederal’ versus ‘federal’, ‘intergovernmental’ versus ‘national’, ‘delegated’ versus ‘original’, etc) in terms of which the differing political capacity of the EU and the state is sometimes dramatized. With reference to the good–goods, Societas–Universitas matrix, the EU has at least some of the same ‘polity’ characteristics and faces some of the same challenges of constitutional integration as the modern state, which itself often (especially in multinational states) struggles in terms of the resources of solidarity and capacity to give effect to any ‘thick’ sense of common publicness. What is more, we must appreciate that while the modern state today often presents a settled, ‘always-already’ quality in terms of its common publicness, over the longue durée of European state formation the process was often more gradual, more tentative, and more dependent upon the gradual accretion of public goods. Nevertheless, the continued emphasis on European public goods and the tentative quality of the European public good helps us to identify three significant points of vulnerability in the European constitutional imaginary today, and three challenges to ponder. The first concerns the problem of entrapment, and how, in particular, the development of European public goods can lead to a situation of policy gridlock.44 To explain, once we move beyond the pure economic understanding of material or (relatively concrete) mixed public goods we realize the extent to which such goods are contingent and fragile institutional constructions.45 That is to say, the existence or generation of the appropriate institutional nexus is vital to their development. As already suggested, the properties of non-excludability and non-rivalry are rarely inherent in goods. Rather, they typically depend on the embedded use of technology and the pursuit of specific normative choices. In particular, in an increasingly porous and interdependent world, many of the most significant public goods—or ‘bads’—are liable to become non-excludable or only partially excludable across territories and societies that extend beyond national or even regional borders. Indeed, with regard to 44 45

See eg Claus Offe, Europe Entrapped (Polity 2015). See eg Adrienne Heritier, ‘Introduction’ in Heritier (n 10) 1–12.

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dangers such as climate change, pandemics, war, or ‘terror’, the globe itself begins to approximate a single, indivisible community of risk in the face of the common ‘externalities’ associated with other forms of transnational economic, political, or military activity. In other areas, such as trade, the issue is not the sheer scale of any unavoidable common predicament but, more positively, the tendentially unbounded or expansive quality, or potential, of the underlying practice, and so the possibilities of nonrivalrous and therefore positive sum benefits associated with common provision and regulation within any particular territorial ‘club’.46 In crude terms, the securing of the public good in either of these types of cases— reactive or proactive—is a constructive and inherently artificial exercise, involving the active resetting of boundaries either below the natural limits set by the globe or above the default of the state. One of the reasons why constitutional law in its institutional mode is so important in the EU is just because, without the precision of normative expression and capacity to discipline collective commitments on that basis, the kind of rescaling of public goods that is the EU’s stock in trade—and the basis of much of its ‘output legitimacy’47—would not be possible. Law, then, is vital to the social engineering of continental public goods in trade and elsewhere, and to securing the legitimacy dividend associated with their collective benefits. Yet the more ambitious the programme of transnational public goods, the more likely they are likely to encounter two related problems, each drawing on familiar critiques of neo-functionalism. The first concerns the distribution of risks and benefits associated with public goods. Their overall beneficial dividend cannot mask their uneven distribution. A common currency avoids many transnational economic transaction costs, but it leaves uncompetitive national economies vulnerable and stripped of both monetary and fiscal policy shock-absorbers. A common lingua franca reduces communicative distortions, but gives a disproportionate benefit to those whose first language it is and imposes unfair burdens on those whose it is not. But absent a political framework—both the necessary common political culture and the robust democratic institutions which are both the product of and a forum for the deepening of that common political culture—in which the concerns of losers in these new frameworks of collective action are treated in solidaristic fashion by winners, then either the pursuit of the public goods is stalled or it is persevered with in ways that appear unjust and illegitimate. This is all the more so, secondly, when the interests adversely affected can be framed as those of other—and perhaps more solidaristic—national publics. In that respect, we can see anew the power of Fritz Scharpf ’s analysis of Europe’s ‘joint decision trap’48 between the panels of negative and positive integration. As public goods are refashioned from the national to the EU level, then, short of (Br)exit, and the effective dismantling of the discipline of common action which is the very essence of supranationalism, it is impossible to provide the framework of norms and resources to re-optimize the public

46 See further Fuest and Ferry (n 24). For a wide-ranging consideration of the different types of transnational public goods and their amenability to legal treatment, see Greg Shaffer, ‘International Law and Global Public Goods in a Legal Pluralist World’ (2012) 23 European Journal of International Law 669. 47 Fritz Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999) 48 Scharpf (n 47); see also Offe, Europe Entrapped (n 44).

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good on the national level. Yet that thwarted national public good continues to offer a standing rebuke to and brake upon forms of positive integration that risk inferior net results. A Europe such as ours, therefore—preoccupied with material public goods on a European scale—will often find it as difficult to go forward as to go back. A second problem can be more easily stated. This concerns the danger of policy fragmentation. If the EU invests so much, and increasingly, in a wide range of material or mixed public goods, each responding to the attractions and legitimacy dividends of the rescaling of a particular collective action problem or opportunity, then a disjointed whole may become less than the sum of its parts. The more fragile the sense of the general public good, the more difficult to persuade all national members of the merits of particular public goods that may be attractive to some. The frustrations caused by this misalignment have led to new measures of differentiated integration over the past twenty years in areas as important as monetary policy and internal security, and to repeated proposals for a more developed regime.49 Yet there is a danger of vicious circularity here, for the more variable the delivery of public goods, the more difficult it becomes to legitimate how the polity ‘joins up’ its policy interventions in terms of a wider ethic of collective interest or justice, and so to generate the fuller sense of a shared public good that would encourage investment by all in new public goods. Thirdly and finally, there is the problem of loose coupling between European society and European polity. Indeed, this increasingly manifests itself as a double problem. In the first place, it is a problem even under the assumption that there is a reasonably robust pan-European sense of a European society of which ‘we’ citizens of all Member States are members. Earlier, we talked of the social dimension of European public goods such as peace, a climate of relative affluence, commitment to democracy and the rule of law, a reasonable tolerance of diversity, common educational standards and aspirations, and an improved framework of linguistic communication. All of these factors doubtless contribute to the making of a self-consciously common European society,50 as, indeed, does the sense of Europe as a thin societas joined by the sinews of commerce and the ease of population mobility, and as do other factors which stand entirely or mainly apart from the regulatory remit of the EU, such as common interests in and appreciation of sport, music, film, and other cultural and leisure activities. Yet we should not assume from this common sociality a direct translation into a sense of common publicness understood as an increased preparedness to see things in political common as a shared community of risk and resources. As we have already said, intrinsically social public goods can and do sometimes help constitute or intensify a politically significant sense of the public good, but, just because of the prior and continuing existence of the national public good in the European context, the link is less close, the feedback loop much less tight, than it would otherwise be, and than it has been in the making and sustaining of the political society of the nation-state. We can put this either positively or negatively. Positively, we can say that the aim of making a European society has been somewhat fulfilled on its own terms—so much so that the line in the UK Article 50 Brexit letter of 2017 that ‘we are leaving 49 See eg Dirk Leuffen, Berthold Rittberger, and Frank Schimmelfennig, Integration: Explaining Variation in the European Union (Palgrave 2013). 50 See eg Chris Rumford, The European Union: A Political Sociology (Wiley 2008).

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the European Union, but we are not leaving Europe’—aka ‘European Society’—need not be entirely dismissed as cant.51 The old cliché that Europe has become a ‘victim of its own success’ is perhaps never truer than when we contemplate the relative ‘success’ of European society. Negatively, we can say, nevertheless, that the making of a European society in these terms—with the emphasis on the horizontal relations between economic and social actors rather than the vertical relations between those actors and the polity—was and is never likely to generate the kind of common publicness sought by those who would desire Europe to become a more actively interventionist and solidaristic political society. Even if we were persuaded that this was a good idea, for it to happen would require a series of events and political responses to events which would go beyond a gradual evolution of a common sense of European society.52 In the second place, however, even the sense of a common European society appears precarious today. Increasingly, the battle lines have been drawn in a new ideological war over the social meaning of Europe. On the one side, to the North and West, and with Macron as their self-styled champion, we have the defenders of the liberal heritage, who see themselves as ‘the bearers of Europe’s Enlightenment legacy—its commitment to democracy, the rule of law, liberty and rights, rational enquiry, cosmopolitanism, the open society and economic freedom’. On the other side, their challengers to the South and East, with Orbán as their self-styled champion and often speaking in a populist voice,53 oppose this vision and ‘claim to embody the “true Europe”— its Christian inheritance, its mosaic of national identities and the traditional family structure on which the continent’s society is built’.54 Of course, there is much stylization and simplification involved in this opposition—it ignores large exceptions and flattens many nuances. But its very capacity to frame our understanding of European society in such dichotomous terms also speaks to its growing potency, and, indeed, to its potential even to threaten the continued existence of the EU.55 What is more, it speaks to a division at the cultural level which, far from being gradually overcome at the level of common supranational political action, or even lying beyond the zone of influence of common supranational political action, may actually be seen in some measure as a product of common supranational political action, in particular that which has become associated with the new rule of law framework and the extended

51 Prime Minister’s Letter to Donald Tusk triggering Article 50, 17 March 2017 accessed 30 March 2021. 52 Which events might include the revival of a documentary constitutional project: see Walker (n 20); or more modest participatory initiatives such as the recent multi-institutional Conference on the Future of Europe which concluded its work in May 2022: See its final report at . On tentative post-Conference proposals by the institutions to pursue Treaty reform, see, eg Paul Blokker, ‘Experimenting with European Democracy: Citizen-driven Treaty Change and the Conference on the Future of Europe’ (VerfBlog, 21 June 2022) accessed 30 March 2021. 53 See eg Wojciech Sadurski, Poland’s Constitutional Breakdown (OUP 2019); Neil Walker, ‘Populism and Constitutional Tension’ (2019) 17 International Journal of Constitutional Law 515. 54 Tim Less, ‘The Great Schism’, New Statesman (19–25 October 2018) 23. 55 See eg Ivan Krastev, After Europe (University of Pennsylvania Press 2017)

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and unresolved Article 7 proceedings against Hungary and Poland.56 In this regard, Enlargement Europe, and indeed other parts of the European South particularly affected by a politics of austerity in significant part attributable to the euro crisis—most obviously Greece—are increasingly susceptible to a narrative of indignity and resentment in which the promised equitable distribution of new supranational public goods in return for their wholesale acceptance of a regulatory acquis over which they exercised scant influence is seen as a deal that has either failed to deliver or has not proven worth the sacrifice; where, in other words, the surrender of self-regulatory capacity and the acceptance of an orthodoxy to which they did not contribute is widely perceived not to have been adequately compensated for in material terms. Whatever the credentials of such a view, it suggests, in conclusion, one way in which the difficulty associated with the EU’s relationship to public goods, far from deriving from its contrast with the state, is in fact attributable to a certain similarity to a well-known trajectory of statehood under the conditions of economic and cultural hegemony of a dominant ‘public’. In so doing it showcases how the relationship between public goods and the public good can be adversarial as well as supportive. The proliferation and intensification of the pursuit of public goods in the EU may be far from deepening a sense of there being a collective European public good in whose name these public goods are being pursued. Rather, by appearing to favour certain constituencies over others both in the allocation of the benefits associated with the public goods and in its culturally skewed understanding of the shared value base of the general public good, such an approach may erode the subsoil from which any stable sense of the political commons might grow.

56 See eg Nanette Neuwahl and Charles Kovacs, ‘How the EU Can Better Protect the Rule of Law in Its Member States’ (LSE Blogs, 8 May 2020) accessed 30 March 2021. See further, Gráinne de Búrca, ‘Poland and Hungary’s EU Membership: On Not Confronting Authoritarian Governments’ (2022) 20 International Journal of Constitutional Law, 13–34.

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The Peoples Imagined Constituting a Demoicratic European Polity Kalypso Nicolaïdis

Chorus: ... We are the people and no protagonist in this play can speak in our name. We are the masses and no one can know us. We are the mob and no one can stop us. We are the plebians and no one can outfox us. We are the citizenry and no one can patronize us. We are the publics who watch attentively. We are the crowd and we are wise. We are the multitude and no one among us can claim to know our mind. The naming does not make us real, or one. But we have imagined ourselves into being to bask in our popularity. We are the sum of all the struggles that have come before us which we have no right to undo. We the people have no enemy except ourselves, no friends only courtiers. All want to honour and serve us. The EU pays homage to our cause: popular sovereignty, they say, the very core of European heritage. Remainers lament that we have been duped. Brexit is a populist con, not a popular revolt, they say. Leavers rejoice that we have spoken. Brexit is the people’s will not an ignorant whim, they say. No longer can we be ignored or ordered to change our minds. Nor should our say be God-equivalent—we do change our minds, you know! Our status is not morally supreme but politically superior. We will not let politicians appropriate our anger, even if our MPs must interpret it. We say: with Brexit we have reminded everyone that democracy is always incomplete and unpredictable, the shaker upper of all Leviathans. Remainers say: The EU was just unlucky. Brexit is collateral damage, our national democracies the targets. The EU is democracy’s friend. In the south and in the east, in Europe and out, it has given the demoi an anchor. Kalypso Nicolaïdis, The Peoples Imagined: In: European Constitutional Imaginaries . Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0012

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The Peoples Imagined It helps shame our nepotistic oppressors and moderate our extremists. It empowers us in every guise: activists, consumers, women, fighters against corporate greed and privacy theft. Brexit will weaken us . . . Leaver say: Brexit will strengthen us. It will demonstrate the EU’s complicity in our fate. Brussels has enabled our elites to collude across borders, escape political constraints at home and hide behind its laws against our wishes. Call them plutocrats, technocrats, bureaucrats, eurocrats, elitocrats or epistocrats, their creed is to reassure the markets, not the masses. They advance, votes-what-may. When they do not like our say, they re-elect us. National and supranational elites unite! Brexit is our payback for ganging-up against us. It started at the foundation, the plan to replace us, unruly war-mongering mobs, with a grand European scheme. We might have deserved it. We had eaten our democratic child and happily killed each other in an endless war. The well-intentioned founders, humanist technocrats, former resistants and fathers-without-mothers enshrined their views in a cathedral of limitations. Ulysses in dark suits, they tied their hands to the supranational mast better to resist our people’s syrens every time battles would have been lost at home. Shielded by Brussels, our European establishment sacrificed us to unmitigated market competition and austerity fetishism. Shielded by their privilege, they let us bear all the risks. Shielded by Weber’s iron cage of bureaucracy in a Euro-bubble, they achieved the impossible: an iron cage in a bubble! A bubble to keep us riffraff out. A bubble we can neither enter nor poke. So don’t be surprised if we put our lips together and blow. James Madison, the great American founding father was wrong to doubt us. We the people have read him, with fickleness and passion. We have nothing against fences to constrain power, checks and balances and all. We know with Montesquieu that the stuff we can’t do is best done at the top by a cadre of competent administrators devoted to serving the general interest and the rule of law. But we wonder about their post sell-by-date credentials. We wonder what makes Madisonians think that those at the top, are less self-interested, emotional or fallible than us. There can be madness in technocratic reason. We know that the Olympians who presideover our destinies in our capitals and in Brussels want to protect us against predatory forces, corporate

The Peoples Imagined elites or obscure interests. Many of them are nice, educated, tolerant, environment-friendly, moral-enthusiasts. And when they are nepotistic and corrupt, we ask the EU to help us reign them in. But we remember our (Greek?) ancestors and how the lives of the true Olympians gods, from Zeus downwards, were best enmeshed with humans. We have a soft spot for Machiavelli’s advice to the prince, to use his skills against grandees and for the popilii, to entrust the people with defending their city. We know that the best among the elite can manufacture our consent without inventing enemies or denying the difficult choices we must make. Against the extractive elite, we trust the defiant elite who do not monopolise power but seek to empower others. But still we can’t blindly trust them over ourselves. Let’s face it, democracy today is a fiction to cover up the ways the wealthy continue to squeeze us. Only rule by the poor would be true democracy . . . We are told that the EU may override our domestic politics for progressive ends. But that does not make the means any less anti-democratic. We are not localists against globalists, nationalists against internationalists, communitarians against cosmopolitans. We are all these things, just as elites can be tribal. We can be expert publics if you let us. The problem with our transnational elites is not that they lead, that’s what they are paid for, but that they don’t feel the need to be followed. After our insurgent vote, we were not surprised to learn that the more ruling-class elites felt we distrusted them, the more they tended to trust their European counterparts. Huddled in their life boat, they drift in the belief that Reckoning is simply part of the false consciousness that has beset us, hoi polloi, an ungrateful lot who fail to acknowledge what they have done for us. We the people do not seem to grasp that their Brussels conspiracy is truly for our own good, there to deliver public goods, precisely because these are ‘public’ and thus cannot be left to the public’s whims. What is subordination to the common good worth anyway, if the common good has been privatised, captured, twisted and monopolised? The intelligentsia doubts our sound judgment. Do we appreciate the ways in which populist politicians and the technocratic sphere feed each other’s conceit, as they collude in proclaiming that we are one and only one true people, national or European, a single expression of the general interest, and that they alone can know and enact it, in truth

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The Peoples Imagined responsive only to the requirements of their staying power? Do we agree that majoritarian politics are a convenient short cut, but only if winners are conjured up from a genuinely democratic process, and only if they do not monopolise the public space but respect oppositions and minorities? Do we appreciate that losers’ consent is predicated on winners’ respect for them? And that the people have no enemies but disagreements? Do we take it upon ourselves to change the rules of mutual political engagement in Europe and absorb each other’s concerns across borders? Yes on all counts. In an ideal world, we European citizens stubbornly remain a multitude, unamenable to attempts to pervert our cherished popular sovereignty as if we were one. The elites in that ideal world refrain from dismissing as ‘populist’ the kind of politics which channels our pent-up frustration, admittedly short of the nasty nativist kind. In that world, we all know that democracy is not just about election but is a way of life. We reclaim our right to politics and to disagree intensely but with civility in the public sphere within and across our countries. And we proclaim that a decision can only be democratic in a moral sense if it is attuned to the dignity of all the peoples affected. In such an ideal world, our squabbling European politicians refrain from pitting us against each other, peoples against peoples. Instead, they park their egos to respect the most basic power imperative: thou shalt do no harm. We, the sleeping sovereign, have awakened to the eery silence of democratic corruption, our muffled voices echoing in the distance . . . Out of reach of electoral cycles, the EU may be a beautiful idea, but most among us have not been allowed to make it our own when it comes to decide. So it must reckon with all the other ways we express how we feel, in squares, on the web or in the ballot box . . . As we clamour for the EU’s democratic atonement, Leavers or not, British or not, we the peoples of Europe will let no one speak in our name. (Extract from Kalypso Nicolaïdis, Exodus, Reckoning, Sacrifice: Three Meanings of Brexit, Unbound 2019)

I. Introduction—Paul Ricoeur’s Social Imaginary In a book which probes the foundations of Europe’s contemporary constitutional imaginary, I will ask what happens when we try to imagine not the great founding fathers,

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not the great founding scholars, but the mostly invisible yet indispensable characters in the play, the supposed authors and addressees of the constitutional playbook: the peoples of Europe, otherwise referred to as masses, mob, plebians, citizenry, publics, crowd, or multitude. For it seems impossible to seek to imagine the peoples without acknowledging in the same moment that they are the ones supposed to be doing the imagining, both object and subject of European imagination. Being imagined by those from philosophers to politicians who need to pin them down for the sake of their theories or ideologies. Doing the imagining, as Cornelius Castoriadis argued in the wake of May 1968, as an act of self-institution.1 It is in this disjuncture between the peoples being imagined and doing the imagining that lie the tensions around the construction of a modern polity. Few conceits are more problematic than that of the politician or the technocrat who claim a unique insight into the public psyche. Can we, scholars, be granted a bit more artistic licence, simply because such a ventriloquist exercise on our part is likely to be pretty inconsequential? I for one assumed so in the passage cited at the beginning of this chapter, offering a kaleidoscopic take on how European citizens might be moved to bask in their newfound popularity not only by the sound and fury of Brexit or the rise of populist politics in Europe, but also by a growing acknowledgement that in the grand systemic competition between democracies and autocracies, the ‘wisdom of the crowds’ can give the former a competitive edge.2 Of course, the actual flesh-and-bone citizens of the world speak for themselves, wisely, angrily, funnily, or softly, all the time, in public squares and roundabouts, in backrooms and assemblies, connected physically or virtually, and are captured doing so in myriads of ways. And increasingly loudly they say: no one can speak in our name. My ambition therefore was not to offer a potted sociology or anthropology. Instead, I wonder what it might be like for a multifaceted Picasso-like odd assemblage of peoples (who seem to have read some political theory, as Jan Komárek cheekily remarked to me) to think, shout, and sing on their feet as a chorus in a Greek play. Let me then use this imagined declamation as the starting point of the chapter, where I hang my hat as transcriber to return to the more familiar ambit of critical social theory. In doing so in the Covid era, I have been inspired by Yaron Ezrahi’s proposition that democracy, like any other political regime, must be imagined and performed by multiple agents in order to exist.3 To be sure, the pandemic might have created a radical stress test for our democratic political systems, but the test will be deployed in part in our societies’ political imagination.4 For if democracy was born from the fall of authority figures, gods, kings, emperors, or nations, its continued relevance as an ideal rests on citizens’ full self-awareness as the authoritative originators of its continued reinvention. To probe into the connection between social, political, and constitutional imagination is to ask in part about different incarnations of our ‘sense of we’ (here I am using 1

Cornelius Castoriadis, The Imaginary Institution of Society (MIT Press 1997). For a discussion on this topic, see Hélène Landemore and Jon Elster (eds), Collective Wisdom: Principles and Mechanisms (CUP 2012). 3 Yaron Ezrahi, Imagined Democracies: Necessary Political Fictions (CUP 2012). 4 Kalypso Nicolaidis, ‘Reimagined Democracy in Times of Pandemic’ in Miguel Poiares Maduro and Paul W Kahn (eds), Democracy in Times of Pandemic: Different Futures Imagined (CUP 2020). 2

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the term ‘constitutional’ in a broad sense, for constitutional settlement can refer to a political pact rather than a specific constitution5). As Jan Komárek cogently argues in his discussion of Joseph Weiler’s thirty-year-old master text The Transformation of Europe, constitutional imaginaries play a twin role: ex ante as ideational engines when polities are set up, and ex post as justificatory narratives to help these polities endure.6 To be sure, neither constitutional constructs nor their interpretations are neutral, imbued as they are with the ideologies of their time. Hence, we need to probe the ways in which they betray a deep structure which serves some interests and not others under the fiction of unity which they purport to offer to the citizens of a political community. More broadly, constitutionalism itself, at least in the European context, can be seen as an ideology, standing in for a political programme which sought to fence off the integration project from the rough-and-tumble of democratic politics all the way down, the kind of politics played out in the peoples’ arena rather than in the corridors of power.7 And so we may ask: is it not possible to recover a kind of bottom-up constitutional imaginary, inspired by the peoples we hitherto imagine in the act of imagining? The French philosopher Paul Ricoeur offers us an apt starting point for this journey, suggesting as he does that if polities need to rest on some sort of social imaginary, such collective horizons can be uttered in two contrasting languages—that of ideology or that of utopia—and that, moreover, both of these vernaculars can be saved from their pathological expression.8 Where one entrenches reality and the other transcends it, under what conditions can either help transform it? Ideologies, says Ricoeur, may serve not only to legitimize authority but also to justify domination under the guise of pseudo-universal rhetoric, progressively becoming an ‘artificial authoritarian lens not only for how the group is supposed to live, but also for its place in the history of the world’. But they also exhibit the precious ‘use of tropes such as metaphor, irony, ambiguity, paradox, hyperbole’, all indispensable to guide political praxis as uttered in everyday language.9 Utopias, for their part, risk papering over our differences in social status in the here and now, and turn our gaze away from the injustices that ensue, as ‘science fiction applied to politics’, unhinged from conditions of possibility.10 But they too can express a group’s ‘denied potential’, as alternative imaginary variations on power conjuring up the ‘available believable of an era’. 5 This is the sense in which Jan Komárek discusses Weiler’s argument in ‘Why Read The Transformation of Europe today? On the Limits of a Liberal Constitutional Imaginary’ in this volume. See also Kalypso Nicolaidis and Andrew Moravcsik, ‘Federal Ideals vs Constitutional Realities in the Amsterdam Treaty’ (1998) 36 Journal of Common Market Studies 13; Andrew Moravcsik, ‘The European Constitutional Settlement’ (2008) 31(1) World Economy 158; Kalypso Nicolaidis, ‘Braving the Waves? Europe’s Constitutional Settlement at Twenty’ (2018) 56(7) Journal of Common Market Studies 1614. 6 Jan Komárek, ‘Why Read The Transformation of Europe today? On the Limits of a Liberal Constitutional Imaginary’ in this volume. Also Komárek’s Introduction in this volume. 7 For a detailed discussion, see the special issue of Journal of European Public Policy (2020) 27(9), in particular Jonathan White, ‘Europeanizing Ideologies’ (2020) 27(9) Journal of European Public Policy 1 and Kalypso Nicolaidis, ‘Kant’s Mantle: Cosmopolitanism, Federalism and Constitutionalism as European Ideologies’ (2020) 27(9) Journal of European Public Policy 1307. 8 Paul Ricoeur, ‘L’idéologie et l’utopie: deux expressions de l’imaginaire social’ (1984) 2(1) Autres temps 53. 9 Ibid 57 (translation by author). 10 Ibid 54.

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For my part, I would argue that if this ‘available believable’ is to be extracted from the present, our methodological toolbox ought to avail itself of a third concept—that of immanent critique, which is about exploiting the vistas, contradictions, and blind spots in our contemporary condition to effect change without ideology, utopia, or revolution.11 Alternatively, if it is to ground critical theory, utopia must give up the end state to concentrate on the commitment to permanent reinvention. It must be about not tomorrow but the here and now, the breach in our present which suddenly allows for myriad possible futures.12 My goal in this chapter is to employ immanent critique both in lieu of and alongside ideology or utopia in order to tease out some of the meanings of ‘peoples’ in the EU’s constitutional imagination. I draw on and extend previous work to further ground the central motivating idea of an alternative, constitutional imaginary for the EU, which I have labelled demoicratic, expanding traditional democratic theory to imagine a transnational democratic order giving pride of place to participatory and deliberative democracy across borders.13 My ultimate aim is to provide a core building block for what I have referred to in the past as ‘sustainable integration’—a concept which seeks to capture the utopian quality of our imagined peoples-hood short of teleology, as an ideal connecting ethos and praxis in the long term. The chapter suggests five stepping stones in this endeavour, by exploring: (1) how the ideal and practice of demoicracy can be construed as a demanding but powerful way to push back against techno-populism (II); (2) the ways in which we have unimagined ‘oneness’ in the EU’s constitutional imagination (III); (3) the fragility of equilibrium in this version of Europe’s constitutional imaginary (IV); (4) how classical definitions of ‘peoples’ can help tease out the various dimensions of the cross-border exercise of joint sovereignty between peoples (V); and (5) how the EU may help interconnect present and future demoi (VI). 11 For a recent work in this vein see Albena Azmanova, Capitalism on Edge: How Fighting Precarity can Achieve Radical Change without Crisis or Utopia (Columbia University Press 2020). 12 Kalypso Nicolaidis, Exodus, Reckoning, Sacrifice: Three Meanings of Brexit (Unbound 2019). 13 For a recent overview of the theory, see Kalypso Nicolaidis and Ulrike Liebert, ‘Demoicratic Theory: Bridging Positive, Critical and Normative Approaches to European Studies’ in Samuel Faure and Christian Lequesne (eds), Elgar Companion to the EU (2023). Scholarship with a demoicratic parentage tends to address the constitutional, institutional, or legal matrices which underpin the EU as priors to the democratic question—unsurprisingly, since the EU was not designed with democracy in mind. We can recognize its basic tenets in the work of many authors for whom the EU as ‘not-a-state’ is a core premise. The concept has strong affinities with multilateral democracy—Francis Cheneval, The Government of the Peoples: In the Idea and Principles of Multilateral Democracy (Springer 2011); transnational democracy—James Bohman, Democracy across Borders: From Demos to Demoi (MIT Press 2007); compound democracy—Sergio Fabbrini, Compound Democracies: Why the United States and Europe Are Becoming Similar (OUP 2010); directly deliberative polyarchy—Charles Sabel and Joshua Cohen, ‘Directly-Deliberative Polyarchy’ (1997) 3 European Law Journal 313; agonistic democracy—Chantal Mouffe, The Democratic Paradox (Verso 2000); and, for that matter, some of the variants of federal and cosmopolitan democracy, or constitutional pluralism—Neil Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317, Mattias Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism in and Beyond the State’ in Jeffrey L Dunoff and Joel P Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Governance (CUP 2009). And it chimes with Joseph Weiler’s defence of the EU at its best as committed to a philosophy of constitutional tolerance—Joseph HH Weiler, ‘Federalism Without Constitutionalism: Europe’s Sonderweg’ in Kalypso Nicolaidis and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001).

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II. Resisting Technopopulism through Demoicracy It is tempting to follow the French philosopher Catherine Colliot-Thélene in dismissing the very idea of a ‘people’ as but a myth attached to a concept—that of popular sovereignty.14 And yet, the idea of people, however constructed, has been so useful to politics in the past two centuries that we simply could not do without it. The fact is that in a world of bureaucratic expertise, financial spoliation, and global corporate immiseration, the people seem pretty powerless, in Europe and in the rest of the world. The danger of thinking democracy without attaching it to popular sovereignty is present for everyone to see: managerial bureaucratic drift and populist backlash, a conspiracy between two mutually reinforcing ways of expropriating the peoples, both proclaiming: ‘I, the people.’ Arguably, the demise of ideologies or the social structures that were built upon them has deprived us of a vocabulary to discuss politics and ushered in the rise of the new political logic of our age, which we can refer to as technopopulism.15 Do we appreciate the ways in which populist politicians and the technocratic sphere feed each other’s conceit, as they collude in proclaiming that we are one and only one true people, national or European, asks my chorus. If politics is about translating real cleavages and their partial accommodation into the exercise of collective power, societies no longer need to bother, if either populist politicians or technocrats appeal directly to the peoples onto whom they will bestow magical political fixes. Political decision making is replaced by either pure rhetoric or pure problem-solving. Short of political processes, debates and conflicts, ‘only the balance of social forces . . . dictates the way in which we interpret our political and social world.’16 Such a world where social differences become entrenched into political tribes and give birth to over-polarized politics is not one where most of us feel at ease.17 How then do we reassert the primacy of democratic politics? In the opening pages of this chapter, our people’s chorus bemoans the void between those people and the decisions made in their name. This empty space which used to be occupied by traditional politics, parties, unions, associations of all sorts symbolizes the hollowing out of democracy.18 They see governing elites who fail to connect, whether in national capitals or in Brussels, as they sigh: Shielded by Weber’s iron cage of bureaucracy in a Euro-bubble, they achieved the impossible: an iron cage in a bubble! I like to believe that citizens in their great majority are not fooled: We the people do not seem to grasp that their Brussels conspiracy is truly for our own good, there to deliver public goods, precisely because these are ‘public’ and thus cannot be left to the public’s whims. At stake is not only who defines and decides what is the ‘public’ good but how the very process takes place, failing to deliver on the promise of democracy, namely to 14

Catherine Colliot-Thélene, La democratie sans ‘demos’ (PUF 2013). Chris Bickerton, ‘The Rise of the Technopopulists’ (The New Statesman, 21 October 2020). 16 Ibid. 17 Kalypso Nicolaidis, ‘In Praise of Ambivalence—Another Brexit Story’ (2020) 42 Journal of European Integration 465. 18 Peter Mair, Ruling the Void: The Hollowing of Western Democracy (Verso Trade 2013). 15

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empower otherwise disempowered groups—how can we be surprised then by the disillusionment of voters everywhere and the radicalization of their political voice? Let’s face it, democracy today is a fiction to cover up the ways the wealthy continue to squeeze us. Only rule by the poor would be true democracy . . . Whether or not one adopts such a radical understanding of democracy, it is hard to deny that the expansion of its reach to enfranchise an increasingly inclusive definition of ‘peoples’ has historically been resisted by governing elites. In this light, the interconnection between peoples implied by a truly demoicratic system can be seen as the most contemporary form of empowerment and push-back against the privileged few. If the popular authorship of laws or self-government is to be the be-all and-end-all of democracy, it is urgent to imagine the EU as a polity of interconnected popular sovereignties. Do we take it upon ourselves to change the rules of mutual political engagement in Europe and absorb each other’s concerns across borders? Yes, answers our chorus. To be fair, it is not as though it is easy to imagine yourself as part of a people joined at the hip to other peoples all while imagining yourself as an individual, potentially free to break loose of your own community to reach out to faraway others thanks to the magic of virtual clouds. More prosaically, the interests, ideas, values, and fears of European peoples clash and converge in different ways when we consider them either as collectives—that is, states—or as individuals—that is, citizens. Here is the challenge: who, where, how in Europe do we see the imagining of the peoples (plural) autonomous yet intertwined, sovereign yet interdependent, who together constitute the polity underpinning the EU? Can the EU’s forever fluid constitutional imagination conjure up a network of peoples eventually capable of adapting to the condition of ‘reciprocal democratic interdependence’ which their governments opened up for them through a string of backroom deals and which the European Court of Justice (ECJ) policed for them through a string of obscure rulings? ‘We, the peoples’ is an even more challenging injunction than its singular antecedent, calling as it does for reconciling togetherness with radical pluralism.19 Of course, the Euro-democracy conundrum is not new. Think only of the twodecade-long angst suffered by Germany’s constitutional court: according to the country’s basic law, Germany is constitutionally barred from belonging to an EU that would become a state. At the same time, the Court also believes that to be legitimate the EU needs to be more democratic—and it tends to associate democratic legitimacy with the European parliament, and a parliament with more proportional representation at that. But if the German Court cannot separate state-like features from democracy-like features, it faces a true dilemma: more of the latter (which it wants) brings it closer to the former, and more of the former is a constitutional sin. The euro crisis made this conundrum more acute than ever. It is at this stage of the reasoning that democratic theory usually steps in to say something about democracy beyond the state for entities which are not themselves states. The problem is that 19 See for instance Kalypso Nicolaidis and Janie Pelabay, ‘One Union, One Story? In Praise of Europe’s Narrative Diversity’ in Alex Warleigh-Lack (ed), Reflections on European Integration (Palgrave 2008). For a federal take on this agenda see Kalypso Nicolaidis and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the US and the EU (OUP 2001).

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democratic theory has traditionally been based on the overarching idea of a single demos, be it national or supranational. A plurality of peoples coexisting within a single polity is seen at best as a fundamental obstacle to the fulfilment of democracy within that polity and at worse as a conceptual impossibility.20 Such a polity will necessarily be out of touch with citizens and collective political identity and needs to be redeemed by the formation of a single demos, ideally on a regional and eventually a global scale, which will be capable of enacting decisions through various modes of representation.21 And indeed, there is no denying the hold of traditional ideas of democracy, which connect directly a plurality of voters, their representatives, and decisions that translate majoritarian preferences. But if we can’t have that beyond the state, what is to be done? Alternatively, as stated in the introduction, some of us have sought to address these questions around the construct of a new of school of democratic thought, ‘demoicratic theory’.22 In their most general form works in this vein, examine the uneasy coexistence between European demoi, thus translating into democratic language the duality of member state and Community competence leading to a comingling of international and constitutional logics and vocabularies. Accordingly, if a democracy is the rule of the entire people, a demoicracy is a polity ruled by a plurality of peoples. The fact that a plurality of peoples is what the EU actually is—a basic claim encapsulated in Weiler’s famous formula of the EU as a community of others—the starting assumption of demoicratic theory, although it cannot in and of itself indicate what constitutional form ought to follow. Accordingly, the imagined essence of the EU, untainted by its teleological and messianic demons or the ever present temptation to predicate the Union on a single demos, posits radical pluralism as its condition of possibility but thereon adds a second ingredient, which we can call its ‘liberal glue’ for lack of a better term. On this second front, it is not enough to say that diversity per se matters; we need to agree on how we can or not disagree about our differences—this is Ricoeur’s utopia in the here and now, discussed earlier. Our European demoicracy therefore is both a descriptive anchor for the EU as a demoicracy in the making and a normative aspiration, given the imperfections, the incompleteness, and, yes, these days the pathologies, of the EU-as-is or the EU-as-it-has become.23 The forever truncated formula of ‘ever closer union between the peoples 20 Marcel Gauchet, La démocratie d’une crise à l’autre (Éditions Cécile Defaut 2007); David Miller, ‘Holding Nations Responsible’ (2004) 114(2) Ethics 240. 21 Robert A Dahl, Democracy and Its Critics (Yale University Press 1989); Daniele Archibugi, The Global Commonwealth of Citizens: Toward Cosmopolitan Democracy (Princeton University Press 2008). 22 See inter alia Richard Bellamy, A Republican Europe of States: Cosmopolitanism, Intergovernmentalism and Democracy in the EU (CUP 2019); Samantha Besson, Deliberative Demoi-cracy in the European Union: Towards the Deterritorialization of Democracy (Ashgate 2006) 181–214; James Bohman, ‘From Demos to Demoi: Democracy across Borders’ (2005) 18 Ratio Juris 293; Cheneval (n 13); Kalypso Nicolaidis, ‘European Demoicracy and Its Crisis’ (2013) 51(2) Journal of Common Market Studies 351; Kalypso Nicolaidis, ‘We, the Peoples of Europe . . .’ Foreign Affairs (November/December 2004); Francis Cheneval, Sandra Lavenex, and Frank Schimmelfennig, ‘Demoi-cracy in the European Union: Principles, Institutions, Policies’ (2015) 22 Journal of European Public Policy 1; Francis Cheneval and Frank Schimmelfennig, ‘The Case for Demoicracy in the European Union’ (2013) 52(2) Journal of Common Market Studies 334; Francis Cheneval and Kalypso Nicolaidis, ‘The Social Construction of Demoicracy in the EU’ (2016) 16(2) European Journal of Political Theory 235. 23 For a statement of the structural flaws of the EU that have become apparent in its current multicrisis, developed around a ‘research collective’ of critical EU scholars, see Damian Chalmers, Markus Jachtenfuchs,

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of Europe’ stands in for the tension which pervades the plurality question in the EU. And its progressive replacement with the motto ‘united in diversity’ speaks to the crystallization of the EU’s constitutional settlement in the past twenty years around a demoicratic aspiration, if not a demoicratic condition.24 The ideal of demoicracy starts from the Janus-faced meaning of peoples in everyday speak, rather than its various and contested definitions in constitutional documents. When we speak of peoples in Europe these days, we may be speaking of states: states that have been transformed over decades into member states, some good guys and some bad guys depending on who you ask (I will leave aside the term statepeoples used by political philosophers). And at the same time we may be speaking of citizens, individual citizens who must be asked what they think, what they expect, what they desire—and who are supposed continuously to imagine the EU into being since it has not acquired the taken-for-grantedness character of nation-states.25 For the moment, scholars in the demoicratic constellation have agreed to disagree on the exact referent of peoples. For my part, I have suggested this operative definition:26 a demoicracy is defined as a union of peoples, understood both as states and as citizens, who govern together but not as one, and remain together by choice. In view of the growing disconnect between the locus of political authority and the locus of political life in Europe, demoicratic theory is a theory of correspondence between transfers of competences upwards and the necessary plural anchoring of their exercise all the way down. Its utopian character rests with the idea that horizontal ties and struggles can help compensate for the relocation of authority upwards through its anchoring downwards and across. It does so in the hope that fostering greater equality between unequal demoi may support a social agenda fostering greater equality between unequal citizens. In this story, history and historical awareness defines how the peoples imagine themselves: We are the sum of all the struggles that have come before us which we have no right to undo.

III. Un-Imagining Oneness: Constituting a Union between Peoples Too many advocates of European integration seem prone to select among our past blueprints for peace those that can provide the EU with a spotless pedigree27—both the spotlessness of pure intentions but also that of simplicity, the simplicity of peace through oneness. As if the problem lay not in past designs in theory but in flawed

and Christian Joerges (eds), The End of the Eurocrat’s Dream: Adjusting to European Diversity (CUP 2016) (including my own chapter with Max Watson, which applies demoicratic theory to EMU governance reform). 24

For an overview of this argument see my recent Braving the Waves? (n 5). Catherine E De Vries, Euroscepticism and the Future of European Integration (OUP 2018). 26 See inter alia Nicolaidis, ‘European Demoicracy and Its Crisis’ (n 22); Kalypso Nicolaidis, ‘Demoicratic Theory and Europe’s Institutional Architecture in Times of Crisis’ in Simona Piattoni (ed), The European Union: Democratic Principles and Institutional Architectures in Times of Crisis (OUP 2015). 27 The term is from Daniel Gordon, ‘Codes of Honour’ (2006) German Law Journal 137, 137. 25

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peacemakers in practice and their momentary circumstances which kept them from ‘uniting’ the continent. But fortunately for our demoicratic intuitions, the story of ‘post-wars’ is more complicated than that.28 It is a story full of ideas and practices which in the past have opened up a space between Europe as the land of unity, universal dominion, continental hegemony, and Europe as the land of anarchy, sovereignty, local autonomy. The story of ‘post-war blueprints’ can also help retrieve what has been hidden— the recurrent patterns of denial at the core of our European myths, denial motivated by a mix of lack of self-reflexivity and uncomfortable familiarity. For if EU agiography relies on unsuccessful past post-wars, it also relies on a story of uniqueness and unprecedentedness which cannot afford to feature hints of recurring pasts with anything less than these spotless pedigrees. So we forget the many ways in which European ‘sovereigns’ have collaborated against their peoples as well as subjugated others in faraway lands; how kings and queens and their ‘hands’ colluded against nascent national democracy movements in the nineteenth and twentieth centuries, in Europe and elsewhere. And we tend to obfuscate the links with that past found both within and beyond European shores. In short, the peoples of Europe largely accepted the narrative of the EU’s ‘virgin birth’ after the Second World War, better to cover up their illicit flirtation with its nation-states’ rich histories of domination and the continuities that may link us to their hegemonic pasts within and without.29 Renan may have had a point that nations are forged in part through a collective ability to forget,30 but the EU is not a nation and ‘reconciliation in diversity’ must rely on the mutual recognition of our disparate memories. Imagining the future starts with confronting the many ways in which we imagine our interconnected pasts. Demoicratic theory seeks to channel a tentative intellectual loyalty to this reading of the past into an understanding which rests on a transnational version of radical pluralism. In Ricoeur’s spirit, my own aim has not been to offer an off-the-shelf demoicratic theory for our times but to contribute to a plural and organic space, the result of multiple conversations, conceptual contestation, and confrontations between theory and reality. There can be many interpretations of demoicratic theory, just as there are countless variants of democratic theory. Concepts linked to demoicracy need to accommodate the plurality of democratic types themselves and of opinions about these types. The question of who the constituting demoi are—nations vs regions, cities, or transterritorial communities—is at the core of this pluralistic adventure.31 Indeed, democracy is conceivable without a demos if one understands democracy as a bundle of decision rules that we ascribe to all sorts of groups of humans and that we expect to permeate society at large and its basic units from clubs to political parties. 28 For a discussion see for instance Justine Lacroix and Kalypso Nicolaïdis (eds), European Stories: Intellectual Debates on Europe in National Contexts (OUP 2010). 29 See in particular chapters by Hansen and Nicolaïdis in Kalypso Nicolaïdis, Berny Sèbe, and Gabrielle Maas (eds), Echoes of Empire: Memory, Identity and Colonial Legacies (Bloomsbury Publishing 2015). 30 Ernest Renan, Qu'est-ce qu'une nation? (Calman Levy editeur 1882). 31 Joseph HH Weiler, ‘Europe: The Case Against the Case for Statehood’ (1998) 4 European Law Journal 43; Besson (n 22) 181–214; Cheneval, The Government of the Peoples (n 13); Bellamy (n 22).

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In contrast, the political notion of democracy differs because it is about politically binding decisions, where the ‘people’ is the group of citizens holding sovereignty qua state power, a superior political status. In reality, demoi have never existed as self-sufficient, isolated entities. But this does not mean that they are irrelevant as units of democratic self-government or that popular sovereignty must now simply be reconstituted at a higher level. Fusing the demoi into ever larger sovereign units at ever higher levels of integration remains a certain Europeanist ideology which arguably helps to support the constitution of disembedded markets, with increasingly deleterious distributive consequences. A more demanding utopia is to sustain a stable order of multiple demoi exercising popular sovereignty together on the basis of certain fundamental rules which the sovereign demoi accept, provided they are revocable. Crucially, it is this ‘transnational’ and horizontal nature of the relationship and the radical opening between demoi that gives European demoicracy a truly ‘transformative’—as opposed to ‘gradualist’ or ‘mimetic’—character. 33A demoicrat pushes back against both those that argue that a democracy can only be conceived based on the sovereign closure of the demoi through hard border and demarcated membership, and those who by the same token wish for the incorporation of Europeans into a single demos. Besides being out of touch with claims to collective political representation on various levels of political integration in Europe and beyond, the binary alternative is analytically poor. In short, the superior political status enjoyed by a group of citizens referred to as demos does not require that this demos act alone as a self-sufficient decision-making entity. Each demos has the sovereign prerogative to joint governmental action involving the use of state power with other peoples.34 Demoicratic theory adopts a specific angle in investigating the old relationship between a people and sovereignty by asking how the two interrelated notions can lead to ‘joint sovereignty’. Two points need to be stressed here. First, let there be no mistake, this is not some tepid compromise, a point between two more ambitious projects: the recovery of national sovereignty or the forging of a European sovereignty. It is not about ‘splitting the difference’ between these two mainstream political alternatives, but emerges from their respective contradictions and inadequacies. This third way is the most radical utopia, an EUtopia in the sense which Ricoeur invokes at the end of his essay to push back against Karl Mannheim’s view that a mindset is utopian simply when it lacks congruence with the current state of things. For Ricoeur, what is at stake depends on a crucial distinction between utopia claimed by powerless groups and utopia denounced by groups threatened by it, the defenders of the status quo.35 In this spirit, a Union-as-demoicracy is an open-ended process of transformation which seeks to accommodate the tensions inherent in the pursuit of radical mutual opening between separate peoples, who jointly seek to push bash 32 33 34 35

See discussion in Cheneval and Nicolaidis, The Social Construction of Demoicracy (n 22) 235–60. Dahl (n 21); Bohman (n 13). Cheneval, The Government of the Peoples (n 13). Ibid 64.

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against state capture by powerful interests.36 Thus a demoicracy is empowering for the powerless. On the normative plane where ideal political forms are discussed, the demoicratic third way rests on the plausibility of lumping together its two alternative paradigms as part of the same cognitive straitjacket. Crucially, a third way may empirically borrow from both sides of the alternatives it opposes (eg a demoicracy like the EU combines intergovernmental and supranational institutions) but, contrary to a via media, it is normatively antithetical to both. As with every third way, the idea of demoicracy holds the promise of escape from the tyranny of dichotomies which still dominate EU debates. Second, the concept of demoicracy is not wedded to the infamous no-demos thesis. The no-demos thesis, articulated by the German Constitutional Court in its 1993 Maastricht judgment introduced above, offered a simple connection between an empirical assumption (there is no such thing as a European demos) and a normative stance (since there is no European demos, integration must rely on domestic institutional mechanisms such as the Bundestag). It is somewhat ironic, since the Court considered the eventual emergence of a European demos a desirable prospect, that the no-demos thesis has been restated ever since as grounds for resisting European integration. Conversely, it was used as a foil by the European political mainstream of the early 2000s, and by those such as Joschka Fischer and Jürgen Habermas who argued that a European demos could and should be ‘forged’ as the foundation for formal constitutionalization of European integration. Ten years later, the prospect of fiscal union reignited the search for a European demos. The idea of demoicracy emerged in order to counter their arguments by appropriating and subverting the no-demos thesis. 37 To simplify, there are two versions, or rather two poles, in the relationship between demoicratic theory and the question of an overarching European demos: • The strong version of demoicratic theory accepts that the Court was right in its diagnosis: ‘If we define the demos as a political community that shares a purpose, and possesses the institutional infrastructure, of self-government, a single European demos does not exist.’38 But it was wrong in the implications it drew— for a plurality of demoi there may be in the EU, but plurality is what peoples make of it. The EU can be democratically legitimated by a plural pouvoir constituant (if the topic is constitutional) or by multiple but connected national politics. Indeed, a single Euro-demos is not just implausible but undesirable if the EU polity is to 36 Samuel Bagg, ‘Sortition as Anti-Corruption: Popular Oversight against Elite Capture’ (2022) American Journal of Political Science. 37 As always, however, Habermas’ arguments have been subtle and evolving as reflected around the rich discussion around ‘pouvoir constituant mixte’ which he endorses and the idea that ‘pluralist constitutional subject’ ought to be conceived as the ‘totality of individual persons’ while each person is divided into two personae. See Jürgen Habermas, ‘Democracy in Europe: Why the Development of the EU into a Transnational Democracy Is Necessary and How It Is Possible’ (2015) 21 European Law Journal 546; Jürgen Habermas, ‘Citizen and State Equality in a Supranational Political Community: Degressive Proportionality and the Pouvoir Constituant Mixte’ (2017) 55 Journal of Common Market Studies 171; Markus Patberg, ‘Introduction: The EU’s Pouvoir Constituant Mixte—Exploring the Systematic Potential of an Innovative Category’ (2017) 55(2) Journal of Common Market Studies 165. 38 Cheneval and Schimmelfennig (n 22).

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set aside the Schmittean temptation to define itself against ‘others’ outside Europe (Islam, the US, China, refugees/terrorists). In short, No-European-demos=> No European-level democracy, vs European Demos-in-the-making => European democracy, can be replaced by: Many European demoi=> European demoicracy. • The weak version of demoicratic theory, on the other hand—which can be called the ‘demoi thesis’—recognizes the emergence of a thin European demos at EU level which might well become more significant over time. But this view asserts that such a weak demos is more often than not predicated on national or local bonds, as surveys continue to demonstrate.39 There can very well be something like an incipient ‘we, Europeans’ characterized by common debates, transnational parties, practices, and mobilization, or some common sense of identification and belonging—a Europeanness all the more tangible when it is felt from outside Europe. The critical point here is that national demoi remain the dominant political unit where bargains are struck and compulsory solidarities institutionalized. And the critical question therefore remains: what does it mean to be a Europeanized demos? Because a demoicratic theory prism starts with our individual embeddedness in national or local communities as separate demoi and with the primacy of the state, the term demoicracy can sadly be misunderstood as a label for a sovereignist’s take on ‘We the peoples of Europe’. At the same time, because a demoicratic prism does not end with essentially self-serving demoi, stressing instead the importance of internalizing shared responsibilities over time, defenders of demoicracy often find themselves uneasily lumped with ‘federalists’ under a generic ‘pro-EU’ label. This is why, while the idea of demoicracy owes much to the ‘post-national’ constellation, it parts with its more Euro-patriotic and anti-national expressions.40 This may be why, as the most cogent early expression of this philosophy, Weiler’s position in The Transformation was not framed as a third way but rather in opposition to the unreconstructed integrationist or traditional federal camp, the mainstream of the constitutional vision of the EU.

IV. Imagining the Third Way: A Fragile Equilibrium In this journey of imagining the peoples doing the imagining, the way in which we conceive a third way for Europe takes on added relief. Weiler’s Transformation not only analyses at length the ‘equilibirum’ reached in the EU though the dance between voice and exit, politics and law, over time, but crucially explains why the preservation of the equilibrium is so important—a take refined in his subsequent work.41 By 39 Agustin José Menéndez, ‘The European Democratic Challenge: The Forging of a Supranational Volonté Générale’ (2009) 15 European Law Journal 277; Tanja A Börzel and Thomas Risse, ‘Governance Without a State: Can It Work?’ (2010) 4(2) Regulation & Governance 113. 40 Jürgen Habermas, ‘The European Nation-State: On the Past and Future of Sovereignty and Citizenship’ (1998) 10 Public Culture 397. For a discussion see Lacroix and Nicolaïdis (n 28). 41 Joseph HH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (CUP 1999).

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offering an explicit normative benchmark for his explanatory analysis, Weiler makes visible the eminently critical and political in his vision. The point of the story is not only that the EU manages to move from one version of the equilibrium to the next (after all, you can be on the Pareto frontier with hugely unfair distributional consequences, the status quo can be stable but undesirable—this is what revolutions are made of). In short, for Weiler, this is not any old equilibrium, there is something at stake in this equilibrium—a vision, an idea, an ‘ideal-type’. The walker on a rope in the air needs to stare at a fixed point in order to maintain his balance. The normative benchmark on the horizon may or not be intended by European actors, or it may even be the common vector of various criss-crossing intentions, but it is read by the scholar as what is to be preserved by the equilibrium. Weiler’s semantics was to defend his own ideal types of ‘community’ against the mainstream commitment to ‘unity’—two alternative promised land for rival ideological clans in Europe. I believe it is fair to read Weiler’s ‘community model’ as a demoicratic third way. To quote: The alternative—community—vision also rejects the classical model of international law which celebrates statal sovereignty, independence, and autonomy and sees international legal regulation providing a ‘neutral’ arena for states to prosecute their own (‘national’) goals premised on power and self-interest. The community vision is, instead, premised on limiting, or sharing, sovereignty in a select albeit growing number of fields, on recognizing, and even celebrating, the reality of interdependence, and on counterpoising to the exclusivist ethos of statal autonomy a notion of a community of states and peoples sharing values and aspirations.

I understand the community ideal-type as a third way, first of all because, as Joseph Weiler argues, ‘it would be more than ironic if a polity with its political process set up to counter the excesses of statism ended up coming round full circle and transforming itself into a (super) state’. Such mimetism between the two alternatives to ‘Community’—sovereignty/national statism and unity/EU statism—is likely pregnant with the same dangers associated with the nationalism and power politics of yesteryear, this time at the regional level. And therefore, this third way is transformative and needs to be analysed as a new political form requiring new concepts and insights. Later, and inter alia, Joseph Weiler does just this when introducing the concept of ‘constitutional tolerance’ in a 2001 book, The Federal Vision,42 whose overall thrust is to flesh out the features of federal projects as federal unions which have not been captured by the exigencies of federal states. However, when we invoke the long history of federal constructs to ground our imagining of connected peoples in Europe, our attempts at generalization must avail themselves to a much longer time horizon encompassing the many changing ‘postwar blueprints’ mentioned above. In short, the quest for this apparently unique and threatened equilibrium in today’s EU is not new to intellectual history. Weiler’s analysis of a polity with enduring normative appeal yet inherent potential instability has

42

Nicolaidis and Howse, The Federal Vision (n 19).

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deeper political and historical roots, and such a pedigree can still underpin the normative authority of European law and politics today. That it appears so ‘unique’ in the case of the EU is simply a testimony to its nature as an equilibrium which has never had the chance to endure before in history in a democratically grounded way, but has been imagined again and again by political thinkers. How often has paradise been lost before it was ever gained . . . Given that the political idea of Europe was born and reborn from post-war imaginaries over the past eight hundred years, European thinkers oscillated first between the two poles (or lands) of continental unity and ‘national’ sovereignty, then progressively inventing a third way to be defined separately to accommodate diversity.43 Indeed, unity and progress parted way just before the Enlightenment, when the idea of ‘a united Europe’ tended to be advocated as a way to resist change under the Christian banner, against the growing desire for strict state independence from imperial or papal power. ‘State sovereignty’, however precarious, was an infinitely more novel idea at the time than the unity of Dante or Dubois—with variants on a proto-third way debated by Bodin, Grotius, and Althusius culminating in the peace of Westphalia. In this context, ‘the third way’ became a prominent theme every time the political debate in Europe moved from a core concern about substantive progress—historically contingent ideas on the best way to secure a shared public good, be it peace, prosperity, morality, or the good life which seemed to call for either more Europe or more nation/ state—to a second debate which built on the first at a higher level of complexity. In this second debate, some thinkers thought to demarcate themselves from either side of the first debate, coming up instead with political designs which neither reified nor denied state sovereignty in order to tease out the conditions for upholding ‘unity in diversity’, thus leaving questions of substantive progress in the background in order to privilege the question of pluralism per se. Kant was arguably the first to articulate such a third way explicitly, evolving throughout his life to become—I would argue—the first true ‘demoicrat’.44 As is well known, the Könisberg philosopher sought to ground the injunction that no State would be permitted to intervene by force in the constitution or government of another through three possible conceptions of Europe at peace: (1) a region of interconnected but autonomous ‘republican’ (democratic) states; (2) a ‘federal union’ of such states; or (3) a single ‘united state’. Kant gives reasons to support all three conceptions, but while the last may have looked rationally ‘ideal’, it would in fact be ‘the graveyard of freedom’. And while the first would maximize the autonomy of individual states, it would make it impossible to hold them accountable for legal obligations towards each other’s citizens. So in the end, Kant argues for his middle ground, a Federation of Free States against ‘unity’—the latter being a dangerous form of cosmopolitanism liable to lead to the conflation of national characters through the absorption of one state by another, and (in a more power-free version of the same injunction) to an undesirable merging of nation-states into a new polity. 43

Lacroix and Nicolaïdis (n 28). I thank Turkuler Isiksel for this formulation. On strategies of appropriation in the EU, see Nicolaidis, Kant’s Mantle (n 7). 44

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The third way-like character of the federal body Kant envisaged is apparent in his concern with a European-wide construct that is to forego ‘any of the power of a state’ but merely hold the power ‘to preserve and secure the freedom of each state in itself along with that of the other confederated states’. Of course, Kant did not have to grapple with the operational question of what kind of central power truly ‘preserves the freedom of each state’. Doesn’t any such ‘power’ involve the forsaking of sovereignty (voice) on the part of the constituent states? Kant was well aware of the tension between the tendency for each state on one hand ‘to see its own majesty precisely in not having to submit to any external legal constraint’, and on the other hand ‘to desire . . . to extend its power, increase its range of domination’, including through cooperation with other states. It is such awareness that led him to his three-tier structure of law (state, international, cosmopolitan law) on which we can build the operationalization of a third way today. And it is this awareness that led him to remain highly circumspect regarding the imperial risks that an over-extensive interpretation of cosmopolitan rights (beyond ‘hospitality’) may involve when considering Europe’s colonial presence in the rest of the world.45 It can be argued, therefore, that Kant was all the while struggling to define and refine his own version of a third way for perpetual peace in Europe between absolute state sovereignty and the absolute transcendence of such sovereignty. Of course, to claim Kant as the spiritual father of the European third way hinges on a particular reading of his intellectual development.46 But, while there is considerable scholarly controversy on the nature of Kant’s cosmopolitanism, the relevance of Kantian thought to the demoicratic constellation is clear. Arguably, EU institutions approximate this twin Kantian political imperative not only because they combine supranational and intergovernmental institutions but because they do so with special concern for mitigating power asymmetries. When scholars argue that such a third way is not institutionally possible and that demoicracy will either ground a specific way of practising intergovernmentalism or a specific form of federalism, they tend to wrongly take the unstable character of the required equilibrium as proof of its impossibility.47 To be sure, we do not have to rely on the philosophical search of past centuries for an ideal form of international social life at a time where we have come to accept the greatly contingent and constantly to-be-redefined nature of political bonds. But this search is nevertheless part of the story of the EU’s and the rest of the world’s attempt to institutionalize bonds of peace short of unity. What kind of semantics best captures the nature of the bond in question? Here I schematically defend the demoicratic preference for contrasting unity with union instead of community.48 To some extent, we can think of the labels ‘Community’ and ‘Union’ as broadly interchangeable in their contrast with ‘Unity’. Why prefer ‘Union’? 45 Turkuler Isiksel, ‘Cosmopolitanism and International Economic Institutions’ (2020) 82(1) The Journal of Politics 211; Nicolaidis, Kant’s Mantle (n 7). 46 Andrew Hurrell, ‘Kant and the Kantian Paradigm in International Relations’ (1990) 16(3) Review of International Studies 183. 47 Miriam Ronzoni, ‘The European Union as a Demoicracy: Really a Third Way?’ (2017) 16(2) European Journal of Political Theory 210. 48 See Kalypso Nicolaidis, ‘Perils of Unity, Promise of Union’ in Miguel Poiares Maduro and Marlene Wind (eds), The Transformation of Europe—Twenty-Five Years On (CUP 2017).

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I have argued that while Union can mean all things to all people, it is a better term for a host of good and bad reasons. We could start with the communitarian and organic connotations that have tainted the term ‘Community’49—even if we would like to believe that terms and ideas should not be held hostage to their misuse at one point in history. We can also point to the use of ‘Union’ in the federal context and the useful contrast between federal union and federal state. And of course, in the end, we can stress the desirability of yielding to prevailing practices—that is, if we consider that the move from European Community to European Union has managed to retain the ‘community spirit’. But perhaps most important is the (subjective) sense that ‘union’ connotes a coming together while staying other, the continued autonomy and agency of the parts not only in spite of the togetherness but perhaps most importantly as a precondition for sustainable togetherness. Crucially, this understanding of Union depends on stripping it from its teleological connotation—the idea that a Union needs to have a telos, an end that is radically different from its beginning, and what else than the move from separate demoi to the merger into oneness? Yet, as Neil Walker argues in this volume, the EU has been more successful as a ‘ “teleocracy” (an association committed to the pursuit of specific ends) than of a “nomocracy” (an association defined by commitment to a general framework of living in common)’. Such an incremental approximation of the common European Good may be key to the EU’s supranational constitutional imaginary but has also fed the populist fears discussed above among European publics.50 To be sure, human beings do not happily give up on teleology. Beings that have lost and yearned for union, at one point simultaneously male and female, have stirred the human imagination and peopled our myths and religions since our beginnings. After the original sin, Adam, the first hermaphrodite and a self-sufficient being like his creator, is divided into two imperfect sexes incapable of reproducing on their own. As told to us by Plato, each half of the primitive androgyn, split into two by Zeus, will forever be looking for his or her other half to become one again. How not to see our human unions and accompanying vows (‘if anything but death parts me from you’) as imperfect second bests, pale approximations of the original unity? We must of course guard against anthropomorphizing nations and states, phenomena without feelings or yearnings. But we cannot ignore the human beings who stir them. So the idea of a Union of European peoples must depart radically from this yearning for oneness in the end not only in the name of plurality but also as an escape from the dangers of teleology. The actual political project of European integration has always played cat-and-mouse with teleology. On the one hand, most self-avowed proEuropeans have long offered their ‘federal’ telos—whatever this may mean—under the label ‘United States of Europe.’ Moreover, in their story, the EU’s founding fathers cunningly hid such ‘ends’ under the disguise of small-steps functionalism, thus bolstering teleology with its twin sister, intentionality. Indeed, Europe’s economic constitution appears as an open-ended agenda for limitless integration. On the other hand, 49 Much abused by the likes of Petain: see Antonin Cohen, De Vichy à la Communauté européenne (Presses Universitaires de France 2016). 50 Neil Walker, ‘The European Public Good and European Public Goods’ University of Edinburgh School of Law Research Paper No 2020/20 and chapter in this volume.

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we can take the tautological flavour of functionalism (which continues to some extent to drive the EU’s) at face value, which defines precisely an a-teleological process of continuous approximation, a project of progressive opening, of borders and then more. Even the idea of ‘ever closer union’ can be read as an asymptotic notion which relies on never stating—and even less attaining—some ultimate fixed political construct: in other words, a process of ongoing transformation. In this light, Weiler’s more recent warning against the kind of political messianism which has inspired European political elites from the beginning (he refers here to the messianic bible the 1950 Schuman Declaration) comes into full relief. Today’s great danger is that this messianic drive, which early on served the process of integration well with a telos of integration compatible with both Union and Unity, has now come to embrace ‘Unity by stealth’, an end which justifies overlooking obstacles in the way, including the strong wave of resistance emanating from European publics. And yet the difficulty is this: public discourse seems to require teleological language, statements on ‘what this is all about’. Can this be done by extolling purpose and process and explaining that there is no other horizon than the democratic sustaining of a process of togetherness without some new grand and shining political construct in sight? Crucially in the contemporary twist to this story, the idea of Union implies that of choice. Unity and secession are incompatible. Community is ambiguous—one is usually born in a Community but joins a Union. European states had no choice but to be born rubbing against each other at the tip of Asia, but they were free to join the Union which they created together. More importantly, they are, or should be, free to leave it, if their individual demos so decide in a democratic fashion. For Weiler, the spiritual meaning of Europe’s Sonderweg as ‘constitutional tolerance’ is to make integration an autonomous and endlessly renewed voluntary act of subordination to the European other.51 Internalizing mutual constraint is thus an act of emancipation if it be understood as a version of ‘federal liberty’ or indeed the choice for mutual recognition.52 In prosperous democracies at least, an overwhelming majority of citizens, however unhappy, do not choose to vote with their feet and leave their country. But they can. Similarly, most Europeans would not choose for their state of origin to leave the EU even when a majority might be unhappy about its policies. And while the sentiment may vary across nationalities, the EU remains the default option. Under such conditions—which may change—the theoretical right of exit which is part of the constitutional matrix of the EU contributes to its strength, not its weakness, as proponents of Unity would have it.53 This is also why the EU needs to make up for the relatively perfunctory nature of the freedom to leave, as exemplified by the Brexit process, through tricks like opt-outs and differentiated integration. One may argue that choice is not always a good thing. ‘This nothing good or bad, but thinking makes it so’, said the Bard. Indeed, most citizens of affluent states seem to suffer from the pathologies of choice, a state of permanent unhappiness brought

51 See inter alia Joseph HH Weiler, ‘Federalism and Constitutionalism: Europe’s Sonderweg’ in Nicolaidis and Howse, The Federal Vision (n 19). 52 Kalypso Nicolaïdis, ‘Mutual Recognition: Promise and Denial, from Sapiens to Brexit’ Current Legal Problems (December 2017). 53 See Nicolaidis, In Praise of Ambivalence (n 17).

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about by the sense that some other option might have been better than that chosen. And among peoples, it could also be argued that commitment may become more profound, humility more warranted, within a no-alternative irreversible Union. Perhaps. But at what price? In sum, ‘we, the peoples’ is a utopian motto, calling as it does for the un-imagining of a teleological yearning for oneness which inhabits both ends of the EU ideological spectrum, those who equate European constitutionalization with the progressive emergence of a single demos, and those who hang on to their integrity of self-contained national peoples engaged in cooperation with each other short of selfreflective praxis of reconstitution as connected peoples. We can do better than forever opposing these two visions. We can re-imagine the ethos, status, and praxis of intertwined, mutually reconstituted peoples of Europe. This re-imagining has been conducted by countless EU scholars, themselves interdependent, many of whom are represented in this volume. But the challenge is great. If identifying a ‘demos’ at whatever scale is no longer the grail of transnational democracy, we can find alternative imaginations of the intertwined quality of the peoples of Europe. An ever closer union between distinctly democratic peoples is hard for its peoples to imagine as democratically legitimate when it expresses itself as a new politics pitting peoples vs peoples. We now turn to more desirable alternatives.

V. Constitutionalizing Horizontality: Varieties of ‘Peoples-across-Borders’ Who then are the ‘peoples’ who are meant to exercise their popular sovereignty jointly in a demoicracy? Do these peoples purely and simply correspond to the boundaries of Europe’s nation-states?54 And what do we mean by popular sovereignty if it is to be something that is exercised in an interconnected way? Defining the people is a perilous intellectual and political exercise. As a French philosopher once quipped, one could say that the people according to the left is ultimately defined by the rights that it has come to exercise, while the people according to the right is defined by its personality. In the opening of this chapter, our people’s chorus invites us to consider various connotations of peoplehood each suggesting a different democratic story, different meanings which in turn underpin in different ways the idea of joint popular sovereignty: We the people, the demos, the masses, mob, plebians, citizenry, the publics, crowds, multitude . . . Indeed, ‘We the people’ has always been a shorthand for many faces—our best candidate for demos as a ‘community of citizens’ that may legitimize political authority. Philosophers have long debated who then may count for such a community and how we know when we have one. We all know that the demos in fifth-century bc Athens referred to all Athenians, sure, but excluded women, slaves, and foreigners. Democracy 54 Besson (n 22); Kalypso Nicolaidis, ‘The Idea of European Demoicracy’ in Kalypso Nicolaidis and Pavlos Eleftheriadis (eds), Philosophical Foundations of the European Union (OUP 2012), Étienne Balibar, ‘How Can the Aporia of the “European People” be Resolved?’ (2013) 181 Radical Philosophy 13.

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has always been a game between inclusionary and exclusionary approaches to citizenship. To be sure, the Greeks—ancient and modern—have at least three other terms for ‘people’, namely ethnos, laos, and plethos, which each speak to different ways in which the community may be circumscribed.55 There are those who will defend the most organic understanding of people as ‘nation’ or ethnos, or groups unified by a lineage, a culture, a history, and often a language, which together provide them with a sense of common identity against what makes them different from those around them. In this sense of the world, a demoicracy to organize peaceful coexistence may be restricted to basic ‘live and let live’ aims. Many of us will argue that this ethnic definition is not useful for our purpose, either descriptively or normatively, as essentializing imagined or constructed commonalities generally serves exclusionary politics. Others, however, may point to the emancipatory virtues of localism and of ‘people on the ground’ who, like the Scots or the Basques, derive pride and integrity from their ethnic specificities. For sure, there are many more self-identified ‘ethnies’ on the European continent than there are constituted demoi, and they currently hardly count in the shaping of its continental order. We must contend with the prospect that at least part of some of these groups may eventually come to demand some kind of more explicit recognition from across Europe. In this context, a demoicratic lens will be about the conditions under which the reciprocal nature of recognition is played out among the conflicting claims of different self-identified groups. In a different key, the Greeks’ laos, while indicating nothing but a military unit in Homeric epics, survived in modern Greek from the times of the anti-Ottoman revolution, referring to the people as ‘a collective ideality, with a mission or a destiny’.56 This may be the sense most prone to being shaped by struggle and hardship, an ideal which may inspire ‘resistance to’ rather than partaking in the kind of community of destiny wished for by the EU mainstream. And yet, it may also be that a sense of positive destiny can come to encompass destiny in Europe or through Europe as a continuation of one’s national heroic story.57 But in the modern era, peoples are above all publics—ranging from the ideal of publicness as sharing a common political space, or Res-publica, to the more passive public opinion as a whisperer of public interest. Concerns with publics underpin not only state action but inter-state cooperation aimed at reining in private and corporate interests, ‘after decades of neoliberal policies where state failures and public irrationalities were systematically pointed out and the superiority of private management consistently affirmed’, as ‘public authority and public intervention again appear as the inescapable solution to the most daunting issues of our times, particularly at the EU level’.58 We note however the minimal role played by publics in this renewed assertion of public goods, including transnational public goods (that cannot be left to the public’s whims). As Vauchez wryly notes, while pseudo-notions of the public interest do in

55

Balibar (n 54). Ibid. 57 Lacroix and Nicolaidis (n 28). 58 Antoine Vauchez, ‘In Search of Europe’s Phantom Public: “Public-ness” and the European Union’ (2020) 21(1) German Law Journal 46. 56

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fact, blossom today, such as corporate social responsibility or pro bono publico, these ersatz public interests generate increasing scepticism among generations of citizens, who continue to see the profits made by a private sector feeding on public services across Europe and with the EU’s benediction. What transborder politics follows from these assertions? Let us come back to the simplest political definition of a people as a group within which most members accept to bow to majority decisions on the assumption that they could be that majority some day and that today’s majority will respect their rights. In doing so, we find ideas of peoples organized along a spectrum. On one end of the spectrum, there are those who argue that democracy is a certain kind of procedure, a method for reaching collective decisions among very big groups of people while minimizing violence and maximizing consensus among the greatest number. Here, ‘the people’ is defined by those who vote, or rather a group—the group which feels that it is legitimate to be ruled by the casting of a vote, a procedure generally governed, in representative democracy, by a majority logic. At the other end of the spectrum are those who believe that we must think harder about the very substance of democracy and must capture its more disruptive aspect— that which allows groups, any group, to contest a given social order, whereby social orders always and by definition are based on a basic divide between those who are in charge and those who aren’t. The real question here is not who is authorized to govern and how this happens, but who can disrupt those who govern, and how. To drastically simplify, we can divide this spectrum into three core conceptions of ‘people’ and thus jointly sovereign peoples, namely constitutional, electoral, and social: Constitutional. The first conception of the ‘people’—and for some constitutional theorists the only true and legitimate one in a democracy—is that of the people who meet as constitution makers. Political theorists refer to the pouvoir constituant, or constituent power (the preamble of the Federal Constitution: ‘the German people, in the exercise of their constituent power, have adopted this Basic Law’). This is the core meaning of ‘people’ most thoroughly discussed in the federalist papers and arguably the only meaning contemplated by the US founders when asking who is the sovereign in their new republic, or in other words the original fountain of all authority. In contrast, since the EU was established by governments as constituted powers, it can never rely for its popular legitimacy on an original moment when the people fought and spoke—Rosenvallon’s ‘the people as event’. And yet, the idea of constituent power or dual constituent power can arguably stand at the core of its legitimacy.59 Can ‘the peoples as event’ be entrenched in the European constitutional imagination? This could have happened by channelling the energies of ‘exit’ into radical reconstitution, as our chorus suggests, but this moment has probably been lost. This most fundamental constitutional meaning of people bears a straightforward implication as we contemplate joint cross-border popular sovereignty. Here legitimacy requires retaining the integrity of the component peoples of the EU as constituent 59 Most recently Markus Patberg, Constituent Power in the European Union (OUP 2020). For a different take, see, inter alia, Isabell Lorey, ‘Constituent Power of the Multitude’ (2019) 15(1) Journal of International Political Theory 119.

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powers, each with a veto on fundamental constitutional EU decisions, or EU primary law. This is where we find the strongest tradeoff between legitimacy and efficiency, and the eternal temptation to do away with a constituent power veto which freezes the status quo in European politics. But it seems pretty clear that, at least on this dimension, European peoples are deeply attached to their constitutional veto, for rather contrasting reasons as members of small or big states. In the former they fear being swamped by the power of their bigger counterparts, while in the latter they suffer from acute Gulliver syndrome and a sense that their own constituent power is watered down by that of their smaller counterparts.60 Electoral. The second conception of the ‘people’ is more routine or mundane, and refers to those who form a government, or the people as law maker of normal politics in representative democracy. Here, ‘the people’, or rather the many groups and individuals which constitute it, will want many different things, and no election result will yield an unambiguous ‘general will’. If, as per Hamilton, you privilege the first conception of peoples, then once the constitution is approved the demos switches from subject to object of politics. This dualist conception tells us that the people exist both as the sovereign, whose ultimate authority cannot be transferred, and as elector, whose day-to-day authority is constantly delegated. But who is it delegated to in the EU context? Can this ongoing delegation process make room for reconnecting the peoples horizontally through a creative political praxis of mutual recognition through deliberation? Obviously the complex set of institutions which constitute the EU are meant to do justice to this second meaning of European peoples as electors. But deepening European demoicracy through the horizontal logic calls for balancing of the individual people’s majority logics with the emergence of alternative transnational majorities which may empower the opposition within various member states. This is where, in the end, democratic interdependence comes into its own. Some of us have argued that the very meaning of ‘representation’ needs to be re-imagined by putting centre stage ‘democracy by lottery’ across borders which brings citizens from different countries together to deliberate and decide alongside the electoral logic—a topic of vast importance today in the EU in the wake of the conference on the future of Europe.61 Which brings us to the last conception of ‘people’. Social. Last but not least, the more we move away from formal conceptions of democracy the more we see the peoples as those who emerge in the margins, who claim their share in the community and ask for the community to change in order to include them. As our optimistic chorus dares to hope: In that world, we all know that democracy is not just about election but is a way of life. We reclaim our right to politics and to disagree intensely but with civility in the public sphere within and across our countries.

60 Simone Bunse, Paul Magnette, and Kalypso Nicolaïdis, ‘Big versus Small: Shared Leadership in the EU and Power Politics in the Convention’ in Derek Beach and Colette Mazzucelli (eds), Leadership in the Big Bangs of European Integration (Palgrave Macmillan 2006); Paul Magnette and Kalypso Nicolaidis, ‘Coping with the Lilliput Syndrome: Large vs. Small Member States in the European Convention’ (2005) 11 European Public Law 85; Diana Panke, Small States in the European Union: Coping with Structural Disadvantages (Ashgate 2010). 61 Alberto Alemanno and Kalypso Nicolaidis, ‘Citizen Power Europe: The Making of a European Citizens’ Assembly’ in Alberto Alemanno and Pierre Sellal, The Groundwork of European Power (Revue Européenne du Droit 2022) 3.

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We are closer here to the pléthos—or later the pejorative plebe—referring to the people as the ‘masses’ of the population as opposed to the elites. Here we require a sociopolitical perspective on the ‘folk’ or ‘people of the people’ concerned with inequalities, precarity, and disempowerment—that is, often, the poor, or ‘at least those who are not the privileged in rank or fortune’. We can start with Machiavelli’s great insight that the essence of politics does not reside in universal value systems but in the constitutive role that political struggle engenders, or what we would call today sub-terrean national or transnational politics. This sense is certainly relevant to a demoicratic spirit which aspires to bring democracy in Europe ‘all the way down’ through horizontal cross border networks aspiring to be as inclusive as possible—even if only through narratives of inclusive patriotism. Hence the importance of deliberative and participatory processes where organized civil society proactively support an inclusiveness agenda to bring in decision-making processes those least responsible for and most vulnerable to today’s transition, in Europe and beyond. Part of the challenge facing democracy in Europe today is to figure out how these three versions of peoples-across-borders can coexist under the umbrella of transnational agonistic demoicracy.62 It seems in fact that European ‘public opinion’ is actually attuned to demoicratic reality of the EU and the utopian character of the pursuit of demoicracy to its ultimate logic, namely empowering meaningful horizontal connection across borders.63

VI. Reimagining Sustainability: Immortal Peoples, Mortal Planet The final way to reimagine European peoples explored here calls for an even more radical change in Europe’s constitutional imaginary, reflecting the EU’s ultimate raison d’etre, namely the necessary pivot from the politics of space to the politics of time. In other words, we need to be able to truly and effectively imagine connecting the demoi of today with the demoi of tomorrow. After all, with or without diamonds, political peace always hopes to be forever. Perpetual peace, eternal truths, infinite horizon . . . our utopian aspiration for lasting political as much as architectural constructs will always be cut short. But today more than ever, we need to ask how to translate this utopia in a new politics that operationalizes equal respect over time, and not only synchronistically. Many have analysed the ways in which, in Europe and beyond, we are plagued by short-termism and emergency politics as governments act under emergency powers responding to markets wedded to short-term returns.64 If so, what better way to justify anew the process of European integration than to proclaim loud and clear the EU’s commitment to long-term goals irrespective of short-term expediency. I have argued in the past that the EU is best placed to institutionalize the idea of sustainability, the 62

Chantal Mouffe, ‘Deliberative Democracy or Agonistic Pluralism’ (1999) 66 Social Research 745. Achim Hurrelmann, ‘Demoi-cratic Citizenship in Europe: An Impossible Ideal?’ (2015) 22(1) Journal of European Public Policy 19. 64 Jonathan White, Politics of Last Resort: Governing by Emergency in the European Union (OUP 2019). 63

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idea that we must act together for the long term, and that a peace project such as ours can best justify short-term sacrifices for long-term goals. Sustaining our polity as the guardian of the long term for its citizens, a means to an end, should be the new core motive for the European project.65 I have suggested that such a vision should be labelled ‘sustainable integration’, which is most fundamentally about turning the ecological sustainability gestalt into a broader philosophy of transnational governance for the EU. 66 This is also an agenda that requires widening the conceptual toolbox of political science to critical social theory and anthropology in order to better apprehend the EU’s social grounding. Sustainable integration is altogether a practice, an ethos, and a state of mind. As a governing idea of integration it calls for pursuing fairer rather than faster or deeper integration, through processes that are politically acceptable across generations. I define sustainable integration in the EU as the durable ability to sustain cooperation within the Union in spite of the heterogeneity of its population and of their national political arrangements. In other words, sustainable integration calls for embracing the complexity of the task thanks to the simplicity of the vision.67 The core idea of sustainable integration is to turn the EU’s democratic awkwardness into an asset: because it is a sum of governments which cannot be collectively kicked out, the EU ought to be about democracy-with-foresight, partially shielded from the short-term ups and downs of electoral politics, yet solidly grounded on participatory networks and attuned to the overwhelming desire of the public to confront future threats for the sake of our children and grandchildren. To atone for its current shortcomings in collective accountability, the EU must become accountable to those who are not represented today. The prospect of interconnected peoples connected with their future themselves connected ‘collective selves’ is bound to affect the EU’s prevailing constitutional imagination. In this vein, it is ever less possible to consider the transborder connections between the peoples of Europe in isolation. As Ian Manners and others discussed under the banner of ‘planetary politics’, citizens around the world have increasingly had to face the challenge of living in Tomorrowland as a boundary-less praxis, where questions of pollution, biodiversity, and climate change can be addressed in a liberal sense by accelerating the transition to future technology today, no matter the costs of consumption.68

65 On the big picture, see Yuval Noah Harari, Sapiens: A Brief History of Humankind (Penguin Random House 2014). 66 This was my conclusion as we attempted to draw the early lessons from the euro crisis in a European Council wiseman group chaired by Felipe Gonzales. See Kalypso Nicolaidis, ‘EU 2.0? Towards Sustainable Integration’ (Open Democracy, 12 July 2010); Kalypso Nicolaidis, ‘Sustainable Integration: Towards EU 2.0?’ (2010) 48 The Journal of Common Market Studies 21. On the wise-man group process see also Kalypso Nicolaidis, ‘Project Europe 2030: Reflection and Revival’ (Open Democracy, 11 May 2010); Kalypso Nicolaidis, ‘Sustainable Integration in a Demoicratic Polity: A New (Or Not So New) Ambition for the European Union after Brexit’ in Uta Staiger (ed), Brexit and Beyond (CUP 2017). 67 On complexity and the EU, see for instance Daniel Innerarity, ‘What Kind of Deficit? Problems of Legitimacy in the European Union’ (2014) 17(3) European Journal of Social Theory 307; Giuseppe Martinico, ‘The Asymmetric Bet of Europe’ (Verfassungsblog, 12 March 2017). 68 Ian James Manners, ‘Tomorrowland: Critical Social Theory of Planetary Politics’, Paper presented at the ISA Annual Convention 2018, San Francisco, United States.

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Increasingly globalized localities—or glocalities—constitute the building blocks of democracy. Planetary politics is giving rise to reimagining forms of democracy around such ‘glocalities’, a trend accelerated most recently by the Covid crisis, a pandemic that has galvanized new forms of civic activism as a powerful catalyst for global civil society where intertemporal ties can even override regional ones.69 Whatever we may think of the ‘wisdom of the multitude’, it is hard to deny the irresistible sense that humanity is creating a global ‘anthrope-scene’ where potential redemption in the age of the Anthropocene is to be debated through a new kind of connectedness. This new frontier is likely to be affected by new technologies and new forms of ‘digital citizenship’ enabled by such technologies. As we learn to debate radical uncertainty and ask how to invest in collective resilience, we may be starting to lay the foundation of the kind of ‘democracy with foresight’ which a mature EU could bring about. If the pandemic has not spelled the end for contestation, it has changed the way we may imagine it and reinvent the act of being a crowd across time and space, as vividly conveyed by social-distanced crowds of protesters. And while online activism is not new, this time around it has allowed us to visualize our shared human aspirations to democratic freedom.70 To be sure, for speech acts and virtual worlds to foster social transformation, something else has to happen which has to do with keeping alive the idea of democracy as a palympseste of past and future struggles in past and future ‘otherlands’. Democracy depends in part on whether and how forms of power are appropriated by the multitude of ordinary citizens against elite entrenchment. So we are back to where we started, and the call to move beyond technopopulism.

VII. Conclusion It may not be possible to maintain a system of governance without any sort of utopia. In exploring some of the many meanings of peoplehood in the EU as demoicracy in the making, this chapter has probed one dimension of our constitutional imaginary, namely the meaning of ‘peoples’. In doing so, I have put forth the idea that we ought to build an anti-teleological utopia of democracy in the EU in order for it to better become the guardian of the long term, but a long term constantly to be reinvented. Such a utopia runs against two countering ideological commitments, namely sovereignism and Euro-nationalism, which in Ricoeur’s sense both offer much simpler languages to ground political authority in the oneness of a single people. If, as Ricoeur argued, utopia simply ensures that our horizon of aspiration does not simply fuse with our experience, we need a narrative to expunge its most totalizing tendencies. A demoicratic narrative may well be able to do so, given the greatly unforeseeable dynamics that may be unleashed by genuine deep connection between peoples across borders. What if we could envisage the advent of a third democratic transformation à la Robert Dahl, as transnational, transgenerational, and translational 69 See Nicolaidis (n 4); Richard Youngs, ‘Coronavirus as a Catalyst for Global Civil Society’ Carnegie Europe (7 December 2020). 70 Nicolaidis (n 4); Thomas Carothers and Richard Youngs, The Complexities of Global Protests (Carnegie Endowment for International Peace 2015).

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democracy? More radically, what if imagining ourselves intertwined with other demoi in the present served as a stepping stone for connecting with other demoi in the future? Undoubtedly, to constitutionalize such a transnational and transtemporal utopia, drawing on what links us to ‘others’ across space and time, will call for radical leaps of political imagination as interconnected peoples proclaim with increased forcefulness: we have imagined ourselves into being!

13

Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law Paul Linden-Retek

I. Introduction: Post-Nationality and Law More than a generation ago, Jürgen Habermas put forward his theory of ‘constitutional patriotism’ to sustain a constellation of politics, law, and identity beyond the nationstate.1 It is worth evaluating where the concept leaves us today. The European Union’s present crises reveal, regrettably, that post-national political commitment oriented to the precepts of legal principle is awfully fragile. Indeed, Europe’s foundational commitments enumerated in Article 2 TEU to democracy, human rights, and the rule of law—precisely the values to which a constitutional patriot adheres—are the subject of profound crisis, hypocrisy, disagreement, and disregard: the plight of refugees at Europe’s shores; the machinations and uncertainties of Brexit; burgeoning ‘illiberal democracy’ in the East; and undemocratic ‘authoritarian liberalism’ in Brussels. These challenges question the adequacy of constitutional patriotism as Europe’s public philosophy. This chapter scrutinizes Habermas’s concept—and its basis in his discourse theory of democracy and law—to seek a constructive critique. I read constitutional patriotism in light of critical theorists’ reception of the concept and Habermas’s own contemporary writings on Europe’s crisis. This investigation yields a necessary corrective shift in analytical perspective: the frame of constitutional imaginaries. The chapter then details the consequences of this shift for the work of the contemporary European judiciary and its constitutional discourse. The idea of constitutional imaginary emphasizes the connection between law’s legitimacy and its broader ‘social imaginary’: the process by which law draws from or makes a claim to the orientations, practices, and values in citizens’ life-worlds

1 See Jürgen Habermas, ‘Political Culture in Germany since 1968’ in Shierry Weber Nicholsen (ed and trans), The New Conservatism: Cultural Criticism and the Historians’ Debate (MIT Press 1989); Jürgen Habermas, ‘Citizenship and National Identity: Some Reflections on the Future of Europe’ in Ronald Beiner (ed), Theorizing Citizenship (State University of New York Press 1995) 255; Jürgen Habermas, ’Remarks on Dieter Grimm’s “Does Europe Need a Constitution?” ’ (1995) 1 (3) European Law Journal 303; Jürgen Habermas, The Inclusion of the Other: Studies in Political Theory (Ciaran Cronin and Pablo de Greiff eds, Massachusetts Institute of Technology Press 1998); Jürgen Habermas, The Postnational Constellation: Political Essays (MIT Press 2001).

Paul Linden-Retek, Constitutional Patriotism as Europe’s Public Philosophy? In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0012

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beyond law’s formal instruments. This connection is dynamic and dialectical, as both law and society are changed by it—but they are not always changed equally, in the same measure, or in the same sense. And this means that law’s responsiveness to social imagination complicates the nature of constitutional patriotism’s central object: legal principle. It thus accordingly complicates the nature of civic attachment to it, as well. When citizens affirm legal principles, they implicitly affirm certain settlements to political conflict. These settlements have a particularized character, embedded within the ongoing struggles for redistribution and recognition in a democratic community. These struggles are given meaning, in the first instance, by the articulations of national democracy. Attachment to principles that are formally identical can be motivated, across jurisdictions and polities, by quite distinct political affects and commitments, which may or may not themselves neatly align in the post-national political sphere. European constitutional patriotism thereby always confronts the possibility of significant disjunctions in the public meaning of the law, to which it seeks allegiance. At moments of heightened disagreement, this problem can lead to a general collapse of legitimacy and faith in the post-national rule of law. The salient question to answer is not, as Habermas’s early formulations of constitutional patriotism supposed, the extent to which universal constitutional principles—and the formal procedural presuppositions behind them—should be the source of post-national constitutional commitments. Emphasis ought instead be placed on how constitutional imaginaries function at once as normative resources for but also ideological limits of the post-national creativity of European law. If this is correct, this account helps illuminate why constitutional patriotism is increasingly strained as a post-national public philosophy. In the first instance, post-national constitutional law must be responsive to the way existing legal doctrines neglect the force of constitutional imaginaries. This challenges a core jurisprudential tenet of the European Court of Justice, on which the ‘integration through law’ project has heretofore been founded: the autonomy and effectiveness of the European regulatory order. Insofar as it remains inattentive to constitutional imagination, such autonomy—if it might have once served a particular integrative purpose—today serves to hinder, not support, the creation of post-national identity and commitment. I demonstrate this point below with reference to an issue of utmost real and symbolic importance to post-national political commitments: the highly fraught development of a fair and robust European system of asylum protections. In turn, I advise a reformed conception of constitutional patriotism grounded in responsiveness to constitutional imaginaries, which poses positive demands on European law. It suggests that true responsiveness would entail distinct modes of argumentation and interpretation: among them, historical analysis, cross-jurisdictional translation, and material political consciousness. While such interpretation is of course demanding, it is the only way in which judicial interpretation can sustain legal principles as both objects of post-national commitment and objects of national meaning.

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II. Constitutional Patriotism and Solidarity beyond the Nation-State The development of constitutional patriotism spans from Habermas’s early writings on post-war German political identity to his related, subsequent efforts to ground a European political culture beyond the nation-state.2 Habermas acknowledges that a legal system of rights protection ‘must be enduringly linked with the motivations and convictions of the citizens, for without such a motivational anchoring they could not become the driving force behind the dynamically conceived project of producing an association of [free and equal] individuals’.3 Yet, Habermas also maintains that any theories that derive such anchoring from the ‘ambivalent bonding force of archaic institutions’ are wedded to the now utterly discredited ‘metasocial guarantees of the sacred’.4 Constitutional patriotism—as the form of motivational affect directed towards constitutional principles themselves—supersedes the particularist tendencies of prepolitical ethnic-nationalist recognition, attaching instead (ultimately) to universalist rights and norms embedded in constitutional law.5 Constitutional patriotism offers a procedural basis for social cohesion within a post-metaphysical, pluralistic polity. On this reading, solidarity is one of ‘the results or the “product” of constitutional patriotism’: in Habermas’s definition, ‘an abstract, legally mediated solidarity between strangers’.6 It is tied to the success and vitality of reasoning among citizens in the public sphere, secured by the co-original implication of private and public autonomy, by both liberal and republican participatory rights.7 Over time, this relationship of mutual and reciprocal participation assumes among citizens the structure of a shared constitutional project that exceeds the boundaries of nation-states and parochial political communities. The premise is that constitutional patriotism can link together national communities without requiring or presuming an already formed and fully consolidated transnational demos, one that would make the ongoing work and negotiation of the terms of solidarity superfluous. Constitutional patriotism imagines a ‘transformative conception of living together’.8 It shifts the understanding of political identity from the ‘unreflective’ identification with particular national traditions to ‘dynamic and complex processes of identityformation’.9 ‘What matters’, Jan-Werner Müller writes, ‘is a kind of critical, highly selfconscious back-and-forth between actually existing traditions and institutions, on

2

See generally Jan-Werner Müller, Constitutional Patriotism (PUP 2007). Jürgen Habermas, ‘Struggles for Recognition in the Democratic Constitutional State’ in A Guttman (ed), Multiculturalism (PUP 1994) 134. 4 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg trans, The Massachusetts Institute of Technology Press 1998) 27. 5 Jürgen Habermas, The New Conservatism (n 1). See also Charles Maier, The Unmasterable Past: History, Holocaust, and German National Identity (HUP 1988); Dolf Sternberger, ‘Verfassungspatriotismus’ Frankfurter Allgemeine Zeitung (Frankfurt, 23 May 1979). 6 Jan-Werner Müller (n 2), 63; Jürgen Habermas, ‘Why Europe Needs a Constitution’ (2001) 11(5) New Left Review 16. 7 See generally Habermas (n 4) 104. 8 Müller (n 2) 71. 9 Ibid 29, emphasis mine. 3

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the one hand, and the best universal norms and ideas that can be worked out, on the other’.10 Constitutional patriotism is a ‘collective learning process’, in which ‘citizens see their constitutional culture as always open and incomplete’.11 Left implicit but very much central to preserving post-national solidarity under constitutional patriotism is the idea that there is a ‘life of the law’. Habermas, in elegant and powerful prose, embraces this spirit: ‘The constitutional state does not represent a finished structure but a delicate and sensitive—above all fallible and revisable— enterprise, whose purpose is to realize rights anew in changing circumstances, that is, to interpret the system of rights better, to institutionalize it more appropriately, and to draw out its contents more radically’.12 This is perhaps the crucial hope of constitutional patriotism in the post-national context. If constitutional law can indeed be considered open in this fundamental sense, then competing polities might meaningfully intertwine their constitutional claims so as to support the kind of cross-border solidaristic commitments needed today. However, much hinges on how such processes of open-ended identity-formation are meant to proceed vis-à-vis constitutional legal process. A salient structural tension within constitutional patriotism is between universal norms in constitutional law and the particular ways they are interpreted, contextualized, and embedded in constitutional practice. The tension endures because it remains unclear in Habermas’s theory whether the real constitutional attachments capable of sustaining public trust are to the principles or to the particular character of the social worlds that give principles their specific meanings. The post-national possibilities of solidarity—precisely as the product of this attachment—very much depend on the objects of attachment we have in mind. Habermas writes in a crucial, but ambiguous, passage that ‘[s]olidarity . . . arises out of law only indirectly, of course: by stabilizing behavioural expectations, law simultaneously secures symmetrical relationships of reciprocal recognition between abstract bearers of individual rights’.13 Such stabilization involves not merely abstract rights as elements of a democratic procedural consensus but also an understanding of the meaning of these rights as citizens live and invoke them in political practice. It thereby remains somehow related, if not entirely wedded or reduced, to certain communitarian dimensions of political life. Indeed, after criticism of constitutional patriotism’s thinness, Habermas modulated the relationship which he envisioned constitutional patriotism to establish between universal principles of communicative rationality and a particular political–cultural tradition. No longer a direct attachment to universal principles simpliciter, constitutional patriotism in this new light now signified a more particularized and historicized attachment: to ‘the political order and the principles of the [German] Basic Law’.14 While Habermas has not completely left behind his previous abstract formulations, he now immediately situates references to constitutional patriotism ‘within the historical 10

Ibid. Ibid 61. 12 Habermas (n 4) 384. 13 Ibid 448–49, emphasis mine. 14 Jürgen Habermas, ‘Historical Consciousness and Post-Traditional Identity’ in The New Conservatism (n 1) 257. 11

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context of a legal community’15 or simply a ‘shared political culture’.16 The principles in positive law must be given, as Habermas admits, a definite shape. He writes: ‘The identity of a person, of a group, of a nation, or of a region is always something concrete, something particular’; it cannot ‘consist merely in general moral orientations and characteristics, which are shared by all alike’, but must instead present an ‘image’ to oneself and others.17 To suture commitment to legal procedures, Habermas invokes a fixed, specified image of a people that is (at least for a time) unified and bounded. The object of attachment, the means by which citizens feel bound and committed to the law and to one another, is now this stabilization of expectations in light of a political culture of law that is historically and culturally specific. If constitutional patriotism is to remain a source of solidarity that does not foreclose the universalizing character of law, however, this relationship to political culture must have rather distinct characteristics. While Habermas rules out the particularity of an ethnic or linguistic–cultural grounding for political commitment, a different sort of particularism does indeed underwrite the embrace of constitutional principles. The nature of the ‘shared political culture’ must be dissociated from a ‘hegemonic majority culture’ and ‘uncoupled from the level of subcultures and their prepolitical identities’, such that ‘different cultural, ethnic, and religious forms of life [can] interact on equal terms within the same political community’.18 This is what Habermas has in mind when he reiterates that, in post-conventional societies, ‘republicanism must learn to stand on its own feet’.19 Thus, while solidarity grounds itself in particular allegiances to different constitutions with different interpretations of the catalogue of rights, such allegiance still engenders a consciousness of the universal. In the post-national context, ‘the same legal principles would . . . have to be interpreted from the perspectives of different national traditions and histories’20 and brought into focus as part of a now transnational legal culture. These formulations render unclear, however, what a ‘shared political culture’ is then left to include. What role is it meant to play in relation to law’s rational discursive practices, on the one hand, and the broader cultural meanings of the life-world, on the other? Consider, for example, what Habermas has said specifically about the future of a European public sphere and a supranational political culture: [To date] by and large, the national public spheres are culturally isolated from one another. They are anchored in contexts in which political issues gain relevance only against the background of national histories and national experiences. In the future, however, differentiation could occur in a European culture between a common

15

Habermas (n 3) 225. Habermas, ‘Citizenship and National Identity’ (n 1) 264. 17 Jürgen Habermas, ‘The Limits of Neo-Historicism’ in Peter Dews (ed), Autonomy and Solidarity: Interviews with Jürgen Habermas (Verso 1996) 239. See also Patchen Markell, ‘Making Affect Safe for Democracy? On “Constitutional Patriotism” ’ (2000) 28(1) Political Theory 39, 50ff. 18 Jürgen Habermas, ‘The European Nation-State: On the Past and Future of Sovereignty and Citizenship’ in The Inclusion of the Other (n 1) 117–18. 19 Ibid 117. 20 Jürgen Habermas, ‘Citizenship and National Identity’ in Between Facts and Norms (n 4) 500. 16

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political culture and the branching national traditions of art and literature, historiography, philosophy, and so forth.21

This construction is curious. First, Habermas accepts an analytic bifurcation of politics and culture, and ostensibly of constitutional principles and their broader social instantiations in practical experience. If this is so, it is unclear how citizens are to live out the common political culture and perceive it at once as normatively valid and socially meaningful. This risks, again, conceiving of political commitment too ‘thinly’. Conversely, if we accept some kind of interrelationship between the thematization of political issues and their exploration in the broader cultural life-world, then the difference between the two scenarios Habermas identifies seems, in fact, to be minimal. As long as national cultural traditions remain ‘branched’ in this way, then it seems likely that the vocabularies and languages used in the public sphere will be ‘culturally isolated’ in the same manner, thus reducing the second scenario to the first. There are thus two currents of thought circulating beneath Habermas’s post-national constitutional project, and they flow exactly against one another. Habermas certainly wishes for a kind of political culture that nests the particular historical experiences of nations in a certain manner within the universality of democratic principles. But in the examples and elaborations Habermas has offered, the idea of a ‘shared political culture’ masks key contradictions in the substrate of post-national attachment. While Habermas is careful, on the one hand, to avoid making a national political culture too particular (embedded too firmly in cultural social groupings), he perceives the particularisms of national constitutions and their historical interpretations of rights ‘more benignly’, as Robert Post and Reva Siegel put it.22 While the former threatens universal democratic principles and thereby requires uncoupling, the latter comfortably gives them concrete meaning without compromising their emancipatory orientation ‘one iota’.23 But this distinction is difficult to defend without elaborating a theory precisely of constitutional culture itself. The project of post-national solidarity otherwise runs into an impasse: if the nesting of political culture within life-world subcultures conceals the influence of hegemonic majority cultures, then why does the same danger not attend law internationally, such that post-national solidarity is compromised from the outset by a hegemony of particular constitutional interpretations over others?24 And, further, is there not conversely a sense in which we might understand the relationship between political culture and the life-world to be in fact necessary for constitutional patriotism, not just as a motivational reservoir but as constitutive of law’s normativity?25 Habermas seems to admit as much when he concludes: ‘[R]egardless of the diversity of different cultural forms of life, [democratic citizenship] does require that every citizen be socialized into a common political culture.’26 But this is a paradoxical 21

Ibid 271. Robert Post and Reva Siegel, ‘Constitutional Patriotism and Constitutional Culture’, draft on file with author, 12. 23 Habermas (n 20) 500. 24 Post and Siegel (n 22) 13. 25 Ibid; Craig Calhoun, ‘Imagining Solidarity: Cosmopolitanism, Constitutional Patriotism, and the Public Sphere’ (2002) 14(1) Public Culture 147, 152–55. 26 Habermas (n 20) 500, emphasis mine. 22

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admission, for the influence of socialization seems to thoroughly threaten Habermas’s notion of political autonomy.

III. The Salience of Constitutional Imaginaries Solidarity is at the heart of this dilemma. Remember that solidarity under constitutional patriotism in fact depends upon this work of nesting universal rights in particular interpretations. Solidarity must aim for the law to thicken. It must be the case that a community’s political culture rests on some normative relationship with inherited values and traditions, inherited in the sense that they are not determined politically by the community in that present instance.27 Otherwise, it is not at all clear what kinds of ‘stabilized’ political expectations could arise under the heading of symmetrical relations.28 Solidarity would be meaningless if all were up for grabs at all times. In his lucid account of the concept, Frank Michelman draws special attention to this stabilizing ‘core’ of communal self-understanding under constitutional law. Let me quote him at length: ‘Constitutional patriotism,’ it appears, is the morally necessitated readiness of a country’s people to accept disagreement over the application of core constitutional principles of respect for everyone as free and equal, without loss of confidence in the univocal content of the principles, because and as long as they can understand the disagreement as strictly tied to struggles over constitutional identity. And what explains that readiness, when and where it is found? The answer to that must be that conditions then and there warrant a level of confidence that the struggle over corporate identity occurs within a corporate identity that is already incompletely, but to a sufficient degree, known and fixed.29

As admittedly vital as it is, the notion of fixity frustrates the manner in which a postnational constitutional patriotism can move forward. It confirms a series of unresolved tensions in the application of Habermasian theory to the demands of post-national solidarity. This concern, in fact, goes to the heart of Habermas’s discourse theory of law, since it complicates his main thesis about how law’s procedural rationality holds together the crucial link between legality and legitimacy.30 Responding adequately to this structural concern about constitutional fixity requires a shift in analytic frame: to that of the constitutional imaginary. The concept of constitutional imaginaries draws inspiration from social-theoretical accounts of imaginaries more broadly. These denote the symbolic collections of selfunderstandings—carried in images and stories and ways of thinking—that reflect 27

Markell (n 17) 52. Alessandro Ferrara, ‘Of Boats and Principles: Reflections on Habermas’s “Constitutional Democracy” ’ (2001) 29(6) Political Theory 788. 29 Frank Michelman, ‘Morality, Identity and “Constitutional Patriotism” ’ (2001) 14(3) Ratio Juris 269, emphasis mine. 30 See Jürgen Habermas, ‘Law and Morality’ in The Tanner Lectures on Human Values vol. 8 (Salt Lake City 1990) 217, 243–44. 28

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crucial facts of social life and also normative expectations about how that social life ought to be lived.31 Derived foremost from the work of Cornelius Castoriadis, an imaginary ‘gives specific orientation to every institutional system, which overdetermines the choice and the connections of symbolic networks, which is the creation of each historical period, its singular manner of living, of seeing and of conducting its own existence, its world, and its relations with this world’.32 Constitutional imaginaries, specifically, identify ideal-typical modes of legal thinking that structure both doctrinal thinking and broader civic commitments to the rule of law. These imaginaries include both utopian and ideological forces—‘the basis for articulating what does matter and what does not’.33 And constitutional imaginaries thus open onto the law’s normative ambitions while also constraining one’s thinking about those ambitions. Imaginaries project our imagination but also ‘capture’ and restrain it, just in the way Ludwig Wittgenstein suggested: ‘A picture held us captive. And we could not get outside it, for it lay in our language and language seemed to repeat it to us inexorably.’34 Using Hauke Brunkhorst’s terminology, we can pose the difficulty posed by the analytic frame of constitutional imaginaries in the following way: within the democratic nation-state, constitutional law at once represents a revolutionary achievement of social solidarity insofar as law’s normative force democratically orders systems integration but also undermines the spirit of this same achievement. For insofar as the constitution’s positive law ‘fixes’ in place certain social understandings, future citizens subsequently encounter these not as the substrate of revolutionary possibilities but instead as evolutionary facts.35 Efforts at novel forms of inclusion are at these points vulnerable to the defensive use of constitutional achievements as barriers to entry. Constitutional imaginaries are the missing terrain of constitutional culture upon which Habermasian constitutional theory runs aground. Indeed, the tension between the utopian and the ideological in constitutional imaginaries holds one of the keys to a post-national, reflexive philosophy of law. Post-national solidarity, as a revolutionary reappraisal of the settled bonds of national solidarity, is thereby positioned precisely at the edge, at the fault-line, of constitutional fixity. Fixity, like particularity, at once constitutes and prejudices the work of post-national solidarity. Any view of post-national constitutional patriotism must thereby inquire more deeply into to this negotiation of particularism and constitutional fixity. In the same way that a common political culture does indeed require a special mode of socialization, a post-national constitutional law requires its own ethical practices. That is to say, there must be something distinctive about a post-national constitutional culture that itself counteracts—or, more precisely, changes the nature of—the closure of constitutional fixity.

31

See Charles Taylor, Modern Social Imaginaries (DUP 2003). Cornelius Castoriadis, The Imaginary Institution of Society (Massachusetts Institute of Technology Press 1987) 145. 33 Ibid. 34 Ludwig Wittgenstein, Philosophical Investigations (Basil Blackwell Ltd 1958) 115. 35 See generally Hauke Brunkhorst, Solidarity: From Civic Friendship to a Global Legal Community (Massachusetts Institute of Technology Press 2005) 99–101. 32

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IV. At the Limits of Procedural Thought Habermas in his constitutional theory has responded to this difficulty by emphasizing the dynamic structure of agreement in legal procedures. Specifically, he appeals to the ‘all affected interests’ democratic principle of legitimacy: the foundational dictum that a polity must ‘not exclude anyone who is affected by the possible coercive measures of the legal community from the community of equal citizens’.36 The democratic principle thereby combines a compositional standard of inclusion with a basic procedural mechanism for guiding political participation. It is at once a counter-factual ideal for assessing the legitimacy of laws and political decisions but also a deliberative model for how public institutions ought function.37 The question is whether this procedural view is an adequate way to conceive post-national solidaristic legality and politics—to conceive the distinctive character of post-national constitutional culture. Is it enough merely to track coercion—and to include those affected by that coercion in determinations of responsibility? What if the invocation of coercion depends, in fact, on a prior understanding of what coercion means, over which those who are to be included cannot have a say? This is the criticism made by Paulina Ochoa of Habermas’s understanding of dynamic constitutionalism. The ‘all affected interests principle’, Ochoa writes, could indeed be a principle for democratic inclusion, but only when ‘individuals living on either side [of the boundary] could agree on an analysis and interpretation of the meaning of “having one’s interests affected by a decision” ’.38 In cases where such an agreement is not available prior to the decision for inclusion—as is the case with constitutionalism beyond the nation-state—reliance on the principle is caught in a vicious circle. To deploy the ‘all affected interests principle’ means already to have made a preceding judgement about the nature and scope of the decision such that those affected individuals could be included in the decision-making process; however, these same individuals could not have themselves been involved in making this prior determination. The exercise would thus become one of ‘constitutional paternalism,’ as Ochoa terms it, where the appeal for inclusion is made by a group already established in power who cannot help but treat others unequally as they were not included in defining the terms of the very principles for their inclusion.39 Ochoa reminds us how the universalistic principle of inclusion can be perceived by those who are asked to participate in its decision-making procedure as something constrained, partial, and inaccessible. And this perception is not mere confusion. It highlights a deeper dilemma in the relations underlying discursive procedures that, while aiming to realize equal recognition, nonetheless permit some to control the terms of an encounter, to set the terms of equality and of participation for others. Indeed, European public spheres today seem to find themselves in this sort of difficulty: the 36

Ibid 170. Seyla Benhabib, ‘Toward a Deliberative Model of Democratic Legitimacy’ in Seyla Benhabib (ed), Democracy and Difference: Contesting the Boundaries of the Political (PUP 1996). 38 Paulina Ochoa, The Time of Popular Sovereignty: Process and the Democratic State (Pennsylvania State University Press 2011) 42. 39 Ibid. 37

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expansion of communicative exchange across boundaries of national political spheres does not in itself secure a transformative openness to those other modes of life. More must be said about the processes that are imagined to attend this expansion, lest what is secured remains merely a composite public sphere experienced by still-national citizens and still structured according to the dominant imaginaries of national sovereignty. Is this not analogous, for example, to the trap we confront in the reception of refugees, a form of conditional hospitality that a priori structures the encounter in the native host’s favour? As Jacques Derrida memorably argued, the stranger ‘must ask for hospitality in a language which by definition is not his own, the one imposed on him by the master of the house, the host, the king, the lord, the authorities’.40 The real philosophical issue in the problem to which the principle of discourse (D) is applied—as Ochoa’s analysis seems to suggest—concerns how we are to understand the relationship between discourse, identity, and the ethical–cultural dimensions of solidarity. And here emerges a second critique: the ‘all affected interests principle’—in the emptiness of its universalism—might in fact smuggle in an orientation towards sovereign action that is antithetical to post-national solidaristic relations. If the critique of proceduralism’s abstraction tracks the elision of life-world self-understandings, this second critique concerns the manner in which proceduralism returns citizens into social lives but with a distorted image of their agency. This aligns with what Patchen Markell has critiqued as the orientation toward mastery at the heart of the politics of recognition.41 Markell argues that efforts to secure recognition are flawed responses to the ‘experience of vulnerability, to the fact that our identities are shaped in part through the unpredictable responses of other people’.42 This response threatens to unravel precisely one’s capacity to remain responsive to such vulnerability. The push of legal recognition here demands that ‘others recognize us as who we already really are’.43 The retention of this underlying pursuit of sovereignty is most germane for the postnational concern with constitutional fixity. And it suggests why formal procedural openness is inadequate for thinking through post-national legal solidarity. In terms of its underlying civic orientation, constitutional fixity can be reformulated as the case when the legal system preserves this ‘basic aspiration behind [sovereign] agency: the aspiration to be able to act independently, without experiencing life among others as a source of vulnerability, or as a site of possible alienation or self-loss’.44 Post-national solidarity, then, aims to respond to a particular and fundamental kind of injustice which this problem contains, aptly described in terms of an underlying structure of subordination. Drawing on W.E.B. DuBois’s analysis of whiteness, Markell writes that ‘such structures pay an ontological wage: they organize the human world in ways that make it possible for certain people to enjoy an imperfect simulation of the invulnerability they desire, leaving others to bear a disproportionate share of the costs and burdens involved in social life’.45

40 41 42 43 44 45

Jacques Derrida, Of Hospitality (Rachel Bowlby trans, SUP 2000) 15. See generally Patchen Markell, Bound by Recognition (PUP 2003) 12ff. Ibid 14. Ibid. Ibid 12. Ibid 22.

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This critique is important to bear in mind. The discussion thus far has been at a very high level of abstraction, so consider for a moment a particular example from EU law: the legal framework of asylum and the changing character of solidarity within it. In the combined cases NS and ME, the European Court of Justice affirmed in 2011 that a member state’s discretion to refuse a transfer under the Dublin system in fact becomes an obligation in cases where rights of the applicant under Article 4 of the EU Charter of Fundamental Rights are in question and when ‘they cannot be unaware [of] systemic deficiencies in the asylum procedure’ in the receiving state.46 Following the decision, the prohibition on transfers to states with ‘systemically deficient’ asylum protections was incorporated into the Dublin Regulation’s recast Dublin III. Is this an adequate way to ‘include’ others and to respect their rights—thus better approximating the universal demands of justice in European constitutional law? From what we know of the developments of European asylum law, we can hardly be confident in an affirmative answer. If the prohibition on transfer in these circumstances is often viewed as an important first step, it nevertheless represents a rather passive and limited understanding of what solidarity demands. Consider here how, in requiring a refusal of transfer to states where ‘systemic deficiencies’ in asylum protections existed, Dublin III also sanctioned a kind of withdrawal, where Member States’ responsibility for the rights of asylum seekers was understood in isolation, despite the transnational systemic entanglement of states and their (mutually implicated) factual capacities to respond to asylum claims. Relying on Dublin’s ‘sovereignty clause’ and their own interpretations of the meaning of ‘systemic deficiencies’, Dublin III implicitly, though decisively, affirms a solipsistic ideological conceit privileging a national frame for responsibility under European refugee law. This national frame can bear ambiguous results from the perspective of rights protection—some to heighten protection and others to reduce it. Earlier in the history of the Area of Freedom, Security and Justice (AFSJ), for example, states in certain circumstances refused to recognize the asylum jurisdiction of fellow Member States— not on the basis of a new prospective legal agreement of humanitarian standards but instead on account of their own criteria of refugee status and protection defined under national law. This was the approach of the UK Court of Appeals in 1999 when it denied transfer by the Home Office of asylum seekers to French and German jurisdiction on grounds that the latter’s more restrictive policies failed to offer asylum, unlike the United Kingdom, on grounds of persecution by agents other than the state.47 But this same national frame also bore fruit, as it did after NS/ME, in the discretionary reluctance to apply the ‘systemic deficiencies’ test to other states undergoing difficulties in adequately protecting refugee rights—and thus to keep ‘trusting’ their deficient asylum laws.48 46 Joined Cases C-411/10 and C-493/10, NS v Secretary of State for the Home Department and ME and others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform [2011] ECR I-13905 para 98, 106. 47 R v SSHD, ex parte Adan, Subaskaran and Aitseguer, 1999 INLR 472. See Sandra Lavenex, ‘Mutual Recognition and the Monopoly of Force: Limits of the Single Market Analogy’ (2007) 14(5) Journal of European Public Policy 762–69, 772. 48 Susan Fratzke, ‘Not Adding Up: The Fading Promise of Europe’s Dublin System’ (Migration Policy Institute Europe, 2015) 18 (‘Despite increasing evidence of failings in Italy’s asylum procedures, for example, most asylum authorities have been hesitant to use the logic of the CJEU’s decision in N.S./M.E.

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Under these auspices of mutual trust, European states have long avoided confronting the ways individual national legal cultures and particular practices developed—and the ways these developments affected one another. With regard to the Dublin Regulation’s structure and its rule on the ‘first country of entry’, in particular, this permitted core states to ignore increased pressures on the national legal systems of states on the periphery, all the while continuing to formally abide by their rights obligations. More deeply still—as NS/ME and the Dublin III reform demonstrates—some states were thereafter permitted, in the guise of rebalancing the principle of mutual trust, to continue to ‘set the terms’ for others—whether peripheral states or asylum seekers themselves—of equality and participation in deciding where claims to asylum are to be processed. The lesson of this example is pressing. The procedural turn always threatens to deceive—to reinscribe narrow sovereign prerogative, just as Markell suggests. While contemporary geopolitical and economic pressures do throw into question the sociological status of sovereignty understood as state capacity, the nation-state nonetheless continues to exercise extensive power in large part because it is able to ‘draw upon a history of relatively stabilized relations of recognition’.49 These relations not only afford the state authority, Markell writes, but also enable it to ‘set the terms of exchanges of recognition, creating incentives for people to frame their claims about justice in ways that abet rather than undermine the project of state sovereignty’.50 While inclusion in discursive practices certainly may produce substantial recognition of previously ignored persons or claims, it would thereby be too hasty to conclude that this secures a robust grounding for post-national solidarity. Indeed, the opposite may very well be the case: progress toward inclusion might instead continue on to privilege—in ways remaining hidden and unaddressed—assumptions about the nature of identity and action (something over which one desires control) in a manner that in fact inhibits solidaristic affirmation of others. Post-national solidarity demands something more: a differently imaginative mode of legal rationality and legal critique. The truly revolutionary post-national transformation is a change in orientation found not merely in formal–pragmatic discourses; it is an ethical–cultural change. The error of recognition occurs in the ethical–cultural presumptions that drive, beneath the surface, the distortions of the formal discursive principle.

V. The Problem of Legal Reason’s Empty Time At theoretical fault here is a subtle shift in the level of analysis. Although Habermas often phrases the perspective of constitutional patriotism in quite personal terms, to refrain from transferring claims to Italy. In Austria, asylum authorities have declined to do so on the grounds that, since the Commission has not instituted infringement procedures, Italy is still fulfilling its obligations under EU law. The ECtHR also found, in 2013, that returns to Italy were permissible in specific cases’). 49 50

Markell (n 41) 30. Ibid.

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he nevertheless operates on a sociological level with the spectator, not the actor, in mind. Consider how he summarizes his own perspective on seeing the constitution as an ongoing project: ‘Thanks to the intuitive knowledge of what it means to frame a constitution, any citizen can put herself at any time in the shoes of a framer and check whether, and to what extent, the established practices and regulations of democratic deliberation and decision-making meet at present the required conditions for legitimacy-conferring procedures.’51 But in attributing to citizens the ability to skim across the surface of time, Habermas paints an implausible and, indeed, worrisome picture of a political community’s historical inheritance. It becomes frozen in time, able to be called forth in the same ways whenever one wishes. But, as Meili Steele writes, ‘democratic subjects are not standing in a synchronic lifeworld together. Our inheritance does not simply stand in the background; it asks us questions, nourishes, and oppresses, and not in the same way for all members of a political community.’52 Founders and contemporaries can be ‘in the same boat’ only insofar as we ignore citizens as historical beings and we imagine moral constitutional principles to inhere in their logic, quite apart from their socially embedded rhetorical, political, and historical meanings.53 The fixity of constitutional principles—the experience citizens have of their pull, which often prejudices the universal principles they otherwise seek to apply—is a matter of law’s time. Habermas’s particular appeal to historical progress produces a rather consequential picture of citizens’ knowledge about their own identity and their expectations of it. It encourages a certain neglect of the degree of change and loss that marks the historical negotiation of constitutional principles and—just as importantly—the way such loss is distributed unevenly, with some bearing a greater burden of it than others. It thereby retrenches the problem of constitutional fixity in the terms which, drawing on Markell, I described above: the ‘basic aspiration behind [sovereign] agency: the aspiration to be able to act independently, without experiencing life among others as a source of vulnerability, or as a site of possible alienation or self-loss’.54 This creates an empty vision of historical process—deprived of the genuine openings that come with affirming more radically the unpredictable nature of political encounters and, thereby, for considering how this unpredictability must affect constitutional principles themselves. The problem, then, is not just that the historical progressive account becomes hegemonic over competing interpretations of historical possibility. A developmental view of historical progress also fails to acknowledge the importance of temporality for the relationship of the life-world to law and for the dynamic effects of constitutional imaginaries. The emphasis on procedural legal rationality subordinates ethical– cultural resources as secondary sites of motivational resources in part because it is less mindful of the fragility of culture, of the tentative manner in which cultural resources are produced over time and, indeed, how they can be lost—often precisely 51 Jürgen Habermas, ‘On Law and Disagreement: Some Comments on “Interpretative Pluralism” ’ (2003) 16(2) Ratio Juris 187, 193. See also Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ (2001) 29(6) Political Theory 766, 776ff. 52 Meili Steele, Hiding from History: Politics and Public Imagination (Cornell University Press 2005) 31. 53 Ibid 33. 54 Markell (n 41) 12.

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as they are rationalized in their contact with universalizing law. As Steele argues, Habermas’s view of practical reason seems to have little use for a phenomenological understanding of the life-world; the life-world is consequently an ‘empty, synchronic frame of common space’ and ‘not something that a political community can lose, gain, enrich, or impoverish’.55 Disregarding the life-world’s own temporality—and thus affording no space to analyse the symbolic and rhetorical work of constitutional imaginaries—undermines the difficult work of sustaining post-national solidarity. Affirming the scope of universalizing principles anew with regard to heretofore excluded groups requires reworking communal institutions and structures of meaning. Proceduralism moves too quickly and superficially over the delicate and fragile work this in fact entails. This oversight yields, among other things, unhelpful political dynamics. When citizens sense for themselves the cultural life-world’s fragility and yet are constantly reassured rationalization will render it no less available, it should not surprise that in crucial moments many turn defensively to exaggerated populist visions of cultural community. Without a more careful assessment of how cultural resources relate constitutively to normative principles, little can shift the underlying investment of citizens in a problematic vision of identity as a ground of sovereign action, derived at the expense of others. Nihilism, demotivation, and its populist responses arise not because of critique alone; they come by virtue of a combination of critique and this continued cultural investment in a homogenizing, invulnerable view of identity.

VI. Reclaiming Temporality in Legal Imagination Habermas’s ‘learning sovereign’ must begin to learn differently beneath the mantle of constitutional patriotism. What might define a more illuminating solution in this sense? The work of Seyla Benhabib provides a fruitful opening. Benhabib’s calls for inclusion are no simple proceduralism that would overtake the capacities and meanings of life-world self-understandings. Instead, Benhabib emphasizes the hermeneutic work of narrative: Differences in perspective result from the different narrative histories in which selves are embedded. At any points in time, we are one whose identity is constituted by a tale. This tale is never complete: the past is always reformulated and renarrated in the light of the present and in anticipation of a future. Yet this tale is not one of which we alone are the authors. Others not only play a role in our tale but often tell our stories for us and make us aware of their real meaning. The self ’s identity is revealed only in such a community of interaction; who we are is how we reveal ourselves to others and to ourselves in such processes.56

55

Steele (n 52) 27. Seyla Benhabib, Critique, Norm, and Utopia: A Study of the Foundations of Critical Theory (CUP 1987) 349. 56

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The turn to narrative is an elegant reformulation. It opens a political community to reappraisal without simultaneously denying the grounds of its intelligible judgement of whatever new validity might be uncovered. Indeed, this is akin to G.H. Mead’s reference to the ‘larger community’ of past and future, in contradistinction to Habermas’s more abstract understanding of an idealized community of communication. As Jay Bernstein writes, ‘[Mead’s] appeal is to a future but not idealized continuation of this community, to a transformed or transfigured extension of existing practices that would realize a potentiality in them denied by their existing configuration’.57 The claim would not be a formal–pragmatic one but rather an expression of potentiality, of possibility. It would be formulated in view of a community’s own sense of how ‘they both are and could be, as they could be in response to how they are here and now’.58 This entails affirming the historical point of view: a historical sensitivity that is integral to the horizon against which we reason and judge. We cannot make sense of normative claims without first situating them within the course of our past experience as it arcs across time into the future. But history and future narratives also have a second role, counter-intuitively related to the first. Historically conscious reasoning not only grounds judgement or makes it intelligible as our own; it introduces an element of play and creativity into what we understand ‘our own’ to mean. ‘[T]his tale is not one of which we alone are the authors.’59 Read together with Mead, Benhabib’s point makes one conscious of the movement of a polity in time, to its dislocation in time by action, such that one’s identity is only ever legible as a retrospective judgement controlled not by actors themselves but by the ‘tales’ told by others. The disclosure of identity’s temporality has distinct emancipatory uses that make the decentering forms of post-national solidarity more possible, not less. History here is not a basis for firm knowledge of one’s identity but an expression of identity’s incompleteness; history enables us to see how the plurality and unpredictability of the world can still guide our ethical sense of ourselves. Indeed, it offers crucial rhetorical tools and discursive orientations for post-national solidarity. While invocations of identity speak to one’s self-understanding, they need not remain ‘fixated’ by the desire for mastery or control.60 Consequently, this means that a denial of one’s fixed identity need not result in merely a deflating, negative reminder of our always incomplete imbrication in time. The narration of one’s life in time does not necessarily undermine the ground upon which we judge or act, due to its ever-shifting nature. As Markell notes, narration can perform a variety of re-constituting work that brings one closer to political action alongside others: ‘mourning, setting a scene, challenging or provoking, inviting . . . [all the while] not playing at being sovereign.’61 These are instances of how facticity—the awareness and expression of one’s concrete position in the world—can be organized temporally in order to enable, rather than constrain, the ends of validity. Constitutional law—due to its written form, its institutionalized exposition of normative commitments across time, its procedural guarantees, its calibration of rights 57 Jay M Bernstein, Recovering Ethical Life: Jürgen Habermas and the Future of Critical Theory (Routledge 1995) 118, emphasis in original. 58 Ibid. 59 Benhabib (n 56) 349. 60 Markell (n 41) 186. 61 Ibid.

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and competences—is particularly well positioned to attune a polity to such practices. But to understand how law performs this task, one must retain the category of constitutional culture and analyse how constitutional imaginaries influence politics in a post-national constitutional polity.62 Consider in this light a revised role in constitutional patriotism of ‘memory’ and learning from the past. Max Pensky offers a magnificent reading of how ‘anamnestic solidarity’ might supplement modern, post-conventional forms of civic belonging.63 This entails not merely a duty ‘to remember’, but what Pablo de Greiff captures in the phrase ‘we have an obligation to remember whatever our fellow citizens cannot be expected to forget’.64 Anamnestic solidarity also entails a ‘deliberate and continuous effort to resist the imperative to construe past suffering as inhabiting a temporally safe and secure relationship with the present’.65 This distinctive form of temporal learning brings together moral principles of inclusion with ethical processes of understanding our identity and its own genealogy—who we have come to be and who we might still wish to become. It thereby asks of political life an active responsibility. Unlike the cautious memory politics that remind a polity of catastrophe, this form of memory creates; it does not constrain. It prompts a ‘form of political motivation for resisting ongoing injustices that presumably would not have been possible’ without collective forgetting.66 In my analysis, this is the task post-national constitutional patriotism would assign the institutions and processes of constitutional law. Law would serve as an institutional and semantic fulcrum: between past and future, between the acknowledgment of loss and the possibility of recovery. In this modality of recovery, law—its structure and modes of interpretation—takes the form of a story, an ongoing narrative of popular sovereignty and democratic freedom in time. This narrative offers the objects and concerns for a post-national constitutional patriotism. But they are structured in a distinctive way as legal claims. In this register, law’s didactic character, as James Tully has powerfully considered, would be like that of an Aboriginal story, which ‘encourages and guides listeners to reflect independently on the great problems of life that he story presents to them through myths’.67 The story does not cement the authority of a univocal claim to universal validity. On the contrary, in its authoritative standing it nevertheless remains pluralistic and open-ended. Tully writes eloquently of this form of validity: The test of understanding a story is not the answer listeners might give in an exam, but how it affects their attitude and how they go on in various circumstances to conduct 62 I develop a theoretical account of such a constitutional culture in Paul Linden-Retek, ‘History, System, Principle, Analogy: Four Paradigms of Legitimacy in European Law’ (2021) 26(3) Columbia Journal of European Law 1. 63 Max Pensky, ‘Solidarity with the Past and the Work of Translation: Reflections on Memory Politics and the Post-Secular’ in Craig Calhoun, Eduardo Mendieta, and Jonathan VanAntwerpen (eds), Habermas and Religion (Polity Press 2013) 301–21. 64 Pablo De Greiff, ‘The Duty to Remember: The Dead Weight of the Past, or the Weight of the Dead of the Past?’ unpublished, 18, cited in Pensky, ‘Solidarity with the Past and the Work of Translation’ (n 63) 311, emphasis omitted. 65 Pensky (n 63) 31. 66 Ibid. 67 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (CUP 1995) 33.

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their life in light of what they have learned from reflection on the story . . . Because there is not one right answer or one truth to an allegory, it is possible to go on in a variety of ways and still be acting in accord with the story. There are a multitude of ways of being guided.68

This is not merely a giving and evaluation of reasons; not merely a practice of justification and testing of validity-claims. It is a process of active translation of ideas and values from one language to the next and back again.69 This process neither validates some pre-existing claim nor expresses a direct conception of universality. Nor is it the simple reduction to the lowest common denominator of agreement. For this reason, its orientation cannot be one of defensive proceduralism. Rather, it looks to the creation of new insights to mutual recognition and understanding through a process of rooted, analogical reasoning across cases, traditions, and histories. It is this process that the notions of Mead’s ‘larger community’ and Pensky’s ‘anamnestic solidarity’ require. Return for a moment to the context of mutual trust and European asylum law. We might conceive, in this paradigm of post-national legal narrative, an alternative form of judicial review of Dublin transfers—one of a different character than the mandated activation of the sovereignty clause as imagined in NS/ME and in Dublin III. This paradigm would speak the language of constitutional imaginaries: it would scrutinize how fellow jurisdictions implement principles and policy—as individuals engage in the concrete demands placed upon them by interwoven European asylum procedures. European asylum law here becomes much more than a set of normative expectations or, even, procedures with ‘systemic’ characteristics. Abiding by a principle of solidarity, the transfer state would in fact bear a burden to assess and, further, to aim to remedy the deficiencies in asylum procedures among recipient states. But this assessment cannot be understood as merely a licence for withdrawal as a discretionary act of national sovereignty, as before. Precisely because it takes seriously the ideological self-deceptions of constitutional imaginaries, it cannot aim merely to compensate for prior deficiencies of an unjust framework it otherwise intends to retain fixed in place. Solidarity’s story is more demanding than better inclusion into the existing set of affairs, in which national prerogatives remain relatively secure and stable. In triggering 68 Ibid. Arash Abizadeh elaborates on a set of criteria to evaluate such forms of communication: ‘We can ask, for example, whether the interlocutors are open to being persuaded in addition to attempting to persuade. Or we can ask whether interlocutors have equal opportunities over time in different communicative contexts to participate in discourse, even if they cannot do so within every communicative context. Or we can ask whether participants in practical discourse have been given equal opportunities to develop their rhetorical, communicative skills as speakers and their capacity for critically evaluating communication as listeners.’ Arash Abizadeh, ‘On the Philosophy/Rhetoric Binaries, or, Is Habermasian Discourse Motivationally Impotent?’ (2007) 33(4) Philosophy & Social Criticism 445, 466. 69 Tully, Strange Multiplicity (n 67) 133 (‘The dialogue in such constitutional negotiations usually consists in the back and forth exchange of speech acts of the form, “let me see if I understand what you said”, “let me rephrase what you said and see if you agree”, “Is what you said analogous to this example in my culture”, or “I am sorry, let me try another intermediate example that is closer”, or “can you acknowledge this analogy?” “Now I think I see what you are saying—let me put it this way for I now see that it complements my view”. The participants are gradually able to see the association from the points of view of each other and cobble together an acceptable intercultural language capable of accommodating the truth in each of their limited and complementary views and of setting aside the incompatible ones’).

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sovereign discretion, post-national solidarity also changes the expectations of who and what is sovereign in light of the interconnected causes of failure in the particular case. Sovereignty is here invoked not in the interest of defending national prerogatives in isolation, but to assess what the fundamental rights that activate the need for this discretion in fact demand as a matter of constitutional history and structure. This kind of responsiveness cannot reduce to formal criteria because it responds to conditions that are both inherited and always changing. These are conditions over which we cannot presume to exercise sovereign control. Assessing whether a pending transfer abides by the fair sharing of responsibilities among states or does enough to protect rights of asylum seekers is predicated upon responsiveness to an unpredictable evolution of factual situations. These continually unsettle not only our confidence that fairness has been achieved but, more deeply and importantly, also our understanding of what fairness as a principle means and might yet mean. For this reason, in the context of ongoing reforms to the Dublin system, the appeal by Visegrad states for a highly discretionary mechanism of ‘flexible, effective solidarity’ is manifestly inadequate.70 But unsatisfactory too are frameworks for emergency relocation measures, increased European financial contributions, and European Asylum Support Office assistance.71 Both cases take far too much for granted the underlying distributions of state responsibility and think hardly at all about the need for new structural arrangements prompted by new interpretations of rights—interpretations that would reach to the heart of the EU’s carrier sanctions regime and requirements of its humanitarian visa obligations, to take two examples.72 A solidaristic approach cannot reduce merely to improving the ‘effectiveness’ of existing schemes of protection; it must also question the background presumptions about what ‘effective protection’ means as a legal and practical matter in the world.73

VII. Conclusion: Narrative Agency and a Post-National Constitutional Imaginary The preceding analysis has been an exercise in critical constitutional thought. It has attempted to revive a post-national vision of Habermasian constitutional patriotism, more adequately speaking to the register of constitutional culture and constitutional imaginaries. In conjunction, it has explored a series of supporting ideas. The specific concepts emphasized above (ethical–cultural transformation, memory, anamnestic solidarity, possibility, responsiveness) each address the situation of the citizen and law in time. The need for post-national solidarity can be linked to the need for a new 70 See Solidarity and Responsibility in the CEAS, Progress report by the Slovak Presidency, Council Doc. 15253/16. 71 Evangelia Tsourdi, ‘Solidarity at Work? The Prevalence of Emergency-Driven Solidarity in the Administrative Governance of the Common European Asylum System’ (2017) 24(5) Maastricht Journal of European and Comparative Law 667–86. 72 Consider here the evaluation of AG Mengozzi concerning the provision of humanitarian visas. Opinion of Advocate General Mengozzi, Case C-638/16 PPU, X and X v État belge [2017] ECLI:EU:C:2017:93. 73 For further elaboration of this line of argument see Paul Linden-Retek, ‘The Refugees We Are: Solidarity, Asylum, and Critique in the European Constitutional Imagination’ (2021) 22(4) German Law Journal 506–33.

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temporal paradigm of law: a new understanding of and sensitivity to the temporality of legal validity. Solidarity as a post-national legal principle is, above all, a temporal concept. And it holds together a new understanding of constitutional law beyond the nation-state. In the appeal to temporality, I do not mean simply that that law has duration or that its politics can speed up or slow down. Rather, to understand the law in time is to note how it affords citizens a critical bearing to their polity’s past, present, and future and thus to an identity that is never fully formed. To the contrary, this bearing or attunement to time suggests to citizens the complex strands of historical and systemic entanglement that underlie any particular fixation of identity at present. Such attunement to time promises, in its own way, to redeem hopes of cosmopolitan justice. In his earlier work, Habermas was more sensitive to this temporal dimension and, with reference to the work of Walter Benjamin, to the importance of reawakening those suppressed and unfulfilled expectations of the ever growing past. Habermas writes in The Philosophical Discourse of Modernity: ‘To all past epochs [Benjamin] ascribes a horizon of unfulfilled expectations, and to the future-oriented present he assigns the task of experiencing a corresponding past through remembering, in such a way that we can fulfill its expectations with our weak messianic power.’74 Relying on the work of history and memory, post-national constitutional law traces the form of a critical narrative, a reflexive account of transformative politics over time. At stake here, very much in the tradition of civic republican theory, is the creative judgement of citizens who, with Arendt, have the capacity to begin anew. But this beginning of course never comes from nowhere, and the revolutionary spirit is, instead, one that can awaken what a political community has previously forgotten, erased, or lost. When pressed to change by those beyond our drawn borders, we must struggle not only to hear their voices, but also to note the traces of past wrongs that have occasioned their cries. Critical scrutiny of these past wrongs—and their relevance for the enduring systemic conditions in which present injustices arise—is not possible through any straightforward appeal to procedural or formal–pragmatic principles. It is richer and more complex than that. It is a reflection of a responsive and responsible constitutional culture that creates the resources within itself to live on differently. It is attached, in the end, to the potential of learning itself and the open-ended thought—at heart post-national—of what kind of people we might yet become.

74 Jürgen Habermas, The Philosophical Discourse of Modernity (Frederick Lawrence trans, MIT Press 1987) 14.

PART IV

W IT HOU T POL I T IC A L EC ONOMY, T HE R E C A N BE NO C ON ST IT U T IONA L I M AG I NA RY

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On the New German Ideology Michael A Wilkinson

I. Introduction To the multifaceted crises of the European Union, about which much has already been written (the financial crisis, the sovereign debt crisis, the constitutional crises, the refugee crisis, the rule of law crisis), can be added another: a crisis of the European constitutional imagination.1 There are two aspects to this claim. First, the integrative function of the European constitutional imaginary (always a constitutionalism-to-come) no longer has the capacity to fulfil its role.2 European constitutionalism can no longer conceal, or credibly promise to bridge, the gap between the European order’s claim to legitimacy and its subjects’ belief in it; the gap, put simply, has become too great, if it has not yet reached the point of rupture. This underscores a crisis of hegemony: the dominant constitutional ideas are in retreat, or worse, they are utilized by those who wish to undermine the European project or the foundational values of the European Union.3 Second, the purpose of this revelation is not merely dis-integrative but also ‘criticalemancipatory’; not only to pull the rug from under those who propagate Euroconstitutional ideas, but to note the effect those ideas have had on the material world, in the anticipation that this might lead to a change in the material world. To put the point differently, it is not only that the dominant constitutional scholarship neglected the material domain of political economy in general and capitalism in particular, with even many of those who made the economic constitution central to their work failing to think beyond a narrow ordoliberal framework, but also that constitutional scholarship must assume a certain responsibility for the impact of that neglect. Constitutional scholarship must now take seriously the task of revealing the elements of economic domination in European constitutionalism, and indicate how they might be overcome.4

1 On the various crises in Europe and their systemic nature see Eva Nanopoulos and Fotis Vergis (eds), The Crisis behind the Eurocrisis: The Eurocrisis as a Multidimensional Systemic Crisis of the EU (CUP 2019). 2 Jan Komárek refers to ‘the gap between the claim to authority by the EU and beliefs of its subjects as regards what can possibly justify such authority’—see his chapter in this volume, 7. 3 See the recent ‘Symposium—Crisis and Constitutional Pluralism in the European Union’ (2019) 21 Cambridge Journal of European Legal Studies (on the uses and abuses of ‘constitutional pluralism’). 4 Jan Komárek thus highlights the neglect by orthodox strands of European constitutionalism of ‘the ideological effects of its ideas, in the sense of concealing domination enabled by such kind of constitutionalism, especially in the form of economic power’ (n 2).

Michael A Wilkinson, On the New German Ideology In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0013

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In short, theoretical enquiry into European integration must reconnect with a critique of constitutionalism and a critique of capitalism, as well as consider the link between the two. The purpose of this chapter is to begin that task. Since the connection between constitutionalism and capitalism has long been interrogated in literature on international relations and critical political economy, it is perhaps surprising that it has received less attention in the scholarship on European integration.5 Elsewhere I have attended to this point using the frame of ‘authoritarian liberalism’.6 In this chapter I will sketch the ideological accompaniment to authoritarian liberalism, which we may call the new German ideology. The purpose of this chapter is to offer a brief historicization of this ideology, chart its development and its recent crisis, and conclude by outlining its stubborn persistence, and even its inflection to incorporate elements of authoritarian populism.

II. Authoritarian Liberalism I have elsewhere attempted to begin the critical task of connecting capitalism and constitutionalism through outlining a particular phenomenon central to European integration, understood broadly to include domestic and supranational developments—namely, authoritarian liberalism.7 This label captures the combination of politically authoritarian means in the attainment of economically liberal ends. Although dramatized since the euro crisis, this is, I have argued, a much deeper, more foundational phenomenon, presenting acutely in the inter-war period and characterizing the ideal-typical post-war European constitutional state and state-system, in which the project of European integration plays a key part.8 The expression ‘authoritarian liberalism’ captures a complex configuration of power, authority, and ideology. It expresses a distrust of popular sovereignty, constituent power, and democracy, paradigmatically in post-war West Germany, but extending elsewhere in Europe and beyond.9 It is a placeholder for various aspects of European post-war reconstruction, later cemented at Maastricht, which function to repress sovereignty, understood not merely in the sense of inter-state relations but also as democratic constituent power and specifically democratic control over the economy. It 5 In international political economy, see eg Stephen Gill and Claire Cutler, New Constitutionalism and World Order (CUP 2014). 6 See Michael A Wilkinson, ‘Authoritarian Liberalism: On the Common Critique of Ordoliberalism and Neoliberalism’ (2019) 45 Critical Sociology 1023; ‘Authoritarian Liberalism as Authoritarian Constitutionalism’ in Helena Alviar García and Günter Frankenberg (eds), Authoritarian Constitutionalism (Edward Elgar Publishing 2019); ‘Authoritarian Liberalism: The Conjuncture Behind the Crisis’ in Nanopoulos and Vergis (n 1); ‘Authoritarian Liberalism in the European Constitutional Imagination: Second Time as Farce?’ (2015) European Law Journal 313; ‘The Spectre of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the European Union’ (2013) 14 German Law Journal 527; Authoritarian Liberalism and the Transformation of Modern Europe (OUP 2021). 7 Ibid. 8 See eg Michael A Wilkinson, ‘The Reconstitution of Postwar Europe: Liberal Excesses, Democratic Deficiencies’ in Michael W Dowdle and Michael A Wilkinson (eds), Constitutionalism Beyond Liberalism (CUP 2017) 38. 9 See Kanishka Jayasuriya, ‘Globalisation, Sovereignty and the Rule of Law: From Political to Economic Constitutionalism’ (2001) 8 Constellations 442.

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reflects a fear that the people may undermine the liberal economy, through, for example, democratizing the workplace, pursuing irrational, inflationary programmes of a socialist type, or undermining a transnational market logic.10 In its ordoliberal variant, it reflects the desire for a strong state and institutional apparatus to contain the excesses of unfettered capitalism as well as unfettered democracy. Its best known expression is perhaps the TINA narrative (‘There Is No Alternative’), initially associated with Margaret Thatcher’s neoliberal policies and now identified both with the political economy of austerity more generally and with the project of integration itself.11 The phenomenon of authoritarian liberalism is rooted in a fear of democratic freedom, and in a desire for political and economic stability. But it also has a utopian dimension, and it is in outlining its utopianism that we can think through to its ideological nature. This is captured by such related terms as ‘post-politics’, ‘post-nationalism’, ‘post-sovereignty’, and, of course, ‘the end of history’.12 These terms all point to the way in which authoritarian liberalism is maintained not only—and perhaps not even predominantly—through coercion and consent but also in the grey area in between, namely through a belief that politics can be transcended and the medium of law can reign supreme. This becomes a dominant trope in the European constitutional imagination. We may call this the new German ideology.

III. The New German Ideology In the new German ideology, democracy is no longer perceived as a promise or an emancipatory project, but as a threat to be contained, a risk to be managed, an obstacle to be overcome. Associated initially with the mislabelled ‘militant democracy’,13 mislabelled because it means the opposite of what the label suggests, the new German ideology demands that democracy is tamed and moderated, proactively and institutionally. Expressions of the collective will are to be limited, restricted to a narrow range of options within the political centre ground, hedged in by a constitution and a constitutional culture that permits little variation. It is more appositely named ‘liberal democracy’, ‘democracy with qualifiers’, or ‘constrained democracy’.14 The new German ideology has now reached a critical conjuncture. Popular sovereignty and non-liberal political alternatives have returned, at least rhetorically, even

10 See eg Werner Bonefeld, ‘Authoritarian Liberalism: From Schmitt via Ordoliberalism to the Euro’ (2017) 43 Critical Sociology 747. 11 See Mark Blyth, Austerity: History of a Dangerous Idea (OUP 2013). 12 These terms become particularly prominent following the end of the Cold War, and were associated with the work of Chantal Mouffe, Jurgen Habermas, Neil MacCormick, and Francis Fukuyama. Despite significant differences (and ‘family quarrels’), they all suggest in different ways the transcendence of political antagonism. In studies on European integration, post-sovereignty became a central thematic after Neil MacCormick’s article ‘Beyond the Sovereign State’ (1993) 56 Modern Law Review 1, following his Chorley Lecture. For critical analysis, see Michael A Wilkinson, ‘Beyond the Post-Sovereign State: On the Past, Present and Future of Constitutional Pluralism’ (2019) 21 Cambridge Yearbook of European Legal Studies 6. 13 Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, I’ (1937) 31 American Political Science Review 417; ‘Autocracy versus Democracy in Contemporary Europe Part 1’ (1935) 29 American Political Science Review 571. 14 See Jan-Werner Müller, Contesting Democracy (Princeton University Press 2012).

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if frequently dismissed by mainstream opinion as merely ‘populist’.15 The political centre struggles to hold, with parties of the centre-left across the continent having been ‘Pasokified’, termed after the collapse of the established socialist party in Greece (Pasok).16 Brand new parties pop up and old parties across the political spectrum inflect in a populist direction, although with varied success.17 Parties of the centre-right frequently become ‘Fideszified’ (after the Hungarian party Fidesz), co-opting the antiimmigration and cultural rhetoric of the authoritarian populist right and harnessing Eurosceptic opinion but without any plan to leave the EU. The European project itself also appears increasingly fragile, with a major country having left for the first time in a process long considered ‘irreversible’. And yet, no serious alternative appears to be on the horizon. The purpose of the remainder of this chapter is to sketch the constitutional and ideological trajectory of this constitutional formation by outlining its historical development as well as its recent critical phase, when it has come under sustained pressure. The conditions for this crisis can be traced back to the Maastricht Treaty and even further. At its root is a particular diagnosis of the inter-war breakdown of liberalism. And it is there we must begin.

IV. Inter-War: Carl Schmitt and the Roots of Authoritarian Liberalism The new German ideology is in an important sense reactionary. It is a reaction to the dynamic trajectory of popular sovereignty, democracy, and class consciousness unleashed in the inter-war period, when universal suffrage and working-class movements begin to threaten the bourgeois state and state-system—not only by revolutionary but also through evolutionary means, from within the constitutional order, notably in the Weimar Republic.18 Ironically, given his frequent depiction as the epitome of an anti-liberal, the figure that stands at the root of post-war liberal reaction is none other than Carl Schmitt. In the inter-war period, Schmitt’s main fear was that democracy might overturn Weimar’s liberal constitution ‘from the left’, through movements towards social emancipation and economic democracy.19 With others who supported economic liberalism, he 15 The literature on populism is already enormous. On the relation between populism and constitutionalism see Jan-Werner Müller, ‘Populism and Constitutionalism’ in C Rovira Kaltwasser and others (eds), Oxford Handbook of Populism (OUP 2017) 590. 16 Chris Bickerton, ‘The Collapse of Europe’s Mainstream Centre Left’ (New Statesman, 1 May 2018). 17 See Anton Jager, ‘We Bet the House on Left Populism—and Lost’ (Jacobin Magazine, 25 November 2019). 18 Franz Neumann, ‘On the Preconditions and Legal Concept of an Economic Constitution’ in Keith Tribe (ed), Leena Tanner and Keith Tribe (transl), Social Democracy and the Rule of Law: Otto Kirchheimer and Franz Neumann (Allen and Unwin 1987 [1931]) 44–66. Neumann’s own trajectory is complex and varied, and cannot be fully evaluated here. For discussion, see Claus Offe, ‘The Problem of Social Power in Franz L. Neumann’s Thought’ (2003) 10 Constellations 211. 19 Before his turn towards National Socialism in 1933–34 Schmitt was an ‘implacable conservative opponent of the enemies of the Weimar state’, especially those on the Left. See Keith Tribe, Strategies of Economic Order: German Economic Discourse 1750–1950 (CUP 1995) 175. See also Benjamin Schupmann, Carl Schmitt’s State and Constitutional Theory: A Critical Analysis (OUP 2017) 180: ‘Schmitt repeatedly argued that the Weimar Constitution contains a political decision to be a bourgeoise Rechtstaat, which was

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turned towards authoritarian rule as a means to defend the constitution and the bourgeois order it represented, even if this meant ushering in increasingly conservative and reactionary cliques. This liberal authoritarian turn reaches a climax in late Weimar, when from 1930 its Parliament is suspended and a series of centrist and conservative Presidential Cabinets rule by dictat and decree, imposing harsh austerity in order to defend the interests of the ruling class and big business. According to historians of the period, it was these antidemocratic and embittered ruling cliques that effectively laid the conditions for the Nazis to seize power in January 1933.20 Just before the Nazi seizure of power, German social democrat and constitutional theorist Hermann Heller identified this formation as a combination of political authoritarianism and the ideology of economic liberalism, in defence of the capitalist interests underwriting it. With the pejorative label ‘authoritarian liberalism’, Heller was targeting not only the Presidential Cabinets but also the intellectual figure standing behind them, namely Carl Schmitt.21 For Schmitt, before he turned to the Nazi party, the key enemy was those who were trying to democratize the economy, as made clear in his address to the Langnamverein in 1932, ‘Strong State, Sound Economy’.22 Liberalism, for Heller, was not, however, only at fault in this conjunctural moment or only in its economic variety; it was more deeply defective. Its rationalism, legalism, and individualism elided the key question of popular sovereignty and rendered it powerless to respond to the pressing political and social needs of the day.23 Although, in Heller’s view, Schmitt correctly diagnosed liberalism’s intellectual deficiencies, Schmitt did not have any political solution, offering an overly personalized and ultimately dictatorial account of sovereignty and—paradoxically, given his anti-liberal reputation—remaining tied to liberalism’s ideological separation of the political from the economic spheres.24 Instead, for Heller, what needed to be recovered and defended was a resolutely political conception of sovereignty that might restore a sense of the collective will, as understood by Hegel and by Rousseau before him. The problem, as Rousseau and Hegel had also grasped, was that this could not be maintained democratically in conditions of deep inequality and class division. What Heller had identified, without being entirely explicit or lucid about it, was the contradiction between democracy and capitalism.25 above all oriented by its commitment to individual liberty.’ Schupmann cites Ingeborg Maus’ analysis that ‘Schmitt was motivated above all by a desire to protect bourgeois property rights against the threat of socialism’: ibid; although he himself suggests that protection of property rights was only a ‘peripheral concern’ for Schmitt: above 36. See also Renato Cristi, Carl Schmitt and Authoritarian Liberalism (University of Wales Press 1998). According to Cristi, making the distinction between liberalism and decmoracy enabled Schmitt’s rapprochement with liberalism as early as 1923—it allowed him ‘to identify what he feared most: the increased pace of the democratic revolution’ (at 17). 20 See eg Ian Kershaw (ed), Weimar: Why Did German Democracy Fail? (Wiedenfeld and Nicholson 1990); Eberhard Kolb, The Weimar Republic (2nd ed, Routledge 2005) 116–35. 21 Hermann Heller, ‘Autoritärer Liberalismus’ (1933) 44 Die Neue Rundschau 289, English translation Stanley Paulson, ‘Authoritarian Liberalism?’ (2015) 21 European Law Journal 295. 22 See Carl Schmitt, ‘Strong State, Sound Economy’, reprinted in Renato Cristi (n 19). 23 See Hermann Heller, Sovereignty: A Contribution to the Theory of Public and International Law (OUP 2019 [1926]). 24 Ibid. 25 See now Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (Verso 2014).

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V. The ‘Original Sin’ of Post-War Constitutional Thought The dominant narrative of the inter-war breakdown constructed in the post-war constitutional imaginary would be a failure of democracy, a story of decay caused by political excess. Unconstrained democracy, so the story goes, leads to extremes that will eventually destroy democracy. In reaction to this narrative of democratic suicide or of the ‘tyranny of the majority’, the cure is said to be less rather than more politicization.26 With the implication that the decline and destruction of Weimar accelerates through an excess rather than a privation of democracy, it leads to a great forgetting; the proximate condition of Weimar’s collapse was the uniting of liberals and conservatives (‘tolerated’ by the Social Democrats) to support an authoritarian regime in the early 1930s in an attempt to maintain the liberal economic order, in the process forestalling any move towards democratic socialism. What would be forgotten was Heller’s late but poignant lesson: democracy is repressed by those seeking to defend vested interests, and this, in the first instance, will be the ruling elites. It was, in other words, a tyranny of the minority that undermined democracy.27 The new German ideology is constructed out of narratives of democratic decay, as well as related myths, such as unfettered mass democracy leading directly to fascist dictatorship, ignoring the presidential emergency rule in circumstances of political violence and social turbulence,28 or hyperinflation leading directly to political collapse, ignoring the economic impacts of deflation caused by the Great Depression.29 It also has a deeper cultural dimension: a fear of democracy affects, and infects, the social imaginary; it is not only an elite that distrusts the people but a people that distrusts itself, evading political responsibility and ultimately the capacity for self-government.30 The constitutional character of this ideology is appositely captured by the sentiment ‘We are afraid of the People’.31 In its dominant ordoliberal version, this signals a fear that the people will make irrational decisions about the economic order or about the money supply. The purpose of the post-war liberal formation is thus less to consolidate democracy than to restore and maintain a liberal economic order, to make markets and economic interests safe from democracy.32

26

See Müller (n 14). This appears to reflect a change in Heller’s view compared to 1928, when he believed the threat to democracy came from the working class (see ‘Political Democracy and Social Homogeneity’ in Arthur Jacobson and Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press 2000) 265. 28 See recently eg Joseph HH Weiler, ‘The European Circumstance and the Politics of Meaning: Not on Bread Alone Doth Man Liveth (Deut. 8:3; Mat 4:4)’ (2020) 21 German Law Journal 96 (‘Hitler and Mussolini were hugely popular at their time and came to power democratically’). 29 On the significance of the myth of hyperinflation for the construction of the independent central bank in the post-war era, see Hjalte Lokdam, ‘Banking on Sovereignty: A Genealogy of the European Central Bank’s Independence’, thesis submitted to the European Institute of the London School of Economics for the degree of Doctor of Philosophy, London, December 2019 < http://etheses.lse.ac.uk/4112/> accessed 10 May 2021. 30 Cf Erich Fromm, Fear of Freedom (Routledge 2001 [1941]). 31 See Christoph Mollers, ‘We Are (Afraid Of) the People’: Constituent Power in German Constitutional Discourse’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constituent Power (OUP 2007). 32 See Quinn Slobodian, Globalists: The End of Empire and Birth of Neoliberalism (Harvard University Press 2018). 27

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Popular sovereignty is politically and materially suppressed through the substitution of democratic constituent power with the idea of individual economic freedom— a freedom to participate in the market—as the legitimating device for the whole constitutional order. The democratic power to constitute anew is ultimately lost, swallowed up into the authority of the constitution itself—ironically, in the West German case, not even in the form of a proper constitution, but in a ‘basic law’.33 The normative foundation represented by this document would be protected by specialist constitutional interpreters and constitutional courts, and sustained by a culture of loyalty to the constitution, or a ‘constitutional patriotism’, which operated as a substitute for ‘the traumatized national self-esteem of West Germans’.34 Post-war Europe is characterized more generally by this new form of passive authoritarianism, more subtle than the authoritarian rule of charismatic leaders or presidential states of emergency, but no less de-politicizing in form. It is frequently conceptualized as part of a later neoliberal transition to a ‘post-political’ or ‘postdemocratic’ world, dominated by a managerial and technocratic politics of deliberation.35 It is given intellectual credibility through the turn of critical theory away from class struggle and political economy and towards rational consensus and cosmopolitan constitutionalism.36 Sovereignty itself becomes unpopular.37 Although this is exacerbated and deepened through the decades of neoliberalism as the social contract between labour and capital is breached, and it accelerates through the recent euro-crisis phase as the social contract is ripped up, a soft authoritarian liberalism underwrites the constitutional dynamic in Europe right from the start of post-war reconstruction.38 The long arc of the post-war trajectory traces a gradual escape from politics and a retreat from political freedom. It is a trajectory that is institutionalized and zealously guarded in the domestic and international corridors of Commissions and Constitutional Courts, Central Banks and Committees, and upscaled through regional and international institutions, prominently through the project of European integration. This project, which begins at Paris and Rome, is deepened at Maastricht and pursued in a more disciplinary fashion through the euro-crisis phase. It involves domestic and supranational bodies, formal institutions such as the European Central Bank, and ‘formally informal’ powers such as the Eurogroup.

33 For a discussion on how this impacts the lack of constituent moment in the debates around German reunification, see Simone Chambers, ‘Democracy, Popular Sovereignty, and Constitutional Legitimacy’ (2004) 11 Constellations 153. 34 Ulrich Preuss, ‘Political Order and Democracy: Carl Schmitt and His Influence’ in Chantal Mouffe (ed), The Challenge of Carl Schmitt (Verso 1999). 35 See eg Chantal Mouffe, ‘Deliberative Democracy or Agonistic Pluralism’ (1999) 66 Social Research 745. Mouffe is critical of the deliberative turn but also rejects the antagonism and materialism of class struggle as the domain of a left politics. 36 See eg Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Polity Press 1997) and recently The Crisis of the European Union: A Response (Polity Press 2013). 37 See Alexander Somek and Michael A Wilkinson, ‘Unpopular Sovereignty’ (2020) 83 Modern Law Review 955. 38 This claim is elaborated in Michael A Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (OUP 2021).

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VI. European Integration: Authoritarian Liberalism Writ Large The process of European integration reflects the new German ideology writ large, locking in liberal economic constraints through constitutionalization of the single market, the protection of undistorted competition and free movement of the factors of production. Market logic is depoliticized, naturalized, and presented as being ‘without any alternative’. This is a domestic as much as a supranational phenomenon—both layers are intertwined in the transition from a nation-state to an EU ‘member state’.39 Constitutionalization of market freedoms has an uneven but acute deregulatory impact over time; through the constitutional dynamic generated by judge-made law, and national judicial acquiescence, social democratic commitments at the national level are undermined and there is no compensation at the supranational level due to the difficulty of achieving political consensus.40 In practice, clashes between social goals and economic rights and duties are frequently resolved in favour of the latter and in ever more sensitive areas of political economy.41 Despite the promise of Jacques Delors, there is no upscaling of social Europe, but only a weakening and erosion of industrial relations and labour power.42 After Maastricht, which lays the ground for Economic and Monetary Union, European integration becomes increasingly material to the suppression of political democratic alternatives, removing a key lever of power from the Member States through the establishment of the single currency. With its authoritarian character heightened through the recent decade-long euro crisis, a political philosophy of ‘no alternatives’ prevails.43 Elections fail to offer any possibility of meaningful change and domestic referenda against the EU Treaties are ignored. If post-war democracy begins in constraint, it ends in capitulation—to the markets, the European Treaties, or the ideology of Europeanism. The new German ideology comes to dominate the whole European constitutional imagination, even in places where the myth of democratic decay resonates less than in the German case, or not at all. There are different national stories to be told according to distinct varieties of constitutionalism and historical paths. But in each case there is a domestication of the German ideology, both in terms of the constitutional imaginary and the political economy of ordo- and neoliberalism that is integrated into the EU’s micro and macro-economic constitutions.44 The fear of popular sovereignty and democracy assumes a hegemonic position in the constitutional imagination. 39

Chris Bickerton, European Integration: From Nation-States to Member States (OUP 2012). Fritz Scharpf, ‘The Asymmetry of European Integration, or, Why the EU Cannot Be a Social Market Economy’ (2010) 8 Socio-Economic Review 211. 41 Ibid. 42 See Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (OUP 2014). 43 For an argument that ‘downturn austerity’ is better understood as an ideological prescription than as a legal obligation within the European constitutional framework, see Clemens Kaupa, ‘Has Downturn Austerity Really Been Constitutionalised in Europe? On the Ideological Dimension of Such a Claim’ (2017) 44 Journal of Law and Society 32. 44 Kaarlo Tuori and Klaus Tuori, The Eurocrisis: A Constitutional Analysis (CUP 2012). EU membership is not, of course, necessary to adopt the neoliberal path, but it is, perhaps, sufficient. 40

Ideology and Hegemony

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The hegemony of the German ideology is a complex phenomenon, involving material inter-state asymmetries of power, the transformation of traditional state–society relations, and the erosion of social solidarity and dominance of liberal individualism. It is in part—but only in part—a feature of Germany’s regional coercive power. The new German ideology functions through a mixture of coercion and consent and the grey area in between.45

VII. Ideology and Hegemony In contrast to the situation in the early 1930s, when Heller first diagnosed liberalism’s authoritarian turn, Germany inhabits a position of relative economic strength, imposing itself as a creditor nation rather than being in the position of debtor. The impact in the post-Maastricht era of the reunification of Germany and of the increasing strength of German capital on the asymmetries in inter-state relations, and in particular on an imbalance in the Franco-German relationship, is well documented. In particular, the significance of growing German financial strength in shaping monetary union is undeniable.46 Within the eurozone, the ordoliberal emphasis on price stability, competitiveness, and fiscal discipline would be constitutionally entrenched at Maastricht and then defended (even if unsuccessfully) against discretionary European Central Bank (ECB) programmes by domestic institutions such as the German Constitutional Court.47 The Treaty, domestic institutions, and the balance of class power in favour of the interests of capital would all act as obstacles to the exercise of a ‘benign hegemony’ developing along post-Keynesian lines, or towards debt mutualization or debt forgiveness.48 Germany’s own export-led regime would increase its international competitiveness after the introduction of the euro not by increasing productivity but by wage restraint, a feature of its own authoritarian liberal policies. These would be pursued by a ‘thirdway’ social democratic government under the auspices of Agenda 2010 and the Hartz reforms.49 The benefits of this regime would accrue not only to German capital but to a ‘neo-mercantilist German bloc’.50 Due to the economic interconnectedness of intra-European export-led and debtled growth, the ordoliberal regime came into tension with democracy in other parts of the eurozone, particularly since the country with the largest economy had made a

45 As Perry Anderson puts it, tracing the fortunes of the term from ancient Greece to the present, the persistence of the term hegemony is due to its combining of ‘cultural authority’ and ‘coercive power’ and ‘the range of possible ways it can do so’: The H-Word: The Peripeteia of Hegemony (Verso 2017). 46 See Ulrich Krotz and Joachim Schild, Shaping Europe: France, Germany and Embedded Bilateralism from the Elysée Treaty to Twenty-First Century Politics (OUP 2013). 47 Although the German Court backed down, it effectively obtained rhetorical guarantees that the triggering of the OMT programme would be attached to conditionality. See Michael A Wilkinson, ‘The Euro Is Irreversible! . . . Or Is It? On OMT, Austerity and the Threat of “Grexit” ’ (2015) 16 German Law Journal 1049. 48 See Andreas Bieler, Jamie Jordan, and Adam David Morton, ‘EU Aggregate Demand as a Way Out of Crisis? Engaging the Post-Keynesian Critique’ (2019) 57 Journal of Common Market Studies 805. 49 See eg Bob Jessop, ‘Variegated Capitalism, das Modell Deutschland, and the Eurozone Crisis’ (2014) 22 Journal of Contemporary European Studies 248. 50 Ibid.

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trade surplus a ‘de facto reason of state’. 51 Germany could not ‘coherently’ insist that all other states have a macro-economic policy ‘that looks like its own’, it has been noted, ‘because such a result is definitionally impossible’.52 The harder, more coercive constraints of eurozone membership then emerged in crisis conditions: austerity was imposed in return for credit and ‘internal devaluation’ offered as the only way for debtor states to regain competitiveness. In this context, the ‘iron cage’ of ordoliberalism was at its most oppressive.53 Critique of German-led euro-crisis management was not restricted to scholars associated with traditions of critical theory. According to Giandomenico Majone, receivership was too mild a term for the condition that countries in the periphery were reduced to; ‘occupation’ by the Troika was more appropriate, suggesting ‘the consequences of military defeat’.54 The emerging form of geo-economic hegemony extended beyond the imposition of conditionality as a prerequisite for financial aid in the periphery. It reflected a broader feature of capitalist imperialism in an age where the acquisition of territory is no longer necessary to exert economic control over another state.55 Today, as Claus Offe puts it, one can have perfectly peaceful relations with a particular country and still literally own it—simply by appropriating its economy through a permanent trade surplus and by destroying its sovereignty by depriving the country (in an ad hoc fashion of rescue conditionality, if not through European law) of its budgetary and other legislative autonomy.56

And yet, Germany is not able to exercise anything approaching a full geo-political hegemony, not only due to its own lack of military and financial resources, but due to the absence of any consent (either domestically or outside of Germany) for its adoption of a leadership role.57 It does not assume the role of ‘hegemonic stabilizer’; on the contrary, insistence on rigid ordoliberal medicine has created political instability. To the extent that Germany exercises a form of hegemony it is through the consent of the other states to, and their fetishization of, the European Union.58 51 Helen Thompson, ‘Austerity as Ideology: The Bait and Switch of the Banking Crisis’ (2013) 11 Comparative European Politics 729 (according to Thompson, ‘The euro-zone simply cannot endure in a way that is compatible with democratic politics if the state with the largest economy and most fiscal credibility makes a trade surplus a de facto reason of state’: at 730). 52 Ibid. See also Wolfgang Munchau, ‘The Wacky Economics of Germany’s Parallel Universe’ (Financial Times, 16 November 2014) (‘the ordo-liberal word view is asymmetric. Current account surpluses are considered more acceptable than deficits. Since the rules are based on national law, ordo-liberals do not care about their impact on the rest of the world. When they adopted the Euro, the rest of the world suddenly did start to matter’). 53 Magnus Ryder, ‘Europe’s Ordoliberal Iron Cage: Critical Political Economy, the Euro Area Crisis and Its Management’ (2015) 22 Journal of European Public Policy 275. 54 Giandomenico Majone, Rethinking the Union of Europe Post-Crisis (CUP 2014) 200. 55 According to Hans Kundnani, Germany enjoys ‘geo-economic semi-hegemony’—see The Paradox of German Power (Hurst & Co 2016) 107. See further Simon Bulmer and William Paterson, Germany and the European Union: Europe’s Reluctant Hegemon (Red Globe Press 2019) 56 Claus Offe, ‘Europe Entrapped’ (2013) 19 European Law Journal 595. 57 See Majone (n 54). 58 This is the expression used by Costas Lapavitsas at the LSE event, ‘Marx at 201’ (recording can be downloaded at accessed 10 May 2021).

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There is thus an obvious, perhaps trivial, sense in which the new German ideology is consensual—membership of the European Union is voluntary, and, since Lisbon, exit from the EU has been formalized within the Treaty itself, in Article 50 TEU. If the lack of exit options from the single currency (short of triggering Article 50) is notable, voluntarism remains a formally accurate description of membership of the European Union. A simple collective voluntarism, however, discounts the political and material conditions in which membership is embedded, the erosion of sovereignty it reflects, and the ideological attachment to the EU of large parts of the populations.59 If the constraints of membership are properly understood as external constraints, they are not ‘imposed from without’; they are the means through which the domestic governing class rules over its own people.60 This is part cause and part consequence of the ‘hollowing out of democracy’ and the disconnect or ‘void’ between rulers and ruled, as articulated in the work of Peter Mair.61

VIII. A Crisis of the New German Ideology? The Ascendence of Authoritarian Populism By the time of German reunification and the Maastricht Treaty, the new German ideology becomes unsettled, even in its own backyard, with sovereignty claims resurfacing after a hiatus of fifty years and nationalisms rising. This presented a series of irritants to the post-war constitutional order, which, however, remained largely inconsequential or only marginally noted in the academy, whether it be the German Constitutional Court’s rhetorical flourishes or the Front Nationale’s capitalization on the growing social fracture represented by the Petit Oui in the Maastricht referendum.62 Over the past decade these irritants emerged into a full-blown crisis, as the German Court’s rulings became more assertive and the far right grew in power and authority, not only in Central and Eastern Europe but in the core of Europe. Sovereignty claims have multiplied and intensified, no longer constrained, yet distorted in their disconnect from any democratic base or mass social movement. Matching the centrifugal force of assertions of ‘sovereignty from below’ is the centripetal force of claims of ‘sovereignty-to-come’ in Europe from above; not rooted in democracy, popular consent, or social movements, but superimposed by a European Central Bank or a putative European army and spearheaded by a shiny new

59

See Martin Loughlin, ‘The Erosion of Sovereignty’ [2017] Netherlands Journal of Legal Philosophy 57. Chris Bickerton, European Integration: From Nation-States to Member States (OUP 2012). 61 Peter Mair, Ruling the Void: The Hollowing Out of Western Democracy (Verso 2013); Christopher Bickerton, ‘Beyond the European Void? Reflections on Peter Mair’s Legacy’ (2018) 24 European Law Journal 268. 62 Karlsruhe, before the rise of the AfD, was described as serving as the ‘missing channel for Germans to voice their Euroscepticism’—Klaus Garditz, ‘Beyond Symbolism: Towards a Constitutional Actio Popularis in EU affairs? A Commentary on the OMT Decision of the Federal Constitutional Court’ (2014) 15 German Law Journal 183, 189. 60

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brand of executive authoritarian liberals, exemplified by the ‘centrist King’ Emmanuel Macron.63 The new German ideology no longer maintains its dominance over the constitutional imagination; its integrative function has weakened and the ‘extreme centre’ struggles to hold.64 Not only is it no longer able to close the gap between the European order’s claim to legitimacy and its subjects’ belief in it; it is generating the very symptoms it was meant to suppress, as right-wing political extremism resurfaces and inter-state domination returns. Authoritarian liberalism has incubated the conditions for the emergence of authoritarian populism, having hollowed out democracy in the drive to create the conditions for markets and capital to expand. If the leading proponents of European constitutionalism imagined their ideas would ‘rule the world’,65 in reality they ruled only a void. There should be no surprise when this void is then filled with the rhetoric of national identity and anti-immigration, a predictable counter-movement after a period of enforced liberal constitutionalization, marketization, and rigid adherence to austerity.66 The ‘self-serving illusions of austerity’, Helen Thompson noted in 2013, ‘would be bound to elicit strong social and political reaction, and risk letting loose the kind of political passions that were so destructive during the inter-war years’.67 The case of Hungary illustrates the Polanyian ‘counter-movement in one character’, with Orbán’s liberal pro-Europeanism in the context of accelerated transition to a market economy in the early 1990s shifting into an illiberal reactionary nationalism (or ‘authoritarian populism’) defending a Christian Europe, in a strange inflection of the founding fathers of European integration as well as some of its more recent high priests.68 Contrary to how it is often presented, authoritarian populism is not in opposition to, but a symptom of, the liberal order, purporting but failing to fill the political void that this order has created and maintained in its own authoritarian fashion. The relationship between authoritarian populism and authoritarian liberalism is therefore less one of antagonism than of mutual dependence, the two even combining its own complementary political forms into new hybrids such as ‘technopopulism’.69 There was an asymmetrical response to the various ‘morbid symptoms’ that emerged from the financial crisis—although they were germinating since at least the Maastricht era. This asymmetry is a curious aspect of liberal hegemony, and a disturbing echo of the inter-war period.70 Where liberal economic commitments were 63 See Ajay Chaudhary, ‘In the Court of the Centrist King: Emmanuel Macron and Authoritarian Liberalism’ (The Public Eye, Winter 2018) accessed 10 May 2021. 64 See Michael Wilkinson, ‘The Brexit Referendum and the Crisis of Extreme Centrism’ (2016) 17 German Law Journal 131. 65 Jeffery Dunoff and Joel Trachtmnan, Ruling the World? Constitutionalism, International Law and Global Governance (CUP 2009). 66 On the inter-war counter-movement, see Karl Polanyi, The Great Transformation, The Political and Economic Origins of Our Time (Beacon 2001 [1944]) 250–65. 67 Thompson (n 51) 730. 68 Joseph HH Weiler, Un Europa Cristiana: un Saggio Esplorativo (Rizzoli 2003). 69 See Christopher Bickerton and Carlo Invernizzi Accetti, ‘Populism and Technocracy: Opposites or Complements?’ (2017) 20 Critical Review of International Social and Political Philosophy 186. 70 See Benjamin Schupmann (n 19) 36 (Schmitt’s fear of the radical left in Weimar ‘kept him looking in the wrong direction as the Nazis consolidated their power’).

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threatened by popular sovereignty from the left—as they were (briefly) by the election of the anti-austerity Syriza in Greece—however democratically motivated and rationally justified, the punishment would be severe, and the consequences devastating. Where they are threatened from the right—as in Hungary and Poland—however authoritarian and illiberal their form, the European states and EU state-system appear impotent and ineffective, unable to respond or lacking the power or authority to do so. On the contrary, the European Union starts to shape itself in their own image, emulating populist strategies to define and defend a European ‘way of life’.71

IX. The Stubborn Attachment of Critical Theory to the EU An extraordinary feature of the new German ideology is that it has locked much of the ‘left’ into unconditional if not uncritical support for remaining in the EU, from social democrats to Euro-communists, and from Frankfurt School theorists to Italian Marxists. It is not only that the lure of post-nationalism was so intellectually dominant. It is also the case that heretics would be ostracized, dismissed as nationalist, backward-looking, nostalgic, or worse.72 The Habermasian promise of a European ‘constitutionalism-to-come’ reflected not only an ethical distaste for national sovereignty but a turn away from any concrete analysis of domestic and international political economy. If Habermas’s turn to discourse, his ‘talking cure’, had long neglected the colonization of the public sphere by power and money,73 it would now be law that would substitute as the medium of integration, somehow compensating for a deracinated politics. The process of juridification, instead of a corruption of the lifeworld, was considered ‘not only a rationalising but also a civilising force’.74 Although Habermas maintained the rhetoric of constituent power, albeit in an entirely de-materialized fashion, other constitutional scholars who followed suit discarded it entirely, identifying constitutionalism with a free-floating ‘cosmopolitan framework’ of liberal principles.75 By refusing serious opposition to the EU, the left would be caught between accepting that however neoliberal in character, the default to European integration is atavistic nationalism, and buying into a scalarist eschatology which promises the benefits of a pan-European utopia if only patience is maintained.76 Paralyzed between lesser 71 As with Von Der Leyen’s attempt—see ‘Von der Leyen on “European Way of Life”: We Can’t Let Others “Take Away Our Language” ’ (Politico, 16 September 2019) accessed 10 May 2021. 72 See eg Jürgen Habermas, The Lure of Technocracy (CPP 2015). For a particularly egregious example, see Adam Tooze’s silly insinuation of a possible reading of Wolfgang Streeck’s work as anti-semitic: ‘A General Logic of Crisis’ (2017) London Review of Books For an overview and ‘application’ of the Streeck–Habermas debate in the context of Syriza’s fate, see Milos Sumonja, ‘The Habermas–Streeck Debate Revisited: Syriza and the Illusions of the Left-Europeanism’ (2019) 43(3) Capital & Class 427–58. 73 Deborah Cook, ‘The Talking Cure’ (2001) New Left Review. 74 The Crisis of the European Union (above n 36) at 8. 75 Matthias Kumm, ‘How Does European Union Law Fit into the World of Public Law’ in J Neyer and A Weiner (eds), Political Theory of the European Union (OUP 2010) 125. Cf Alexander Somek, ‘Europe: Political, Not Cosmopolitan’ (2014) 20(2) European Law Journal 142–63. 76 Cedric Durand and Fredric Lordon, ‘Internationalism Beyond Scalarism: Democratic Politics and the Political Economy of European Integration’ (2017).

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evilism (‘the EU is not perfect but the alternatives are even worse’) and the luxury of intellectual optimism (‘the EU is not perfect but it can be reformed’), concrete political struggles for democratic socialism are avoided, postponed until a pan-European social democracy emerges in some unspecified but distant future. Europe becomes the ‘empty signifier’ that will save all.77 That this ideology would be so dominant in the UK even after a democratic vote to leave the EU was a sign of how deep its sentiment ran, disposing any simple voluntaristic account of membership. The Brexit referendum signalled the visible ‘tip of an iceberg’, representing the deeper and wider disconnect between the political class and the citizen across the European Union that has grown in proportion since Maastricht. But it seems largely to be the right that has grasped that it is within and over the sovereign state that concrete political struggles can still most credibly be fought. Conservative and right-wing forces, having little need of rupture from the European Union to pursue a market-liberal agenda with a nationalist or populist inflection— whether in Hungary or Poland, France or Italy—remain and prosper inside the Union, largely unperturbed by the constraints of its bureaucratic apparatus and yet reaping the electoral rewards of Euroscepticism. They have been able to capitalize on the discontent with neoliberalism and European integration that should have presented a clear opportunity for the left. With the tables turned, the left is frequently propping up an establishment in decline; defending a system in crisis, an order in disarray. Even where it has not been entirely eviscerated, ‘Pasokified’ after its turn to the centre ground, social democracy is largely devoid of ideas, clinging to the German ideology because of its own fear of alternatives. In imagining that the only alternative to a neoliberal EU is right-wing nationalism, it apparently misses that, far from ‘alternatives’, neoliberalism and nationalist populism is precisely the combination emerging in and through the EU. The UK offered a prime example of the failure of even a supposedly radical left Opposition leadership to grasp the opportunity offered by exit. The UK is an outlier in certain respects, outside the tight constraints of the single currency, without the same constitutional imaginary of Europe or trajectory of a highly constitutionalized authoritarian liberalism. It is an irony that the UK’s homegrown domestic neoliberal project of the 1980s (itself characterized as an ‘authoritarian populism’)78 had such a significant impact on the course of European integration through the market liberalization agenda of the Single European Act.79 But if more generally the UK’s looser cultural, constitutional, and material ties also meant that entertaining the possibility of leaving was a more feasible political route, the obstacles exit presented remained significant.

77

Perry Anderson, ‘Situationism a l’envers’ (2019) New Left Review (a review of Tooze’s work). See Stuart Hall, ‘Popular-Democratic versus Authoritarian Populism’ in Alan Hunt (ed), Marxism and Democracy (Lawrence & Wishart 1980); Stuart Hall, ‘Authoritarian Populism: A Reply’ (1985) New Left Review No. I/151 (May/June 1985). 79 According to Lord Cockfield, ‘[t]he gradual limitation of national sovereignty is part of a slow and painful forward march of humanity’: in The Guardian (11 November 1988), cited by A Milward, The European Rescue of the Nation State (Routledge 1994) (Cockfield, ‘father of the single market’ and European Commissioner from 1985 to 1988, was the author of the White Paper on ‘The Completion of the Internal Market’). 78

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Britain’s vote to leave the European Union was a wasted opportunity for the left to reconnect with a democratic socialist project and the material struggle for equality and political freedom.80 That struggle was interrupted in the inter-war period and constrained by the post-war resettlement, in a so-called golden age when soft authoritarianism was masked by economic growth. It was then decimated by decades of neoliberalism, and finally dealt a near-fatal blow through the euro-crisis period. The rupture signalled by Brexit offered a broader occasion to consider a break with this trajectory, to advance a project that combined popular sovereignty with social radicalism, unambiguously internationalist and anti-capitalist in nature. Failure to connect with the dynamic energies created by movements of popular sovereignty, radical democracy, and class politics vacated the ground of Euroscepticism to the right, which has ultimately prospered electorally from the conjuncture, even without breaking from the status quo, following the pattern in much of the rest of the continent. If the political centre has not held, the constitutional ideology, governing arrangements, and political economy that have accompanied it largely remain in place. Their fragility, however, is apparent.

80 In regard to Brexit see Michael Wilkinson, ‘The Failure of the Left to Grasp Brexit’ (LSE Brexit Blog, 12 December 2019) accessed 10 May 2021.

15

Beyond Neoliberal Federalism? The Ideological Shade of the Eurozone’s Constitutional Order after the Eurozone Crisis Hjalte Lokdam

I. Introduction Does the constitutional imaginary embodied in the European Economic and Monetary Union’s (EMU) public law structure express a particular ideology of economic government?1 If so, has this changed following the eurozone crisis? This chapter addresses these questions by analysing the vision of economic government embodied in the EMU’s public law framework as constituted in Maastricht, how the crisis challenged this vision, and how the reformed EMU departs from the Maastricht vision of economic government. The chapter answers both questions in the affirmative. It argues that the EMU constituted at Maastricht embodied a neoliberal theory of interstate federalism. Most eloquently elaborated by Hayek in 1939,2 this constitutional imaginary seeks to narrow the confines of governmental capacity with regard to economic affairs at all levels of government. This vision focuses on the structure and process of policy-making rather than the specific content of policies. That said, it presents a theory of what kind of outcomes to expect from the structural conditions of federalism. Such outcomes include traditional neoliberal policies such as deregulation, privatization, and fiscal consolidation. Importantly, however, it aims not at particular outcomes but at the general restriction of governmental activity. It seeks, in other words, to create a public law structure that makes it difficult (but not impossible) to exercise control over economic life politically, whether at the state or the federal level. From the perspective of analysing the public law framework established at Maastricht, it is irrelevant whether the framers of the Treaty had the neoliberal vision

1 The chapter went into production before the dramatic increase in inflation following, first, the Covid induced supply chain crisis in late 2021 and, later, the war in Ukraine. As such, developments in monetary and EMU governance since late 2021 are not fully reflected in the analysis. 2 Friedrich A Hayek, Individualism and Economic Order (UCP 1948) 255–72; see also Wilhelm Röpke, International Order and Economic Integration (D Reidel Publishing Company 1959); and Lionel Robbins, Economic Planning and International Order (Macmillan and Co, Limited 1937). See Martin Höpner and Armin Schäfer, ‘Embeddedness and Regional Integration: Waiting for Polanyi in a Hayekian Setting’ (2012) 66(3) International Organization 429–55 accessed 25 May 2021; and Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (Verso 2014) for analyses that similarly highlight the structural similarity between Hayek’s vision of interstate federalism and the EU/EMU.

Hjalte Lokdam, Beyond Neoliberal Federalism? In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0014

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of federalism in mind when it was negotiated. Some may have,3 but it is by no means clear that the various national positions were informed by uniform ideological convictions.4 Rather, the Treaty was created in response to a perceived problem that resembled that which the neoliberal theory of federalism was supposed to address: the problem of excessive (societal demands for) state intervention in economic matters. This problem was epitomized by the inability of many governments to bring inflation under control, although this was by no means the only symptom. The response—in Maastricht’s EMU as in the neoliberal theory of federalism—was to strip member states of their control of monetary policy, while subjecting fiscal practices to market discipline reinforced by rules. The response to the liberal democratic state’s ‘crisis of governability’ was thus found in constraining the state’s economic powers: the ‘illusion’ of the state’s economic omnipotence—the idea that the state can control economic developments according to will—was to be dispelled by stripping the state of its economic omnicompetence—the idea that the state has the right to try to. This logic at the same time militated against the creation of an omnicompetent public authority—a gouvernement economique—at the supranational level. Today, the problem of excessive public control of economic matters has largely been eclipsed by economic problems to which the neoliberal theory of federalism has few answers and with which the original EMU was ill-equipped to deal. Specifically, the long decade since the eruption of the Great Financial Crisis in 2007–8 has revealed that markets alone are unfit for ensuring sustainable public and private finances under crisis conditions. And while concerns about inflationary pressures have not disappeared, they are increasingly relativized vis-à-vis other economic concerns. Central banks have thus been called upon not to help governments rescue banks and other companies in order to prop up and buy time for a stagnating capitalist economy.5 This relativization of the monetary policy objectives of central banks challenges both the neoliberal theory of federalism and the EMU’s public law structure. In Europe, the financial crisis turned into a fiscal and sovereign debt crisis for a number of EU member states.6 As public debt grew, the problem was not inflation but the risk of sovereign default, which increased along with the yields demanded on government bonds. For the member states of the eurozone, markets seemed to factor in a redenomination risk that reflected a concern about the imminent collapse of the euro and the reversion to national monetary units liable to devaluations by cash-strapped governments. Taken together, these developments constituted an existential crisis for the eurozone and therefore, or so European elites argued, the EU. In emergency mode, the crisis was addressed through a combination of bank and member state bailouts, unconventional monetary policies, extensive programmes of public sector and labour

3 Tommaso Padoa-Schioppa, ‘Il Federalismo Economico e La Comunità Europea’ (Il Mulino, June 1993). In this article Padoa-Schioppa, who was an influential rapporteur on the Delors Committee, claims that ‘il federalismo è un sistema constituzionale che nasce dall’idea di “governo minimo” ’ (federalism is a constitutional system born from the idea of ‘minimal government’). 4 Kenneth Dyson and Kevin Featherstone, The Road To Maastricht: Negotiating Economic and Monetary Union (OUP 1999). 5 Streeck (n 2); Lawrence H Summers, ‘The Age of Secular Stagnation’ (2016) 95(2) Foreign Affairs 2–9. 6 For a good account of the mechanisms involved, see Adam J Tooze, Crashed: How a Decade of Financial Crises Changed the World (Penguin Books 2019), Part III in particular.

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market reform, and draconian austerity measures.7 Collectively, such eurozone crisis measures amounted to the establishment of an emergency political governmental apparatus that had previously been absent from the public law structure of the EU and which allowed for highly intrusive interventions by European institutions into core areas of state competence.8 Combined with the creation of new, and reform of existing, institutions, mechanisms, and procedures at the European level, the eurozone underwent a considerable constitutional transformation.9 The eurozone’s constitutional transformation in emergency mode, or so the chapter argues, constitutes a break with the neoliberal theory of federalism embodied in the original EMU. The post-crisis EMU embodies, in particular, a radically different vision of the role of public authority in economic affairs. This transformed vision reflects that the principal problem facing the eurozone, according to political elites, is not an excess of government intervention, but governmental impotence. The primary concern, therefore, is not to stifle but to generate governmental capacity. However, the new EMU does not revert back to the pre-EMU order of economic government. It seeks, rather, to make the eurozone governable by strengthening governmental capacity at the European level. This vision de-emphasizes structure and process (and specific laws, for that matter) in favour of achieving specific outcomes through the active use of (authoritarian, coercive) public authority. The outcomes pursued during the eurozone crisis were largely those traditionally associated with neoliberalism. In this sense, the EMU’s transformation can be seen as an extension and intensification of the EMU’s neoliberal foundations.10 This chapter highlights, however, that while neoliberal policy reforms may have been the primary outcome so far, the public law framework of the EMU no longer expresses a neoliberal vision of economic government. The main reason for this is that the reformed EMU provides means for employing governmental powers actively to produce certain politically desired outcomes. In place of ‘impersonal’, apolitical mechanisms (markets and rules in particular), the new EMU employs public power and discretion to realize its aims. This opens up the possibility of employing the newly generated governmental capacity for outcomes other than those associated with neoliberalism. In concluding, the chapter notes that the early response to the Covid-19 crisis attests to this possibility. This highlights that the public law framework is not ideologically neutral. It always organizes the exercise of governmental power in a particular way that makes certain ways of acting possible and others impossible.

7

Mark Blyth, Austerity: The History of a Dangerous Idea (OUP 2015); Streeck (n 2). Signe Rehling Larsen, The Theory of the Federation and the European Union (OUP 2021) Chapter 5; Federico Fabbrini, ‘The Fiscal Compact, the “Golden Rule” and the Paradox of European Federalism’ (2013) 36(1) Boston College International & Comparative Law Review 1–38. 9 See, eg, Christian Joerges, ‘The European Economic Constitution and Its Transformation through the Financial Crisis’ in Dennis Patterson and Anna Södersten (eds), A Companion to European Union Law and International Law (John Wiley & Sons, Ltd 2016) 242–61; Agustín José Menéndez, ‘Editorial: A European Union in Constitutional Mutation?’ (2014) 20(2) European Law Journal 127–41. 10 See, eg, Michael A Wilkinson, ‘Authoritarian Liberalism in Europe: A Common Critique of Neoliberalism and Ordoliberalism’ (2019) 45 Critical Sociology 7–8 (2019) 1023–34 accessed 3 November 2022; and Ian Bruff, ‘The Rise of Authoritarian Neoliberalism’ (2014) 26(1) Rethinking Marxism 113–29 accessed 25 May 2021. 8

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II. The Maastricht Constitutional Imaginary The eurozone’s constitutional construction, as originally outlined in the Maastricht Treaty, entrenches a distinction—conceptual, temporal, and practical—between the authorization of governmental powers and the exercise of those powers. In short, the EMU rests on the notion that the exercise of governmental authority is based on a founding act, a ‘democratic naissance’.11 This founding act establishes a comprehensive public law framework that organizes the exercise of governmental powers concerning economic policy at both the main governmental levels of the eurozone—the member state and the European.12 While entirely elite-driven, the EMU’s creation was attributed to the will of the European peoples as the fundamental political subjects of their respective member states and thus, collectively, of the EU.13 In its constitutional imaginary, then, a free agreement between, and expression of, the member state peoples’ political wills constitutes the foundation of the governmental order established by the Maastricht Treaty. As the European Central Bank (ECB) conceptualizes its own foundation of authority: It was the sovereign decision of the peoples of Europe (through their elected representatives) to transfer the competency for monetary policy and the other tasks enumerated in the Treaty to a newly created European body, and to endow it with independence from political interference.14

While the ECB refers only to itself in the quote above, the logic applies to the EMU as a whole. However, even though a unified expression of political will may form the foundation of the EMU’s governmental order, the founding act only to a very limited extent established institutional mechanisms through which the wills of the several peoples could be merged into one that continuously informed the means and ends of economic government. The EMU did not, in other words, create one or more political institutions that had the right to govern it in its entirety. The distinction between, and constitutional separation of, the ‘fiscal’ and ‘monetary’ dimensions of economic policy in the EMU’s public law framework reflects this. Separating the right to conduct monetary policy from the right to conduct fiscal policy makes it impossible for any one authority to control all the main levers of macroeconomic policy-making. No authority is omnicompetent when it comes to economic policy. While many commentators in academia and beyond have highlighted that this arrangement makes the EMU dysfunctional in certain respects, the

11

Chiara Zilioli and Martin Selmayr, The Law of the European Central Bank (Hart Publishing 2001) 49. David H McKay, Federalism and European Union: A Political Economy Perspective (OUP 1999); Larsen (n 8). 13 Dieter Grimm, ‘Sovereignty in the European Union’ in Johan Van der Walt and Jeffrey Ellsworth (eds), Constitutional Sovereignty and Social Solidarity in Europe (Bloomsbury/Nomos 2015) 39–54, 48; Miguel Poiares Maduro, ‘Opinion of Advocate General Poiares Maduro in Kadi’, Joined cases C-402/05 P and C415/05 P, ECLI:EU:C:2008:11, 21. 14 European Central Bank, ‘The Accountability of the ECB’ (ECB Monthly Bulletin, November 2002) 45– 57, 46. 12

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absence of a transfer of general economic policy-making competences to a European authority unquestionably made the very idea of the Union more palatable at the time to political forces jealous of national sovereignty. In this way, member states could retain important economic competences and the transfer of sovereign powers would appear less intrusive. That the arrangement contributed to the political feasibility of the Union, however, does not mean that it is not ideologically informed—only that a particular ideological perspective was amenable to the interests of key actors.15 However that may be, and whether the product of a grand design or not, the absence of an omnicompetent governmental authority gives constitutional expression to the Hayekian notion of the dangers associated with ‘the pretence of knowledge’ in economic policymaking.16 Referring to the impossibility of predicting the full consequences of any governmental action, this perspective sees the illusion of government omnipotence as the source of ever more intrusive, and ever more ineffective, public interventions in economic matters: any intervention or adjustment creates the need for further interventions to correct the unintended effects of foregoing interventions, and so on down the ‘road to serfdom’. As discussed towards the end of this section, the stagflation crisis of the 1970s was to a large extent interpreted as confirmation of this thesis and of the need for governmental restraint in order to overcome it. The neoliberal theory of interstate federalism, formulated long before this crisis arose, offered a compelling route to ensuring such restraint. Before discussing the main tenets of this theory, however, a few notes on the original EMU’s public law framework and its constitutional separation of monetary and fiscal competences are in order.

A. The Maastricht constitutional structure The central structural feature of the EMU’s monetary dimension is the ECB’s independence in conducting monetary policy (Article 130 TFEU). Established by the Treaty, the ECB’s independence is based on primary law. This means that its institutional form as well as its governmental acts are beyond the control of any constituted body of ordinary political representatives.17 As such, the ECB’s authority does not rest on present electoral majorities or other ways of expressing political will in the present. The ECB’s authority rests, in principle, on the founding expression of political will in the Maastricht Treaty. Since the Maastricht Treaty was created by the member state peoples as distinct political subjects, any violation of this principle—say, by allowing the European Parliament to control any aspect of the ECB’s exercise of powers—would 15 McKay (n 12), 76–85. Conversely, the ideological perspective informing the 1970 Werner Report’s vision of economic and monetary union—which foresaw full political union, including a European economic government accountable to the European Parliament—was not. 16 Friedrich A Hayek, ‘The Pretence of Knowledge’ (Nobel Lecture, Sveriges Riksbank’s Prize in Economic Sciences in Memory of Alfred Nobel, Stockholm, Sweden, 1974) accessed 25 May 2021. 17 Whether its monetary policy acts are also beyond judicial control is a question of considerable controversy, as attested to by the evolving saga of the Gauweiler and Weiss cases. See also Vestert Borger, ‘Central Bank Independence, Discretion, and Judicial Review’ in Joana Mendes (ed), EU Executive Discretion and the Limits of Law (OUP 2019) 118–31.

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threaten the continued existence of the member state peoples as separate political subjects. This is because it would alter the subject of the highest political authority from the peoples as separate political subjects acting collectively, to a unitary subject acting unilaterally.18 As such, the absence of meaningful democratic accountability with respect to the ECB19 is an essential element in protecting the original expression of political will by the peoples as well as a protection of the peoples as separate political existences. While its authority is politically established, the institutional structure leaves no room for its political control at either the European or the member state level. The absence of democratic controls over the ECB is justified within the EMU’s constitutional imaginary by the notion that central bank independence is essentially another word for the single-minded pursuit of price stability, the primacy of which is the monetary dimension’s central substantive feature (Article 3.3 TEU; Article 119.2, 127.1 TFEU). The price stability anchor is, on the one hand, a justification for the ECB’s independence, as the EMU rests on the theory that central bank independence is the surest means of securing price stability. Central bank independence is simply the institutional expression of the aim of price stability. On the other hand, the price stability mandate constitutes a means of constraining the ECB’s discretion because it is not allowed to exercise its governmental authority in a manner that jeopardizes this objective.20 The ECB can only, in principle, act for purposes other than securing price stability if this does not compromise the price stability mandate. Thus, if the ECB’s independence from all other governmental bodies (including European ones) is a means of depoliticizing the conduct of monetary policy, the price stability mandate is intended to secure that the ECB itself does not become ‘political’ itself, in the sense of choosing between competing objectives. The key aspect of the monetary dimension of the EMU is thus to abolish the competence to control one variable of macroeconomic policy-making discretionarily, whether by the central bank or political authorities. The fiscal dimension of the Maastricht EMU took a very different constitutional form. Instead of a single fiscal authority, fiscal responsibility remained with the member states. The crucial structural feature of the fiscal dimension is thus a decentralization (or the absence of a centralization) of governmental authority. Whereas the monetary dimension concentrates governmental power in a single, politically independent authority, the fiscal dimension disperses it among several political authorities: the member state parliaments and governments. This entailed that the control of taxes, public spending, and other aspects of economic policy was to remain subject to the political process in the individual member states. As much a product of the Treaties as the ECB’s independence and price stability mandate, this is attributed to the political will of the peoples. In contrast to the monetary dimension, then, the right 18 This is the essence of the German Constitutional Court’s ‘no demos’ thesis, which also informs its jurisprudence on questions relating to the ECB in cases such as Brunner, OMT and PSPP. For a discussion of this principle in relation to the ECB’s handling of the eurozone crisis see Hjalte Lokdam, ‘ “We Serve the People of Europe”: Reimagining the ECB’s Political Master in the Wake of Its Emergency Politics’ (2020) 58(4) Journal of Common Market Studies 978–98. 19 See, eg, René Smits, The European Central Bank—Institutional Aspects (Kluwer Law International 1997) 500; Deirdre Curtin, ‘ “Accountable Independence” of the European Central Bank: Seeing the Logics of Transparency’ (2017) 23 European Law Journal 1–2, 28–44. 20 Otmar Issing, Should We Have Faith in Central Banks? (London: The Institute of Economic Affairs 2002); Borger (n 17).

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of the member states’ political authorities to define the ends and means of governmental action with regard to fiscal policy was not exhausted in the constituent moment. The eurozone’s monetary policy would be conducted in the singular and beyond the control of democratic majorities, but fiscal policies remain plural and subject to the electoral majorities of the day in the respective member states. As discussed in more detail below, the continued existence of fiscal competences at the member state level is crucial to the neoliberal theory of interstate federalism. It entails a certain political freedom at the member state level that secures that the federation does not become a great Leviathan but is instead characterized by interstate competition for capital and labour. The EMU, according to the Delors Report, had to respect the ‘existence and preservation of [member state] plurality’ and the member states should therefore retain ‘a degree of autonomy in economic decision-making’.21 Structurally, in other words, the member states remained competent to adopt more or less whatever fiscal policy they saw fit. The Maastricht Treaty, however, also outlined a set of general, substantive aims for fiscal policy—including a number of fiscal conditions and requirements (‘convergence criteria’) later elaborated in the Stability and Growth Pact—that were to ensure the basic fiscal homogeneity necessary to ensure a viable monetary union geared towards price stability.22 The economic policy discretion of member states was thereby to be subjected to certain self-imposed but externalized limits.23 The principle of member state responsibility for fiscal policy was reinforced by a number of specific prohibitions contained in the Treaty, most notably the ban on monetary financing of member states by the ECB (Article 123 TFEU) and the nobailout clause (Article 125 TFEU). The intended effect of these bans was to ensure that member states’ fiscal freedom remained subject to market discipline: while any kind of fiscal policy was in principle possible, it had to be financed through the state’s ability to extract taxes from freely mobile capital and labour and/or from borrowing on market terms.24 The discretion left to member state governments should not, in other words, allow them to collectivize the potential costs of ‘irresponsible’ policies. This also meant that the feasibility of a particular economic programme was subject to market evaluation. The constraint on the economic policy-making capacity of the member states

21 Delors Report, ‘Report on Economic and Monetary Union in the European Community 17 April, Brussels: EC Commission’ (EC Commission, 17 April 1989) 13 (emphasis in original). 22 The economic case for the necessity of convergence criteria and fiscal rules is questionable. On this, see Paul De Grauwe, ‘Monetary Union and Convergence Economics’ (1996) 40(3) Papers and Proceedings of the Tenth Annual Congress of the European Economic Association 1091–1101; Paul De Grauwe, Economics of Monetary Union (13th edn, OUP 2020) Chapter 11. So is the case for the necessity of relative economic homogeneity once the monetary union is established: see Waltraud Schelkle, The Political Economy of Monetary Solidarity: Understanding the Euro Experiment (OUP 2017). However, as Schelkle notes (at 1), heterogeneity may spark a mistrust and lack of understanding between the diverse parties that makes collective action in terms of risk sharing more difficult. Whether this is enough to account for Europe’s preoccupation with convergence is unclear. 23 Self-imposed because the Member States themselves signed up for them; externalized because the limits were enshrined in a legal framework beyond the control of the political authorities of any one Member State. 24 Alexandre Lamfalussy, ‘Macro-Coordination of Fiscal Policies in Economic and Monetary Union in Europe’ in Collection of Papers Submitted to the Committee for the Study of Economic and Monetary Union (Luxembourg: Office for Official Publications of the European Communities 1989) 91–126.

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was thereby not primarily a product of the legal regulation of the specific content of policies. In terms of normative content, the EMU is all but silent.25 Rather, the EMU public law framework envisioned a reckoning between member state economic policies, including their aims and financing, and the confidence of markets.

B. The neoliberal theory of inter-state federalism The combination of a politically independent monetary policy, the absence of a single fiscal authority, and subjecting member state fiscal policy to market discipline in many ways formed the macroeconomic constitutional superstructure to the ‘microeconomic constitution’ of the single market.26 An understanding of the consequences of EMU in terms of general governmental capacity with respect to economic affairs therefore demands an appreciation of the link between the micro- and macroeconomic elements of the general ‘economic constitution’.27 This link is central to the neoliberal theory of federalism. As Hayek put it in ‘The Economic Conditions of Interstate Federalism’: The absence of tariff walls and the free movements of men and capital between the states of the federation has certain important consequences . . . They limit to a great extent the scope of the economic policy of the individual states. If goods, men, and money can move freely over the interstate frontiers, it becomes clearly impossible to affect the prices of the different products through action by the individual state. The Union becomes one single market.28

This is, in essence, a description of ‘negative integration’. According to Hayek, this mechanism emerges from the structural characteristics of an economic federation that involves the creation of a customs union and a single market: ‘the federation will have to possess the negative power of preventing individual states from interfering with economic activity in certain ways.’29 In the EU, negative integration may find its agency in the judicial activism of the European Court of Justice, as scholars such as Fritz Scharpf have argued,30 but the mechanism itself, according to the neoliberal 25

Clemens Kaupa, The Pluralist Character of the European Economic Constitution (Hart 2016). Kaarlo Tuori, European Constitutionalism (CUP 2015) accessed 21 May 2021. 27 This is a key aspect of Fritz Scharpf ’s work on the neoliberalizing consequences of ‘negative integration’ in a political structure that makes ‘positive integration’ slow, cumbersome and subject to multiple veto players (see eg Fritz W Scharpf, ‘After the Crash: A Perspective on Multilevel European Democracy’ (2015) 21(3) European Law Journal 384–405; Fritz W Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999). 28 Hayek (n 2) 255–72, 258. The logic informing this is that associated with jurisdictional or regulatory arbitrage, which predicts a taxational and regulatory ‘race to the bottom’ within a single market of several otherwise independent jurisdictions. Under such conditions, states are less able to effectively introduce tax policies or regulatory regimes that place onerous demands on individuals or firms because of the freedom of movement. As such, the tendency is towards a form of government that is less intrusive in the economic lives of its citizens, natural and artificial, not because of conviction but because intervention is simply counter-productive. 29 Hayek (n 2) 267, emphasis added. 30 Scharpf (n 27) Chapter 2. 26

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theory of federalism, is built into the very structure of economic integration based around the principle of open, competitive markets. This mechanism limits the individual state’s capacity to effectively control economic activity within its border (including through taxation, because people, firms, and capital can relocate) and curtail the power of organized interests within the state.31 Through the interlinkages between the micro- and macroeconomic dimensions of the constitutional frameworks, the inter-state federation limits the governmental capacity of the individual state when it comes to economic activity. As Hayek emphasizes, the powers denied the individual states can be transferred to the federal level only to a limited extent. On the one hand, this is because the federation implies the continued existence of the constituent states as autonomous entities, not the creation of a sovereign federal state whose authority can override that of the states. The federal level, however, can act on a common agreement among the constituent states. As such, nothing prevents it from adopting whatever policy the states agree to. The problem lies in reaching agreement. The limited power of the federation is thus not a necessary principle of federalism but a consequence of the interaction between the public law structure of the federation and the ‘material constitutions’32 of its constituent parts. As Hayek notes, ‘Whether the federation will exercise these powers [of governmental intervention in economic activity] will depend on the possibility of reaching true agreement, not only on whether these powers are to be used, but on how they are to be used’.33 In principle, then, the federation’s governmental capacity is open-ended and there can be ‘ample scope for economic policy in a federation . . . there is no need for extreme laissez faire in economic matters’.34 However, the degree to which planning [or central direction of economic activity] can be carried is limited to the extent to which agreement on . . . a common scale of values can be obtained or enforced. It is clear that such agreement will be limited in inverse proportion to the homogeneity and the similarity in outlook and traditions possessed by the inhabitants of an area.35

Reaching agreement on how to employ governmental powers to control economic activity thus, according to Hayek, represents a tall order for federations. This is because a federation cannot rely on ‘common ideals and common values’ to the same extent as the nation-state.36 It cannot, in other words, rely on the national myths and ideologies that justify the sacrifice of the interests of some members of the community in the name of the national good.37 Thus, the ‘diversity of conditions and the different stages 31 Hayek (n 2) 261; see also Poul F Kjaer, ‘The Transnational Constitution of Europe’s Social Market Economies: A Question of Constitutional Imbalances?’ (2019) 57(1) Journal of Common Market Studies 143–58, who highlights that European integration has to a large extent strengthened the state vis-à-vis corporate interests within the state. 32 Marco Goldoni and Michael A Wilkinson, ‘The Material Constitution’ (2018) 81(4) The Modern Law Review 567–97 accessed 3 November 2022. 33 Hayek (n 2) 266. 34 Ibid 268; see also Kaupa (n 25) for an analysis of the EU that stresses this point. 35 Hayek (n 2) 264. 36 Ibid 264. 37 Ibid 262.

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of economic development reached in the various parts of the federation will raise serious obstacles to federal legislation’.38 An inter-state federation whose two most important structural features are a single market and a single currency39 thereby promises to limit significantly the scope of governmental capacity to intervene in and govern economic affairs at both the state and federal levels. The public law structure of the federation thereby implies ‘less government all round if federation is to be practicable’ and ‘we shall have to resign ourselves rather to have no legislation in a particular field than the state legislation which would break up the economic unity of the federation’.40 In that sense the federation introduces a governmental order of relative laissez-faire: while it does not dismantle existing programmes of market intervention in one stroke, it constrains the general governmental capacity of the states to respond to socio-economic developments as they arise, without generating a corresponding Union-level governmental capacity.41 While the constitution may not explicitly provide for neoliberal policies (privatization, deregulation, labour flexibilization, etc) or create an outright laissez-faire order, it orients the exercise of governmental authority in a manner that facilitates the gradual impossibility of effectively intervening in economic life. By abolishing omnicompetent political authority, the federation dispels the illusion of the state’s omnipotence that, from a neoliberal perspective, haunted economic policy-making from the end of nineteenth-century laissez-faire. It does so explicitly by depriving member states of the formal competence to control monetary policy— which introduces an external condition and constraint over which individual governments have no control—and implicitly through the single market—which facilitates ‘voting with your feet’ and, more importantly, ‘voting with your capital’.42 Such constraints in effect mean that while the member states retain political freedom with regard to what economic policies to adopt, the effectiveness of any policy depends on market actors’ perception of it. The potency of governmental power at the state level is, in other words, undercut by the federal structure. At the same time, governmental capacity at the federal level, while potentially potent vis-à-vis markets, is neutered by the difficulty of reaching ‘true agreement’ among the several states. That is, because the federation does not establish a new omnicompetent, sovereign entity, the principal ‘danger’ associated with ‘the illusion of omnipotence’ is overcome and sovereignty is ‘eroded’.43 Through alienating the governmental capacity to ‘steer the economy’, the interventionist state of fascism and communism, but also of social democracy and progressivism,44 would become impossible. The ‘proper’ distinction between state and 38

Ibid 263. Ibid 259–60. Ibid 266. 41 Scharpf (n 27); on this process in history of the US, see Gary Gerstle, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (PUP 2017). 42 On the notion of ‘voting with your capital,’ see Streeck (n 2) 80–90. 43 Martin Loughlin, ‘The Erosion of Sovereignty’ (2016) 2 Netherlands Journal of Legal Philosophy 57– 81; see also Markus Ojala, ‘Doing Away with the Sovereign: Neoliberalism and the Promotion of Market Discipline in European Economic Governance’ (New Political Economy, 20 February 2020) 1–13 accessed 25 May 2021. 44 Sheri Berman, The Primacy of Politics: Social Democracy and the Making of Europe’s Twentieth Century (CUP 2006). 39 40

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society, the political and the economic, would thereby be (re)established. As Wilhelm Röke put it in the context of the debate on European economic integration: little would be gained, if the sovereign right, which today the governments invoke to intervene in economic life, were taken away from them solely for the purpose of transferring it to an international authority . . . Certainly the lessening of national sovereignty is one of the most compelling commands of our time, but the excess of sovereignty should be abolished and not transferred to a higher geographical unit.45

The EMU reflected the neoliberal logic of federalism in that the transfer of ‘sovereignty with regard to monetary policy to the Eurosystem’46 would not be emulated with respect to other dimensions of economic policy. As Karl Otto Pöhl, then president of the Bundesbank, put it in the context of the Maastricht negotiations: EMU would ‘necessitate the surrender of sovereignty by the individual member states, but this need not mean corresponding gains in Community authority’.47 Through a founding expression of political will by the member state peoples, the EMU would break the link between the generation of societal demands on the state through the political process and the governmental capacity to act on such demands that allowed for large-scale political control of economic activity from the interwar period and into the 1970s.

C. The crisis of governability and the EMU While the federalism adopted by the framers of the Maastricht Treaty mirrors the neoliberal image of limited government through inter-state federalism, this alone can hardly account for why it was adopted. While it is not the ambition of this chapter to explain why the EMU was created as it was, it is worth stressing one important problem that it was intended to address: the problem of governmental ‘overload’ or ‘crisis of governability’ that Western democracies, including but not limited to the European, were (perceived to be) experiencing in the 1970s and 1980s.48 It was this crisis, whose greatest symptom was the stagflation crisis, that increased the appeal of the neoliberal worldview in general among political elites, with Ronald Reagan and 45

Röpke (n 2) 108, emphasis in original. European Central Bank, ‘The Institutional Framework of the European System of Central Banks’ (ECB Monthly Bulletin, July 1999) 55–63, 55. 47 Karl Otto Pöhl, ‘Herr Pöhl Discusses the Basic Features of a European Monetary Order’ (Speech in Paris, 16 January 1990), TPS-193, Historical Archives of the European Union. 48 See, eg, Michael J Crozier, Samuel P Huntington, and Joji Watanuki, The Crisis of Democracy: Report On the Governability of Democracies to the Trilateral Commission (NYUP 1975); Anthony King, ‘Overload: Problems of Governing in the 1970s’ (1975) 23 Political Studies 2–3, 284–96. Hayek’s 1939 case for an inter-state federation drew on a similar analysis: ‘Government by agreement is only possible provided that we do not require the government to act in fields other than those in which we can obtain true agreement. If, in the international sphere, democratic government should only prove to be possible if the tasks of the international government are limited to an essentially liberal program, it would no more than confirm the experience in the national sphere, in which it is daily becoming more obvious that democracy will work only if we do not overload it and if the majorities do not abuse their power of interfering with individual freedom. Yet, if the price we have to pay for an international democratic government is the restriction of the power and scope of government, it is surely not too high a price’ (n 2, at 271). 46

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Margaret Thatcher, of course, its principal political champions. It seemed to confirm the neoliberal thesis that governments are essentially constrained by economic laws and that the failure to recognize these constraints a priori can only lead to ever more coercive, but ineffective, governmental interventions to address the destructive effects of earlier policies. On the European continent, the travails and, ultimately, ideological capitulation of President Mitterand’s Socialist government in France in the first half of the 1980s seemed to hammer this point home: economic planning and the state’s steering of economic affairs was doomed to fail. Disregarding the question of the accuracy of this interpretation, the notion of a ‘crisis of governability’ reflected a concern among political elites (and scholars) at the time that electorates and interest groups placed increasingly unsustainable, and often contradictory, demands on the state. Democratic politics, it seemed, placed an ‘excessive burden . . . on the “sharing out” function of government’, understood as ‘the activities of public authorities in influencing the allocation of resources, both through taxation and expenditure policies and through direct intervention in the market place’.49 The state, in other words, was asked to do more than it was able to accomplish effectively. This was tied to the perception that the Keynesian instruments of economic government, on which most capitalist democracies had to some extent relied since the end of the Second World War, were no longer working as intended, and as they had done in les Trente Glorieuses. As the Post-Keynesian economist Wallace C. Peterson noted in 1980: What is clear from the experience of the last decade is that the conventional Keynesian approach is not working, that we are confronted with a condition which does not respond to the standard techniques which use fiscal and monetary policies for demand management.50

The failure of governmental capacity was epitomized by the failure of many Western states to control inflation, which in turn was seen as being to a significant extent a product of the democratic political process itself.51 While this was by no means the only problem, it provided a powerful image of there being economic mechanisms operating outside the control of national governments. In doing so, it appeared to confirm Hayek’s suspicion of the ‘pretence of knowledge’: it illustrated that the total effects of any policy were beyond the control of the policy-maker. As such, it seemed to confirm the neoliberal vision of economic government: even in the absence of formal constraints on governmental capacity, this capacity is always already constrained by economic laws operating beyond the control of political authorities.52

49 Samuel Brittan, ‘The Economic Contradictions of Democracy’ (1975) 5(2) British Journal of Political Science 129–59, 130, emphasis removed. 50 Wallace C Peterson, ‘Stagflation and the Crisis of Capitalism’ (1980) 38(3) Review of Social Economy 277. 51 See, eg, Samuel Brittan, ‘Inflation and Democracy’ in Ruth Hirsch and John H Goldthorpe (eds), The Political Economy of Inflation (HUP 1978) 161–85; Alberto Alesina, ‘Macroeconomics and Politics’ (1988) 3 NBER Macroeconomics Annual 13–52. 52 This was the conservative interpretation of the crisis. See Streeck (n 2) for a discussion of the more leftist interpretation of the crisis at the time, which attributes the crisis to capitalism, not democracy.

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There was thus a concern on one hand that political demands had become excessive, and on the other that the capacity of the state to deliver on those demands was waning. Together these two trends were seen as a threat to the credibility and viability of liberal democracy.53 In order to rescue liberal democracy from itself, and thus the capitalist economy, it was therefore necessary to introduce a dual constraint: on the people’s ability to demand things of the state and on the governmental capacity of the state to intervene in economic matters. A form of macroeconomic federalism that reduced state capacity through depriving governments of control of monetary policy, combined with legally enforced market discipline on fiscal practices, promised to overcome this quagmire. The problem that EMU was designed to address, in other words, was how to reconstitute the European states in a manner that forced them to govern in accordance with the ‘natural’ constraints of the economic order of things.54 Rather than establishing a ‘neoliberal sovereign’ that could coerce the member states into compliance, the EMU sought to create an order in which the states would retain political freedom to decide on the distribution of public spending, but subject to the same kind of budget constraint as households.55 As a draft of the Delors Report put it, ‘all member countries will have to recognize and accept in their decision-making the existence of the constraints on national fiscal policy that emanate from participation in an economic [and] monetary union’.56 The state’s political freedom to act ‘irrationally’ and ignore the limits of its means was thus to be eliminated, and with it its ability to act on the demands emerging from the democratic process. The state’s ability to govern ‘excessively’ had to be abolished.

III. The Challenge of the Eurozone Crisis The EMU sought to respond to the crisis of governability by depriving member state governments of access to the printing press to finance their deficit spending, on the one hand, and by subjecting fiscal policy to market discipline reinforced by fiscal rules, on the other. Combined with the ‘microeconomic constitution’ of the single market, this was supposed to ensure that member states were forced to recognize, and govern in accordance with, the immanent laws of the economy. While the neoliberal imaginary sees these laws operating irrepressibly beyond the control of political forces, 53

Crozier, Huntington, and Watanuki (n 48). Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978–1979 (Palgrave Macmillan 2008); Werner Bonefeld, The Strong State and the Free Economy (Rowman & Littlefield International 2017). See also Wilhelm Röpke (n 2) 75, who presents the ‘liberal principle’ as being ‘a thorough separation between the spheres of the government and of economy, between sovereignty and the apparatus which provides material goods’. Röpke thereby considers political and economic power to be distinct forms of power, corresponding to the Roman distinction between Imperium (public command associated above all with military affairs) and Dominium (control and disposition of private property above all in the household). Concentrating the two forms of power, he argues, the centralized, sovereign state tends to become ‘total’ and societal life becomes unfree. 55 William Mitchell and Thomas Fazi, Reclaiming the State: A Progressive Vision of Sovereignty for a PostNeoliberal World (Pluto Press 2017). 56 Committee for the Study of Economic and Monetary Union (CSEMU), ‘II. How to define the final stage of economic and monetary union’, 2 (31 January 1989), draft of chapter 2 of Delors Report, Historical Archives of the European Union (HAEU), TPS-196. 54

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and irrespective of any legal framework, the constraints that eurozone member states faced in terms of economic policy were nevertheless politically established and selfimposed. As such, the effectiveness of the order relies on continued political support for it. This, of course, is one of the central tensions, and perhaps the greatest weakness, of the neoliberal imaginary: the ‘natural’ order of the market economy relies on a politically established legal framework and a continued political will in its favour.57 The problem of governmental capacity with respect to economic government, then, re-emerges if one or more member states reject the basic tenets of the order, whether in practice or in principle. As long as the member states retain the political freedom to (try to) ignore the constraints inherent in the structure, the problem of ‘excessive government’ remains. This problem is avoided if markets actually perform a disciplining function in the sense of punishing certain forms of state behaviour. If markets fail to do so, the neoliberal theory of federalism is left with the problem of how to ensure that markets behave as they should. This is a general problem for neoliberalism, but it takes on a particular meaning in the federation, to which the framers of the Maastricht EMU were sensitive. The problem is that, regardless of what the Treaty might say, ‘the closer economic and solidarity ties implied by membership of the union may generate market expectations that [a member state] would ultimately be bailed out by other EMU members’.58 The very existence of the federation might, in other words, increase the ability of the individual state to govern ‘excessively’ because the market would operate on an assumption of ‘solidarity’, whereby it would cease to evaluate the fiscal position and economic policy stance of a member state on its own terms. Paradoxically, then, the market discipline that was supposed to have been supported by the EMU’s constitutional structure would potentially be undermined by that very structure, thereby enabling member states to evade the constraints that were supposed to result from the federal structure. Developments after the introduction of the euro largely bore out this scenario. Sovereign bond yields converged in the years leading up to the crisis, without this necessarily reflecting actual economic convergence or equally sustainable fiscal positions. When the crisis hit, furthermore, it turned out that the markets had been right to assume solidarity: member states were bailed out with minimal losses to investors. The eurozone crisis thereby demonstrated that the problem of governability was not adequately addressed by the federal construct. Demands on the state arising from domestic political processes and interest groups continued to inform the economic practices of the states to a significant degree. The federation had not resolved this ‘problem’ of governmental capacity at the state level. The federal construct did ‘work’, however, 57 This is, in fact, explicitly recognized by neoliberal thinkers such as Henry Simons, Milton Friedman, and Hayek, all of whom recognize that the realization of their worldview rests on winning ‘the great struggle of ideas’, as Hayek put it in The Constitution of Liberty (UCP 2011) 48. The German ordoliberals similarly saw the competitive market economy as resting on a ‘comprehensive decision’ on an economic constitution (Walter Eucken, Franz Böhm, and Hans Großman-Doerth, ‘Unsere Aufgabe: Geleitwort Der Herausgeber Zur Schreifenreihe’ in Franz Böhm (ed), Die Ordnung Der Wirtschaft (Kohlhammer 1937), VII–XXI). 58 Claudio Borio, ‘Macro-Co-ordination of Fiscal Policies in an Economic and Monetary Union in Europe,’ appendix II, 13 (1 February 1989), HAEU, TPS-196. Paper submitted for discussion in the Delors Committee. See also Alexandre Lamfalussy, ‘The Need for Co-ordination of Fiscal Policies in a European Economic and Monetary Union’ 1 (31 January 1989), HAEU, TPS-196.

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in terms of constraining the governmental capacity of the Union level: the Union had only very limited means of correcting the behaviour of its member states. This resulted in a different kind of governability problem. In place of a general problem of excessive government, the problem was the inability of the federal level to ensure that the member states conformed to the requirements of the EMU construct. What emerged, in other words, was, a problem of generating the federal governmental authority necessary to make the eurozone as a whole behave as the theory envisioned. The problem was to make the eurozone governable in order to enforce the constraints on governmental discretion that the EMU was supposed to have ensured structurally, according to the neoliberal imaginary informing the Maastricht Treaty. In the emergency politics of addressing the multiple failures of the EMU during the eurozone crisis, crucial aspects of both the structural and the substantive dimensions of E(M)U law were abandoned.59 In place of rules and market discipline came the (authoritarian, coercive) exercise of public power to achieve the outcomes that were supposed to have emerged more or less spontaneously from the constitutional structure.60 That is, the concrete policy outcomes associated with neoliberalism—privatization, fiscal consolidation, deregulation, labour market flexibilization, and so on—were pursued using means that differed markedly from those associated with the neoliberal theory of inter-state federation. Public authority at the European level, in other words, stepped in to ensure the withdrawal of the state from the control of economic activity that market discipline had failed to bring about. The question is what vision of economic government emerges from the emergency politics of the eurozone crisis.

A. Governing the member states in emergency mode In Hayek’s theory of federalism, one of the crucial limits on the governmental capacity of the federal level is the heterogeneity of the constituent parts. As long as a plurality of economic conditions and values exists within the federation, it will inevitably be more difficult to agree on the active use of federal power to regulate economic affairs. The experience of the eurozone to a large extent bears this thesis out, as Martin Höpner and Amin Schäfer have argued.61 Despite ‘convergence criteria’, the eurozone economies have remained structurally distinct from each other in a number of important ways and have evolved around different varieties of capitalism or different kinds of growth models.62 During the eurozone crisis, however, the continued economic 59 Thomas Beukers, Bruno de Witte, and Claire Kilpatrick (eds), Constitutional Change through EuroCrisis Law (CUP 2017); Jonathan White, ‘Emergency Europe’ (2015) 63(2) Political Studies 300–18. 60 Alexander Somek, ‘Delegation and Authority: Authoritarian Liberalism Today’ (2015) 21(3) European Law Journal 40–60; Streeck (n 2); Michael Wilkinson, ‘Authoritarian Liberalism: The Conjuncture behind the Crisis’ in Eva Nanopoulos and Fotis Vergis (eds), The Crisis behind the Eurocrisis: The Eurocrisis as a Multidimensional Systemic Crisis of the EU (CUP 2019) 101–21. 61 Höpner and Schäfer (n 2). 62 Engelbert Stockhammer, Cédric Durand, and Ludwig List, ‘European Growth Models and Working Class Restructuring: An International Post-Keynesian Political Economy Perspective’ (2016) 48(9) Environment and Planning A: Economy and Space 1804–28 accessed 3 November 2022; Alison Johnston and Aidan Regan, ‘Introduction: Is the European Union Capable of Integrating Diverse Models of Capitalism?’ (2018) 23(2) New Political Economy 145–59 accessed 25 May 2021, Chris J Bickerton,

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heterogeneity of the eurozone was understood as a fundamental threat to the stability of the monetary union. Measures and reforms to address the eurozone crisis have responded to the problem of heterogeneity in a number of distinct but interrelated ways. On the one hand, a number of general reforms have been implemented that seek to affect how member states govern (eg the European Semester, Fiscal Compact, Banking Union, Excessive Deficit Procedure, Macroeconomic Imbalance Procedure). On the other hand, the Union level has sought to overhaul individual member state economies through conditionality attached to financial assistance. The solidarity that markets assumed, in other words, was borne out, but it was instrumentalized in the quest to bring about economic and structural convergence in the eurozone. It was used to introduce the possibility of employing public authority to reorganize the economic practices of nonconforming member states. The response to the eurozone crisis has thus sought to address the problem of economic heterogeneity through measures of an explicitly emergency political nature that suspended the ordinary political process in particular member states, and through the construction of governmental arrangements that reshape that process permanently. EU actors have presented the reforms undertaken in emergency mode in the language of ‘completing’,63 ‘deepening’,64 and making the EMU ‘genuine’.65 In effect, they do no such thing, as they radically transform the EMU’s embodied vision of economic government. It is nevertheless worth examining how European elites conceptualize both the problem and how the emergency political measures respond to it. From such reflections it is possible to outline the contours of an emerging constitutional imaginary that differs in important respects from the neoliberal theory of federalism that informed the public law form of the Maastricht EMU.

B. Generating federal governmental authority The 2015 ‘Five Presidents Report’ explicitly addressed the nature of the relationship between the emergency politics of the crisis and its problematic relationship with the existing institutional structure of the EU. The crisis ‘forced national governments and EU institutions to take quick and extraordinary steps’. Such steps were necessary to conserve the ‘house that was built over decades but only partially finished’, but they ‘need to be turned into a lasting, fair and democratically legitimate basis for the future . . . It is now high time to reinforce its foundations’. In particular, ‘a lot more needs

European Integration: From Nation-States to Member States (OUP 2012) Chapter 4 accessed 25 May 2021. 63 Jean-Claude Juncker, Donald Tusk, Jeroen Dijsselbloem, Mario Draghi, and Martin Schulz, ‘The Five Presidents’ Report: Completing Europe’s Economic and Monetary Union’ (Brussels: European Commission, 2015). 64 European Commission, ‘Reflection Paper on the Deepening of the Economic and Monetary Union’ (Brussels: European Commission, 2017). 65 Herman Van Rompuy, ‘Towards a Genuine Economic and Monetary Union’, report by the President of the European Council, EUCO 120/12, PRESSE 296 (Brussels: European Council, 2012).

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to be done to improve economic policies’.66 The question is what—and how do such changes affect the public law structure of the eurozone? The Report stresses that ‘[t]he euro is more than just a currency. It is a political and economic project’ in which ‘monetary sovereignty’ is shared.67 In line with the Hayekian vision of federation, this entails the sacrifice of a number of political freedoms at the member state level when it comes to economic policy, as ‘national adjustment tools’, among other things, have been given ‘up on entry’.68 The EMU’s crisis, however, means that a number of additional constraints on the economic policies of member states need to be established and those that already exist need to be better monitored and enforced, most importantly through the European Semester. In this regard, the Commission’s ‘Country-Specific Recommendations need to be concrete and ambitious’ but ‘[a]t the same time, they should remain “political”, i.e. Member States should have a degree of freedom concerning the exact measures to be implemented’.69 The Report thereby refers back to the notion of member state plurality that the Delors Report presented. This plurality, however, is mainly presented as a problem, and the member states’ room of policy-making manoeuvre ought to be limited to having a certain influence on how exactly to ‘maintain sound policies and embark on reforms that make their economies more flexible and competitive’.70 The question for member states, in other words, is not whether to adopt certain reforms, but how. In the Report, the further strengthening of the European surveillance apparatus is to be accompanied by steps towards a political union that provides ‘the foundation for all of the above [the various reforms] through genuine democratic accountability, legitimacy and institutional strengthening’.71 As such, the Report acknowledges that the reforms entail a limitation on democracy in the member states. While the Report is vague on the question of how this will be compensated for at the European level,72 the centrality of the notion of ‘genuine’ legitimacy and accountability reflects the notion that the strengthening of governmental capacity at the European level demands also a new form of political authorization, and even a new political form, for the EMU: In spite of the undeniable importance of economic and fiscal rules and respect for them, the world’s second largest economy cannot be managed through rule-based cooperation alone. For the euro area to gradually evolve towards a genuine Economic and Monetary Union, it will need to shift from a system of rules and guidelines for national economic policy-making to a system of further sovereignty sharing within common institutions.73

66 Jean-Claude Juncker et al, Completing Europe’s Economic and Monetary Union (European Commission 2015) 4. 67 Ibid 4. 68 Ibid 4. 69 Ibid 9, emphasis added. 70 Ibid 4, emphasis added. 71 Ibid 5. 72 Ben Crum, ‘Parliamentary Accountability in Multilevel Governance: What Role for Parliaments in Post-Crisis EU Economic Governance?’ (2018) 25(2) Journal of European Public Policy 268–86. 73 Juncker et al (n 63) 5.

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The EMU must shift towards a system in which the Union level has ‘its own fiscal capacity and a means of imposing budgetary and economic decisions on its members’.74 The realization of the ideology enshrined in the EMU, in other words, demands a comprehensive European governmental capacity to intervene in and direct member state economic policies. The argument that political freedom at the member state level makes the EMU vulnerable to internal collapse or foreign domination is, in essence, an argument (a Hobbesian–Schmittian one) for the necessity of concentrating sovereign power. This was precisely the message conveyed by the title of Juncker’s 2018 ‘State of the Union’ address: ‘The Hour of European Sovereignty’. Here Juncker presents the relevance of the question of ‘European sovereignty’ in the context of Europe’s place in the world at the present conjunction: ‘The geopolitical situation makes this Europe’s hour: the time for European sovereignty has come.’75 The ‘geopolitical situation’ refers to a number of things (Russia, China, Trump, international terrorism, etc) and is defined by instability and unpredictability. As such, Europe can no longer rely on the benevolence of other powers but must take ‘its destiny into its own hands’ and develop what Juncker calls ‘ “Weltpolitikfähigkeit”—the capacity to play a role, as a Union, in shaping global affairs’. Europe, in other words, ‘has to become a more sovereign actor in international relations’.76 This capacity, however, requires ‘unity’ and places certain requirements on how the EU governs itself internally. That is, Europe’s capacity to shape its own fate in the world must not be compromised by internal differences and disagreements. European unity is equally important to French president Emmanuel Macron, who has invoked the necessity of European sovereignty on a number of occasions. In his speech accepting the Charlemagne Prize for, indeed, ‘European Unity’, Macron outlines four ‘commandments’ or ‘categorical imperatives for action’/ The first—‘let’s not be weak, let’s not be passive—is that of European sovereignty’. The problem of European sovereignty is thus, as in Juncker’s State of the Union address, that of selfdetermination; that is, the refusal ‘to allow others to decide for us’. In order for Europe to become a powerful player in global politics, however, it must be united, and as such the ‘second imperative is: let’s not be divided’. ‘Divisions’, he claims, ‘push us into siege warfare, the very same that made Europe suffer one of its worst torments a century ago now’. The external dimension of sovereignty is thus intricately linked to its internal dimension. In order to realize European sovereignty, then, Europe must move towards further ‘economic, fiscal and social convergence’. In particular, Europe must work towards ‘a stronger, more integrated Euro Area with its own budget’,77 since ‘sustainable economic power can only be constructed around a single currency’, as Macron put it 74 European Commission, ‘A Blueprint for a Deep and Genuine Economic and Monetary Union: Launching a European Debate’, Communication from the Commission (European Commission, 30 November 2012) 31, emphasis added. 75 Jean-Claude Juncker, ‘State of the Union 2018: The Hour of European Sovereignty’ 5 accessed 7 April 2021, emphasis in original. 76 Ibid 5. 77 Emmanuel Macron, ‘Speech by M. Emmanuel Macron, President of the Republic, on receiving the Charlemagne Prize’ (Speech, Aix-la-Chapelle, 10 May 2018) accessed 7 April 2021.

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in his Sorbonne speech.78 Or as Juncker put it: ‘The euro must become the face and the instrument of a new, more sovereign Europe.’79 In order to serve this role, however, ‘we must first put our own house in order by strengthening our Economic and Monetary Union . . . Without this, we will lack the means to strengthen the international of role of the euro. We must complete our Economic and Monetary Union to make Europe and the euro stronger.’80

C. Governing the eurozone While the Crisis revealed that the constraint on the governmental capacity of member states had not worked as envisioned by the original framers of the EMU, it also revealed, as noted above, that the EMU had worked in terms preventing the emergence of an effective Union-level governmental power. When it came to the federal level’s governmental capacity, the neoliberal theory of federation was largely right: the member state governments could not reach a true agreement on a general crisis response that would involve eurozone-wide measures. Because the crisis threatened both the stability of the EMU as well as the general belief in and support for a marketbased economic order, however, this absence of federal governmental capacity turned out to be a problem. In reflections on the future of the eurozone and of Europe’s ability to address its present and future challenges, this remains a key concern. As highlighted by Macron and Juncker, the EMU must develop its own fiscal capacity.81 Without this, the European level does not have access to the means necessary for developing an economic programme independently of the unanimous consent of the member states. Governing the member states from the centre is crucial, but without its own means, the governmental capacity of the European level will remain weak. Within the monetary dimension of the EMU, however, the European level does have access to its own means of governmental intervention: the ECB’s monetary policy. While the substantive content of the Maastricht Treaty envisioned this instrument to be strictly circumscribed by the price stability mandate, the ECB’s actions in addressing the eurozone crisis have moved well beyond this limited remit. Through (in) formal threats to (or promises to protect) member state governments; through its role in designing, supervising and executing reforms in ‘programme’ countries; through the ‘whatever it takes’ message of the Outright Monetary Transactions (OMT) and the Quantitative Easing (QE) programmes, the ECB’s involvement in governing the eurozone and its constituent economies is broad and deep. While the ECB was not originally ‘meant’ to take on such a role, there is a certain logic to the central place that 78 Emmanuel Macron, ‘Initiative pour l’Europe—Discours d’Emmanuel Macron pour une Europe souveraine, unie, démocratique’ (Speech, Paris, 26 September 2017), accessed 25 May 2021, my translation. In the French original: ‘une puissance économique durable ne peut se construire qu’autour d’une même monnaie.’ 79 Juncker (n 75) 10. 80 Ibid 10–11. 81 See also Federico Fabbrini, ‘A Fiscal Capacity for the Eurozone: Constitutional Perspectives’ (European Parliament, February 2019) accessed 25 May 2021.

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the ECB assumed. If the eurozone crisis was a true existential crisis for the EMU, the ECB was the only institution with both a clear Union-wide mandate and the available means of acting directly and immediately on the crisis without first having to secure formal agreement, without having to ‘consult a senate or the people’,82 on the nature of any intervention. It could act unilaterally to fill the governmental or ‘political vacuum created at the centre of the EMU’.83 The ECB’s actions during the crisis emphasized that governmental capacity could be exercised effectively in the eurozone. While not the kind of sweeping power exercised by, for example, the US federal administration in the context of the New Deal and, to a lesser extent, in the financial crisis, this demonstrated the potential capacity of a European-level government. This potential has informed the vision of the eurozone’s constitutional future presented by members of the ECB’s Executive Board. In his ‘Whatever it takes’ speech, Mario Draghi noted that the eurozone would have to undergo reforms meaning that ‘much more of what is national sovereignty is going to be exercised at supranational level’. Specifically, he noted ‘that common fiscal rules will bind government actions on the fiscal side’.84 This notion is to a large extent in line with the discussion above and he did not detail further what kind of European-level governmental capacity this would entail. In public addresses after the OMT intervention, however, Draghi developed a specific conception of sovereignty that is, presumably, shaped by the experience of the OMT and QE programmes and which would have to inform eurozone governance in the future. According to Draghi, there are two ways ‘to look at sovereignty’. The first, ‘Bodinian’ view sees it as a ‘normative’ concept, which ‘is defined in relation to rights: the right to declare war, and treat the conditions of the peace, to raise taxes, to mint money and to judge in last resort’,85 and, one might add, the right to make laws autonomously. To Draghi, however, ‘True sovereignty is reflected not in the power of making laws’.86 Sovereignty, rather, is ‘the ability to deliver in practice the essential services that people expect from government’.87 That is, sovereignty is ‘the ability to control outcomes and respond to the fundamental needs of the people: what John Locke defines as their “peace, safety, and public good”.’88 Conversely, ‘A sovereign that is not capable of effectively discharging its mandate would be sovereign only in name’.89 This ‘positive’ conception of sovereignty, derived from Draghi’s reading of Locke and Madison’s 82 Carl Schmitt, Dictatorship (Polity Press 2014), 9. Schmitt is referring to Bodin’s account of the Roman institution of dictatorship. 83 Wolfgang Streeck, ‘Heller, Schmitt and the Euro’ (2015) 21 European Law Journal 3, 370, accessed 3 November 2022. 84 Mario Draghi, ‘Verbatim of the Remarks Made by Mario Draghi’ (Speech, Global Investment Conference, London, 26 July 2012) accessed 7 April 2021. 85 Mario Draghi, ‘Europe’s Pursuit of “a More Perfect Union” ’ (Lecture, Harvard Kennedy School, Cambridge, MA, 9 October 2013) , accessed 7 April 2021. 86 Mario Draghi, ‘Sovereignty in a Globalised World’ (Speech, Award of Laurea honoris causa in law from Università degli Studi di Bologna, Bologna, 22 February 2019) accessed 7 April 2021. 87 Draghi (n 85). 88 Draghi (n 86). 89 Draghi (n 85).

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Federalist no. 45, offers ‘essentially the right way to think about sovereignty’ and ‘needs to be the guiding principle when deciding which powers should be at national or European levels’. In the final instance, then, ‘the sovereign exists only as a fiduciary power to act for certain ends. It is the ability to achieve those ends that defines, and legitimises, sovereignty.’90 In Draghi’s conception, sovereignty is defined through the question of governmental capacity, ‘the actual ability to control things’.91 Draghi dismisses the reverse definition—that is, from the perspective of the right to express political will freely, ‘rightful authority’92—because ‘[t]he ability to make independent decisions does not guarantee countries such control. In other words, independence does not guarantee sovereignty.’93 The link between these two dimensions, however, does not disappear. In the original EMU structure, member states retained the ‘rightful authority’ to define economic policy according to will. Their capacity to realize this will, however, was supposed to be constrained by the federal structure. In the ‘new EMU’, however, the relationship between rightful authority and capacity is reconstituted on the basis of the latter: rightful authority should follow from the capacity to exercise it effectively. The reference to Federalist no. 45 is notable in this respect. Devoted to the question of the ‘danger from the powers of the Union to the state governments’,94 Madison outlines a conception of the distribution of powers between the different levels as resting on the question of how best to ensure ‘the public good, the real welfare of the great body of the people’.95 The question of the sovereignty of the states vs the governmental powers of the Union is thus presented as one regarding which level is best capable of realizing the will of the people. From this perspective, insisting on the rights of the states against the Union is potentially a betrayal of the promise of self-government because it makes the realization of the political will or welfare of the people more difficult, if not impossible. The Union’s powers, according to this perspective, are legitimate because they make self-government possible, and thus sovereignty meaningful, through superior governmental capacity. Like Juncker and Macron, Draghi sees sovereignty ultimately as a question of being able to control one’s fate. The question of control, however, is two-sided. On the one hand, one might want to ‘take back control’ over the laws of the community, as manifested in Brexit. This understanding emphasizes the right to make laws freely but does not necessarily address whether those laws will be effective in giving the community control over its fate in material terms. On the other hand, then, one may emphasize the capacity to control one’s fate in a materially meaningful way. This latter approach informs the perspective of another former ECB official, Benoît Cœuré. According to Cœuré, the struggle against ‘Brussels’ or ‘Frankfurt’ is fundamentally misguided because the relevant contemporary problems concern developments at the global level. And in the global realm sovereignty is only possible ‘through European integration’ 90

Ibid, emphasis added. Loughlin (n 43) 63. 92 Ibid 63. 93 Draghi (n 86). 94 James Madison, ‘Federalist No. 45’ in Michael A. Genovese (ed), The Federalist Papers, by Alexander Hamilton, James Madison, and John Jay (Palgrave Macmillan 2009) 97. 95 Ibid 98. 91

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because only this gives Europe and its states and citizens the capacity to determine their own fates.96 The notion of sovereignty that Cœuré presents is similar to Draghi’s—sovereignty is something that expresses a political community’s ability to effect change in the world: ‘This is what the EU gives to the people of Europe: a way of sustaining an open international order while also bending its outcomes to their will.’97 This statement succinctly captures the notion of sovereignty as the people’s capacity for self-determination. Only by acting through the European level can ‘the people of Europe’ be the master of its own fate.98 Because the individual state is unable on its own to affect the factual conditions of global trade and finance in a meaningful way, the EU offers a stronger avenue for the exercise of democratic sovereignty: ‘the EU gives its citizens more democratic control over globalization than is afforded to people in other countries.’ In effect, assertions of national sovereignty against this project, in line with Madison, diminish democratic sovereignty and constitute a betrayal of the people. To extrapolate this view somewhat: because the federal level is the only level of government that can meaningfully control the fate of Europe in the face of threats arising from the market, pandemics, the environment, or foreign powers, Europe, not the member states, must channel sovereignty. It must therefore be in a position to govern effectively on behalf of the eurozone as a whole and, as highlighted by the Five Presidents’ Report, to be able to intervene in and control the internal affairs of the member states.

IV. Conclusion: Ideology and Governmental Capacity in the Time of Covid-19 Despite the many reforms of the EMU in emergency mode and its influential proponents, ‘European sovereignty’, as an expression of a comprehensive European governmental capacity with respect to economic affairs, remains an unrealized constitutional imaginary. Important political currents at the member state level continue to resist the idea and there are considerable practical obstacles to its full realization. The response to the Covid-19 crisis that began in early 2020 also highlights the incomplete nature of European-level governmental capacity, and the ECB remained Europe’s first line of defence in responding to the crisis. The Covid-19 crisis reiterated that ECB interventions are inadequate. Such interventions highlight that the European level can act effectively, but also that its governmental capacity is incomplete and asymmetric (and largely undemocratic). The creation of a European recovery fund seeks to some extent to rectify this. Regardless of its merits or shortcomings, this initiative expresses the view that ‘the crisis has underlined how important it is that the Union is able to react fast and flexibly to put in place

96 Benoît Cœuré, ‘Taking Back Control of Globalisation: Sovereignty through European Integration’ (Contribution to 2018 Schuman Report on Europe, Frankfurt am Main, 2018) accessed 7 April 2021. 97 Ibid. 98 On the notion of ‘the people of Europe’ in ECB discourses, see Lokdam (n 18).

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a coordinated European response’.99 It may not offer the kind of governmental apparatus associated with the US federal government, but it includes an important innovation in European economic government: the possibility of raising funds for public spending and investments through the issue of common debt. Such funds, furthermore, are to be channelled through the framework of the European Semester, thus allowing the Commission, in its own words, to ensure that the funds are used ‘to ensure convergence and a sustainable economic recovery. [Since c]arrying out reforms and investing in the EU’s common priorities, notably green, digital and social resilience will help create jobs and sustainable growth, while modernising our economies, and allow the Union to recover in a balanced, forward-looking and sustained manner.’100 The recovery fund, in other words, builds on eurozone crisis measures and reforms to shape and reshape member state economic policies and structures in response to the crisis. As such, while it does not go all the way, it is a further step down the road to European sovereignty as envisioned by Juncker and Macron. More than anything else, however, the response to the Covid-19 crisis highlights the increasing irrelevance of the neoliberal theory of federalism in prevalent understandings of the main problems facing the EU and the eurozone. The problems are not understood as resulting from a crisis of governmental overload—governments are not doing too much. The concern is, rather, to develop the governmental capacity necessary to address large-scale issues such as pandemics and climate change. Thus, while the response to the eurozone crisis in many ways pursued neoliberal policies using authoritarian means, the Covid-19 crisis response suggests that the governmental mechanisms introduced can be put to other uses. The transformation of the European governmental framework and its associated vision of European sovereignty, in other words, are ideologically open-ended in terms of policy outcomes. This in itself, however, means that the same is not the case in terms of the framework’s theory and ideology of public authority and public law: it is an ideology that emphasizes the need for activist public authority in bringing about politically decided outcomes. Thus, while the strengthening of the European centre may have targeted a streamlining of member state economic structures and practices along neoliberal lines, it represents a transformation of the EMU’s constitutional form that departs from the neoliberal theory of federal government. It opens space for the possibility of employing public powers at the European level for purposes other than those presently pursued (say, distributional equalization, corporate taxation, a ‘green new deal’). In its quest for economic convergence, furthermore, the European governmental apparatus ‘threatens’ to undermine one of the key structural elements that made comprehensive action at the European level so difficult both in practice and according to the neoliberal theory: the economic heterogeneity and diversity of the member states’ material constitutions. If successful in bringing about ‘true convergence’, in other words, the new EMU would, following Hayek’s logic, pave the way for the eurozone to emerge as an integrated and much more homogenous economy. This would, in 99 accessed 7 April 2021. 100 emphasis added, accessed 7 April 2021.

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turn, allow for the kind of ‘true agreement’ that makes the interventionist exercise of federal governmental powers possible—without reforming the decision-making procedures at the European level, that is. Whether the eurozone would in that case still be a federation is an open question. As Larsen notes, the basis of the federation is that the constituent parts are too alike to remain fully separate, but too different to subject themselves to a unitary constitution.101 One can, of course, only speculate on this, but ‘true convergence’ may provide the material constitutional basis for a more unitary (federal) state constitution, invested with the governmental capacity to radically transform the outlook of economic government in Europe and the possibility of reaching agreement on how to use it. Whether the same is true for the EU beyond the eurozone is another matter. ‘The future course of European integration depends on the answer’ to the question of sovereignty.102 Given the coexistence of centripetal and centrifugal forces in contemporary Europe, this is undoubtedly true. However, the question of sovereignty is not merely a question of legal and political form or kompetenz-kompetenz. It is as much a question of the ideology of governmental authority. The way in which the constitutional structure organizes the exercise of governmental power with regard to economic matters is unavoidably a matter with distinct ideological overtones. What it is possible to do through the use of public power is just as important, if not more so, than what is actually done for understanding the ideological shade of any constitutional regime. Public law can never be ideologically neutral. In the eurozone context, this represents a peculiar conundrum for progressive political imaginaries. Eurozone crisis reforms at both the member state and the European levels have been largely neoliberal and have taken place in emergency mode with little or no democratic input. The resulting centralization of governmental capacity, however, has created the possibility for eurozone-wide economic programmes that go in a very different direction. This is not to say that the reformed EMU necessarily produces progressive outcomes. It does not. What it does do is to shift the structural framework of economic policy-making from a modality of governing that relies on depoliticization and the ‘primacy of the market’ to one that is based on the ‘primacy of politics’. It allows for the political control of economic affairs. While this is not enough for a progressive politics to emerge, it has historically been a necessary condition for it.103 It is, after all, only through the exercise of coercive public power that any political control over society’s productive resources can be obtained. In other words, if a European progressive and green politics is to be possible, it may be necessary to embrace European sovereignty. The challenge is to make that sovereignty democratic.

101 102 103

Larsen (n 8) Chapter 4. Dieter Grimm, The Constitution of European Democracy (OUP 2017) 41. See Berman (n 44).

16

The Failure to Grapple with Racial Capitalism in European Constitutionalism Jeffrey Miller and Fernanda G Nicola

I. Introduction This article provides a critical analysis of EU–US comparative constitutional research. While the EU–US comparison provided a fertile meeting ground during the Cold War for scholars interested in questions involving the rule of law, separation of powers, and federalism, it was also a minefield due to the tainted history of slavery at the heart of the US Constitution.1 At a time when France and Belgium were still colonial powers, rather than comparing the history of slavery in the US with the history of European colonialism, the founders of the European integration project promoted the idea of a tabula rasa or ‘clean slate’ narrative after the horrors of the Nazi regime.2 By the 1960s, scholars viewed the newly formed European Economic Community as a break from, rather than a partial continuation of, Nazism, fascism, and colonialism.3 US constitutionalism may have supplied ‘a common vocabulary for the language of European integration’ and a ‘conceptual toolbox’ to understand the rulings of the European Court of Justice (ECJ).4 But on the whole, European legal scholarship has shown a much greater interest in borrowing abstract concepts and terminology than in studying the less-than-pristine ways in which these concepts have been put to practical use in the United States. As a result, while US jurists have had to come to terms with the concept of racial capitalism5 and with the failure of the separate-but-equal 1 See Michael Klarman, The Framers’ Coup: The Making of the United States Constitution (OUP 2016) and, for a more generous reading, Sean Wilents, No Property in Man: Slavery and Antislavery at the Nation’s Founding (HUP 2019). 2 See Kaius Touri, Empire of Law: Nazi Germany, Exile Scholars and the Battle for the Future of Europe 1, 8 (CUP 2020) (arguing that legal scholars, especially ones in exile after the Second World War, ‘wrote about the Europe of law as a hope and aspiration, arguing for the language of the rule of law, rights and reason against the language of blood and culture embraced by the nationalistic and totalitarian regimes such as Nazi Germany’). See also James Whitman, Hitler’s American Model (PUP 2017)(showing how Nazi racial laws were themselves inspired by American race laws and racial capitalism). 3 See Christian Joerges and Navraj Singh Chaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (Bloomsbury 2003); Peo Hansen and Stefan Johnsson, Eurafrica: The Untold History of European Integration and Colonialism (Bloomsbury 2014); Michel Erpelding, ‘International Law and the European Court of Justice: The Politics of Avoiding History’ 22 Journal of the History of International Law 446–71; Vera Fritz, Judges et avocats généraux de la Court de Justice de l’Union européenne (1952–1972) (Vittorio Klostermann 2018). 4 Giuseppe Martinico, ‘Reading the Others: American Legal Scholars and the Unfolding European Integration’ (2009) 11 European Journal of Law Reform 35. 5 See Oliver Cox, Caste, Class, & Race; A Study in Social Dynamics (Monthly Review Press 1948), defining racial antagonism as part of the class struggle because it developed within the capitalist system as one

Jeffrey Miller and Fernanda G Nicola, The Failure to Grapple with Racial Capitalism in European Constitutionalism In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0015

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doctrine,6 only a few scholars of European integration have attempted to trace the connection of authoritarian movements and white supremacist ideologies to Europe’s colonial past and capitalist foundations.7 This is important, we argue, because only by shedding light on Europe’s history of colonialism and racial differentiation inherent to capitalism can the project of integration continue towards a more inclusive, equal, and democratic constitutional settlement.8 Our contribution shows how influential scholars of European legal integration such as Eric Stein, Mauro Cappelletti, and Joseph H.H. Weiler provided important bridges between the two continents, but also contributed to the reproduction of a liberal legalist understanding of the evolution of US federal judiciary power as a neutral one. As a consequence, the dominant European constitutional law paradigm tends to marginalize the role of US states’ rights movements connected to racial subordination and economic inequality in the shaping of US federalism. A liberal legalist perspective, which places considerable confidence in the ability of judges to make wise decisions for the betterment of society,9 tends to downplay the fact that judicial law-making can lead (and has led) to the protection of slavery, the endorsement of segregation, and the entrenchment of laissez-faire and neoliberal policies—all with the imprimatur of the US Supreme Court’s judicial review power.10 This shortcoming runs in parallel with European law scholarship’s underappreciation of the role of Europe’s colonial past and a failure to grapple with racial capitalist dynamics that reinforced ethnic differentiations within the Community.11 While formally ending colonialism, the European founding fathers were also ‘securing its continuation’12 by of its fundamental traits. Cox explained: ‘Our hypothesis is that racial exploitation and race prejudice developed among Europeans with the rise of capitalism and nationalism, and that because of the world-wide ramifications of capitalism, all racial antagonisms can be traced to the policies and attitudes of the leading capitalist people, the white people of Europe and North America’ (Kindle locations 8327–29); for a full analysis of Cox’s book see accessed 25 May 2021. 6 See Nicholas Guyatt, Bind Us Apart: How Enlightened Americans Invented Racial Segregation (Basic Books 2019). 7 See Danny Nicol, The Constitutional Protection of Capitalism (Hart 2010); Bojan Bugaric, ‘The Two Faces of Populism: Between Authoritarian and Democratic Populism’ (2019) 20 German Law Journal 390–400. 8 See Aimée Césaire, Discourse on Colonialism (Monthly Review Press 1972). 9 See Laura Kalman, The Strange Career of Legal Liberalism (YUP 1996). 10 This partial reception of the US constitutional experience in Europe helps to explain why scholars, judges, and civil servants did not seriously engage with questions of states’ rights, slavery, and equal protection jurisprudence in the multi-volume Mauro Cappelletti, Monica Seccombe, and Joseph HH Weiler (eds), Integration through Law: Europe and the American Federal Experience (De Gruyter 1986). 11 Cedric J Robinson, Black Marxism: The Making of the Black Radical Tradition (UNC Press 1983), explaining its legacy as follows: ‘Capitalism was “racial” not because of some conspiracy to divide workers or justify slavery and dispossession, but because racialism had already permeated Western feudal society. The first European proletarians were racial subjects (Irish, Jews, Roma or Gypsies, Slavs, etc.) and they were victims of dispossession (enclosure), colonialism, and slavery within Europe. Indeed, Robinson suggested that racialization within Europe was very much a colonial process involving invasion, settlement, expropriation, and racial hierarchy.’ Robin D G Kelley, ‘What Did Cetric Robinson Mean by Racial Capitalism?’ Boston Review here accessed 25 May 2021. 12 See Peo Hansen and Stefan Jonsson (n 3) (showing how the project of ‘Eurafrica’ was very much alive during the Treaty of Rome negotiations) (1955–57).

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protecting and encasing new trade and investment regimes between the Community and its former colonies.13 This aspect of the evolution of European law is incongruent with the image of the Community as a tabula rasa and has received only limited attention by lawyers. However, after the 2008 financial crisis which led to blame being placed on the ‘lazy’ Greeks and the ‘industrious’ Germans having the final say on the European Central Bank’s bailouts, the fiction of eliminating ethnicities in the European Union has instead reinforced new forms of racisms14 and market hierarchies15 which are well entrenched in European racial capitalism.16 We do not intend to suggest, implicitly or otherwise, that a closer reading of US legal history would provide scholars with a clear roadmap out of the current EU legal crises. The US Supreme Court most certainly has not discovered the ‘magic bullet’ that definitively settles the tension between local and federal powers, overcomes the legacy of white supremacy, or manages to fully grapple with racial capitalism.17 Our contention is considerably more modest; namely, that the unvarnished record provides scholars with more useful insights than the selective version of US constitutionalism that prevails in much European legal discourse. In section II we turn our attention to the reception of US constitutionalism in Europe. The journey begins with Eric Stein’s contribution to the study of European Community law and narrates how, through his strategic friendship with Michel Gaudet, the director of the Commission’s Legal Services,18 Stein became a supporter of expanding the powers of the ECJ. Stein promoted an ambitious judicial constitutional 13

See Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (HUP 2018). See Dimitry Kochenov, Citizenship (MIT 2019); Ugo Mattei and Laura Nader, Plunder: When the Rule of Law Is Illegal (Wiley 2008). 15 See Damjan Kukovec, ‘Economic Law, Inequality and Hidden Hierarchies on the EU Internal Market’ (2016) 38 Michigan Journal of International Law 1. 16 See Walter Johnson, ‘To Remake the World Slavery, Racial Capitalism, and Justice’ (Boston Review, 2018) accessed 25 May 2021. 17 Despite the achievements of the Warren Court against racial discrimination, critical race scholars have provided important critiques of its Brown legacy. Derrick Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (OUP 2005). Today racial discrimination persists, especially against black men that come into contact with the criminal justice system. See Angela Davis, Policing the Black Man: Arrest, Prosecution, and Imprisonment (Pantheon 2019). In her New Jim Crow, Michelle Alexander powerfully demonstrated the pernicious effects of discrimination with respect to laws concerning convicted criminals and the war on drugs. See Michelle Alexander, New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press 2010), and on how the US still remains in deep denial of this situation, ‘The Injustice of This Moment Is Not an “Aberration” ’ (New York Times, 17 January 2020). In a similar way, Paul Butler shows how racial injustice continues to persevere in the criminal justice system. See Paul Butler, Chokehold: Policing Black Men (The New Press 2017). Among comparative lawyers, James Whitman has traced, through an intellectual and sociological history of the concept of dignity, the great disparity between US and European treatment of criminal offenders, which has resulted in the well-known disenfranchisement of the civil rights and liberties of large numbers of African-Americans. See James Q Whitman, Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe (OUP 2003).This literature shows with piercing clarity that despite the achievements vis-àvis anti-discrimination law, the US constitutional experience, especially when it comes to the criminal justice system, continues to have a disproportionately adverse impact on black lives. See Alicia Garza, ‘A History of the #BlackLivesMatter Movement’ (The Feminist Wire, 7 October 2014) accessed 21 May 2021; Patrisse Khan-Cullors, When They Call You a Terrorist: A Black Lives Matter Memoir (St. Martin’s Press 2018). 18 Julie Bailleux, ‘Michel Gaudet a Law Entrepreneur: The Role of the Legal Service of the European Executives in the Invention of EC Law and of the Common Market Law Review’ (2013) 50(2) Common Market Law Review 359–67. 14

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project for Community law in the footsteps of the Warren Court. Stein’s approach also set aside some of the US Supreme Court’s most infamous rulings,19 which still haunt the Court to this day.20 Because of the deep synergies between states’ rights and segregation policies supported by white supremacist ideologies in the US, Stein’s reluctance to engage with national resistances to federal power in Europe is perhaps understandable, but it had the consequence of presenting a rather skewed image of US constitutional law practice. Section III focuses on the European reception of US-style federal judicial review, and in particular on its liberal legalist understanding through the influential works of Mauro Cappelletti and Joseph H.H. Weiler. Because of what Duncan Kennedy calls the ‘legitimation effect’,21 scholars of European integration still promote judicial review as a neutral instrument in the hands of supranational judges dedicated to the protection of individual rights and the resolution of quasi-federal conflicts based on institutional competence arguments rather than the very interests they are contending within it.22 Frequently underestimated in European legal scholarship are the periods when the US federal judicial power promoted racial segregation, 23 did not adequately protect minority rights through equal protection doctrines,24 or endorsed freedom of contract to entrench laissez-faire policies.25 In the mid-1980s, the resurgence of states’ rights jurisprudence with the new federalism of the Rehnquist Court altered market deregulation through limits to the Commerce Clause.26 This new line of states’ rights jurisprudence was once again downplayed by European legal scholars focusing on US constitutionalism.27

19 See Dred Scott v Sandford, 60 U.S. 393 (1857) (in an opinion written by Justice Taney, the majority held that ‘a negro, whose ancestors were imported into [the US] and sold as slaves’, whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court). See also Korematsu v United States, 323 U.S. 214 (1944) (ruling that the evacuation order violated by Korematsu was valid. The majority found that the Executive Order did not show racial prejudice but rather responded to the strategic military imperative of the President). 20 See Trump v Hawaii 138 S. Ct. 2392 (2018) (commonly referred to as the ‘Travel Ban case’); Robert Tsai, ‘How Activists Resisted—and Ultimately Overturned—an Unjust Supreme Court Decision’(Washington Post, 30 January 2018) accessed 25 May 2021. 21 Duncan Kennedy, A Critique of Adjudication, Fin De Siècle (HUP 1997) (explaining how the legitimation effect in judicial law making is the attitude about social reality that the desirability for radical social change is replaced by a moderate reformist one). 22 Ibid 252 (showing how federalism meant the ‘withdrawal’ of the allocation of federal or state power from the political discussion). 23 See Plessy v Ferguson, 163 U.S. 537 (1896) (in which the US Supreme Court upheld the constitutionality of racial segregation laws for public facilities as long as these were ‘separate but equal’). 24 See Washington v Davis, 426 U.S. 229 (1976), (the Supreme Court held that that laws having a racially discriminatory effect but with a racially discriminatory purpose are valid under the Fourteenth Amendement). 25 See Lochner v New York, 198 U.S. 45 (1905), in which the Supreme Court held that a New York law limiting the working hours for bakers violated the Fourteenth Amendment of the US Constitution. 26 United States v Lopez, 514 U.S. 549, 549 (1995) (holding that the Federal Gun Free Zone Act of 1990 exceeded Congress’ authority under the commerce clause). 27 See Daniela Caruso, ‘E.U. Law in U.S. Legal Academia’ (2011) 20 Tulane Journal of International & Comparative Law 175, 182 (showing that the 1990s interest of some US constitutionalist scholars in the dynamics of European integration was partly due to the ‘Rehnquist effect’—ie to the fact that Europe’s seemingly apolitical federalism could shield the Rehnquist Court from its critics.)

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In section IV, we turn our attention to the consequences of setting aside the aspects of the US federal experience, such as states’ rights, that were synonymous with racial subordination and the entrenchment of economic inequalities. In either form, the constitutional doctrines of states’ rights were deemed irrelevant by scholars of European legal integration due to the fact that the ‘clean slate’ narrative could overcome racial subordination as ethnic differentiation characterizing the European Community. As powerfully described in Aimé Cesar’s Discourse on Colonialism, most scholars of European integration have avoided the obvious comparison between the US legitimation of slavery and the colonial and white supremacist ideologies at the root of the ‘Europe of Adenauer, Schuman and Bidault’.28 In this way, scholars unable to come to terms with racial capitalism could construe a European constitutional utopia in which the ‘Echoes of Empire’29 that were present since the Schuman declaration have been suppressed.30

II. The Legacy of Eric Stein in Constructing the European Vision of US Constitutionalism A. Judicial supremacy: From the Marshall to the Warren Court We begin with Eric Stein, author of the seminal article ‘Lawyers, Judges, and the Making of a Transnational Constitution’,31 and the person widely regarded as the main figure responsible for the ‘leading paradigm on the nature of European law’.32 In his 1981 essay, Stein argued that the ECJ had interpreted the founding treaties ‘in a constitutional mode rather than employing the traditional international law methodology’.33 As Boerger has shown in her extensive research, Stein’s life experiences are relevant to his approach to US constitutional law doctrines and how he applied these concepts to analyse Community law. Stein was born in 1913 into a Jewish family in Holice, a small town east of Prague, in what was then the Austro-Hungarian Empire. He received a classical civil law education at Charles University in Prague and was subsequently drafted into the Czech army. He served in the Czech infantry until March 1939, when the Nazis took control of the country and dissolved the Czech military. Stein fled Czechoslovakia in August 1939 and, after a harrowing journey, arrived in New York at the age of 26. In 1942, with financial assistance from his relatives, he graduated with a JD from the University of Michigan, and then proceeded to enlist in the US army. In 1946, Stein joined the US State Department’s newly formed Bureau of the United Nations, where he advised US representatives to the UN General Assembly and UN Security Council for nine years. 28

See Césaire (n 8) 37. See Kalypso Nicolaidis, Berny Sebe, and Gabrielle Maas (eds), Echoes of Empire: Memory, Identity and Colonial Legacies (Bloomsbury 2015). 30 See Peo Hansen and Stefan Jonsson, ‘Euroafrica Incognita: The Colonial Origins of the European Union, History of the Present’ (2017) 7(1) History of the Present 1–32. 31 Eric Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1–27. 32 Anne Boerger, ‘At the Cradle of Legal Scholarship on the European Union: The Life and Early Work of Eric Stein’ (2014) 62 The American Journal of Comparative Law 859, 861. 33 Stein (n 31) 1. 29

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Stein followed the European integration process from its earliest days. His article ‘The European Coal and Steel Community: The Beginning of Its Judicial Process’ was the first English-language publication on the topic. In the same year it was published (1955), he joined the faculty of the University of Michigan Law School. As Boerger explains, Stein’s turn to European law coincided with his dissatisfaction with international law’s potential to ensure world peace.34 In A Quiet Revolution,35 Weiler, who became a law professor at the University of Michigan ‘thanks in part to the unconditional support of Stein’,36 observed that the intellectual voyage from international law to EC law was typical for the first generation of scholars of European integration.37 The Cold War was an inauspicious period for the construction of an international legal system. By contrast, Community law and the ECJ were everything that an international lawyer could dream about: The Court was creating a new order of international law in which norms were norms, sanctions were sanctions, courts were central and frequently used . . . Community law, as transformed by the ECJ, was an antidote to the international legal malaise.38

Stein’s path-breaking reconceptualization of Community law continues to influence EU legal scholarship to this day, but his work was by no means neutral or detached. For very understandable reasons, Stein had a clear vision of what he wanted the Community to become. And for the Community to achieve its potential as a peaceenhancing alternative to international law, it was essential that the ECJ gain power over state sovereignty and establish itself as the unquestioned highest authority in its jurisdiction. Stein’s image of an authoritative and centralized supreme court appears to be heavily influenced by the nineteenth-century jurisprudence of Chief Justice John Marshall.39 In the 1803 case of Marbury v Madison, the Marshall Court established the 34 Boerger (n 32) at 869 (‘Stein had grown deeply disillusioned by the shortcomings of the United Nations, which by then had proved incapable of unifying the world under the rule of law. Like others in the immediate postwar years, Stein had initially embraced his job at the Bureau of the United Nations with some sort of missionary zeal and the hope that the new organization would prevent conflicts and atrocities similar to ones that had just destroyed his own family. When the Cold War set in and prevented any progress, he grew increasingly frustrated. As he recalled much later, he was however ‘not (yet) prepared to accept the idea that law and institutions were irrelevant in the international system.’ As a result, studying the innovative legal and institutional developments in Europe somehow offered an attractive alternative, fulfilling both his need to help build a more united world and his tacit but deeply-rooted desire to keep in touch with his European background’) (internal citations omitted). 35 Joseph HH Weiler, ‘A Quiet Revolution: The European Court of Justice and Its Interlocutors’ (1994) 26 Comparative Political Studies 510–34. 36 Boerger (n 32). 37 The scholarly shift from international law to European Community law was a common route, but not the only one. The early generation of European Community lawyers also included researchers from the fields of business law, private international law, and comparative law. Our thanks to Jan Komárek for helpfully commenting on this. 38 Joseph HH Weiler (n 35) 530–1. 39 John Marshall served as the Chief Justice of the US Supreme Court from 1801 to 1835. During Marshall’s tenure, the power and prestige of the US Supreme Court grew considerably. Today Chief Justice Marshall’s record has been reconsidered in upholding the institution of slavery: see Paul Finkelman, Surpreme Injustice: Slavery in the Nation’s Highest Court (HUP 2018).

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principle of judicial review, which empowered it to strike down federal legislation that conflicted with the US Constitution.40 In McCulloch v Maryland, the Supreme Court ruled that a state tax levied on a federal bank incorporated by the government under the Necessary and Proper Clause was unconstitutional.41 In Martin v Hunter Lessee,42 Justice Story justified through popular sovereignty the Supreme Court’s judicial authority to strike down unconstitutional state laws to maintain national uniformity. In these, and many lesser-known decisions consolidating federal judicial supremacy,43 advocates for states’ rights suffered a series of setbacks thanks to a cautiously interventionist Supreme Court. 44 The philosophy of natural law deeply influenced the drafters of the US Constitution.45 In Federalist no. 78, Hamilton provided a very convincing picture of the federal courts as institutions without a ‘will’ and composed of a body of independent judges, professionally trained with life-tenure appointments. The Founding Fathers’ emphatic affirmation of the principles of fundamental law gave the Constitution, as Robert McCloskey put it, its ‘odor of sanctity’ and allowed the Supreme Court to assume a ‘priestly mantle’.46 The ‘least dangerous branch’, according to Hamilton, was exactly what Chief Justice Marshall was planning to achieve in Marbury v Madison. In establishing the power of judicial review of the US Supreme Court, the justices interpreted the US Constitution within the boundaries established by fundamental law. But in practice, they too carried out their obligations within the boundaries of what ‘popular opinion would tolerate’.47 The justices knew very well they could not become completely detached from what the people would accept. The other more recent influence on Stein was the legacy of the Warren Court (1953–69), led by the progressive former California governor Chief Justice Earl Warren.48 By the time Stein had received his law degree, the US Supreme Court had long overruled its laissez-faire jurisprudence49 and the New Deal settlement had allowed newly elected justices to grant Congress greater leeway to regulate market activities, going as far as to authorize federal regulation of wheat grown on a local farm for local consumption.50 While limiting its judicial scrutiny for individual economic 40

Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803). McCulloch v Maryland, 17 U.S. (4 Wheat.) 316 (1819) relying on the Necessary and Proper Clause or elastic clause of Article I, Section 8 of the U.S. Constitution. 42 See Martin v Hunter Lessee, 14 U.S. (1 Wheat.) 304 (1816). 43 See Chisholm v Georgia and Barron v Baltimore (Chief Justice Marshall’s cautious attempt to address the nation-state relationship in favour of a ‘consolidated national union’); Robert G McCloskey, The American Supreme Court 6th edn (revised by Sanford Levinson, University of Chicago Press 2006) 22); and for a comparison between this early SCOTUS jurisprudence and the ECJ see Leslie F Goldenstein, Constituting Federal Sovereignty: The European Union in Comparative Context (Johns Hopkins University Press 2001). 44 McCloskey (n 43). 45 Edward S Corwin, ‘The “Higher Law” Background of American Constitutional Law’ (1929) 42 Harvard Law Review 365–409. 46 McCloskey (n 43) 8. 47 Ibid 9. 48 See Lucas A Powe Jr, Warren Court and American Politics (Belknap Press 2001); G Edward White, Earl Warren: A Public Life (OUP 1982); Morton Horwitz, The Warren Court and the Pursuit of Justice (Hill and Wang 1999); Ed Cray, Chief Justice: A Biography of Earl Warren (Simon and Schuster 2008). 49 See Nebbia v New York, 291 U.S. 502 (1934). 50 See Wickard v Filburn, 317 U.S. 111 (1942), and for a critical view of the elitist judicial supremacy created by the Warren Court at the expense of popular constitutionalism, see Larry D Kramer, ‘Foreword, We the Court’ (2001) 115(5) Harvard L Rev 122; see generally Lucas A Powe Jr (n 48) 5–6. 41

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rights,51 in 1938 the Carolene Products Court, in its famous footnote four, suggested it would undertake more rigorous judicial scrutiny when the civil liberties or civil rights of minorities were threatened due to an inability to access equal benefits.52 When Stein began his career at Michigan Law School, the US Supreme Court ‘was a Court of gods—Black, Douglas, Warren—hurling thunderbolts to start our cultural revolutions’.53 In 1954, in Brown v Board of Education, Chief Justice Warren famously affirmed that ‘in the field of public education the doctrine of “separate but equal” has no place’.54 In Gideon v Wainwright, Warren worked hard behind the scenes to reach another unanimous ruling that, under the Sixth Amendment, required states to provide the right to counsel to defendants who were unable to afford a lawyer in criminal cases.55 In Warren’s 5–4 Miranda v Arizona majority opinion, the Court held that the Fifth Amendment required that law enforcement officials advise suspects of their right to remain silent and to obtain an attorney during interrogations while in police custody.56 Finally in 1967, Warren wrote another unanimous opinion, Loving v Virginia, that struck down a state law prohibiting inter racial marriage in violation of the Equal Protection and Due Process clause of the Fourteenth Amendment.57 Such jurisprudence was rightly praised for rendering illegitimate the prevalent mechanisms and practices of racial discrimination. In retrospect, critical race scholars such as Derrick Bell have shown the failures for black youths of the judicial integrationist ideal,58 while Sheila Foster pointed out how the notion of ‘racial agency’ was ‘lost in the translation of specific claims of racial injustice into abstract constitutional principle’.59 Living, as Stein did, through a period when the Warren Court made marked advances in ‘the constitutional guarantee of equality between races, between voters, and between criminal defendants’,60 it is not surprising that he invested much of his considerable intellectual and organizational talents in pursuit of the ‘constitutionalization’ of European Community law and the expansion of judicial supremacy while omitting the tainted history of the states’ rights and popular sovereignty jurisprudence.61

51 West Coast Hotel v Parrish 300 U.S. 379 (1937) (the Supreme Court upheld a minimum wage law for women holding that liberty of contract is a subset of liberty that could be limited by public interest). 52 See United States v Carolene Products Company, 304 U.S. 144 (1938). 53 See accessed 25 May 2021. 54 Brown v Board of Education, 347 U.S. 483 (1954). 55 Gideon v Wainwright, 372 U.S. 335 (1963). See Yale Kamisar, ‘How Earl Warren’s Twenty-Two Years in Law Enforcement Affected His Work as Chief Justice’ (2005) 3 Ohio State Journal of Criminal Law 11–32. 56 Miranda v Arizona, 384 U.S. 436 (1966). 57 Loving v Virginia, 388 US 1 (1967). 58 Derrick A Bell, Jr, ‘Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation’ (1976) 85 Yale Law Journal 470. 59 See Sheila Foster, ‘Race, Agency, and Equal Protection: A Retrospective on the Warren Court’ in Harry N Scheiber (ed), Earl Warren and the Warren Court: The Legacy in American and Foreign Law (Lexington Books 2007). 60 See William F Swindler, ‘The Warren Court: Completion of a Constitutional Revolution’ (1969) 23 Vanderbilt Law Review 205, 206. 61 For a critical view of the elitist judicial supremacy created by the Warren Court at the expense of popular constitutionalism, see Larry D Kramer, ‘Foreword, We the Court’ (2001) 115(5) Harvard Law Review 122 and the more cautious response by Robert Post and Reva Siegel, ‘Popular Constitutionalism, Departmentalism, and Judicial Supremacy’ (2004) 92 California Law Review 1027.

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B. Stein’s strategic omission of states’ rights The delegates who drafted the US Constitution are often celebrated for producing a document that managed to win the support of a diverse group of states and statesmen, but as McCloskey memorably puts it: ‘this congenial result had been achieved not only by compromise but by forbearance.’62 Indeed, the US Constitution was so openended that genuine uncertainty existed in 1790 as to whether the document had created a league of sovereign states or a new nation. As states’ rights advocates repeatedly stressed from the period of the Marshall Court onward, had the Founding Fathers intended for the US Supreme Court to wield a tool as powerful as judicial review, it is odd that they should have granted it in such an oblique manner, rather than forthrightly.63 In truth, the US Supreme Court’s rulings on the relationship between federal and state powers are non-coherent, and they remain politically contested to this day. Legal historians have highlighted how ideological shifts discernable in US constitutionalism tilt it either in favour of a federal plenary power or in favour of states’ rights. Thomas Jefferson, the principal author of the Declaration of Independence,64 who was deeply influenced by the French revolutionary experience, was the period’s foremost advocate for popular sovereignty. For Jefferson, the states provided the most effective safeguard of the nation’s freedoms and self-rule, and the US Supreme Court had shamelessly exceeded its mandate. When the US Supreme Court decided, in Chisholm v Georgia (1793),65 that for the purposes of the Union ‘Georgia is not a sovereign state’, Congress promptly passed the XI Amendment, which overrode the Court’s ruling and placed the states on a stronger footing vis-à-vis the federal courts.66 Popular sovereignty acted at the same time as a source of legitimacy and a counterweight to judicial governance. Surely Stein was well aware of this, but his work hardly explored the Jeffersonian perspective. As Boerger shows, Stein’s Bellagio grant to study the role of courts in building common markets became controversial because the ‘undertaking clearly bore a political overtone’.67 Even Stein’s friend, and well-known comparative law scholar, Otto Kahn-Freund began to doubt the scientific method behind Stein’s project, which aimed to demonstrate how the highest courts in both the US and Europe 62 McCloskey (n 43). As the author explains, the Constitution set forth important principles about which there was no serious disagreement among the colonists, but ‘weightier difficulties that might have prevented ratification were either left severely alone by the Founding Fathers or treated in ambiguous clauses that passed the problems on to posterity’. 63 Ibid, explaining that the US Constitution did not clearly provide the US Supreme Court with superior authority over state supreme courts and that a close reading of the text leaves questionable whether the US Supreme Court has the power to strike down national legislative acts inconsistent with the US Constitution. 64 Melvin I Urofsky, ‘Thomas Jefferson and John Marshall: What Kind of Constitution Shall We Have?’ (2006) 32 Journal of Supreme Court History 109, 117, explaining that Jefferson was Chief Justice Marshall’s third cousin once removed and ‘went to his grave believing that Marshall and his colleagues on the Supreme Court were evil, a gang . . . hell-bent on sabotaging the republican government from within’. 65 See Chisholm v Georgia, 2 U.S. (2 Dall.) 419 (1793) here the Supreme Court held that Article 3, Section 2, of the Constitution abrogated the states’ sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and states. 66 McCloskey (n 43) 65. 67 Boerger (n 32) 883.

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represented the most ‘federalist constitutional organ’.68 In highlighting the correspondence between these two scholars, Boerger shows that Khan-Freund was worried that Stein would dismiss too easily the ‘centrifugal forces, the resistances, the great power and the strong case of our “Jeffersonian” of 1979’.69 Indeed, the work of the new European legal historians70 has shed light on Jeffersonian attitudes in Europe through national resistances to European legal integration and to ECJ judicial governance, emanating not only from domestic courts but also from executive branches of governments, diplomatic circles, and the media.71 For instance, historians have traced the resistance of the Gaullistes in France at odds with Christian Democratic politicians such as Jacques Delors72 in their attempt to limit preliminary references to the ECJ.73 In 1979 the National Assembly had to intervene to require domestic courts to accept the hierarchy of EC law over French national law.74 In the Italian and German realms, the resistance was prominent in the early 1970s, spearheaded by Constitutional Court decisions such as Frontini75 and Solange,76 which asserted the predominance of domestic courts as the ultimate defenders of fundamental rights. It might be a stretch to equate US popular sovereignty and the states’ rights jurisprudence of the US Supreme Court to the early national resistances in EU law. The latter were triggered by national constitutional courts seeking to affirm the relevance of fundamental rights against the ECJ77 and by domestic judiciaries revamping their national legal traditions.78 Nevertheless, it appears reasonably clear that Stein was not eager to recognize the legitimacy of the early opposition expressed by political and legal elites to the creation of a supranational legal order.79

68

Ibid 884. Ibid. 70 See Morten Rasmussen, ‘Towards a New History of European Law’ (2012) 21(3) Contemporary European History 305–18. 71 Bill Davies, Resisting the European Court of Justice: West Germany’s Confrontation With European Law, 1949–1979 (CUP 2012) 72 See Alexandre Bernier, La France et le droit communautaire 1958–1981: Histoire d’une réception et d’une co-production (PhD dissertation, University of Copenhagen, 2018). 73 Vera Fritz, ‘The First Member State Rebellion? The European Court of Justice and the Negotiations of the “Luxembourg Protocol” of 1971’ (2015) 21(5) European Law Journal 680–99. 74 Morten Rasmussen, ‘How to Enforce European Law? A New History of the Battle over the Direct Effect of Directives, 1958–1987’ (2017) 23 European Law Journal 3–4, 290–308. 75 Frontini case, Italian Constitutional Court Sentenza n. 183 (18 December 1973). 76 Solange I, Internationale Handelsgesellschaft von Einfuhr- und Vorratsstelle für Getreide und Futtermittel, decision of 29 May 1974, BVerfGE 37, 271 (1974). 77 See Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case 11/70), EU:C:1970:114, [1970] and Bill Davies, ‘Internationale Handelsgesellschaft and the Miscalculation at the Inception of the CJEU’s Human Rights Jurisprudence’ in Bill Davies and Fernanda Nicola (eds), EU Law Stories: Contextual and Critical Histories of European Jurisprudence (CUP 2017) 157. 78 See Fernanda G Nicola, ‘National Legal Traditions at Work in the Jurisprudence of the Court of Justice of the European Union’ (2016) 64 The American Journal of Comparative Law 865–89. 79 See Morten Rasmussen and Dorte Sindbjerg Martinsen, ‘EU Constitutionalization Revisited: Redressing a Central Assumption in European Studies’ (2019) 25 European Law Journal 3. 69

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III. Mauro Cappelletti and Joseph Weiler’s Vision of Judicial Review This section engages with the contributions of Mauro Cappelletti and Joseph H.H. Weiler to the European image of US-style judicial review. We argue that, in a manner analogous to Stein, who advocated for ECJ supremacy and downplayed US states’ rights movements, Cappelletti and Weiler exported to Europe a judicial review utopia—one which drew on the US experience, but side-stepped the political explosiveness that has regularly beset US Supreme Court judicial review in practice. By deploying the fiction of judicial neutrality, European law scholars advanced a more attractive blueprint for European legal integration than the US historical record actually offered.

A. Neutral judicial review as liberal legalism In 1971, Cappelletti published Judicial Review in the Contemporary World, a short but highly influential book that traced the spread of judicial review from the United States to much of the rest of the world.80 Through his book and later publications, Cappelletti presented judicial review as the ultimate safeguard of fundamental values against majoritarian political institutions.81 In a recent publication that builds on and extends Cappelletti’s work, Doreen Lustig and Weiler observe that Cappelletti viewed judicial review as an ‘unqualified public good’82 and courts ‘as the most efficient guarantee for the effectiveness and enforcement of ’ individual rights and liberties.83 In Cappelletti’s view, the revival of judicial review in Europe was a logical reaction to fascism and the Second World War, which ‘demonstrated the horrendous potential for tyranny, even majority tyranny, of governments not subject to constitutional restraint’.84 Cappelletti readily acknowledged that judicial review was not implemented in the same way in every country, but he identified a cross-European consensus that unchecked parliamentary sovereignty had the potential to pose an existential threat to democratic governance. Cappelletti was not only a proponent of judicial review in general terms. He also made it quite clear that he saw the ECJ, rather than the member state courts, as the

80 See, eg Mauro Cappelletti, Judicial Review in the Contemporary World (Bobbs-Merrill 1971) (detailing how judicial review spread from the United States to many countries around the world). 81 Mauro Cappelletti and David Golay, ‘Judicial Review, Transnational and Federal: Its Impact on Integration’, EUI Working Paper No. 4 (September 1981). 82 Doreen Lustig and Joseph HH Weiler, ‘Judicial Review in the Contemporary World—Retrospective and Prospective’ (2018) 16 International Journal of Constitutional Law 315, 316. For a critique of this work, see Mila Versteeg, ‘Understanding The Third Wave of Judicial Review: Afterword to the Foreword by Doreen Lustig and Joseph H. H. Weiler’ (2019) 17 International Journal of Constitutional Law 1, 10 (arguing that the authors seem unwilling to seriously entertain the possibility that domestic courts are closely examining international legal norms, not because they are detached, neutral arbiters in search of higher truths but, rather more prosaically, because they are bending to social and political pressure). 83 Lustig and Weiler (n 82) 316. 84 Cappelletti and Golay (n 81) 16.

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proper institution to entrust ‘the ultimate judicial authority in the Community as regards questions of fundamental rights’.85 In The Transformation of Europe, Weiler weaves a complementary theme into his own work, asserting that the constitutionalization of EU law was undoubtedly aided by ‘that deep-seated legitimacy that derives from the mythical neutrality and religious-like authority with which we invest our supreme courts’.86 Faith in the power of judicial review as a superior arbiter defending individual rights or solving institutional conflicts without engaging with the underlying political economy and racial capitalism goes hand in glove with faith in the ability of judges to make rulings in a fair and impartial manner. US legal realism has revealed the untold implications and ideologies disguised under liberal legalism in the rulings handed down during the Gilded Age by a Supreme Court that benefited property owners and business elites united by a common laissezfaire ideology.87 Due to its low legitimacy in the aftermath of Dred Scott,88 the Supreme Court focused strictly on questions of economic control rather than racial emancipation while endorsing liberal legalism and its abstract legal reasoning. As early as 1873 in the Slaughter-House Cases,89 the plaintiffs’ lawyers made a creative argument using the Fourteenth Amendment, which was intended to eliminate racial subordination, to instead protect any person against state laws that would ‘deprive any person of life, liberty and property, without due process of law’.90 The US Supreme Court gradually accepted the liberal notion that liberty of contract was enforceable as an individual right under the due process clause of the Fourteenth Amendment.91 A few years later, the US Supreme Court was ready to interpret the notion of freedom of contract as derived directly from Herbert Spencer.92 The Court reached the apex of its laissez-faire jurisprudence in Lochner v New York, which held that the freedom of contract was under substantive due process a limit to the valid exercise of states’ police powers.93 Justice

85

Cappelletti and Golay (n 81) 79–80. Joseph HH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403, 2426–30; Joseph HH Weiler, ‘A Quiet Revolution: The European Court of Justice and Its Interlocutors’ (1994) 26 Comparative Political Studies 510–34. 87 See Marvin B Becker, The Emergence of Civil Society in the Eighteenth Century: A Privileged Moment in the History of England, Scotland and France (Indiana University Press 1994). 88 Ibid, and in hindsight Dred Scott seemed stunningly self-destructive. ‘In the 1850s the Court enjoyed popular support as nearly unanimous as can ever be expected in a diverse democratic society’, notes McCloskey (n 43); ‘eight years later, it had forfeited that position, and its role in the American polity was nearly negligible’. 89 See Slaughter-House Cases, 83 U.S. 36 (1873), in which the dissenters Justices Joseph Bradley and Stephen Field argued that the Fourteenth Amendment protects the right to pursue an occupation free from unreasonable government interference. 90 See U.S. Const. amend. XIV. In the Slaughter-House Cases a group of butchers argued that a highly corrupted legislature in Louisiana adopted a law granting an economic monopoly without obvious public policy reasons. As a result, the butchers claimed that such law violated their occupational freedom. Even though the Court did not side with the butchers, the path was open for lawyers to deploy the Fourteenth Amendment to protect individual rights as a substantive due process guarantee embedding the principle of laissez-faire against economic legislation in Constitutional interpretation. Robert McCloskey (n 43) 79. 91 See Duncan Kennedy, The Rise and Fall of Classical Legal Thought (Beard Books 1972). 92 Robert McCloskey (n 43) 88, showing how in Allgeyer v Louisiana, 165 U.S. 578, in 1897, the Court for the first time invalidated a state law violating of liberty of contract. 93 See Lochner v New York, 198 U.S. 45 (1905) in which the Supreme Court held that a New York law limiting the working hours for bakers violated the Fourteen Amendment of the US Constitution. In his opinion, Justice Peckham held that in the absence of evidence that the hours law protected public health, or 86

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Oliver W. Holmes’s dissent rejected the notion of freedom of contract as a displacement of the basic notion that states had the power to regulate the economy. Instead he famously explained that the Constitution should not embody any particular economic theory and that general propositions should not decide concrete cases.94 In his review essay ‘Why Read The Transformation of Europe Today?’, Komárek expresses scepticism about Weiler’s characterization of European courts as catalysts for change. For Komárek, Transformation is an article ‘about Europe’, but ‘embedded in the American culture of liberal legalism that had been dominant at law schools in the United States until the mid-1980s’. In particular, it ‘exhibits the trust in courts (especially the ECJ) similar to that of [American] legal liberals’.95 This proposition led Weiler to overestimate the transformative power of European courts as detached from the socio-economic struggles dividing the Community along the North–South and, later on, the East–West cleavage. Far from playing an ‘exalted role’ in the integration of EU law, Komárek argues that the European courts of the 1960s and 1970s were nothing more than institutional players, engaged in mundane, bureaucratic tasks: ‘There was nothing mystical or religious about them’, he concludes. While we agree with Komárek’s view, our task is to stress how Weiler’s communitarian philosophy, focusing on popular sovereignty and the lack of a European demos, was struggling with figuring out ways ahead for a Community as legitimated by its people.96 Living in the US under the legacy of the Rehnquist Court, Weiler was not committed, as Stein was, to the form of US constitutional law interpretation that was espoused by ‘his’ US Supreme Court. To the contrary, he distanced himself from the Rehnquist Court and avoided reference to contemporary state rights’ doctrines when he addressed US-style judicial federalism.

B. Downplaying the states’ rights jurisprudence of the Rehnquist Court Indeed, during the time period when Weiler was invoking a liberal legalist image of the ECJ and judicial federalism as a way to resolve institutional competence conflicts without engaging with the underlying political economy implications of federal adjudication, the Rehnquist Court was transforming US federalism. The Rehnquist Court was reinterpreting states’ rights in ways that were strongly opposed by liberals and praised by conservatives, also looking at Europe as a model for states’ rights.97 that the jobs of bakers were in need of adequate regulations due to health reasons, the New York law constituted an unjustified interference with individual liberty of contract. 94 Ibid 89, showing how by 1917 the Supreme Court had upheld labour reforms, including workers’ compensation laws and minimum wages and hours for all industrial workers, that severely undermined the doctrine of freedom of contract. 95 See Jan Komárek’s chapter in this volume, 132–33. 96 See Joseph HH Weiler, ‘Europe’s Sonderweg’, Harvard Jean Monnet Working Paper 2001, and for a response see Peter L Lindseth, ‘Delegation is Dead, Long Live Delegation: Managing the Democratic Disconnect in the European Market-Polity’ in Christian Joerges and Renaud Dehousse (eds), Good Governance in Europe’s Integrated Market (OUP 2002). 97 See Richard H Fallon, ‘The “Conservative” Paths of the Rehnquist Court’s Federalism Decisions’ (2002) 69 University of Chicago Law Review 429; Ernest A Young, ‘The Rehnquist Court’s Two Federalisms’

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In the same year that Weiler published Transformation, David Day described the US Supreme Court in unabashedly political terms: [T]he concept of federalism is a major doctrinal concern of the Rehnquist Court. After all, on the political level federalism has had close attachment to the Republican party and its recent domination of the Presidency. On the level of judicial doctrine, the modern federalism concept has provided a supportable and convenient vehicle for the conservative retrenchment of various constitutional doctrines.98

The Rehnquist Court used its power of judicial review to strike down a federal law designed to regulate gun possession in school zones,99 concluded that the federal government could not compel state officers to administer background checks on prospective handgun owners,100 and ruled unconstitutional a law that provided a federal civil remedy for gender-based violence, arguing that Congress’ act threatened ‘to completely obliterate the Constitution’s distinction between national and local authority’.101 As scholars of US constitutional law and EU law, the most glaring omission we find in most European legal scholarship on US-style judicial review are the many instances when US courts failed to protect minorities from the tyranny of the majority. The US Supreme Court has suffered its fair share of crises of legitimacy, many of which have been precipitated by controversial judgments involving race relations and state rights. The Dred Scott Court endorsed slavery; the Plessy Court sided with racial segregationists and white supremacy ideology. These, and other decisions that comprise the so-called anti-canon of US constitutional law, will remain blights on the institution for as long as it exists. To take just one particularly egregious example, consider Dred Scott, which is broadly understood among US constitutional scholars and political scientists as the nadir of the US Supreme Court’s legitimacy.102 The legacy of Dred Scott still haunts the Court to this day. In Obergefell v Hodges,103 the Court held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In his dissent, Chief Justice Roberts accused the majority of failing to uphold the principle of judicial restraint, leaving such decisions to the legislative branch or to the states—just as it had failed, with disastrous consequences, in Dred Scott.

(2004) 83 Texas Law Review 1–165; Ernest A Young, ‘What Can Europe Tell Us about the Future of American Federalism?’ (2017) 49 Arizona State Law Journal 1109–40. 98 David S Day, ‘The Rehnquist Court and the Dormant Commerce Clause Doctrine: The Potential Unsettling of the Well-Settled Principles’ (1991) 22 University of Toledo Law Review 675. 99 United States v Lopez, 514 U.S. 549, 549 (1995) (holding that the ‘Gun Free Zone Act of 1990’ exceeded Congress’ authority under the commerce clause). 100 Printz v United States, 521 U.S. 898, 933(1997). 101 United States v Morrison, 529 U.S. 598, 615 (2000). 102 There is, however, a small body of revisionist literature that argues that the decision was a centrist opinion. See, eg, Mark A Graber, ‘Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory’ (1997) 14 Constitutional Commentary 271; Mark A Graber, ‘Dred Scott as a Centrist Decision’ (2004) 83 The North Carolina Law Review 1229. 103 Obergefell v Hodges, 576 U.S (2015).

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Legitimacy is a precious commodity for the ‘least dangerous branch’.104 Its independence is precarious—contingent on the support, or at a minimum the assent, of the public and the other branches. It is also fallible in entrenching economic inequalities and failing to grapple with racial capitalism. At times it has risen to the occasion, boldly protecting minority rights and fundamental values, but such task, depending on the judicial elites in power and the relevant socio-economic struggles, has not always proved capable of carrying out the august role that Cappelletti and Weiler have assigned to judicial review.

IV. The Adverse Consequences of Europe’s Dominant Constitutional Paradigm The failure to grapple with racial capitalism as racial differentiation and subordination in capitalist societies created an inadequate framework to address Europe’s post-war colonial legacy. Indeed, such a reckoning was, to European politicians and scholars alike, almost antithetical to the axiomatic fiction that Community law was created from a tabula rasa after the Second World War. In truth, Europe’s economy was solidly grounded in racial capitalism—the notion that racial differentiation would start in the West where the fabrication of whiteness began at the same time that capitalism emerged so that the two produced ‘racial capitalism’, a system able to justify slavery, violence, and imperialism.105 This is because, as Cedric J. Robison explains, at the very same time that European labour was ‘herded into a newly formed industrial order’, African labour was globalized by the slave trade and incorporated in modern forms of production through racial subordination and exploitation.106

A. The suppression of racial capitalism in European constitutionalism International lawyers have shown how racial capitalism allowed the Spanish crown to appropriate and sell Africans though the Atlantic slave trade.107 The literature produced by radical black Marxists since the 1950s is abundant and re-tells a story of the industrial revolution and the rise of the nineteenth-century bourgeoisie through the lens of racial capitalism.108 More recently legal historians have carefully shown how 104 In Federalist 78, ‘The Judicial Department’, Alexander Hamilton provided a very convincing picture of the federal courts as institutions without ‘will’ and composed of a body of independent judges, professionally trained, with life-tenure appointments. 105 See Robin DG Kelly, ‘Foreword’ in Cedrick J Robinson, Black Marxism: The Making of the Black Radical Tradition (University of North Carolina Press 2000). 106 Ibid xiv. 107 See Liliana Obregon, ‘Empire, Racial Capitalism and International Law: The Case of Manumitted Haiti and the Recognition Debt’ (2018) 31 Leiden Journal of International Law 597; Marti Koskenniemi, ‘Empire and International Law: The Real Spanish Contribution’ (2011) 61 University of Toronto Law Journal 36; Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005). 108 Robinson and Kelley (n 105); Cedrick J Robinson, On Racial Capitalism, Black Internationalism, and Cultures of Resistance (Black Critique) (Pluto Press 2019); WEB Du Bois, Black Reconstruction in

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the wealth accumulated through slave labour in cotton and tobacco industries during the industrial revolution was capitalized and securitized in the New York and London stock exchanges.109 But rather than view this process as racial capitalism, the European founding fathers addressed it as part of their strategy to promote African economic development. The Schuman declaration of 9 May 1950, the founding document of the Coal and Steel Community, ends not only with the need to secure peace but also with the following sentence: ‘With increased resources Europe will be able to pursue the achievement of one of its essential tasks, namely, the development of the African continent.’110 Rather than openly engaging with racial capitalism as a central reason for the exploitation of the African continent, the notion of how Europe should contribute to ‘African development’ remerges today in the Commission’s Trade for All agenda.111 The document effectively dismisses racial capitalism and the trade and migration effects of its colonial legacy.112 The newly formed Commission committed to promoting a European Way of Life appears unprepared to acknowledge Europe’s role in promoting racial capitalism and its link to the rise of right-wing populist leaders with xenophobic traits in Hungary, Poland, and Italy.113 The idea that Europe’s colonial past justifies more generous migratory policies or redistribution through trade agreements with Europe’s former colonies enjoys little to no political support. To the extent that race remains on the agenda, politicians and scholars confine it, implicitly, to trade agreements114 and policies to address illegal immigrants at the borders.115 The relationship between racial structures and the accumulation of wealth and power in Europe similarly attracts relatively little attention in European law scholarship. The few exceptions include Eddie Bruce-Jones, who has linked institutional racisms to Europe’s colonial past;116 Iyiola Solanke, who has traced the deeper psychological roots of racial discrimination to theories of stigma;117 and scholarship that has shown how racism and ethnic differentiation are deeply entrenched in Europe’s

America: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–1880 (Routledge 1935). 109 Edward E Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (Basic Books 2014); Sven Beckert, Empire of Cotton: A Global History (Vintage 2015). 110 See Robert Schuman, Schuman Declaration of May 9, 1950. 111 See ‘Trade for All: The New Trade and Investment Strategy’ (2015) accessed 25 May 2021. 112 See Walter Rodney, How Europe Underdeveloped Africa (Bogle-L’Ouverture Poublications 1972). 113 See Kim Lane Scheppele, ‘Autocratic Legalism’ (2018) 85 University of Chicago Law Review, 545. 114 See Daniela Caruso, ‘Non-Parties: The Negative Externalities of Regional Trade Agreements in a Private Law Perspective’ (2018) 59 Harvard International Law Journal, 389; Daniela Caruso and Joanna Geneve, ‘Melki in Context: Algeria and European Legal Integration’ in Davies and Nicola (n 77). 115 See E Tendayi Achiume, ‘The Postcolonial Case for Rethinking Borders’, Dissent (Summer 2019). 116 See Eddie Bruce-Jones, Race in the Shadow of the Law: State Violence in Contemporary Europe (Routledge 2016). 117 See Jacqueline Gehring, ‘Hidden Connections: Citizenship and Anti-Discrimination Policy in Europe in Citizenship Policies’ in Ricard Zapata-Barrero (ed), Age of Diversity: Europe at the Crossroads (CIDOB 2009) and Claudia Kania, ‘Roma Communities in the EU Continue to Lack Access to Equal Education Opportunities’ (Rights Views Blog, 10 April 2017) accessed 25 May 2021.

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treatment and stereotyping of the Roma population throughout the Union.118 Approaching the topic from a comparative perspective, some scholars have noticed how critical race theory, which has blossomed in US law schools since the 1980s, has faced stiff resistance in European law scholarship. Mathias Möschel has linked this outcome in European scholarship to a ‘double displacement’ entailing the fact that the colonies remain outside the European territory and that racism, in the form of antisemitism, has been formally outlawed in the continent since the Holocaust.119 At the formal level, antisemitism is harshly rejected by governments and constitutional courts, yet there is a growing resurgence of antisemitism, racism, and xenophobia in Europe, especially against Roma, immigrants, and non-white individuals.

B. Shortcomings of EU anti-racist legislation In 2000, the EU adopted its first piece of anti-racist legislation: Directive 2000/43, 120 commonly known as the Race Equality Directive. It prohibits discrimination on grounds of race and ethnic origin in, among other areas, employment and access to goods and services. Shortly thereafter, the EU adopted a second piece of legislation, Directive 2000/78, 121 also known as the Employment Equality Directive. This directive extends anti-discrimination protections to more grounds—religion or belief, disability, age, and sexual orientation—but applies only to the field of employment. Among the protected grounds covered under EU law, race discrimination was the primary concern of EU legislators. In fact, it is probably not an overstatement to say that the fate of anti-racist legislation was a prerequisite for EU legislation covering all other grounds. Most accounts of the origins of Directive 2000/78 describe it as ‘riding in the wake of ’ or ‘on the coattails’ of the momentum produced by the Race Equality Directive. And yet, since the adoption of the Race Equality Directive, only three judgments that address racial discrimination have reached the ECJ.122 Despite advances in many of the other ‘new’ grounds,123 there appears to be an unwillingness or inability to enlist domestic courts to refer questions to the ECJ on race. 118

See Iyola Solanke, Discrimination as Stigma: A Theory of Anti-Discrimination Law (OUP 2016). See Mathias Moschel, Lawyers and Race: Critical Race Theory From The United States to Europe (Routledge 2014). 120 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19.7.2000. 121 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000. 122 As will be well-known to most readers, the case-law of the ECJ develops primarily through the preliminary reference procedure (Art. 267 TFEU)—a process by which member states pose questions regarding the proper interpretation of EU law to the ECJ. We do not mean to suggest that the ECJ’s limited jurisprudence on racial discrimination is the result of a strategic decision on the part of the Court to avoid rulings on this topic. Rather, the stunted growth of the ECJ’s case-law is mainly due to small number of preliminary references that it has received from member state courts. See Mathias Möschel, ‘17 Years of Race Equality Directive: A Mitigated Balance’ in Uladzislau Belavusau and Kristin Henrard (eds), EU Antidiscrimination Law beyond Gender (Bloomsbury 2019) 141, 154 (arguing that the only preliminary references that deal with the substantive aspects of the directive so far are Feryn, CHEZ, and Huskic); see also European Union Agency for Fundamental Rights, The Racial Equality Directive: Application and Challenges 19–24 (Publications Office of the European Union 2012). 123 The Equality Law: A New Generation dataset shows that the most active of the ‘new’ grounds have been in the field of age discrimination. Available at accessed 25 May 2021. 119

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Early on, scholars such as Daniela Caruso pointed out the limits of positive action in the EU due to historical and conceptual underpinnings of the myth of identity blindness, especially in French law.124 More recently, Mathilde Cohen’s interview-based study of the French judiciary strongly suggests that many French public officials are wary of even entertaining the possibility that race could play a role in how individuals are treated in society.125 It is not difficult to imagine why the Race Equality Directive would be rarely invoked before a judiciary that ‘not only refuse[s] to name races and ethnicities, but also denie[s] the legitimacy of these categories’. 126 Two recent rulings, Achbita127 and the case that joined to it, Bougnaoui,128 illustrate the reluctance of the ECJ to confront racial discrimination head-on. In fairness to the court, neither was brought as a race discrimination case, although they certainly could have become one without too much interpretative stretch.129 Achbita involved a Muslim woman who was instructed not to wear a hijab (headscarf) because it violated the employer’s neutrality policy. The ECJ sided with the employer, ruling that its interest outweighed Achbita’s. As AG Kokott forthrightly stated in the introduction to her opinion, the case came before the court during difficult times: There is no need to highlight here the social sensitivity inherent in this issue, particularly in the current political and social context in which Europe is confronted with an arguably unprecedented influx of third-country migrants and the question of how best to integrate persons from a migrant background is the subject of intense debate in all quarters.130

It is heavily disputed whether the Court struck the correct balance, in the current political climate, between the defendant-business’s interest in a secular workplace and Achbita’s freedom of religion.131 Less frequently discussed, but we think equally worthy of consideration, are the factors that led the plaintiffs to avoid framing the legal matter in terms of race discrimination.132

On recent advances in the field of EU disability rights, see Jeffrey Miller, ‘The European Disability Rights Revolution’ (2019) 25(1) European Law Review 66–87. 124 See Daniela Caruso, ‘Limits of the Classic Method: Positive Action in the European Union after the New Equality Directives’ (2001) 44 Harvard International Law Journal 331, 367–69. 125 See Mathilde Cohen, ‘Judicial Diversity in France: The Unspoken and the Unspeakable’ (2018) 43 Law and Social Inquiry 1542, 1551 (‘Ann Laura Stoler . . . has coined the expression colonial aphasia to describe French social scientists’ difficulty in speaking about France’s colonial past and neocolonial present. I noticed a comparable aphasia among French magistrats with respect to race and ethnicity. Some respondents simply refused to engage with the issue, remaining speechless, others attempted to circumvent it by answering a different question, and still others used a variety of euphemisms to designate racial and ethnic minorities without naming them explicitly’). 126 See ibid 1552. 127 Case C-157/15, G4S Secure Solutions, ECLI:EU:C:2017:203 [2017]. 128 Case C-188/15, Bougnaoui and ADDH, ECLI:EU:C:2017:204 [2017]. 129 See Mathias Möschel, ‘Race Discrimination and Access to the European Court of Justice: Belov (1433–1450)’ (2013) 5 Common Market Law Review 5. 130 Case C-157/15, G4S Secure Solutions, Opinion of AG Kokott, para 2. 131 See Joseph HH Weiler, ‘Je Suis Achbita’ (2017) 28 European Journal of International Law 989–1018. 132 See Ibram X Kendi, How to Be an Antiracist (One World 2019).

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V. Conclusion We share Matej Avbelj’s intuition that the partial reception of US constitutionalism has misled scholarship on European legal integration.133 At crucial moments in the intellectual history of EU law, this partial reception served a strategic purpose for scholars of legal integration. It provided the conceptual framework they needed to promote European constitutionalism, buttressed by an ostensibly politically neutral, supranational judicial review power for the ECJ. In Stein’s scheme, reflecting on the successful legacy of the Warren Court,134 US constitutionalism was a promising model to strengthen the Community’s supranational constitutional project. In the works of Weiler and Cappelletti, judicial review became a normatively appealing and politically neutral legal tool of federal integration that ignored the near-concurrent revamping of states’ rights under the Rehnquist Court. But this partial reception also underplayed the United States’ politically contested judicial history and its roots in racial capitalism.135 In European law scholarship, the comparison with a ‘US-inspired constitutionalism’ has often been deployed as an ahistorical and liberal legalist narrative of judicial review and federalism that has been moulded to fit integrationist agendas.136 This selective reception of US constitutionalism has set aside national resistances, created self-defeating expectations, and, most importantly, blunted the legal tools necessary to address racial subordination and economic exploitation in EU law. Today it is especially important to foreground the darker legacies of US constitutionalism and their many analogues in EU law instead of expelling them from the European constitutional heritage.137 The project of European legal integration is now more important than ever, but it will not survive unless it confronts its own structural flaws. ‘Fortress Europe’ has created deep inequalities in the EU– African trade relationship, and these economic inequalities have returned to haunt Europe with unstoppable migratory fluxes. Market integration, as enforced by the ECJ in the name of free movement, has produced ambivalent distributive effects.138 And the EU’s management of the sovereign debt crisis since 2010 has seriously undermined certain states’ ability to sustain social safety nets139 and duly receive

133 See Matej Avbelj, ‘The Pitfalls of (Comparative) Constitutionalism for European Integration’, Eric Stein Working Paper No. 1/2008 accessed 25 May 2021. 134 See Scheiber (n 59). 135 In this context, the legacy of some of the most infamous decisions based on race differentiation to affirm racial segregation and discrimination did not feature in the US–European comparison Dred Scott v Sandford 60 U.S. 393 (1857); Plessy v Ferguson, 163 U.S. 537 (1896) (the majority upheld state-imposed racial segregation and Justice Brown held that separate treatment did not imply inferiority; in his dissent Justice Harland argued that the Constitution was colour-blind). 136 See Günter Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit (Edward Elgar Publishing 2018). 137 See Christian Joerges and Navraj Singh Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions (Bloomsbury 2003); 138 See Fernanda G Nicola, ‘Transatlanticism: Constitutional Asymmetry and Selective Reception of U.S. Law and Economics in the Formation of European Private Law’ (2008) 16 Cardozo Journal of International & Comparative Law 87. 139 See Philomila Tsoukala, ‘Post-Crisis Economic and Social Policy: Some Thoughts on Structural Reforms 2.0’ in Francesca Bignami (ed), EU Law in Populist Times: Crises and Prospects (CUP 2020), 67–90.

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migrants.140 In crafting a new constitutional paradigm, lawyers, judges, and scholars must now be especially wary of apolitical comparison without underlying socioeconomic and racial capitalism implications.

140 Melissa Carlson et al, ‘Refugees Misdirected: How Information, Misinformation, and Rumors Shape Refugees’ Access to Fundamental Rights’ (2018) 57 Virginia Journal of International Law 539.

17

Constitutionalism and Powerlessness Damjan Kukovec

I. Introduction Constitutionalist discourse, in its manifold forms, seeks to find ways to advance conflicting theories and visions of the good life. Constitutionalism and pluralism have formed the most important discourse in the construction and understanding of the European Union, as well as in propelling European integration and giving a framework to its daily functioning and policies. Constitutionalism has endowed Europeans with a new supranational legal order, with democracy and rights protection. It has thus provided us with an invaluable promise of realization of our individual potential and a distinct way of life which we enjoy on a daily basis. Yet its limits, specifically its current inability to address economic and consequently political powerlessness, need to be explored. Following the late Judge Ruth Bader Ginsburg, it is important that laws are protectors of the oppressed, the poor, the minority, the loner.1 This chapter examines some of these limits of constitutionalism and pluralism and argues that powerlessness is not sufficiently addressed in the current constitutional and pluralist framework. Perpetuation of powerlessness leads to the underperformance of the European Union legal system in realizing its promised democratic values, to populism and crises of liberal democracy, and to consequential destabilizations of the Union, including Brexit. Constitutionalism and pluralism must be reimagined to be able to better address the challenges of European social life. This chapter proposes an interpretative turn in constitutional thinking, focusing on narrative and understanding of harm—key structural elements in addressing powerlessness.2 Constitutionalism is fundamental for understanding the development and daily operation of the European Union and the jurisprudence of the Court of Justice of the European Union. No other supranational legal order comes close in terms of how effectively violations of the law are brought to court and how legal decisions are respected, despite the fact that the system was designed to have very limited monitoring and enforcement capabilities. The Court of Justice of the European Union transformed the original system through bold legal decisions declaring the direct effect and supremacy of European Union law over national law, with general acquiescence of national courts and, finally, national governments. The constitutionalist and pluralist 1 Ruth Bader Ginsburg, ‘Remarks for Touro Synagogue (Newport, Rhode Island): Celebration of the 350th Anniversary of Jews in America’, 22 August 2004 accessed 14 June 2021. 2 Damjan Kukovec, ‘Hierarchies as Law’ (2014) 21 Columbia Journal of European Law 131.

Damjan Kukovec, Constitutionalism and Powerlessness In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0016

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discussions led to the development and gradual unfolding of a new legal order, the subjects of which are not only member states but also individuals.3 Yet, this discourse does not sufficiently address powerlessness and social empowerment. Powerlessness in this chapter will be discussed in terms of the European ‘periphery’, which should be understood in two senses. The narrower and specific sense of the periphery in the European Union encompasses peripheral member states and regions of the European Union. The wider sense of the periphery means general social disempowerment regardless of its geographic location. Both denote powerlessness in the system. Section II submits that constitutionalism and pluralism have constituted the most important language for the transformation of the European Union and are still vital for the discussion of its development and change. It argues that individual empowerment has been one of the important goals of Union’s gradual process of transformation. Section III argues that constitutionalist and pluralist discussion is too often disengaged from fundamental social structures of power. It misrepresents power relationships by focusing on power overreach in the public sphere and through blindness to the legal position of the periphery and to social hierarchy. Section IV proposes a rephrasing in constitutional thinking. It argues for a focus on interpretation, narrative, and understanding of harm in the production of material and spiritual values. This focus explains the existing shortcomings of constitutionalism and pluralism. It argues that social transformation should address the hierarchical relations between people instead of hierarchical relations between legal orders. Finally, section V explains how seemingly profound constitutional change is possible without any substantive change at the level of narrative, interpretation, and understanding of harm, and thus without sufficiently addressing existing powerlessness. In other words, while constitutional changes are constant, due to unchanged interpretations and understanding of harm, powerlessness remains unaddressed. Constitutionalism, the central axis of management and social transformation of a polity, can thus play a socially conservative role.

II. The Role of Constitutionalism in Social Transformation Constitutionalism is a principal method of organization of our social life. Constitutionalism is also a privileged field of law in contemporary legal thought,4 meaning that it is a paradigmatic legal discourse in which law and legal change are debated.5 Constitutionalism in the European Union plays a special role. It is its central transformative axis and it guides its daily development. Specifically, setting up a system of rights protection and allocating competence and decision-making powers at certain

3

Case 26/62 van Gend & Loos EU:C:1963:1. Duncan Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850–2000’ in David M Trubek and Alvaro Santos (eds), The New Law and Economic Development: A Critical Appraisal (CUP 2006) 19. 5 According to Duncan Kennedy, the privileged field of the first globalization was private law and the privileged field of the second globalization was administrative law. Ibid. 4

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levels of governance, which includes the discussion of supremacy and direct effect, as well as point(s) of reference—legal texts—from which various decision-makers are arguing, have been the focal point of concern and quest for transformation of the European Union. Transformation of the European Union by means of a constitutional paradigm and outlook reflects a particular way of thinking about the European Union with some clear points of departure. It is therefore useful to understand constitutionalism as a discursive and dialogic notion, involving the process of accommodating diverse interests within society.6 One of the aims of constitutionalism is that the society, a nation-state, as well as the European Union, is based on genuine deliberation instead of responding merely to interest-group pressure. Post-national constitutionalism implies, in the EU context, more than designing a good EU constitution. It implies a reconceptualization of the key principles and processes on which constitutionalism must rest.7 These key principles and processes are fundamental for the daily management, development, and transformation of the European Union. They include federalism, the principle of non-discrimination, human rights protection, the constitution as the most important legal document, a pragmatically regulated internal market, and balancing of conflicting considerations. They are key axes of proposed Union changes and serve as its interpretative tools. The transformation of the European Union is not just a matter of grand constitutional changes—constitutional change happens constantly and incrementally. The European Union legal system changes constantly and organically, according to the constitutional framework, even if the word constitution is never mentioned. Constitutionalism is the mode of the Union’s management and social transformation, whose logic reverberates through courts as well as through the political sphere. It is the interpretative point of departure at the stage of legislation, enforcement, and adjudication. The EU legal system develops incrementally and organically in constant interaction between national courts and the Court of Justice of the European Union. The key principles of enforcement of EU law are almost entirely of judicial origin.8 The concept of the autonomous new order9 reverberates through the system through interpretation of general principles, remedies, and procedural and substantive issues. The EU’s transformative rhetoric revolves around questions of establishing the proper order of human rights protection and of whether a national or European constitution is a

6 Jo Shaw, ‘Postnational Constitutionalism in the European Union’ (2011) 6 Journal of European Public Policy 579. 7 Ibid. 8 Michal Bobek, ‘The Effects of EU Law in the National Legal Systems in European Union Law’ in Catherine Barnard and Steven Peers (eds), European Union Law (2nd edn, OUP 2018) 144. 9 Jan Willem van Rossem, ‘The Autonomy of EU Law: More is Less?’ in Ramses A Wessel and Steven Blockmans (eds), Between Autonomy and Dependence: The EU Legal Order under the Influence of International Organisations (TMC Asser Press 2013) 13; Christina Eckes, ‘The Autonomy of the EU Legal Order’ (2020) Europe and the World: A Law Review 19; Koen Lenaerts, ‘The Autonomy of European Union Law’ (2019) Post di AISDUE accessed 21 June 2021; Christopher Vajda, ‘Achmea and the Autonomy of the EU Legal Order’ LawTTIP Working Papers 2019/1 accessed 14 June 2021.

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fundamental reference point for those decision-makers, and around means of determining the power reallocation between the EU and national institutions. The constitutional relationship between the EU and member states’ institutions, as well as citizens’ participation in European public life, are among the preoccupations of this constant change and construction of the order. This approach is both essential and expected from any court working with a consciousness of contemporary legal thought.10 However, the constitutionalist logic is also the transformative approach used by the political branches of the government. The Franco-German non-paper for the conference on the future of Europe, for example, sets out a blueprint for the future development of the Union.11 While the word constitution is not mentioned, the proposed changes are embedded in the existing constitutional structure and the debate revolves around the question of the new legal order becoming ‘more united and sovereign’, integrating new policies into the existing structure or calling for more effective enforcement of existing ones. Adding new fields of law, expanding the fields of regulation, strengthening and enforcing the autonomy of European Union law, perpetuates the logic of building an order that expands or contracts. Constitutional change should thus not be understood merely as changes to the Treaties. Those are exceptional and not infrequently ex post developments of what is incrementally and organically created in the daily life of the European Union. The constitutional logic transforms the Union constantly. It lies underneath the daily management and transformation of the Union before national courts and European Union institutions. This constant constitutional transformation strives not only for an autonomous, sovereign, united, or better functioning European Union legal order, but also for individual empowerment. The central function of the republican constitution is the protection of the liberty of ‘We the People, each and every one’. Key for the republican conception of constitutionalism and of the European Union are deliberative democracy and the notion of ‘civic competence’: the institutional capacity of citizens to be actively engaged in the governance of the polity to which they belong.12 The good life, in this understanding of constitutionalism, is a virtuous life that consists of, among others, subordinating one’s private desires to the public will, as only through active participation in the deliberative politics of a republic can a person realize themselves. Civic competence is also a means of equipping citizens to become agents of civic change.13 Constitutionalism and liberal political theory, from which constitutionalism is derived, make the promise of individual human empowerment without regard to citizens’ social backgrounds. Ronald Dworkin, for instance, argued that in a generally democratic community each citizen participates as an equal partner, which

10 Kennedy (n 4); Giorgio Bongiovanni, ‘Global Constitutionalism and Legal Theory: A Preliminary Analysis’ (2014) 1 Soft Power 171. 11 ‘Franco-German Non-Paper on Key Questions and Guidelines for the Conference on the Future of Europe’ accessed 14 June 2021. 12 Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (CUP 2007). 13 Ibid.

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means something more than that he has an equal vote. It means that each citizen has an equal voice and an equal stake in the result.14 Individuals have been directly active agents of civic change in the European Union since the Van Gend en Loos judgment of the Court of Justice. There are several ways of understanding this judgment15 and its progeny. It can be understood either as the building of a new powerful order or as the constant vehicle for the realization of the values of the Union, including those set out in Article 2 of the Treaty.16 Chalmers, for instance, has proposed another view. He has argued that by embracing the logic of democratic community, Van Gend en Loos should be seen as a much wider distribution of rights, with these perceived as empowering tools which all citizens should hold in relation to important parts of their economic, social, and cultural lives.17 The republican constitutional vision is thus ingrained in the Van Gend en Loos judgment. The Court grounded the direct effect and supremacy of EU law in a direct relation between Union law and the peoples of Europe. This direct relationship was established as a crown jewel of cosmopolitan and republican constitutionalism in the European Union.18 Individuals, not just member states, are consequently sovereign in the European Union. They are subjects of law able to claim their rights directly under EU law. The story of the constitutional development of EU law, including direct effect, indirect effect, development of remedies, inclusion of the Charter in the Treaty, and simultaneously making this order more sovereign, autonomous, and united, can be thus understood as a story of constant individual empowerment in a transnational polity.

III. Constitutionalism’s Disengagement from Social Structures of Power Despite the individual’s empowerment, powerlessness in the system is not sufficiently addressed. To fulfil its goal of genuine deliberation instead of responding to interestgroup pressure, the idea of constitutionalism requires the division of government powers urged by Montesquieu and celebrated by Americans as a bulwark against abuse of state power. In other words, power overreach is a central problem for constitutionalism.19 However, as this chapter will argue, the prevention of power overreach is focused on the division of public powers, government powers, and, specifically, powers 14

Ronald Dworkin, Justice for Hedgehogs (HUP 2011) 2–4. ‘The Community constitutes a new legal order . . . for the benefit of which the states have limited their sovereign rights [ . . . ] and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of Member States, Community law [now EU law] therefore not only imposes obligations on individuals but is also intended to confer upon them rights’—van Gend & Loos (n 3) 12. 16 Article 2 TEU: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’ 17 Damian Chalmers and Luis Barroso, ‘What Van Gend en Loos Stands For’ (2014) 12 International Journal of Constitutional Law 105. 18 Michael A Wilkinson, ‘Political Constitutionalism and the European Union’ (2013) 76 The Modern Law Review 191. 19 Frank Michelman, ‘Law’s Republic’ (1988) 97 Yale Law Journal 1493. 15

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between legal orders, characterized by participation of abstract individuals and not taking into account the profound hierarchical differences between them. The discussion that too often misses powerlessness is common to constitutionalism and pluralism. While constitutionalism generally seeks a common frame to define the legal order, pluralism sees the legal order as heterarchical, characterized by an interaction of several different suborders with varying degrees of acknowledgement of hierarchy between legal orders.20 While there are differences between these unityoriented and heterarchical conceptions, their visions of a social order are based on the same basic predispositions and constitute the same paradigm. Constitutionalism generally aims at creating a comprehensive framework of all public power in a polity21 while pluralism is claimed to better accommodate divergent interests and values in a post-national polity.22 Pluralism is said to better accommodate deep diversity, to provide adaptability and space for contestation, and to provide equidistance to conflicting claims to ultimate authority.23 According to Neil MacCormick, both the national and the Union level have internally plausible claims to ultimate authority.24 Pluralism does not only extend to the assignment of (un)equal positions of various sites and levels of decision-making. The conflict of conflicting supremacy claims is due to the fact that actors at different levels of governance do not agree on the ultimate point of reference from which they are arguing.25 In other words, there is no one single authority that guides decision-making or specific resolution of conflicts between multiple orders. There is no common framework that could decide the clash of conflicting supremacies: the levels are irreconcilably opposed. The ultimate authority is suspended, undecided, and determined in a constant dialogue.26 In this dialogical description of society, the power element is missing. It gives an appearance of the social discourse happening either among institutions of legal orders or, with some exceptions,27 among equal individuals. Constitutionalism and pluralism both explain the institutional relationships, how they changed, and how the EU legal order develops as a result. The institutional setting, the relationship between legal orders, and their construction takes centre stage in this portrayal of the division of power. The debate is structured with the image of EU institutions at the centre of the Union in terms of its supreme powers and member states as the periphery, or, in the case of pluralists, the reverse. Taking Brussels as the centre and member states as the periphery, and focusing on the division of competences, demands for greater regulatory autonomy and

20 Agustin J Menendez, ‘From Constitutional Pluralism to a Pluralistic Constitution? Constitutional Synthesis as a MacCormickian Constitutional Theory of European Integration’ (2011) Arena Working Paper No. 1/2011 accessed 14 June 2021. 21 Nico Krisch, ‘The Case for Pluralism in Postnational Law’ in Gráinne de Búrca and JHH Weiler (eds), The Worlds of European Constitutionalism (CUP 2011) 203. 22 Ibid. 23 Ibid. 24 Neil MacCormick, ‘Beyond the Sovereign State’ (1993) 56 The Modern Law Review 1; Neil MacCormick, ‘The Maastricht Urteil: Sovereignty Now’ (1995) 1 European Law Journal 259. 25 Ibid. 26 Carl Schmitt, Verfassungslehre (Duncker and Humblot 1928). 27 See Section IV.

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subsidiarity in light of competence building by EU institutions form the focus of such analysis.28 This misses, however, the fact that society cannot be fully understood as constituted by hierarchical legal orders but rather should be looked at as ordered by countless hierarchical legal structures, and that it is thus deeply unequal. Locating the actual legal power in society thus requires a focus on the hierarchical structure of production of material and spiritual values and on relationships between individuals who are hierarchically structured. The underlying centre–periphery structure that characterizes power in the European Union is missing in constitutionalist/pluralist analysis. What is the centre and what is the periphery of the EU? The centre countries or regions are those with a much higher gross domestic product (GDP) per capita than the regions of the periphery; they invest more money in research and development and have the best universities; they have more capital and more ingoing and outgoing foreign direct investment (FDI). Internationally recognized brands come from the centre, which gives the companies owning them significant power in the market. The centre exports final products and is the seat of powerful corporations and law firms. Countries of the centre are, for example, Germany, France, the Netherlands, Austria, Sweden, and Finland. The periphery has much weaker industry and a less efficient agricultural sector. The periphery has few brands known beyond its borders. Non-branded companies typically make lower margins and are constantly at risk of being undercut by cheaper rivals. Some of the few famous brands of Eastern Europe have in fact been bought by established companies of the centre. Regions of the periphery have a lower GDP per capita, and the actors, products, and services from the periphery have much less prestige. They often produce semi-finalized products or finalized products for brands of the centre. Generally, companies of the periphery find themselves lower in European and global production chains. The wages are lower than in the centre, and often (with the exception of the European south) life expectancy is lower. Countries of the periphery are, for example, Hungary, Portugal, Greece, Bulgaria, Cyprus, Latvia, Poland, Slovenia, and Estonia.29 Power differentials between Member States of the Union are vast. Brexit, regardless of what one might think of its merits, is a privilege of a (now former) Member State, the United Kingdom. Exit is not a viable option for any peripheral member state. Grexit or Polexit were never serious alternatives. The Weiss judgment of the German Federal Constitutional Court is likewise a privilege of large jurisdictions. On 5 May 2020, the German Federal Constitutional Court issued a judgment in which it declared a European Court of Justice decision ultra vires in Germany.30 The ruling focused on the legality of the European Central Bank’s Public Sector Purchase Programme, which the European Court of Justice had determined to be lawful.31 By challenging the decision

28

Kukovec (n 2). Damjan Kukovec, ‘Law and the Periphery’ (2014) 21 European Law Journal 406. It should be noted that there is a semi-periphery as well and that centres all have their own peripheries. 30 BVerfG, Judgment of the Second Senate of 05 May 2020–2 BvR 859/15. 31 Ibid. 29

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of the European Court of Justice, the German Court’s ruling challenged the principle of supremacy of EU law over the national law of its member states. Exit from the Union and challenging the supremacy of the Court of Justice of the European Union are relatively extreme examples of how powerful member states and their institutions are able to wield their power. The constitutional framework attempts to equalize this disparity between small and large member states, between juridically and otherwise more and less powerful member states, by equalizing their position and their representation in the institutional structure or by equal application of EU law to all member states and individuals. The equalization on the level of member states is based on equality of institutional powers and proper representation in the system, which are goals of both constitutionalism and pluralism.32 Yet, such attempts at equalizing the representative participants in the order—the federal entities—cannot adequately address the powerlessness of individuals. The lack of equality in the European Union has been compensated merely in the institutional representational setting—in the equal number of judges and Commissioners, corrections in numbers of MEPs, the general principle of equal treatment of member states, and other similar measures to ensure representation of smaller member states. European academia has been preoccupied with the question of representation in EU institutions and that of potential under-representation of the interests of other member states’ nationals in each national political process. Representation of out-of-state interests was also proposed as a test by which the Court of Justice might scrutinize national measures.33 Constitutionalism and pluralism are conceptually so inclusive that it is difficult to conceive that they could exclude.34 Equality between member states and their legal orders, however, should not be the only, or even the central, question in the exploration of powerlessness. Fully understanding exclusion and reduced agency of peripheral actors in the EU legal system requires more than full representation in the decision-making of European institutions, or representation of the interests of nationals of other member states in national political processes, or enhanced standing of all regions in litigation.35 It requires more than addressing the several dimensions of democratic deficit, either understood in the narrow sense of the relative absence of any influence by ordinary citizens over European decision-makers and the policies they enact in their name, or more broadly as a lack of systematic normative and popular legitimization of European political institutions due to the paucity of sustained debate about their overall shape and reach.36 The constitutional/pluralist analysis, while important for furthering political justice by designing institutions and securing multiple points of access for citizen input, is focused on structuring public deliberation in public institutions and on separation of public powers. The appeal of both constitutionalism and pluralism is that they frame and organize public power, realizing the rule of law and democracy. In this discourse,

32

Krisch (n 21). Miguel Poiares Maduro, ‘Contrapunctual Law’ in Neil Walker (ed), Sovereignty in Transition (Hart 2003) 501. 34 Kukovec (n 2) 171. 35 Kukovec (n 29). 36 Bellamy (n 12). 33

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people come together and set the terms of their association and representation.37 This tends to exaggerate citizens’ agency in the construction of public and social power. Constitutionalism and pluralism legitimate the exercise of public power by assuming that people have agreed to the order by setting up the rational system, by collective exercise of public autonomy, and by giving consent to the order and its change. Socially relevant and political decision-making, however, does not only occur in public, ‘political’, institutions or courts: it materializes throughout society.38 Analytically, the European Union can be described as polycentric.39 Gunther Teubner’s vision of global constitutionalism includes the existence of a number of ‘global civil constitutions’ that express a ‘constitutionalization of a multiplicity of autonomous subsystems of world society’.40 Yet, decision-making in society is spread beyond its autonomous subsystems. Decision-making does not only occur in political institutions; it occurs in every niche of society on a daily basis, including in the market, involving any individual. To give one topical example, a decision to eat bat or pangolin on the other side of the planet may affect our lives more significantly than any ‘public’ local health legislation. Similarly, decision-making in the City of London will be important for Europeans long after the UK leaves the Union and decision-making in Munich or Stuttgart will continue to affect UK citizens. While decision-making is widespread in society, some decisions are much more impactful than others, depending on the hierarchical structure of individuals making the decisions. The central disparity and consequential powerlessness occurs between individuals; the ‘public sphere’ is merely a mediator or arena of those hierarchies. This element of power and powerlessness in the European Union remains insufficiently addressed.

IV. Constitutionalist/Pluralist Exclusion by Narrative and Interpretation Individuals have been increasingly empowered in the EU legal system through constitutional principles such as direct effect, including horizontal direct effect, and human rights protection. Opening up institutional pathways and alleviating the democratic or legitimacy deficit thus appears as the most important form of empowerment. Such empowerment, however, is abstract, premised on the highly contestable assumption of adequate portrayal of power relationships between people. Law should be understood as a legal relation—as a hierarchical legal relation between unequals.41 In this relationship, some have greater privileges to harm than 37

Bruce Ackermann, We the People Volume 1: Foundations (HUP 1993). Kukovec (n 2). For an explanation of how this mistakenly led the UK and its population to feel that they do not have sufficient insight influence on EU decision-making see Damjan Kukovec, ‘The Legal Profession’s Responsibility for Brexit’ in Tawhida Ahmed and Elaine Fahey (eds), On Brexit: Law, Justices and Injustices (Edward Elgar Publishing 2020) 39. 39 Ana Bobić and Josephine van Zeben (eds), Polycentricity in the European Union (CUP 2018). 40 Gunther Teubner, ‘Globale Zivilverfassungen: Alternativen zur staatszentrierten Verfassungstheorie’ (2003) 63. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 6; Gunther Teubner, ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory?’ in Christian Joerges, Inger-johanne Sand, and Gunther Teubner (eds), Transnational Governance and Constitutionalism (Hart 2004) 3. 41 Kukovec (n 2). 38

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others. Damien Chalmers noted, in the context of the Van Gend en Loos judgment, that the granting of justiciable rights and duties in the European Union empowered some and disempowered others.42 Power differentials in the daily decision-making of individuals across the European Union are large, despite the Union’s foundation of equality of citizens. Individuals are in various economic positions in the market depending where they come from and how they are situated in the hierarchical structure of production. Understanding exclusion and reduced agency of individuals in a pluralist system, as portrayed for example by MacCormick or Maduro, requires a refocusing of scholarly attention. Such a turn, which I have suggested for constitutional law,43 requires a focus on the narrative, on how the past carries its meanings into the present and the future and how legal interpretation occurs. The interpretative narrative of any society is fundamental for its functioning and for the distribution of material and spiritual values. The interpretative narrative, which can also be understood as ‘ideology’, explains where our sense of right and wrong comes from. It stems from our selective memories of our past experience, from our memories of past harms and hierarchies that are shared or contested by others. It reproduces the fundamental structures of social power. The narrative is determined by the legal profession’s background assumptions and sensitivities. The crucial aspect of the narrative, in my take, is the accepted understanding of harm in the production of material and spiritual values. The latter plays a pivotal role in the development of a polity by sensitivity to some harm and blindness to other types of harm. The socially accepted understanding of harm that develops through history determines the content of legal doctrines, and directs decisionmaking and our social lives. Those who are harmed by the privileges to harm allowed by the legal system continue to be excluded. The European Union is changing constantly, yet the element of time is often underappreciated in legal analysis. The substantive meaning of rights, privileges, and doctrines cannot be understood as a constant; these things should be understood as nodes set in time.44 Changing interpretations reflect the constantly evolving development of a democratic society. This insight, however, risks giving a perpetual sense of a possibility of a positive social shift, through either the adoption of another institutional transformation, policy expansion, a new human rights instrument, or judicial review. While the Union continues to be institutionally and politically transformed by the interplay of supremacy and national competencies, by the interplay of free movement and social protections, by the introduction of new policies and addressing of the democratic deficits, there is a constancy of narrative and interpretation of harm that continues to limit the agency of peripheral agents. The proposed constitutional thinking requires from us a commitment to a reimagination of the society and the market. It requires us to focus on the concrete,

42

Chalmers (n 17). Kukovec (n 29); Damjan Kukovec, ‘Taking Change Seriously, the Discourse of Justice and the Reproduction of the Status Quo in Europe’s Justice Deficit’ in Dimitry Kochenov, Gráinne de Búrca, and Andrew Williams (eds), Europe’s Justice Deficit? (Hart 2014) 319. 44 Kukovec (n 43). 43

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performative, transfigurative, and unconceptual view of the market. The way in which the EU is structured and the ways in which issues are framed for discussion keeps the narrative of the peripheral position in the European Union hidden from view. The narrative that privileges particular understandings of harm and of the market leads to certain types of reasoning, culminating in the crystallization of some legal doctrines and not others.45 To give one example, social dumping, which harms the centre, is an adopted doctrine of EU law, whereas goods dumping, which harms the periphery, is not. Regardless of whether the interpretation concerns free movement or ‘economic’ concerns or ‘social’ protection or their interplay, the notion of harm is too often interpreted as if all the actors are in the structural position of the centre. The particular interpretation of the centre is thus the universal language of the Union that obscures the narrative of the periphery—both the Western periphery and that of postcommunist Europe.46 In order to be a civic citizen, one needs to articulate claims in a particular conceptual form. European Union law certainly entails the notion of ‘the weaker party’. This notion is used in various forms in consumer protection law, competition law, and EU equality law. It is often assumed that the identity of the weaker party can be generalized and predetermined. In other words, an abstraction of a ‘weaker party’ is postulated as the underlying reality. Weaker parties are most often defined as those with weak bargaining power— consumers, tenants, employees, small businesses, workers. The abstraction of the ‘weaker party’ appears as an eternal entity for the sake of which we need to enforce social considerations or act paternalistically. However, the identity of the weaker party at any moment in time and in any particular case is subject to interpretation. Interpretations of a weak party in legal vernacular follow a pattern that does not include the weaker parties in terms of the centre–periphery hierarchy. The way in which the notion of the weaker party and vulnerability is interpreted accepts certain weaknesses but not others. For instance, lawyers often tend to think in terms of the need to protect small companies against big ones, hence a special regime for small and medium-sized enterprises (SMEs) in EU law. However, SMEs in the periphery are not in the same structural position as SMEs in the centre. Companies of the periphery, including their small enterprises, have less prestige, less famous brands, a less educated workforce, lower productivity, worse logistics, fewer patents, and often less experience with contracts, which puts them in a subordinate situation in public procurement procedures.47 The legal profession too often assumes that all actors are in the structural situation of the centre. The core concepts of law and political science—concepts such as ‘interest’, ‘worker’, ‘capitalist’, ‘class’, or ‘values of the political community’—are interpreted through a particular hierarchical lens, missing the concerns of the periphery.48 As a result, harm is understood from the position of the centre. Powerlessness is 45

Ibid. For the argument that the experience of post-communist Europe, both before and after 1989, is more important for EU constitutionalism than the common view suggests, see Jan Komárek, ‘Waiting for the Existential Revolution in Europe’ (2014) 12 International Journal of Constitutional Law 190. 47 Kukovec (n 43). 48 Damjan Kukovec, ‘Economic Law, Inequality and Hidden Hierarchies on the EU Internal Market’ (2016) 38 Michigan Journal of International Law 1. 46

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hidden from view when legal interpretation privileges a particular hierarchical view of those terms. Legal interpretation, including proportionality, is set in a particular narrative form, setting aside peripheral narratives and thus breeding impotence and powerlessness of peripheral actors. Legal interpretation does not recognize such structural subordination; consequently, the concerns and harm of the actors of the periphery are often overlooked in the legal discourse. Despite the fact that they often bear the externalities of legal rules, the claims of the periphery are weak, subordinate, and invisible. The harm to the actors in the periphery is structural, repetitive, and unrecognized. The narrative, interpretation, and understanding of harm and the consequential rules of the game of the European Union’s legal structure thus play a vital role in the reproduction of European inequality and powerlessness. The selective narrative perpetuates the structurally subordinate position of workers and companies of the periphery in the EU market. Equality of opportunity is limited when some are given the opportunities to prosper and some are not, when some narratives and perceptions of harm are dominant and some are subordinated. Understanding of harm is vital for the allocation of privileges to harm in a legal system.49 Consequently, a changed understanding of harm that would acknowledge and alleviate the privileges to harm the periphery would be a true constitutional change, resulting in a deeper individual participation in the European project. The periphery defined in terms of member states portrays collective powerlessness. The collective powerlessness is based on countless micro-hierarchies which also constantly morph into various specific macro collective peripheries. Hierarchical legal relationships are reproduced throughout Europe. The European Union is permeated by power and powerlessness that is not on the constitutionalist radar screen. Pluralism, just as constitutionalism, tends to miss these insights. Miguel Maduro, a pluralist, has argued that judicial bodies in the Union should justify their decisions in the context of a coherent and integrated European legal order. For this to be possible, and in order to satisfy the requirement of equality in the competing determinations of EU law, any national decisions on EU law should be argued in universal terms. In other words, a national court must justify their decisions in a manner that could be universalizable.50 However, the ‘universal’ narrative of the Union often coincides with the ‘particular’ of the centre. So this universal—the centre’s particular—is then deemed to be the ‘interest of Europe’ and becomes the means for dealing with national issues in daily practice and with transnational processes. It constitutes the self-imposed constitutional discipline on all national democracies. This ‘universal’ becomes the means of solving problems in the European Union and perpetuates the powerlessness of those whose harms are not articulated in the system. The wider sense of ‘the periphery’ denotes powerlessness—the weak, the vulnerable, the excluded, the hierarchically unprivileged in every corner of Europe, without a geographic or country affiliation. They find themselves in every society, not just in the geographic periphery. Their narratives need to be unearthed and their harms 49 50

Kukovec (n 2). Maduro (n 32).

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reversed rather than their hopes and inspirations being mistakenly projected in constantly changing levels of decision-making. The deficits of the existing constitutional structure should be addressed.

V. The Normative Vacuity of the Discussion on the Change of the Site of Decision-Making, and Its Consequences for the Changed Narrative How can the existing narrative, and the interpretation of harm implied by this narrative, change? This section argues that an obstacle to such change is inherent in constitutionalism and in an important and cherished trait of a liberal democracy. It explains how a seemingly profound constitutional change does not necessarily imply a change in substance—in the narrative, interpretation, and understanding of harm. Thus, while the order keeps changing, exclusion and powerlessness can remain entirely unaddressed. As discussed in section II, constitutionalism provides a framework for the European Union’s new order of co-existence, furnishing the language and structure of central debates of the European Union’s transformation. Allocating competence and decision-making powers to certain levels of governance, which includes the discussion of supremacy, as well as point(s) of reference—legal texts—from which various decision-makers are arguing, has been the focal point of concern and quest for social transformation in the European Union. While these are certainly not the sole questions of constitutional debate, they animate the discussion about Europe and its social change. The discussion of the level of competence and decision-making comes at an intersection of all aspects of constitutional theory—the normative, institutional idealist, social, and foundational.51 This discussion concerns participation and representation, accountability, limiting and allocating power, the systematization of law, existence of specific norms and values possessing a constitutional character, democracy, legitimacy, and individual rights. It also contains the idealism of normative constitutionalism in that it encapsulates the promise of a future good society. All of these concepts have been part of the struggle for supremacy and ultimate authority between national courts and the Court of Justice of the European Union and are regularly invoked in EU treaty changes and the discussion of division of competence between EU and national institutions. To explain how profound constitutional change is possible without any substantive change at the level of narrative, interpretation, and understanding of harm, and thus without changes to powerlessness, I will explain four positions in a typical constitutional debate—left and right federalist and left and right sovereignist. These ideal-types frame the constitutional discussion of levels of competence and decisionmaking. It will be argued that a change from one ideal-type to another is disconnected from the content of the rules of the European Union. In other words, the change in 51 Christine EJ Schwöbel, ‘Organic Global Constitutionalism’ (2010) 23 Leiden Journal of International Law 530.

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terms of change from one to the other ideal-type does not guarantee that powerlessness will be adequately addressed. The academic and political discussion of level of competence and decision-making is structured by federalist and sovereignist positions. The discussion can be portrayed in the mode of four ideal-types. Federalists would argue that competence and decision-making powers should be allocated to the European Union and that the (supreme) point of reference of decision-makers should be EU law. Sovereignists (I am not using the word confederalists as this would leave out those who favour leaving the Union, for example Brexit supporters) would argue the opposite—that competence and decision-making powers should be allocated to the national level and that the (supreme) point of reference of decision-makers should be national law. Both can be on the left or the right of the political spectrum. Full supremacy and full national powers are extreme positions on this continuum. I will portray the more or less extreme positions on the spectrum, with a caveat that complete federalists hardly exist in the literature and complete sovereignty in today’s interdependent world is not easily achievable. Four positions in the constitutional discussion will thus be framed: the positions of left federalists, right federalists, left sovereignists, and right sovereignists. LEFT

RIGHT

FEDERALISTS

left federalists

right federalists

SOVEREIGNISTS

left sovereignists

right sovereignists

There are countless intermediary variations of these positions. Heterarchical pluralists are in between the two extremes on the continuum between sovereignists and complete federalists, both on the left and the right. They would argue various degrees of national constitutional courts’ ability to police the boundaries of their legal orders and to determine what their epistemic core requires and what the identity of their legal order ultimately is. Some of the federalists—supporters of the Union from the political right—would revel in the Union, as assumed from, for instance, Hayek’s argument that economics and markets require freedom from the state.52 Free movement rights of the European Union can be perceived as an embodiment of this freedom. Left federalists— supporters of the European Union, predicated, for instance, on Polanyi’s argument for a need of embeddedness of the globalized markets53—would perceive the European Union as a saviour against the far less constitutionalized global sphere. Their argument would often be based on the idea that the European Union is able to tame the forces of capitalism more effectively than (only) a nation-state. The Habermas–Streck discussion portrays opposite views on the future of the Union from the left. Habermas represents the federalist strand and Streeck represents the sovereignist one. The key question of the Habermas–Streeck debate on the crisis in Europe was: ‘should the political forces resisting the de-democratization of 52

FA Hayek, The Road to Serfdom (University of Chicago Press 1994). Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Beacon Press 2001). 53

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capitalism strive for renewal of the European Union through its deeper integration, as per Habermas, or for peaceful dissolution of the European Union and a retreat to a national state, as per Streeck?’ Jurgen Habermas had argued vigorously for the foundational variant of constitutionalism for Europe.54 Habermas argued that the European Union would provide a counterbalance to markets and capitalism and that strengthening of the European Union is the only prospect for rebalancing the ‘crazed relationship between politics and the markets’.55 For Habermas, the need for political regulation arises from a volatile and interdependent global economy, which should induce a regeneration of legislative power at a supranational level.56 Instead of expansion of the European Union, Wolfgang Streeck recommended its dismantling. He favoured a return to the defensive constellation of nation-states of the 1960s and 1970s in order to defend and restore as far as possible what remains of those political institutions that could perhaps help us to modify and replace market justice with social justice.57 Streeck favoured the nullification of the euro and a return to protectionism of state borders. Habermas argued that the nostalgic preference for sequestering ourselves within the sovereign but overwhelmed and impotent nation is surprising when we consider the epoch-making transformation undergone by nationstates—from states that still exercised control over their territorial markets into disempowered co-players who are themselves embedded in globalized markets. The need for political governance to which a highly interdependent world society today gives rise is at best being cushioned by an increasingly dense network of international organizations. But the asymmetrical relations of the much-vaunted ‘governance beyond the nation state’ are far from a match for this problem.58 A strong strand of the left was often connected to internationalism, aiming at a final abolishment of a bourgeois state.59 Streeck’s preference for national autonomy, however, also has a rich intellectual history. The sovereignist strand on the left is exemplified by Heller, who tried to reconcile the idea of the nation-state with the socialist movement. Heller criticized the staunch internationalist wing of social democracy for rejecting the state as if it were the same institution it had been in the middle of the nineteenth century. Instead, the nation-state (however, not in its bourgeois interpretation) could be a powerful tool towards the emancipation of the working classes.60

54

Jürgen Habermas, Zur Verfassung Europas: Ein Essay (Suhrkamp 2011). Luca Corchi, ‘The Debate between Habermas and Streeck about the Left and Europe’s future’ (Reset Dialogues on Civilisation, 25 March 2014) accessed 14 June 2021. 56 Habermas (n 54); Jürgen Habermas, ‘Demokratie oder Kapitalismus. Vom Elend der nationalstaatlichen Fragmentierung in einer kapitalistisch integrierten Weltgesellschaft’, Blätter für deutsche und internationale Politik 5/2013, 59–70. 57 Wolfgang Streeck, ‘Heller, Schmitt and the Euro’ (2017) 21 European Law Journal 361; Wolfgang Streeck, ‘Small-State Nostalgia? The Currency Union, Germany, and Europe: A Reply to Jürgen Habermas’ (2014) 21 Constellations 213. 58 Habermas (n 54). 59 Mel Rothenberg, ‘Lenin on the State’ (1995) 59 Science & Society 418. 60 See the special section on Herman Heller, ‘Authoritarian Liberalism (2015) 21 European Law Journal 295 with contributions by Agustín Menéndez, William E Scheuerman, Wolfgang Streeck, Michael A Wilkinson, and others. 55

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In the United Kingdom, Streeck’s vision could be associated with the vision of Lexit. Lexit is the left or socialist argument for the United Kingdom’s withdrawal from the European Union. Its core belief is that the European Union—at least from the Treaty of Maastricht, if not before—can be understood as a ‘neoliberal project’. The European Union is said to limit the nation-state and its welfare policies and the power of trade unions and social policies, to impose neoliberal policies such as austerity, and to privilege free movement rights over social considerations. Both the left and the right sovereignists would base themselves in sovereignty. According to the inherent national sovereignty, the parliament possesses the primary authority to interpret the Constitution, including the scope of its legislative powers and discretion as to when and how to exercise them. Ultimately, the people are the final authority and arbiters of constitutional meaning, as this understanding is predicated on the theory of popular sovereignty.61 Complaints that the good life cannot be achieved by decision-making at the European Union level have not come only from the left. Some detractors of the Union from the right would argue, based on Hayek’s thesis, that the state is too entangled in the economy and that the European Union rules present too much red tape. They would argue for deregulation and for exit from the Union. This is the position of right sovereignists—of Brexiteers. The refrain of Leave campaigners was the phrase ‘take back control’. The Foreword to the Government White Paper on the ‘Great Repeal Bill’ epitomizes this idea: ‘At the heart of that historic decision was sovereignty. A strong, independent country needs control of its own laws. That was, more than anything, what drove the referendum result: a desire to take back control. The aim of several Brexiteers was deregulation or regulation that could be decided on the national level. The argument of taking back control can come from the left or the right, telling us very little about the kind of society we would wish to create. Both the left and the right— Brexiteers and Lexiteers—are convinced that the national level can solve the issues that are dear to them on the domestic level. Importantly, years of debate on Brexit reflect the hollowness of the discussion—the UK could leave the EU in the form of a Lexit, a hard conservative Brexit, or anything in between. To date, the gains of Brexit remain unclear. Those who felt excluded from the mainstream of UK economic and social development used the referendum not just to express their view about the UK’s membership of the EU, but to express their concern and disagreement with the daily state of their lives.62 A number of UK voters believed, based on the constant promise of discussion of the level of governance, that Brexit was synonymous with social empowerment. UK citizens enshrined their public decision-making closer to home. Yet, it remains unclear how Brexit could empower the powerless and solve the problem of social exclusion in the UK. When the level of decision-making remains the focus of social transformation, Brexit, exit from the Union, seems to be the most important social goal. Taking back control—competence, site of decision-making, and reference points of decisionmaking—seems like an answer to all social concerns. Instead of normative visions, 61 Robert J Kaczorowski, ‘Inherent National Sovereignty Constitutionalism: An Original Understanding of the US Constitution’ (2016) 101 Minnesota Law Review 699 62 Kukovec (n 38).

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opportunities, and empowerment, it raised the expectation that the national site of formal decision-making will actually empower those who have been left behind and improve their lives. Brexit clearly exposed the fallacy of the belief that the level and site of public decision-making is the most important question of social empowerment.63 The Brexit discussion, just as constitutionalist and pluralist transformations of Europe, disengages from the flow of power in society. Brexit was often presented as an example of democratic change.64 Yet, the general public in the United Kingdom was promised no other social transformation and empowerment beyond the changes in the level of governance and decision-making. The constitutionalist and pluralist discussion of the European Union provides a blueprint for such thinking. The representation and institutional voice closer to the system appear to ensure the normative requirements of a polity. Brexit is a variation of the constitutionalist notion of disintegration and principle of subsidiarity. The political (and academic) energy flares up when faced with the question for the ‘correct’ site of constitutional decision-making. No other issue of European Union policy politically mobilized UK society as much as Brexit. Such thinking simultaneously contributes to cooling of politics in every other domain of European policymaking and prevents a deeper intellectual and social transformation. Brexit is only one example of the over-emphasis of the importance of the site of decision-making, backgrounding actual empowerment and freedom of the spirit. The danger of constitutionalism and pluralism, just as that of Brexit, is providing legitimacy for the existing state of affairs or for yet another anti-structural change. Each of the four positions—left federalists, left sovereignists, right federalists, and right sovereignists—can be critiqued on their specific merits. For example, the (German) left sovereignists, such as Streeck, could be critiqued on the basis of a perception of Germany as a closed system, which includes all activities unfolding within its borders. A call for national supremacy and a return to national powers of the Member State is oblivious to the German impact far beyond its borders, regardless of the existence of the European Union or the euro. It also takes for granted the empowerment of (all) German nationals within Germany when the nation-state regains its powers. It thus remains unclear how the renationalization of its powers could solve the German citizens’ and European citizens’ empowerment. Various critiques could be directed at left and right federalists as well, for example based on their understanding of the market.65 The most important observation in the context of this discussion, however, is a meta-critique, which refers to all four positions. The portrayed discussion appears laden with normativity, encapsulating all aspects, forms, or variations of constitutional theory. While appearing to advance constant change, constitutionalism/ pluralism does not commit to deep structural social transformation. The narrative,

63

Ibid. Damjan Kukovec, ‘The People Have Voted, Now Let the People Speak’ (Verfassungs Blog, 8 October 2019) accessed 15 April 2021. 65 Kukovec (n 28). 64

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interpretation, and understanding of harm do not change, either with minor or with radical constitutional changes within the premises of these four positions. As a consequence, in the European Union, everything keeps changing, yet the deep structures of power do not. Normative vacuity ensures the voices of different interests and of democracy. As Heller noted, emptiness is inbuilt into the constitutionalist rhetoric. He argued that it is the very lack of determinate content that permits ethical fundamental principles of law to stabilize a constitution. This provides the doorway through which positively valued social reality makes its way into the normativity of the state. The ethical aims of legal order are then expressed in the ethical fundamental principles of law.66 In this way the constitutionalist/pluralist debate fulfils its basic liberal mission, ensuring that people of any worldview (but for the more or less extreme Eurosceptics, who question the system in totality) can identify themselves with the European Union’s architectural structure. What one believes to be the solution to fundamental constitutional questions—such as policing the boundaries of competences conferred on the EU; application of the principle of subsidiarity, both in terms of substance and procedure; solving ambiguities with regard to the appropriate legal basis for EU legislation; adopting an attitude toward further ‘agentification’; approaching claims to EU law’s ‘autonomy’; interpreting the notion of ‘supremacy’; addressing the ‘disconnect’ between the EU’s regulatory power and its sources of democratic and constitutional legitimacy at the national level, and so on—is unrelated to any normative vision of society. Constitutionalism’s open-endedness and a priori vacuity gives an impression that social options are limitless. In reality, its open-endedness can importantly contribute to supporting the status quo. The advantage of constitutionalism, and thus of the European Union, is that it can count on support from a broad pool of constituencies. The normative vacuum of its central transformative discussion, however, also hinders its deeper rethinking, transformation, and social empowerment. Constitutionalism and pluralism, by implying the central idea of a liberal order that the content of the order is not pre-existing but rather open to the struggle of interests, paradoxically strengthen the perception of inevitability of the current, existing narrative—of existing understanding of harm and of existing interpretations. The normative vacuity of constitutional change between these ideal-types and the lack of engagement with hierarchical structures reduces the range of social options in society and risks perpetuating exclusion. Finally, a determinate image of the European Union market further diminishes constitutionalist transformative potential and enhances its blindness to hierarchical structures. The discussion often assumes that capitalism has limited variation.67 Based on this assumption, the best constitutional solution will tame this pre-existing structure68 by liberating the powers of the welfare state or building strong European 66 Hermann Heller, Die Souveränität: Ein Beitrag Zur Theorie Des Staats- Und Völkerrechts [Sovereignty: A Contribution Towards a Theory of The Law of the State and of International Law], in 2 Gesammelte Schriften 37 (Christoph Müller ed, 1992), 201–02. 67 For one such example of a restricted view see eg Peter A Hall and David Soskice, Varieties of Capitalism: The Institutional Foundations of Comparative Advantage (OUP 2001). 68 Kukovec (n 2) 150.

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institutions (the left), or will give capitalism enough room for its proper development and functioning on either the national or the European level (the right). Social considerations are erroneously contrasted with free movement considerations in such discussions.69 The market has been shown, however, to be indeterminate, with various possibilities of different market arrangements, not an indivisible entity. Taking the constitutionalist/pluralist discussion as the central transformative axis keeps the European Union in a discussion between daily management, selfpreservation, and expansion on the one hand and disintegration on the other, leaving its deep structures and hierarchies intact. All the while the Union is constantly changing its architectural structure and looking for new institutional and discursive ways to engage an abstract individual. The central transformative axis of the Union, without a normative vision, risks legitimizing the existing state of affairs, the status quo, and its reproduction. Moreover, several of those attempts to engage the citizen in the functioning of the Union contribute to a further complexity of the system,70 further distancing citizens from the governance of the Union, and even more so those citizens who are already disempowered. To be sure, the claim of this chapter is not to say that existing constitutionalist/ pluralist questions are not absolutely fundamental for a democratic polity, including those of the final authority and its reference points, of division of public power, or of the relationship between the whole and its constituent parts. The full democratic potential of a polity, however, is lost when the scope of its social change is captured by these questions. A polity only fulfils its foundational potential when it is one in which laws, including their narratives, are protectors of the oppressed, the poor, the loner.71 Lawyers should thus be addressing the hierarchical legal relations between people and the entailing narratives, interpretations, and doctrines, rather than merely hierarchies between legal orders.72

VI. Conclusion Constitutionalism needs reimagination to be able to better address the challenges of European social life. The goals of constitutional changes are building an order, more efficient functioning of the system, democracy, accountability, representation, human rights protection, and other elements from the arsenal of constitutional theory. However, a vision of the good life that does not adequately address the plight of the powerless belies its liberal promise. The socially conservative nature of the discussion is common to constitutionalism and pluralism, as they constitute the same legal paradigm. The constitutional/pluralist framework keeps furthering social change, without a change of European deep structure of hierarchy, its narrative, and its understanding of harm. Difficult legal, economic, and social questions are set aside. Real contestation remains obstructed by the 69 70 71 72

Kukovec (n 29). Ibid. Ginsburg (n 1). Kukovec (n 29) 161.

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existing narrative and understanding of harm. The questions put at the centre of constitutional change become a substitute for rethinking the hierarchical structure and practices of society. Instead of finding new legal and economic ways to transform the European Union or its nation-states, the analysis is reduced to the perpetuation of the status quo in which constitutionalist and pluralist analysis serves as a justification for order-building (or dismantling, in the case of Brexit) and reproduction of existing narrative and hierarchy. The constitutionalist/pluralist construction of society is portrayed as an antidote to power. However, the ideological vacuity of constitutionalism and pluralism, particularly when it assumes its central role in the transformation of Europe, risks contributing to its reproduction. Furthermore, an assumption that public decision-making takes place only in institutional settings, the constitutionalist/pluralist paradigm obscures powerlessness and does not adequately address empowerment—its fundamental mission. The periphery—the powerless, the impoverished, the losers of European integration—are too often left out of the constitutionalist game, despite the promise that their lives will be improved. The hierarchical structure in which the European periphery is tied in is being perpetuated. The constitutionalist/pluralist paradigm can thus present a utopia of equality and an apology for domination. The constitutionalist/pluralist paradigm does not provide analytical clarity of the kind of Union that is being constructed. An interpretative turn, combined with a focus on the change of understanding of harm in the production of material and spiritual values of society, is needed in constitutional theory. Currently, the existing narrative and the perception of harm remain untouched in the constitutional and pluralist transformation, in the constant expansion or contraction of the legal order. Understanding the European Union, and especially its legal system, as a set of hierarchical relationships between people and the focus on the narrative assists us in identifying and addressing the privileges against harm allocated to some, but not to others. Reallocation of those privileges would be a true constitutional change and European renewal—a noble and necessary cause that the European Union might want to undertake, to fulfil its foundational promise of empowerment.

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Imaginaries of Prosperity as Constitutional Imaginaries Marija Bartl*

I. Introduction This chapter explores the question of what makes imaginaries constitutional. Should we look for them in constitutional texts and doctrine? Or should we give them a more sociological reading, and consider as constitutional those shared imaginaries that hold our societies together? If the latter, how do these shared imaginaries actually relate to constitutional texts? For instance, were they expressed in the proposal for the ‘Constitutional Treaty’—which, as the ‘last utopia’, features prominently in the introduction to this volume?1 Or are they to be found in EU’s governmental practices, the handling of Covid crisis, the Brexit movement, or national party programmes? In order to respond to this query, I will take us to another context and another time, for this will hopefully allow me to productively reframe the concerns underlying constitutional imaginaries in general, and those of European constitutionalism in particular. In a recent symposium on socialist constitutionalism,2 published on the (web)pages of the Law and Political Economy blog, William Forbath attempts to outline some of the ills of the contemporary constitutionalism. Unlike the constitutionalism of the Weimar era, he argues, contemporary constitutional theory is indifferent to the core questions of political economy, ‘namely how to imagine and construct a constitutional order that helps redress and undo the ways that class inequality and deep asymmetries in the distribution of social and economic power undermine the guarantees of political equality on which constitutional democracy rests’.3 Contemporary constitutionalism does not seem to care for real concerns and (distributional) conflicts, failing to address very real constitutional questions in their background.4 Weimar, like some other later * I would like to thank Ronan Condon, Jan Komarek, Candida Leone, and Rafal Manko for their invaluable comments on the earlier drafts of this chapter. All remaining errors are mine. 1 See the introduction to this volume. 2 Forbath’s definition of socialism is as follows: ‘Socialism means the extension of democracy and democratic institutions into economic life. Liberal democracy could not deliver on its promises of liberty and equality unless the precepts of democracy and republican self-rule were extended from the sphere of politics into the sphere of social and economic life.’ In William E Forbath, ‘Socialism Past and Future’, LPE Blog (22 June 2020). Available at accessed 25 May 2021. 3 Ibid. 4 Etymologically, the word constitution comes from constituere, to establish. The constitution is, in this light, an act of the constituent power (pouvoir consituant), establishing an order from nothing, and giving birth to constituted power (pouvoir constitué), which derives its legitimacy from the constitution.

Marija Bartl, Imaginaries of Prosperity as Constitutional Imaginaries In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0017

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constitutions,5 epitomizes a different kind of constitutionalism, according to Forbath—constitutionalism interested in the questions of the distribution of power and authority in society, where the economic power is accounted for in the constitutional settlement. In (an, as always, thoughtful) response, Samuel Moyn points out that while the Weimar constitution may have incorporated important progressive provisions, it failed, in the years following its enactment, to entrench its progressive agenda. Moyn raises two main objections to Forbath’s attempt to learn from Weimar. First, he suggests that ‘our economic situation is such that the Weimar experiment provides a little but not a lot of guidance in establishing a progressive or socialist alternative’.6 The Weimar constitution is thus not a promising source of inspiration for our contemporary problems. Second, he argues that we need to ‘question, cautiously and respectfully, whether we should sign on to the contemporary project of constitutionalizing progressive political economy’.7 Moyn presses on the role of constitutions in empowerment—beyond giving constitutional law professors a role in the elaboration of socialism. Specifically, he is concerned that, if the opposite agenda wins, the ‘constitutional lawyers would have the job of getting their constitutions out of the way of political success’.8 This conversation, as many others in recent times, builds on efforts to understand and re-articulate the relations between law and political economy at a time in which the ‘neoliberal consensus’ is breaking.9 While Samuel Moyn may be right that the constitutional texts are certainly not places where one can permanently institutionalize progressive agendas, a generous reading of Forbath’s project is that he is after something slightly different; that is, to recover a certain constitutional imaginary that prevailed in the Weimar period in many countries10—a constitutional imaginary which stands for a very different understanding of how the world ‘fits together’ than the contemporary (neoliberal) one. In this chapter, then, I will try to articulate what the constitutional imaginary lying behind the Weimar constitution may have been, and its continued relevance today in Europe and beyond. While doing so, I will also articulate the role of legal and constitutional imaginaries when attempting to bring about social change. The main argument I would like to make in this chapter is that we should identify as constitutional imaginaries those imaginaries that have fundamentally shaped the ways in which we have gone about making and re-making our societies, whether they are expressed in constitutional texts or not. I will argue that the two most consequential imaginaries in high and late modernity,11 which have periodically mobilized vast 5

See for instance the Italian Constitution post-Second World War (1948). Samuel Moyn, ‘The Relevance of Weimar’, LPE Blog (24 June 2020) accessed 6 April 2021. 7 Ibid. 8 Ibid. 9 See for instance a symposium on Verfassungsblog edited by Poul Kjaer, ‘What Comes after Neoliberalism’, Verfassungsblog (August 2020) available at: accessed 6 April 2021. 10 The Weimar Constitution was signed by the German president in 1919. It was preceded by a major workers’ strike and the proclamation of socialist republics across several German states. 11 I take high and late modernity to be the period from the second industrial revolution, ca. 1870, until the present. 6

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social energies and brought about significant constitutional changes—in the distribution of power, conduct of politics, administration of justice, distribution of voice and resources—presented us always with a story of prosperity. It was the most credible story of prosperity, at a particular point of time, that has steered where our individual and collective efforts and resources were invested, and thus what kind of society we have instituted.12 These ‘imaginaries of prosperity’ are properly constitutional because they have not only justified vast redistributions of power over the past 150 years, but also co-produced their own imaginaries of economy, politics, or law, always driving the knowledge production towards its desired recipe for social change.13 One imaginary of prosperity, encapsulated in the Weimar constitution, can be described as a ‘imaginary of collective prosperity’.14 In this imaginary, trust is placed in public institutions and collective bodies as the drivers of social change and prosperity, and thus power—also by means of law—has to be vested in the hands of these bodies and institutions in order to bring about a better future. The Weimar constitution thus, for instance, empowered workers councils at all levels of economic and political organization, protected workers and the middle class (!), and put in place provisions for the ‘socialization’ of enterprises against adequate (rather than full) compensation.15 The imaginary of collective prosperity has been preceded,16 and gradually succeeded,17 by the ‘imaginary of privatized prosperity’, which informs contemporary constitutionalism. In this imaginary it is private actors (individuals as consumers, but vitally capital, industry, and innovators) who are seen as the drivers of social progress and who need to be given space and power—also by means of law—in order to bring about a better future. Remarkably, thanks to a particular historical context, the imaginaries of privatized prosperity have avant la lettre shaped the constitution

12 I use the term society to indicate that what is being constituted encompasses political, economic, or social spheres, the public and the private. What is constituted are the ways of life. See also Cornelius Castoriadis, The Imaginary Institution of Society (MIT Press 1997). 13 Marija Bartl, ‘Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political’ (2015) 21 European Law Journal 5. 14 As will become clear later, the imaginary of collective prosperity has had both more progressive inclusive variants (social-democratic, and in part socialist) and more regressive exclusionary variants (Nazism, fascism, some religious movements). In terms of Weimar, I focus in this chapter mainly on the exploration of the social-democratic imaginary of collective prosperity, for I see the articulation of the new progressive imaginary of collective prosperity as a crucial step for responding to both the social and the environmental challenges we face today. The development of more nationalist and populist versions of collective imaginaries is anyway already taken care of by relatively successful right movements from India to Brazil, the US, Russia, the UK, and so on. 15 Weimar Constitution, section on ‘Economic Life’, Art. 152 ff. 16 The end of the classical liberal imaginary of prosperity is usually dated to the end of the First World War. The rise of the social democratic imaginary of collective prosperity is formed from the end of the nineteenth century, with the growth of labour movements across Europe and the US, accompanied by the growing body of critical and progressive scholarship. FA Wieacker, History of Private Law in Europe (Clarendon Press 1995). 17 I refer to the 1980s as a moment when the shift toward the new imaginary became more prominent, with the victory of Margaret Thatcher in the UK and Ronald Reagan in the US, the Wassenaar consensus in the Netherlands in 1982, and the White Paper on the Completion of the Single Market and a Single European Act in the EU in 1986. But of course, the crises that enable this shift took place in the 1970s and include several consequent economic crises and the breaking up of Bretton Woods. However, the second half of the 1970s was also the period of the first, more genuinely global progressive imaginary of collective prosperity, within the New International Economic Order.

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of European communities,18 during the heyday of the imaginaries of collective prosperity among its member states.19 The imaginaries of prosperity have, importantly, shaped our understanding of what the proper role of law is and should be, with sweeping consequences, not least for democracy. When imaginaries of privatized prosperity prevail, the legal community will mostly see social and economic reality as pre-legal, exogenous to law, not constituted by law in any fundamental sense.20 Law’s role will then be to facilitate and optimize exogenous social processes—while unavoidably having to conform to their particular (spontaneous) laws, orders, and principles. If we thus adopt this understanding of the law’s proper role, we immediately perform the privatizing logics—for a large number of social interactions will stay outside of the purview of both legal normativity and democratic politics. In contrast, when imaginaries of collective prosperity prevail, lawyers will see much of social reality21 as institutional, constituted through law and politics.22 Law, in this 18 The main goal, as well as the main means of European integration, was the progressive establishment of the common market, where the free movement of goods, services, capital, and workers would lead to the most optimal allocation of resources, prosperity, and increased interdependence on its territories. The Court of Justice was soon to turn the fundamental freedoms into individual rights, making industry the main driver of European integration. At the same time, a set of competences of the EU in the field of social or cultural policy were close to non-existent at the time. Despite this, European Court of Justice notwithstanding, EU policies in the 1960s, 1970s, and 1980s generally remained embedded in the then prevalent collective imaginary: with the concerns for power asymmetries and antagonistic interests, especially between labour and capital, and the protection of weaker parties (workers, consumers) as central concerns. This changed only with a broader shift to the imaginary of privatized prosperity from around the mid1980s. The Treaties, updated with the Single European Act, helped to unleash (if unevenly) processes of marketization and privatization of public power in Europe. 19 Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (HUP 2020). 20 I see several different strands of scholarship as representative of privatizing imaginaries in law, including law and economics, law governance, behavioral turn in law, social norms scholarship, reflexive law, and so on. Notable examples of such scholarship are, for instance, Gunther Teubner, ‘Substantive and Reflexive Elements in Modern Law’ (1983) 17(2) Law and Society Review 239–85; Gunther Teubner, ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory’ in Christian Joerges et al (eds), Transnational Governance and Constitutionalism (Bloomsbury 2004) 3–28; Lisa Bernstein, ‘Merchant Law in a Merchant Court: Rethinking the Code’s Search for Immanent Business Norms’ (1996) 144(5) University of Pennsylvania Law Review 1765–1821; Gráinne De Búrca and Joanne Scott, Law and New Governance in the EU and the US (Bloomsbury 2006); Christine Jolls, Cass R Sunstein, and Richard Thaler, ‘A Behavioral Approach to Law and Economics’ (1998) 50 Stanford Law Review 1471–1550; Richard A Posner, ‘The Law and Economics Movement’ (1987) 77(2) The American Economic Review 1–13; Norman I Silber, ‘Observing Reasonable Consumers: Cognitive Psychology, Consumer Behavior and Consumer Law’ (1989) 2 Loyola Consumer Law Review. 21 By social reality I mean socially constructed, shared reality that includes both the aspects of the social world (practices and institutions) and the natural world as they are perceived and experienced by people, individually and collectively. 22 There are many typical examples of legal scholarship that understand law as constitutive of social reality, including law and political economy scholarship, critical legal studies, TWAIL, sociological approaches to law, the historical turn in international law, and so on. Some limited, examples are Antony Anghie, Imperialism, Sovereignty and the Making of International Law, Vol. 37 (CUP 2007); Duncan Kennedy, ‘The Political Stakes in “Merely Technical” Issues of Contract Law’ (2001) 10(1) European Review of Private Law 7–28; David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (PUP 2016); Christine Desan, Making Money: Coin, Currency, and the Coming of Capitalism (OUP 2014); Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (PUP 2019); Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford Monographs on Labour Law 2014); Isabel Feichtner, ‘Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of Deep Seabed Exploitation’ (2019) 30(2) European Journal of International Law 601–33; Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (OUP 2012); Harm Schepel, ‘The

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view, is clearly endogenous to social reality and an important vehicle for social change. If we then adopt this understanding of law, we will be much more confident and ready to intervene to change the existing ‘rules of the game’, as well as distributive outcomes by means of legal normativity and democratic politics, with far less presumed deference for the ‘laws’ of economy or any other traditional or ‘natural’ social arrangements. These imaginaries of prosperity are thus conceived in this chapter as families of imaginaries and corresponding institutions and practices that share the background understanding of economy, law, politics, and government, woven by and through a story of prosperity, which places either private actors or collective actors in the driving seat towards a better future. If used in the singular, the ‘imaginary of prosperity’ refers to the shared background conception of economy, law, politics, and government that prevails at a certain point of time. If used in the plural, as the ‘imaginaries of prosperity’, I aim to stress the performative dimension of social imaginaries, that is, the plurality of imaginaries, projects, institutions, and practices necessary to maintain (and change) the deeper imaginary of prosperity. It is in the performance of imaginaries of prosperity, through various imaginaries, projects, institutions, and practices that we see the variation in the background understanding of economy, law, politics, and government emerge—setting the ground for change.23 What Forbath then calls for when he demands that certain aspects of Weimar-like constitutionalism are revived is not just the recovery of a particular type of constitutional crafting; his plea is for a different constitutional imaginary of prosperity altogether. I see Forbath, and increasingly many others for that matter,24 calling for a turn towards a new imaginary of prosperity, which would rely on public and collective institutions and interventionist law, as the Weimar constitution did, in order to counter the excesses of the great privatization that has taken place over the past forty years across the world. This new collective imaginary will certainly have to be a considerably revamped version of the social democratic one,25 as Moyn rightly observes.26 Yet what needs to be saved from the previous collective imaginary is the revival of trust in public and collective institutions, as well as law, as the vehicle toward an inclusive, liveable future.27 Bank, the Bond, and the Bail-out: On the Legal Construction of Market Discipline in the Eurozone’ (2017) 44(1) Journal of Law and Society 79–98; Gert Brueggemeier et al, ‘Social Justice in European Contract Law: A Manifesto’ (2004) 10(6) European Law Journal 653–74. 23 Importantly, the shift between the imaginaries is both gradual and radical. The gradual variation in the background understanding of economy, law, politics, and government at first only weakens the old imaginary. Once a sufficient degree of variation has been cumulated, a qualitative rather than a quantitative shift takes place—with a clear appearance of an articulate, coherent, self-assured, and elegant paradigm of understanding the world. 24 For a specific outline of the actors who foreground the imaginary of collective prosperity, that is to say who see public and collective institutions as a path towards a livable future, see the Conclusion to this chapter and in particular footnotes 104–114. 25 Ranging from around the end of the First World War until the 1970s, with clear breaks on the way. 26 See Samuel Moyn (n 6). 27 Importantly, a broader shift toward imaginaries of collective prosperity will not be without effect in the EU, despite the deep institutional entrenchment of the imaginaries of privatized prosperity. The encouraging message of this chapter is that we are not entirely dependent on the constitutional texts, and the institutional constraints can be overcome. If we are to judge on the basis of history, with all the caveats that apply, a broader shift towards a more collective imaginary of prosperity would reshape EU policies as well as

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If there is a role for legal scholars in helping to usher the new collective imaginary of prosperity, it is in challenging the still prevailing privatizing imaginary and its laws. They should—as Forbath himself does—continue to bring to the fore the preoccupations of imaginaries of collective prosperity, such as power and antagonistic interests, stressing that law is endogenous to social reality and can be a vehicle for social change. Such efforts to de-naturalize social realities need to take place also at the level of constitutional law and scholarship, in Europe and beyond: not least because vacating this space of political and legal struggle leaves it up for grabs for those who see such constitutionalization as their main political agenda.28 This chapter will be structured as follows. I will first articulate what social thought on social imaginaries brings to the discussion of constitutional imaginaries (section II). Then, I will develop the concept of ‘imaginaries of prosperity’ as the proper constitutional imaginaries of high and late modernity, and outline the two different routes to prosperity they foster: either through public and collective institutions, on the one hand, or private actors and firms, on the other (section III). Subsequently, I bring my account back to analysis of some of Forbath’s observations about Weimar constitutionalism, both as an illustration of what the imaginaries of collective prosperity stand for and to provide some reasons why Forbath’s project may be broader than what Moyn suggests (section IV). Next, I turn to reflect on the relevance of the constitutional imaginaries of prosperity for the EU constitutional settlement (section V). Finally, I conclude with some observations on the new collective imaginary of prosperity and the role of law and lawyers in the re-making of society (section VI).

II. Constitutional Imaginaries as Social Imaginaries In recent years,29 a number of leading constitutional law scholars30 have relied upon the concept of constitutional imaginaries as a means to gain a better understanding of the reading of its constitution. And while the ongoing Covid crisis has set the shift in train, it is on all of us to foster a convincing and inclusive imaginary of collective prosperity for the EU, which could successfully replace the neoliberal privatized one. 28 In his excellent book Globalists, Slobodian shows that ‘constitutionalization’ was a political project of a sizeable number of neo/ordoliberals. Slobodian, Globalists (n 19). For reflection on the European constitution, see section 6 of this article. 29 The heading for this section winks to Castoriadis (n 12). 30 See for instance, Martin Loughlin, ‘The Constitutional Imagination’ (2015) 78(1) The Modern Law Review 1–25; Jiří Pribáń, ‘A Social Theory of Constitutional Imaginaries: Beyond the Unity of ToposEthnos-Nomos and Its European Context’ in Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (eds), Constitutionalism Under Stress: Essays in Honour of Wojchiech Sadurski (OUP 2020); Paul Blokker, ‘Populism as a Constitutional Project’ (2019) 17(2) International Journal of Constitutional Law 536–53; Paul Blokker, ‘The Imaginary Constitution of Constitutions’ (2017) 3(1) Social Imaginaries 167–93; Kim Lane Scheppele, ‘The Social Lives of Constitutions’ in Chris Thornhill and Paul Blokker (eds), Sociological Constitutionalism (CUP 2017) 35–66, accessed 25 May 2021; Zoran Oklopcic, Beyond the People: Social Imaginary and Constituent Imagination (OUP 2018); Chris Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (CUP 2011); Jiří Přibáň, ‘Constitutional Imaginaries and Legitimation: On Potentia, Potestas, and Auctoritas in Societal Constitutionalism’ (2018) 45(S1) Journal of Law and Society 30–51; Jan Komárek, ‘European Constitutional Imaginaries: Utopias, Ideologies and the Other’, University of Copenhagen Faculty of Law Research Paper No. 2020-88; Thornhill (n 29).

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how constitutions actually constitute societies we inhabit. Their main aim was to go beyond constitutional texts and explore the less tangible but no less significant role of constitutional imaginaries in social practices and shared imagination.31 This growing constitutional scholarship builds on a wide-ranging tradition in social thought, which revolves around the concept of ‘social imaginaries’, as developed within several different traditions: liberal communitarian,32 psychoanalytic,33 science and technology studies,34 political economy,35 and so on. What makes the scholarship on social imaginaries noteworthy is that it sheds—with some success, I would say—new light on the questions of social integration and social change, by reinterpreting—or complicating—the relationship between thought and practice, agency and structure, the imaginary and the real, collective and individual, form and substance. The literature on social imaginaries has a number of important implications for the study of constitutionalism, which is taken on board, if to varying degrees, by the aforementioned constitutional scholarship. First, and for lawyers perhaps the most obvious message, is that any broadly shared conception of how the world works, and should work (a social imaginary), will end up incorporated in laws, regulations, institutions, organizations, or governmental and social practices. This institutionalization makes social imaginaries stick, both naturalizing and amplifying them across time, space, people, and their environments.36 Second, the reference to social and constitutional imagination highlights an important departure from rationalist tradition in social thought. To maintain a social order, as well as to bring about change, we need more than just ideas.37 The stickiness of social imaginaries is closely related to the affective ways in which we relate to the world, individually and collectively.38 Imaginaries not only ‘make sense’, but also engender identification, (mis)trust, and belonging, and give us a home (or not) in the 31

Blokker (n 29). Charles Taylor, Modern Social Imaginaries (DUP 2004). 33 Castoriadis (n 12). 34 Sheila Jasanoff and Sang-Hyun Kim, Dreamscapes of Modernity: Sociotechnical Imaginaries and the Fabrication of Power (CUP 2015). 35 Ngai-Ling Sum and Bob Jessop, Towards a Cultural Political Economy: Putting Culture in Its Place in Political Economy (Edward Elgar Publishing 2013). 36 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso 2006). 37 Some articulations of the ‘competitor’ concepts, such as ideology (as in the work of Slavoj Žižek or Louis Althusser) or paradigms (such as in the philosophy of science), do capture some of the concerns raised here, but miss others. The concept of paradigms, or its variant episteme, aims to capture a framework of thought, a set of concepts and practices within which a (scientific) discipline is thinkable. Paradigms are rather static, however—until they are not. Social imaginaries, instead, merge the concern for structure with the concern for agency. While (some) social imaginaries will become dominant, and thus in important ways institutionalized, individuals and groups come up with new imaginaries all the time, in order to remake the social order. And while new imaginaries will come with a different level of ‘imaginativeness’, that is, the degree to which they will incorporate the elements of already shared imaginaries, they are always part of projects and thus working to bring about a change in social reality. The concept of ideology, on the other hand, especially in its more recent articulations in the work of Slavoj Žižek, also captures important aspects of social imaginaries that I present in this chapter. However, I find the concept distracting for two reasons: first, the reference to ‘ideas’ distracts from more affective and imaginary dimensions of what is at stake; second, the concept comes with a slightly negative connotation, or even baggage, of falsity and something that we need to escape. Yet, not only is such an escape impossible, but the new social imaginaries are important preconditions for social change and thus potentially also empowerment. 38 Judith Butler, The Force of Nonviolence: An Ethico-Political Bind (Verso 2020). 32

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present and in the future.39 Consider just the affective and mobilizing effects of ‘liberté, égalité, fraternité’ that found expression in the 1791 French constitution, or the ‘Life, Liberty and the pursuit of Happiness’ of the American Declaration of Independence. But similar affective and mobilizing forces have also other social, if not necessarily constitutional, imaginaries. Consider the success of the neoliberal imaginary in recent decades. It not only appealed to us on the level of common-sense ideas about the working of economy (‘the Swabian housewife’40), but also provided us with a credible hope for a better future, whereby empowering private actors (capital, industry, and innovators), in a globalizing world, would bring about economic prosperity for all.41 As such, the neoliberal imaginary has found expression in numerous laws, institutions, and social and governmental practices. Social change then, third, requires simultaneous work on at least two levels. Social change requires new imaginaries, new visions of how the world is and should be, that are both ideationally and affectively convincing and appealing. That new understanding is, however, co-produced and carried out through a number of world-making projects, not only introducing changes in the way we see the world, but also ushering in a new set of laws, practices, and institutions.42 This brings me to the fourth, and perhaps most overlooked, message. Major sociopolitical transformations, fundamental for the kind of society we have instituted, have come in the wake of changes that many would not see as meriting constitutional concern. New technological imaginaries and projects (eg space travel, the internet, AI, and self-driving cars) or economic imaginaries and projects (eg Keynesianism, neoliberalism, Fordism, online shopping, etc) have mobilized vast social energies, and brought about constitutionally significant changes in the way we how we distribute power, conduct politics, administer justice, allocate power and voice, and so on. Yet they are usually not part of the traditional constitutional discourse. The core constitutional question then has to be who gets space and power to bring projects, with their underlying imaginaries, into the world, and on what terms. The world we inhabit is constituted through the different projects people pursue— political, economic, academic, social, family, public or private. Each and every project has to draw on, and thus also aims to institute, its own imaginaries of how economy works, how politics works, what is the role of government, industry, science, the future of work, and so on.43 For instance, those trying to market ‘self-driving cars’, a 39 Scholars have provided the evolutionary explanations for this identitarian and affective dimension of social imaginaries. Yuval Noah Harari, Sapiens: A Brief History of Humankind (Random House 2014). 40 ‘Steve Keen—Can’t We All Be Swabian Housewives?’ (Brave New Europe blog, 31 January 2019) accessed 6 April 2021. 41 Importantly, this is not to say that ‘evidence’ or ‘knowledge’ production does not play a role in ushering in a new imaginary. New imaginaries are not born ‘complete’. Instead, they are made through knowledge production and political action, which prepares grounds for the reimagination of social order. For most people, however, accepting a social imaginary still requires a step into the unknown: it requires trust in their individual and collective chances for a livable future in such a new imaginary. 42 One of the most articulate accounts of the relation between social imaginaries and social change, which has considerably influenced this contribution, is Sum and Jessop (n 35). 43 A holistic set of background imaginaries need not enter into projects intentionally; rather, they are demanded by the fact that one has to (more or less consciously) understand the world one aims to intervene in. Thus any project has to start from an understanding of a relevant ‘whole’ toward which the intervention is directed (market? ecosystem? economy, made or found? state? city? family?); an understanding of the relevant actors or agents one is or has to deal with (private actors? public institutions? groups? women?);

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socio-technical imaginary of its own promising increased safety and efficiency, will do so against the background of a set of shared imaginaries: an imaginary of economy (competitive data economy, the driving role of private actors—especially Google and Uber); an imaginary of the proper role of state or government (the best role for the state is to foster such projects); a conception of law as reactive and facilitative (as one can gather from numerous Master’s theses dealing with questions as to who carries the responsibility when things go wrong with self-driving cars), and many more. Importantly, while the individual producers of self-driving cars may aim to change just one limited aspect of reality, the imaginaries with which self-driving comes into the world are always such ‘patterned convocations of the social whole’,44 carrying within themselves, and eventually instituting, a certain vision of how the world ‘fits together’.45 With each small and big success, projects will re-enforce those background understandings with which they come into the world. Be it an economic project of introducing self-driving cars into the market or a political project to lower taxes, these projects will reconstitute simultaneously the forms of politics, government, economy, law—thus the very constitutional domain—in line with their own presuppositions. Moreover, the projects that share some of the important underlying assumptions, such as an understanding of the proper role of government, will cumulatively reinforce this shared social imaginary, instituting thus over time, for instance, different ‘varieties of capitalism’.46 Hence, whatever constitutional ‘whole’ a formal constitution sets out, with whatever boundaries, this compromise will not hold forever, since each and every project will to some degree reconstitute the relevant constitutional world, both independently and in concert with others. The core constitutional question then has to be who gets space and power to bring projects into world, and on what terms: the whole constitutional boundary between public and private should be retold in line with this understanding.47 Or, put differently, the choice to tag only some of those projects as constitutional (ie an attempt to bring about a change in a constitutional document or law) and not others remains arbitrary, unless the decisive point is their actual impact on issues that we deem of constitutional relevance, such as the distribution of power, the conduct of politics, administration of justice, allocation of voice and resources, and so on. and an understanding of what concrete form of intervention is required (through competition? Innovation? politics? law? entrepreneurship? competition? marriage? scientific discovery? etc.) 44 Manfred B Steger and Paul James, ‘Levels of Subjective Globalisations: Imaginaries, Ideologies, Ontologies’ (2013) 12 Perspectives on Global Development and Technology 1–2. 45 Taylor (n 32). 46 We may interpret the ‘varieties of capitalism’ literature as ultimately articulating different social imaginaries—that is, different understandings of how economy, politics, government/state, technology, nature, law, and so on fit together—around which various capitalisms are organized. Martin Höpner and Armin Schäfer, ‘Integration among Unequals: How the Heterogeneity of European Varieties of Capitalism Shapes the Social and Democratic Potential of the EU’ (MPIfG Discussion Paper, 2012) accessed 25 May 2021. But also Thomas Wilhelmsson, ‘Varieties of Welfarism in European Contract Law’ (2004) 10(6) European Law Journal 712–33. 47 Similarly also Nancy Fraser and Rahel Jaeggi, Capitalism: A Conversation in Critical Theory (John Wiley & Sons 2018).

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III. Imaginaries of Prosperity as Constitutional Imaginaries In this section I will argue that some social imaginaries in high and late modernity have been particularly powerful in mobilizing action and bringing about vast constitutional changes. These imaginaries should be considered as modern constitutional properly so understood, for they are sociologically vital, politically central, and constitutionally fundamental. If we were to line up the political, legal, and economic projects undertaken in the past 150 years in the West—something I do at least partially elsewhere48—we would find that two deeper social imaginaries have driven many projects, periodically mobilized vast social energies, and brought about significant constitutional changes in the distribution of power, conduct of politics, administration of justice, distribution of voice and resources, and so on. I will call these ‘imaginaries of prosperity’ since they have organized the world around two particular routes towards prosperity. The imaginaries of prosperity are properly constitutional because they have not only justified vast redistributions of power over the past 150 years, but also co-produced their own imaginaries of economy, politics, and law. On the one side of the spectrum, we find imaginaries of privatized prosperity (that prevailed before the First World War and after 1980), which see private actors (individuals, often as consumers, but foremost industry, capital, or innovators) as the drivers of social progress and require that power is vested in their hands in order to bring about a better future. In such privatizing social imaginaries, social change and prosperity are located usually in some pre-political social reality—such as the private sphere, the market, or fields of human ingenuity such as science—external to law and politics. The development in these spheres of human action is then seen as organic and bottom-up, attributed to the natural characteristics of people or to the automatic operations of systems (such as self-regulating markets). The economy is seen as natural or self-regulated, and in need of respect for its inner logic. Government should not intervene, or if it is to intervene it should do so in a way that does not go against the natural propensities of individuals or self-organizing principles of the systems. The conception of politics in this imaginary is also rather narrow, insofar as much is left outside the political process—to the nature or the system. Ultimately, what social progress demands in privatizing social imaginaries is to untie the hands of, and incentivize, those who are situated in private domains (industry, innovators, scientists, and so on) to bring about a better future. On the other side of the spectrum, we find imaginaries of collective prosperity (midtwentieth century) which see public and collective institutions as the main drivers of social progress.49 More specifically, imaginaries of collective prosperity start from a 48 Marija Bartl, ‘Socio-Economic Imaginaries and European Private Law’ in Poul F Kjaer (ed) The Law of Political Economy: Transformation in the Function of Law (CUP 2021), 228–53. Currently, the present author is working on a book project that aims to make this point far more robustly. 49 It is beyond the scope of this project to discuss whether, and to what extent, this imaginary has also animated earlier events, such as the 1789 revolution, the nationalist revolutions of 1848, the Paris Commune, etc.

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less ‘systematic’ and more disaggregated, socially constructed understanding of the social whole. They see the world populated by collective actors (workers, women, farmers, nations, minorities, etc), with antagonistic interests, that struggle over how social reality should be shaped. Social change comes through struggle, among groups, in political as well as economic arenas. Politics plays a central role in this imaginary, insofar as it stages struggle over the distribution of power and resources. The state has an important role in steering social and economic life, as well as political responsibility for the acceptability of outcomes. The economy in this imaginary is constructed, rather than natural or self-regulating in any essentialist sense, and it can be made to function more or less fairly. Ultimately, what social progress requires is to vest power in public and collective institutions50 in order to drive us towards a better, fairer, or more liveable future.51 Fundamentally, then, the two imaginaries allow for quite some internal differentiation, while drawing on important epistemic presuppositions and striking similar affective chords. Thus imaginaries of privatized prosperity accommodate classical liberal, ordoliberal, neoliberal, and meritocratic52 conceptions of progress and society, while imaginaries of collective prosperity can accommodate both nationalist variants (fascism, Nazism) and more progressive variants (social democratic or (democratic) socialist) of conceptions of prosperity and society. The differences between its different incarnations should not hide the analogous affective appeals of two different visions of prosperity, which place either public and collective actors on the one hand or private actors on the other in the driving seat of progress.53 The imaginaries of prosperity are constitutional imaginaries of western modernity insofar as they have co-produced their corresponding economic, political, governmental, and—for the purposes of the present discussion, most importantly—legal imaginaries. By legal imaginaries I mean here a conception of the proper role of law. Namely, if one assumes a more privatized social imaginary, considerable chunks of reality will appear as natural or pre-legal, that is, as not constituted by law in any significant sense. In such imaginary, law’s normative power to intervene and change 50 Some examples of such public or collective institutions that have been seen as important drivers of social progress are (powerful) legislatures, selected on the basis of general suffrage; workers’ councils/strong forms of workers’ co-determination; workers’ self-governance; cooperative economy; communing; some forms of corporativist arrangements, etc. 51 It is important also to stress that the transitions between these two visions of prosperity have been gradual, accommodating different varieties of social and institutional arrangements in the meantime. The transition between different imaginaries is moreover never perfect—in part thanks to the sticky nature of law and legal institutions. An excellent example in the EU context is the ‘precautionary principle’, which builds on an imaginary of collective prosperity, whereby it is public institutions that steer technological progress. The precautionary principle has maintained its importance over the past thirty years, despite many contestations within the framework of the WTO or domestic courts. 52 At least more extreme versions thereof. See Michael J Sandel, The Tyranny of Merit: What’s Become of the Common Good? (Allen Lane 2020); Daniel Markovits, The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite (Penguin Books 2020). 53 The two opposing imaginaries appeal to two different propensities of the human psyche, described by social psychologist Jonathan Haidt as the self-interested as opposed to (less dominant) bee-like tendencies of the human mind. The latter, however, is stronger in providing meaning through the transcendence of petty ego drivers for a greater good—be it of a nation, religious movement, a party, a labour movement, or any kind of other social movement (environment, minorities, rights, etc). See Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (Vintage 2012).

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(social) reality will appear limited—if not directly futile or perverse.54 Privatized law will be soft-touch, meant mainly to facilitate or support natural-like processes, spontaneous orders, and pre-legal principles and laws.55 Law and public institutions are there to maintain and foster innovative, future-driving activity in a private sphere— all the while legally divesting both power and responsibility from public or collective institutions. If one instead assumes a more collective social imaginary, reality appears as socially and legally constructed, and law is endogenous to its constitution. Power is a central category in this imaginary of law—for instance, bargaining power, or power to struggle for distribution of authority, voice, resources. In this imaginary, law is seen as a vehicle for social change:56 given that law is endogenous to social reality, actors can have more confidence in the capacity of law (and collective action in general) to intervene and remake social reality. Collective law will be more interventionist and its progressive variant focused on equalizing power between different groups, including between labour and capital, structuring the space for struggle and protecting by law those who are deemed vulnerable. In collective imaginary, the control over technological development remains in the hands of collective and public institutions, while generally reserving power (and responsibility) for the shape of the future to those same institutions.57 Clearly, the two imaginaries of prosperity will have important consequences for any regime of power. In democracies, for instance, the privatizing legalities will have a tendency to limit the range of issues on which the collective can act through law and collective action, by means of ongoing privatization of power. The expression of collective self-determination is here mainly directed at fostering private action and untying the hands of industry and innovators. This is also what has happened over the past forty years, when our technological, labour, environmental, financial, and collective futures have been increasingly shaped through private projects, beyond the purview of democratic decision-making. A need to recuperate a sense of collective control over the privatized, uncontrollable futures has already brought back more collective imaginaries of prosperity.58 What still remains an open question is, however, whether imaginaries of collective prosperity of a more progressive kind still have a chance.59

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Albert O Hirschman, The Rhetoric of Reaction (HUP 1991). Reflexive law is one example, the theory of the regulatory state another. Teubner (n 20) 239–85; Giandomenico Majone, ‘From the Positive to the Regulatory State: Causes and Consequences of Changes in the Mode of Governance’ (1997) 17(2) Journal of Public Policy 139–67. 56 Both nationalist and socialist versions of the imaginaries of collective prosperity usually take a very instrumental view of law, having a considerably more ambiguous relationship to liberal ‘rule of law’ principles than the social-democratic collective imaginary. 57 In the nationalist version the perspective remains similar, but the interventions may go along different lines (different groups favoured, etc). 58 The successful populist movements across the world draw on such nationalist collective imaginaries, combining highly performative nationalist and sometimes racist discourses, as well as disrespect for the liberal rule of law, with the simultaneous endorsement of many of the neoliberal economic policies. 59 The new progressive imaginaries of collective prosperity are still, however, not without hope. These imaginaries give pride of place to the two main challenges of the day—environmental degradation and inequality—and see public and collective institutions as the main vehicle to socio-ecological transformation, tasked with delivering a more just and a more sustainable future, both locally and globally. 55

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IV. Imaginaries of Prosperity behind Weimar Forbath’s call to learn from the Weimar constitutionalism is, to my mind, a call to revive the social democratic imaginary of collective prosperity that has inspired it. What conceptions of economy, state, politics, and government, and what kind of legal-constitutional designs, can invigorate a more inclusive conception of prosperity? In what follows, I will trace the collective imaginary of prosperity lying behind the Weimar constitution, drawing on its provisions as well as Forbath’s interpretation thereof. The avant la lettre Weimar constitution is a product of a particular historical circumstances present in Germany at the end of the First World War.60 In the months preceding the signing of the constitution (August 1919), post-war Germany went through a series of large workers’ strikes and several local communist insurgencies (Berlin Soviet Republic, Bremen Soviet Republic, Bavarian Soviet Republic, etc), all of which were violently suppressed. These uprisings played an important role in shaping the constitutional agenda.61 One of the most interesting elements of the Weimar constitution is the social whole it conjures. Similar to the later Italian constitution (1948) but unlike the French constitution (1958), the ‘economic life’ is part of what needs to be constituted through the Weimar constitution. The world and economy which Weimar reconstitutes is neither natural nor self-regulating; rather, it must be constitutionally, thus collectively, structured.62 As Forbath puts it: ‘[T]he ordering of the economic life must conform to the principles of justice, with the assurance to all of an existence worthy of a human being as the goal.’63 That is to say, the social whole envisaged by the constitution encompasses both the ‘public’ and the ‘private’, both of which have to be constitutionally, and subsequently legally, structured. The conception of politics behind Weimar is certainly not that of common interest, but rather that of struggle. While the Weimar world is populated by groups with antagonistic interests, its provisions aim to empower workers and the middle classes,64 while property owners are required to use their property ‘to the service of the best good of [the] public’.65 The constitution is there to create a ‘level playing field’ among different groups since democratic politics requires ‘redistribution of power and authority, and not simply the redistribution of wealth and goods’.66 In turn, ‘[o]nly serious democratic power-sharing would ensure a political economy that produces not just goods but citizens’.67

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Mark Jones, Founding Weimar (CUP 2016). The Weimar Constitution was signed only four months after the suppression of the Bavarian Soviet Republic. 62 Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford Monographs on Labour Law 2014). 63 Article 153 of the Weimar Constitution. 64 Articles 157–165 of the Weimar Constitution. 65 Article 153 of the Weimar Constitution. 66 Forbath (n 3). 67 Ibid. 61

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In terms of the economic imaginary behind Weimar, the idea was that of collectivism, and the extension of democracy and democratic institutions into economic life.68 In its constitutional text, this is reflected in the empowerment of trade unions and by giving workers not only individual rights but also a share of control over economic life, through workers’ councils, at all levels of economic ordering.69 Labour had a central position in this (social democratic) collective imaginary, and had to be provided with ample opportunity to ‘constitute themselves as collective political-economic actors’,70 for only through ‘their economic independence—and the social and political power it imparted—not via individual property-holding, but collectively, via the security, voice and authority that came with unions’,71 would the democratization of economic, and consequently also political, life be ensured. The imaginary of law behind the Weimar constitution, in Forbath’s account, clearly stresses the elements that I have outlined above as constituent of a collective social imaginary: (1) law is endogenous to social reality, constitutive and (infra)structural;72 (2) power and distribution are central dimensions of thought (bargaining power, distributive arguments); (3) law is relentlessly interventionist and seen as a vehicle of (social) change. Let me address those in turn. Forbath argues that ‘the social law portions of the Weimar Constitution are not a baby version of the grown-up post-World War II welfare rights constitution’.73 Rather, while ‘[t]he social law provisions of the Weimar Constitution included rights, they were chiefly about structures and powers’.74 That is to say, the imaginary of law that lies behind the Weimar constitution views law as constitutive of economic structures, capable of distributing powers and endowments that ultimately designate winners and losers in the economic game. Rights, individual and collective, in this imaginary are seen as an element of the armoire to bring about a more ‘level playing field’.75 In order to perform its task of justly structuring economy, law had to provide for an ‘interlocking framework of rights, structures and powers that aimed to empower workers and other lower class and subordinate groups to participate on an increasingly equal footing in running individual firms and in shaping and governing the broader political economy’.76 The way this is done is, then, by changing the relative bargaining power in individual relations (also through provisions of what will later be called social security), by empowering workers (rather than shareholders) to decide on ‘corporate governance’, and finally by creating institutions (workers’ councils at all

68

Ibid. In his recent book, Piketty argues that in countries where there was workers’ co-determination the pay of CEOs has not exploded to the same degree as in the countries where no such institutional forms are to be found. Thomas Piketty, Capital and Ideology (HUP 2020). 70 Forbath (n 3). 71 Ibid. 72 Michael Mann, ‘Infrastructural Power Revisited’ (2008) 43(3–4) Studies in Comparative International Development 355. 73 Forbath (n 3). 74 Ibid. 75 In the EU law’s ‘internal market’ parlance, the level playing field however concerns only supply side/ competition, rather than the structural power between groups with antagonistic interests. 76 Forbath (n 3). 69

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levels of government) that were supposed to enable the workers to have a direct political say.77 Law in general, and constitutional law in particular, in the Weimar period was relentlessly interventionist: it aimed to create institutional arrangements in both public and private spheres in order to deliver on its promise. The ‘constitutional vehicles here were both trade unions and also a federated structure of democratically constituted workers’ councils at local, regional and national levels of economic governance.’78 Such constitutional and legal arrangements ‘outlined a broader institutional order that aimed to empower them to participate fully in the larger decisions about the nation’s political economy’.79 Forbath thus sees the Weimar constitution and its social law as direct vehicles to pursue change (if within the system that Weimar had in mind),80 that aimed to ‘provide a framework for building democratic socialism’.81 Today, the provisions of the Weimar constitution, but also of other ‘social democratic’ constitutions such as the Italian one (1948), are read in a very different light. As Forbath notes, ‘the literature on constitutional SER [socio-economic rights] misses a great deal when it casts the Weimar Constitution as a weak, infant version of later SER constitutions, which grew stronger over time’.82 If we read these provisions through the prism of an imaginary of privatized prosperity, however, their meaning, moral appeal, and eventual strategic use will change—since they are viewed against the background of a very different understanding of the appropriate role of economy, government, politics, nature, and so on.

V. Imaginaries of Prosperity behind the European Project The Treaty establishing the European Economic Communities, in its numerous incarnations since 1957, is, like the Weimar constitution, also avant la lettre in many respects. Despite the fact that imaginaries of collective prosperity prevailed among its founding member states, the Treaties are predominantly reliant on the imaginary of privatized prosperity,83 while also focusing foremost on constituting the economic domain. The main goal, as well as the main means of European integration, was the progressive establishment of the common market, where the free movement of goods, services, capital, and workers would lead to the most optimal allocation of resources, increased interdependence, and prosperity within its territories. The Court of Justice was soon to turn the fundamental freedoms into individual rights, making the 77

Article 165 of the Weimar constitution. Forbath (n 3). Ibid. 80 Jones (n 60). 81 Forbath (n 3). 82 Ibid. 83 The reasons for this development have been broadly discussed in academic literature. Beyond political possibilities and constraints, and with the usual caveats, many attribute this format of the European Treaties to the formative influence of the German ‘ordoliberal’ school of economic thought. See Slobodian (n 19); Christian Joerges, ‘Europe’s Economic Constitution in Crisis and the Emergence of a New Constitutional Constellation’, ZenTra Working Paper in Transnational Studies No. 06/2012; Miguel Poiares Maduro, We the Court: The European Court of Justice and the European Economic Constitution (Hart 1998). 78 79

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industry the main driver of European integration.84 At the same time, a set of competences of the EU in the field of social or cultural policy was close to non-existent. Leaving aside the jurisprudence of the European Court of Justice, in the period when the imaginaries of collective prosperity prevailed in Europe (the 1960s, 1970s, and even 1980s), the policies of the EU institutions, and legislation that came in its wake, remained embedded in the collective imaginary—with its concerns for power asymmetries and antagonistic interests, especially between labour and capital, and the protection of weaker parties (workers, consumers).85 However, once the neoliberal consensus begun forming, from around the 1980s onwards, the European Communities had the entire institutional structure ready to marketize large swathes of economic activity—with, as a bonus, a pull of decision-making power toward the centre.86 The European Commission, after the White Paper on the Completion of the Single Market87 and emboldened by the Single European Act, made a grand push toward all forms of privatization (euphemistically termed as ‘liberalization’). The privatization of power in Europe was crowned through European Monetary Union, which introduced joined monetary policy without joint fiscal policy—making the imagined ‘market discipline’ the main governance tool in the EU.88 The 2004 proposal for a change of European treaties, to assume the name ‘Constitutional Treaty’, did little if any significant constitutional work. It focused mainly on introducing statist symbolism (hymn, flag, the term ‘laws’, etc) but cared little, for instance, about advancing democratic institutions that would foster mobilization and collective self-determination of EU citizens.89 One could perhaps not have expected more from a treaty that came in the wake of the Lisbon Strategy, focused on making the EU ‘the most competitive and dynamic knowledge-based economy in the world’.90 The then prevailing constitutional compromise, based on imaginaries of privatized prosperity, was a perfectly suitable fit, since the role of government was to foster private action and spontaneous private ordering. Given that such task hinges much more on knowledge than on democratic politics, it is best left to the (existing) technocratic institutions.91 Years after, with new crises not only on our doors but literally in our homes, the European Union is struggling to find ways to respond collectively and in solidarity. The EU suffers from many serious institutional deficiencies that make positive projects 84

Clemens Kaupa, The Pluralist Character of the European Economic Constitution (Bloomsbury 2016). Bartl (n 48); Hans-W. Micklitz, The Politics of Justice in European Private Law: Social Justice, Access Justice, Societal Justice (CUP 2018). 86 Bartl (n 13). 87 Jeff Loder, ‘The Lisbon Strategy and the Politicization of EU Policy-Making: The Case of the Services Directive’ (2011) 18(4) Journal of European Public Policy 566–83 accessed 15 May 2021; Hans-W Micklitz and Stephen Weatherill, ‘Consumer Policy in the European Community: Before and after Maastricht’ (1993) 16(3) Journal of Consumer Policy 285–321. 88 Harm Schepel, ‘The Bank, the Bond, and the Bail-out: On the Legal Construction of Market Discipline in the Eurozone’ (2017) 44(1) Journal of Law and Society 79–98. 89 Hans-W Micklitz, ‘Failure or Ideological Preconceptions–Thoughts on Two Grand Projects’ in Kaarlo Tuori and Suvi Sankari (eds), The Many Constitutions of Europe (Ashgate 2010). 90 For a short description, see accessed 6 April 2021. 91 Giandomenico Majone, ‘Nonmajoritarian Institutions and the Limits of Democratic Governance: A Political Transaction-Cost Approach’ (2001) 157(1) Journal of Institutional and Theoretical Economics 57–78. 85

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of collective self-determination more difficult than projects of marketization and privatization of (ultimately political) power. At least two issues are at stake here. First is the lack of institutional (pre)conditions to mobilize Europe-wide collective political projects, which no reform of representative institutions has been able to address.92 Second, the limited set of issues with which the EU can deal has made it particularly difficult to pursue more ambitious redistributive and social policies. 93 Many scholars, myself included, have been concerned and speculated as to how to remedy this socalled democratic deficit or improve the EU’s ‘republican’ credentials.94 However, if we are to learn from the past, with all the caveats, a broader shift toward more collective imaginaries of prosperity will also not leave the EU untouched. We can already see the first, if imperfect, gestures in that direction. Thus, the need to react to the colossal economic impacts of the Covid crisis have resulted in a first-instrument ‘Recovery Plan for Europe’, however insufficient in its size, that will be in part distributed to the member states on a solidaristic basis.95 The environmental crisis, which is to stay with us longer than the Covid one, is to be met with a ‘Green European Deal’, making it obvious that addressing the ongoing climate urgencies will require both more economic planning and more democratic support.96 These initiatives indicate a growing demand for a more collective social imaginary of prosperity in the EU, where public institutions take power and responsibility for the actual shape of the future. And while that same future remains open, we should not miss the constitutive character of these interventions: they signal a shift in the way we think about change and prosperity in the EU.

VI. Conclusion Over the past forty years we have entrusted ever more power into the hands of private actors (industry, innovators, capital), both by increasing their economic power (eg through tax cuts) and enlarging operational space (‘freedom to operate flexibly’ in the newly liberalized markets), in order to allow them to pursue private projects as means

92 Marija Bartl, ‘Hayek Upside-Down: On the Democratic Effects of Transnational Lists’ (2020) 21(1) German Law Journal 57–62; Jürgen Habermas, ‘Bringing the Integration of Citizens into Line with the Integration of States’ (2012) 18(4) European Law Journal 485–88. 93 Gareth Davies, ‘Democracy and Legitimacy in the Shadow of Purposive Competence’ (2014) 21 European Law Journal 1; Fritz Scharpf, ‘Monetary Union, Fiscal Crisis and the Preemption of Democracy’ (2011) LEQS Paper no. 36; Fritz Scharpf, ‘The Joint-Decision Trap Revisited’ (2006) 44(4) Journal of Common Market Studies 845–64; Marija Bartl, ‘The Way We Do European: Subsidiarity and the Substantive Democratic Deficit’ (2015) 21 European Law Journal 1. 94 Richard Bellamy and Dario Castiglione, ‘Reflections on the European Democratic Deficit’ in Erik Oddvar Eriksen and John Erik Fossum (eds), Democracy in the European Union: Integration through Deliberation? (Routledge 2000) 65–84; Bartl (n 92). 95 Recovery Plan for Europe, available at accessed 25 May 2021. 96 To be sure, (a) the instrument’s financing is nowhere close to what would be necessary for the transition, and (b) it still strongly relies on the institutional frameworks that are favoured within imaginaries of privatized prosperity. Euromemo Group: ‘EuroMemorandum 2020’, available at: accessed 6 April 2021.

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of prosperity.97 Environmental degradation, rising inequality, and foremost the sense of not having a home in the future, has for large segments of society undermined the credibility and affective appeal of privatizing imaginaries of prosperity in recent years. The backlash has come paired with a growing demand for imaginaries of collective prosperity,98 foregrounding public institutions and collective actors as the drivers toward a less unpredictable and less unequitable tomorrow. The jury is still out, however, as to whether we will see more regressive or more progressive collective imaginaries take hold in the future. Legal scholars can play a modest but not insignificant role in ushering in a new progressive imaginary of collective prosperity, as Forbath hopes. How we imagine the proper role of law is co-constituted as part of broader social imaginaries of prosperity. By implication, a relentless focus on the aspects of the collective social imaginaries in legal scholarship, teaching, and practice—such as questions of power, groups with antagonistic interests, and the potency of law as a vehicle of change—may contribute to subverting privatized imaginaries and de-naturalizing social realities, with all the distributions of power they hold. Furthermore, legal scholars could also elaborate on how the proposals for the new imaginary of collective prosperity—proposals including the work of economists, social scientists, philosophers and so forth, as well as many political actors and movements—can be institutionalized and operationalized through law. It is in this dual way that they can contribute their modest share towards articulating a new progressive collective imaginary.

97 Nancy Fraser, in a recent book, states that one of the most perverse characteristics of capitalist society is the degree to which it allows private actors, or markets, to direct the use of social product—without regard to public interest. Fraser and Jaeggi (n 47). 98 The success of populist politicians in recent years, across the world, makes this painfully clear. There are, however, also signs that progressive imaginaries of collective prosperity are emerging, at all levels of governance. Cities have formed transnational alliances (see accessed 6 April 2021) and the political spectrum in even the most neoliberal member states has seen a turn to the left (see accessed 6 April 2021), while we have discussed some EU developments above. In scholarship, perhaps the most important contributions have been in economic thought, including Kate Raworth, Doughnut Economics: Seven Ways to Think Like a 21st-Century Economist (Chelsea Green Publishing 2017); Tim Jackson, Prosperity Without Growth: Economics for a Finite Planet (Routledge 2009); Piketty (n 69); Mariana Mazzucato, The Value of Everything: Making and Taking in Global Economy (Saxo 2019); Stephanie Kelton, The Deficit Myth: Modern Monetary Theory and How to Build a Better Economy (Hachette UK 2020).

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Conclusion Making ‘the Other’ Explicit Jan Komárek

Most of the EU constitutional scholarship focuses (perhaps naturally) on the EU level.1 We do not know much about national debates concerning European legal integration and its relationship to domestic constitutions: the published work primarily concerns conflicts between national highest courts and the European Court of Justice.2 The broader intellectual debate among constitutional scholars and other intellectuals in the member states (who very often have engaged in public and policy debates) is missing from the picture. I think this is a mistake which calls for a remedy. In examination of national debates, we shall put a particular emphasis on postcommunist Europe. The experience of post-communist Europe (below also called the ‘Other Europe’) from both before and after 1989 is more important for EU constitutionalism than the common view suggests.3 The mainstream picture focuses on the process of transformation of the post-communist states into future members of the Union, seeking to comply with the political and economic criteria on EU membership. However, the fall of communism in 1989 was also transformative for the Old Europe. The image of the Union as a guarantee of democracy and freedom from foreign domination, widespread in the Other Europe, brought about changes in the deep structure of the Union as a whole. Most existing constitutional law scholarship does not capture this.4 I suggest that 1989, the ‘year of miracles’, made a particular version of constitutional imaginary of the EU particularly dominant. It was promoted by Joseph Weiler and his colleagues at the European University Institute in Florence.5 It is an imaginary which 1 With few exceptions—see Bill Davies, Resisting the European Court of Justice: West Germany’s Confrontation with European Law, 1949–1979 (CUP 2012) for Germany or Julie Bailleux, Penser l’Europe par le droit: L’invention du droit communautaire en France (Dalloz 2014) for France. 2 See Anne-Marie Slaughter, Alec Stone Sweet, and Joseph Weiler (eds), The European Court and National Courts, Doctrine and Jurisprudence: Legal Change in Its Social Context (Hart 1998) and Giuseppe Martinico and Oreste Pollicino, The National Judicial Treatment of the ECHR and EU Laws: A Comparative Constitutional Perspective (Europa Law Publishing 2010). 3 See Jan Komárek, ‘Waiting for the Existential Revolution in Europe’ (2014) 12 International Journal of Constitutional Law 190. 4 For an exception see Luuk Van Middelaar, The Passage to Europe: How a Continent Became a Union (Yale University Press 2013) 181–201; compare to eg Christopher J Bickerton, European Integration: From Nation-States to Member States (OUP 2012), which also has a historical ambition but does not examine the relevance of 1989 for its thesis. 5 See Jan Komárek, ‘Why Read The Transformation of Europe Today? On the Limits of a Liberal Constitutional Imaginary’, in this volume.

Jan Komárek, Conclusion In: European Constitutional Imaginaries. Edited by: Jan Komárek, Oxford University Press. © Oxford University Press 2023. DOI: 10.1093/oso/9780192855480.003.0018

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mostly borrows from liberal, United States-inspired constitutionalism, which also resonated globally at the time. It was a structure for a new world order at the ‘end of history’.6 It put emphasis on individual freedom, its juridical guarantees, and a freemarket economy. In the context of the EU, this liberal constitutional imaginary functioned as a utopia: something that still was not true for the EU at the time but was widely considered worth pursuing. Utopias are important in that they give normative orientation to political actions and undermine the existing status quo. They call for alternatives— and are especially important at times when there are (or, rather, seem to be) ‘no alternatives’. In the absence of other utopias, the liberal European constitutional imaginary was presented as one. In the Old Europe the liberal constitutional imaginary represented the utopia of ‘Ever Closer Union’. In the Other Europe the same imaginary marked the return from ‘abduction to the East’, as the Soviet domination was described by the Czech writer Milan Kundera.7 Constitutional imaginaries are, however, Janus-faced: as already mentioned, they also function as ideologies: something that conceals the negative impact of their central ideas—even on those who subscribe to them. To use an example from the post1989 transformation: there was widespread agreement in the societies of the Other Europe on a single goal: the ‘Return to Europe’.8 That meant, however, that whatever ‘Europe’ (or the EU) prescribed was very difficult to contest. At a micro level this meant, for example, the promotion of institutional structures that proved quite disastrous for the independence of the judiciary, which was undermined rather than strengthened by the establishment of judicial councils promoted by European institutions.9 At a macro level this led to an abdication of the Other Europe’s reformist energies, captured by Václav Havel’s desire that the Other Europe ‘could approach a rich Western Europe not as a poor dissident or a helpless, amnestied prisoner, but as someone who also brings something with him: namely spiritual and moral incentives, bold peace initiatives, untapped creative potential, the ethos of freshly gained freedom, and the inspiration for brave and swift solutions’.10 Instead of coming up with fresh ideas that could inspire the West, it became a period of ‘catching up’, followed by a more recent revolt against ostensibly Western values. The Prime Minister of Hungary called for building a democracy which ‘is not necessarily liberal’.11 It was the same person who in 1989 led the student protest movement against the Communist Party. Ryszard Legutko, the Polish philosopher, former 6 Francis Fukuyama, The End of History and the Last Man (Free Press 1992); see, critically, Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (CUP 2000), 33–37. 7 Milan Kundera, ‘Un occident kidnappé, ou la tragédie de l’Europe centrale’ Le Débat (November 1983) 2–24. 8 See Jan Komárek, ‘Waiting for the Existential Revolution in Europe’ (2014) 12 International Journal of Constitutional Law 190–212. 9 See Michal Bobek and David Kosař, ‘Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe’ (2014) 15 German Law Journal 1257–92. 10 Václav Havel, Speech to the Polish Sejm and Senate, published as ‘The Future of Central Europe’, New York Review of Books (29 March 1990). 11 Viktor Orbán’s speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014, available at accessed 12 October 2021.

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dissident, and now Law and Justice Party politician argued that both communism and liberalism are in many respects similar ideologies—the latter just ‘becoming more dense and more impenetrable than before’.12 One reason for this disenchantment with European liberal constitutionalism lies in that its negative effects, such as on the state-based solidaristic structures or the structure of post-communist societies, were rarely discussed. It seems, moreover, that in this case the disillusionment of the Other Europe only preceded that which is now visible in parts of the Old Europe. The success of the anti-EU populist parties in the European Parliament elections in 2014, followed by the Brexit vote in June 2016, show that today it is almost impossible to see EU constitutionalism, with its central value of unity, as a utopia. Instead, in many spheres of the European society EU constitutionalism is currently perceived as an oppressive ideology: prescribing austerity and promoting the interest of one member state over the others.13 A close attention to constitutional imaginaries of Europe in the member states— both of the ‘Old’ and ‘Other’ Europe—is therefore imperative if we want to understand the dynamics between once-motivating utopia and the present oppressive ideology. We also need to explore various constitutional imaginaries created by other thinkers than those who have dominated the constitutional debate of the past decades. That is the work to be continued in a sequel to this volume.

12 Ryszard Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies (Encounter Books 2016, 119. 13 See Clemens Kaupa, ‘Has (Downturn‐)Austerity Really Been “Constitutionalized” in Europe? On the Ideological Dimension of Such a Claim’ (2017) 44 Journal of Law and Society 32.

Index For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. administrative calculemus, imaginary of 35–37 ‘agencification’ of EU administration 111– 13, 355 delegation of competences 111 democracy, and 112 EU governance dependent on delegating regulatory power to agents 200–1 political salience of mandates 111 reasons for proliferation 112 risk of ‘capture’ 113 authoritarian liberalism 280–81 authoritarian populism, and 290 Carl Schmitt and roots of authoritarian liberalism 282–83 European constitutional dynamic, and 285 European integration, and 286–87 maintained through coercion and consent 281 meaning 280–81 popular sovereignty, and 280–81 rooted in fear of democratic freedom 281 soft authoritarian liberalism 285 UK, and 292–93 undemocratic nature of 258 utopian dimension 281 authoritarian populism 280 ascendance of 289–91 authoritarian liberalism, and 290 conditions for emergence of 290 reactionary nationalism as 290 UK’s neoliberal project as 292–93 Bretton Woods 66–67 Brexit 1, 30–31, 121, 235, 250, 258, 338, 378 Brexiteers 353 exit as a privilege 344–45 exposing fallacy that level/site of decisionmaking aids social empowerment 354 gains of Brexit unclear 353

Lexit 353 political response to 292–93 popular sovereignty, and 293 reasons for voting to leave 353–54 Brexit synonymous with social empowerment 353–54 democratic change, as 354 ‘taking back control’ 314, 353 representing deeper discontent between political class and citizen 292, 353–54 subsidiarity, and 354 ‘Three meanings of Brexit’ 231–34 bureaucracy agencies see ‘agencification’ of EU administration bureaucratic legitimacy impartiality-based legitimacy 113 integration, and 97–98 ‘substantive vision of the general interest’, flowing from 99 counterweight to shortcomings of electoral democracy 95 force to achieve social generality and realize the general interest, as 95 impartiality, and 111–12, 113–14 Improving transparency and openness of 106–7 loss of confidence in 14, 102–3 managerial bureaucratic drift 238 more flexible and decentralized 113 risk of ‘capture’ 113 risk of ossification 111–12 succumbing to own contradictions and limitations as source of legitimacy 95–96 citizenship 146 cosmopolitan citizenship 138–39 democracy, and 251, 263–64

382

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citizenship (cont.) digital citizenship 256–57 European see European citizenship Cold War 30, 99, 193, 194, 318, 323 common market 39, 123, 166–67 ability to generate commonwealth and political interests beyond national economies 37–38 European integration, and 37, 372 procedural values of economic constitution assisting 38 public good, as 222, 223 Scottish nationalism, and 174 spontaneous social order of 38 communitarian utopia with liberal-legalist ideology 131–35 communitarian utopia see communitarian utopia Transformation, and see Transformation of Europe Community law see under European law constitutional imaginaries see European constitutional imaginaries constitutional imagination 24–25, 45 Locke’s distinction between society and government, linked to 24–25 nature and definition of 24, 161–62 semantic reflections of structural tensions in modern constitutions, as 26 shift to self-descriptive constitutional imaginaries operating in positive law 26 sociology of constitutional imaginaries as societal power formation 27–29 transformative constitutional imagination to social imaginaries 25–26 constitutional patriotism 15–16, 105, 177 constitutional patriotism and solidarity beyond nation-state 260–64 constitutional law realizing rights anew in changing circumstances 261 definition/meaning of constitutional patriotism 260–61, 264 development of constitutional patriotism 260 political culture, constitutional patriotism and 261–63 solidarity as product of constitutional patriotism 260

tension between universal norms and constitutional practice 261 limits of procedural thought 266–69 ‘all affected interests’ principle 266–67 asylum, changing character of solidarity and 268–69 dynamic structure of agreement in legal procedures 266 underlying pursuit of sovereignty, retention of 267 narrative agency and a post-national constitutional imaginary 275–76 post-nationality and law 258–60 problem of legal reason’s empty time 269–71 constitution as an ongoing project 269–70 dynamic effects of constitutional imaginaries, failure to acknowledge 270–71 neglect of the degree of change and loss 270 temporality of life-world, effects of disregarding 270–71 reclaiming temporality in legal imagination 271–75 anamnestic solidarity 273–74 disclosure of identity’s temporality, emancipatory uses of 272 hermeneutic work of narrative, importance of 271–72 salience of constitutional imaginaries 264–65 concept of constitutional imaginaries 264–65 constitutional fixity 264–65, 267, 269–70 stabilizing ‘core’ of communal selfunderstanding 264 constitutional pluralism 160–79 basic ideas for, formulation of 172, 174 conditions of change: crisis and hybridization 168–74 early 1990s as a ‘critical juncture’ 169–74 formulation of basic ideas of constitutional pluralism 172–74 constellation of ideas, as 181 emergence of 168 conditions for 162–63 European constitutional debates, and 32 exercise in theory, as 182–94

Index changing conception of the nexus of law and politics 189–90 elaborating constitutional pluralism into philosophically articulate constitutional theory 182–83 equilibrium system 185–86 executive federalism, rise of 191 heterarchical organization, EU as 160– 61, 343 imaginary, the 185–88 late sovereignty, development of idea of 184, 192–93 notion of the political unconscious 190–91 polyvalence 183, 184, 187–88, 194–95 status of the practice underlying theory 184 theoretical pedigree of constitutional pluralism, establishing 183–84 unconscious and history, the 188–94 imaginary of European constitutional pluralism 32–34 constitutional pluralism as societal plurality of self-constitutive normative orders 32–33 gubernaculum and iurisdictio 33–34 legal pluralism 32 redefinition of European constitutional imaginary 178–79 legitimate constitutional theory of the EU, as 161 Maastricht Treaty, and 160–61 main theses of 175, 176–77 nature of 160–61 origins of 172–74 rise of 160–61 original constitutional imaginary changing 160–61 societal plurality of self-constitutive normative orders, as 32–33 transforming the European constitutional imaginary 175–78 challenging utopian element of European constitutional imaginary 178 constitutionalism reformalized: from pyramid to network 175–78 from federation to commonwealth 176–78 Constitutional Treaty 1, 8

383

crisis, as 30–31 European constitutionalism in decline after 120 last utopia, as 358 constitutionalism 53–54 basic paradox of 27 constitutional pluralism see constitutional pluralism constitutions see constitutions cosmopolitan constitutionalism 285 democracy see democracy democratic and social constitutionalism 53 Community law as complement to 62–64 European see European constitutionalism evolutionary constitutionalism 83–86, 90 ideology, as 236 judicial remedies as measure of constitutionalization 134 liberal constitutionalism 53–54, 68 ensuring fundamental degree of equality within society 53–54 regression towards 71–72 national constitutionalism in image of European law, redefining 71–73 negative and positive 25 normative constitutionalism 53 political constitutionalism 32 post-communist constitutionalism 87– 89, 90 power limitation, as 40 principal method of organization of our social life, as 339 social transformation, role in 339–42 societal constitutionalism see societal constitutionalism sociologically informed approaches to constitutions 27 sociology of 28–29 supranational constitutionalism 68, 70 variety of 53–54 constitutionality 47 claims to constitutionality in pragmatic legal discourses 52–53 claims to constitutionality of European law see under European law conflict between different claims to constitutionality 51, 52–53 EU lacking political and social legitimacy 47

384

Index

constitutionality (cont.) European law, and see under European law implicit or explicit claims to 53 professional ideology, as see professional ideology structural constitutionality 49 strong 51, 52–53, 54–55 weak 51, 54–55 constitutionalization economic constitutionalization see under economic constitution inseparability of constitutionalization and democratization 41 judicial remedies as measure of 134 market freedoms, ofC14P25 constitutions 94–103 claims to constitutionality in pragmatic legal discourses 52–53 implicit or explicit claims 53 claims to constitutionality of European law see under European law constitutionalisms, variety of 53–54 democratic and social constitutionalism 53 ensuring fundamental degree of equality within society 53–54 liberal constitutionalism 53–54 constitutions and legal normativity as stabilizers 27 EU, and EU Treaties both over and underinclusive 50 functional constitution, EU having 50 weak structural constitution, EU having 50–51 whether EU has formal constitution 50 whether EU has normative constitution 50–51 whether EU has strong structural constitution 50–51 five conceptions of the constitution 48–52 decisive conceptions, strong structural and normative conceptions as 51 different claims to constitutionality may enter into conflict 51 formal conception 48 functional conception 48 material conception 49–50 normative conception 49 strong structural constitution 49

structural constitution 48–49 weak structural constitution 49 Court of Justice of the European Union (CJEU) challenging supremacy of 344–45, 350 Community competences 127 constitutional court, as 69, 166–67, 268 constitutional pluralism, and 161, 166 constitutionalism, and 49, 338–39 constitutionalization judicially driven 133 ECB, and 52–53, 112–13 economic freedoms 69 essential features of Community law, defining 166 EU legal system, development of 340–41 German Federal Constitutional Court, and 52–53, 344–45 imposing distinctive nature of Community law 166–67, see also European law integration/integration through law, and 108, 205, 211, 259, 301–2, 372 legal legitimacy and normative autonomy 200–1 primacy of EU law see under European law principle of non-distorted competition 69 process-based review 115 protection of individual rights 205–6, 340– 41, 342, 372 providing legitimacy for political regime 108 rule of law, and 120 state sovereignty, essential to gain control over 323 teleological method of interpretation 166 transformation of substantive content of European law 70 Covid-19 pandemic 30–31, 296 civic activism resulting from 256–57 Covid-19 Recovery and Resilience Facility 76 economic impacts of 374 existential consequences of 1 Hungary’s declaration of state of exception without time limit 75 ideology and governmental capacity, and 315–17 Next Generation EU (NGEU) pandemic recovery instrument 209–11 response to 315–16

Index inadequacy of ECB interventions 315–16 incomplete nature of European-level governmental capacity 315 increasing irrelevance of neoliberal theory of federalism 316 more centralized public authority at European level 16 ‘Recovery Plan for Europe’ 374 critical theory 3–4, 27–28, 237, 288 stubborn attachment of critical theory to EU 291–93 turning towards rational consensus and cosmopolitan constitutionalism 285 democracy agencies, and 112 bundle of decision rules, as 242–43 citizenship, and 251, 263–64 constrained democracy 281 decentring democracy 103–14 democracy as threat in new German ideology see under Germany democratic imaginary 28, 105 democratic legitimacy ballot box and the bureaucracy as dual foundations of 92, 94–103, 114 democratic legitimacy of European Communities, derivative nature of 59 detrimental effects on 38–39 European integration, and 176–78 European Parliament, and 239 powers of institutions providing community with 128 see also legitimacy from 1950s to today, ideologies and imaginaries of democratic theory based on overarching idea of a single demos 239–40 democratic mobilization 13–14 emergence as response to growing populism at member state level 40 imaginary of mobilized European democratic communitas 39–41 demoicracy see demoicracy EU’s democratic deficit 40, 41, 104–5, 106, 126–27, 169, 373–74 meanings of 345 EU democratized politics as communication network 41 Euro-democracy conundrum 239–40

385

EU’s plurality of power structures 42 human rights scrutiny as a ‘surrogate’ for 134 increasingly globalized localities constituting building blocks of 256–57 inseparability of constitutionalization and democratization 41 legitimacy see legitimacy from 1950s to today, ideologies and imaginaries of liberal democracy 281 militant democracy, EU as see European Union as militant democracy participatory democracy 105, 109, 112, 116 people, meaning of see peoples imagined political notion of 242–43 popular authorship of laws or selfgovernment, democracy as 239 popular sovereignty see popular sovereignty populism see populism power of everybody, as 110–11 procedural framework for decisionmaking, as 83–84 reflexive democracy/reflexivity 107–9 repressed by those defending vested interests 284 social democracy 292, 303–4 based on belief in primacy of politics over law 84 internationalist wing of 352 state, and 177 unconstrained democracy, dangers of 284 unpolitical democracy 114–16 whether collapsing 102–3 demoicracy concept of 41 contrasting unity with union instead of community, demoicratic preference for 248–51 correspondence between transfers of competences upwards and plural anchoring demoicratic theory as 241 demoi not existing as self-sufficient isolated entities 243 demoicratic European polity see peoples imagined demoicratic third way 243–44, 246–48

386

Index

demoicracy (cont.) each demos having sovereign prerogative to joint governmental action 243 empowering meaningful horizontal connection across borders, demoicracy as 254 EU as demoicracy in the making 240–41 European demoicracy as ‘transformative in nature 243 federalism, and 245, 248 fusing demoi into larger sovereign units at ever higher levels of integration 243 individual embeddedness in national or local communities as separate demoi 245 nature of the constituting demoi 242 no-demos thesis 244 normative aspiration, as 240–41 people, meaning of see peoples imagined plurality of democratic types 242 resisting technopopulism through 238–41 European demoicracy, meaning of 240–41 ideal of demoicracy starting from meaning of peoples 241 new of school of democratic thought, demoicratic theory as 240 strong version of demoicratic theory 244 Union-as-demoicracy as open-ended process of transformation 243–44 utopia demoicratic third ay as Eutopia 243–44 multiple demoi exercising popular sovereignty, as 243 variants of democratic theory 242 weak version of demoicratic theory 244–45 see also democracy ECB 69 absence of democratic controls over 299 accountability, and 112–13 authority 297 ban on monetary financing of member states 300–1 banking supervision 111 CJEU, and 52–53, 112–13 Covid-19, and 315–16 fiscal responsibility remaining with member states 299–301 independence 298–300

absence of democratic controls over the ECB, justification for 299 legal legitimacy and normative autonomy 200–1 powers expanded during crises 72–73, 312 price stability mandate 111, 287, 299– 300, 312 Economic and Monetary Union (EMU) 69, 106, 113, 211–12 asymmetric nature of 68, 73 central banks, role of 69 Covid-19, impact of 16 crisis of governability, and 304–6 ECB see ECB elite-driven 297 eurozone see eurozone eurozone crisis, and see eurozone crisis fiscal responsibility remaining with member states 299–300 introduction of 69 neoliberal theory of interstate federalism, and 294–96, 301–4 public law framework 298–301 convergence criteria 300 ECB’s independence in conducting monetary policy 298–99 fiscal responsibility remaining with member states 299–301 member states retaining autonomy in economic decision-making 300 `reforms 309–12 sovereignty, and 311–12, 313–15 unified expression of political will, as 297 economic constitution common market see common market economic constitutionalization evolution and constitution of European society, as part of 37 political constitutionalization, and 37–65 post-Maastricht economic constitutionalization 38–39 EU’s ‘macroeconomic constitution’ 39 free movement law, and 38 imaginary of prosperous imperium, and 37–39 importance of European economic and administrative regulation 37 elections de-sacralization’ of elections 95, 101, 102

Index direct elections to European Parliament campaign for 101 elections as forge for demos-hood 101 integration, as motor for 101–2 electoral democracy 95 bureaucracy as counterweight to 95 integration, and 96–97 source of political legitimacy, as 96–97 electoral legitimacy 100–2 free elections 101 loss of faith in 14 mandates 102 means of expressing social division, as 95 ‘empty chair’ crisis 54–55, 62, 101, 164–65 European administrative calculemus, imaginary of 35–37 European Central Bank see ECB European citizenship citizens as agents of civic change 341–42 emergence of political core of new supranational citizenship 65 European personal status, relabelling of 68, 224–25 high-order, polity-referential mixed public good, as 224–25, 226 individual empowerment in a transnational polity 342 Maastricht Treaty, and 38, 68 mobility, focus on 68 national citizenship, and 224–25 European common good/interest 99–100 European constitutional imaginaries 2–8, 21–43, 45, 377 approach to 162 background power, defining imaginaries as 22, 27–28, 40 central concepts/contested truths 2–3, 122 concept of constitutional imaginaries 264–65 identifying ideal-typical modes of legal thinking 265 constitutional ideology and cultural dimension of institutional change 203–7 constitutional pluralism transforming see constitutional pluralism co-production: between political utopia and professional ideology 163 definition of constitutional imagination 161–62

387

duality of constitutional imaginaries 28 history of European social imaginaries and their destabilization 29–32 history, role of 8–11 ideologies, constitutional imaginaries as 3, 377 imaginaries as societal power themselves 22 imaginaries of progress see imaginaries of progress as constitutional imaginaries imaginary as part of society’s collective experience 121–22 imaginary of European administrative calculemus 35–37 imaginary of European constitutional pluralism see under constitutional pluralism imaginary of mobilized European democratic communitas 39–41 imaginary of prosperous imperium 37–39 inseparability of constitutional powers from other societal forces and knowledge 27–28 liberal imaginaries 22 meaning/nature of constitutional imaginaries 2, 21, 121–22, 162 meaning of constitutional imagination 161–62 modes of collective understanding of social existence, imaginaries as 21 political utopia and professional ideology 163–68 European constitutionalism as political utopia 163–65 power formation, constitutional imaginaries as 28 publications on 5–8 salience of constitutional imaginaries 264–65 social imaginaries 22 society as unity defined by legal rights and guaranteed by political force, imaginary of 21–22 sociology of constitutional imaginaries as societal power formation 27–29 theoretical imaginations 22–25 constitutional imagination 24–25 legal imagination 23–24, 25 sociological imagination 21, 22–23

388

Index

European constitutional imaginaries (cont.) transformative constitutional imagination to social imaginaries of constitution 25–26 transnational European politics and law, imaginaries legitimizing 22 utopias, and 5, 121–22, 130, 162, 265 European constitutional imaginary as political utopia 167–68 liberal European constitutional imaginary as utopia 377 European constitutional pluralism see constitutional pluralism European constitutionalism aims of 340 Constitutional Treaty, European constitutionalism in decline after 120 constitutional imaginaries see constitutional imaginaries constitutionalism’s disengagement from social structures of power 342–46 constitutionalist/pluralist analysis 343– 44, 345–46 exclusion and reduced agency of peripheral actors, addressing 345 power element missing in description of society 343, 344 powerlessness in the system, need to address 342–43 socially relevant and political decisionmaking materializing throughout society 346 unequal nature of society 343–45 powerlessness missing in discourse 343 constitutionalist/pluralist exclusion by narrative and interpretation 346–50 focus on narrative, need for 347–48 increasing empowerment of individuals in EU legal system 346 large power differentials in daily decision-making 346–47 peripheral actors, powerlessness of 348–50 ‘universal’ narrative of EU coinciding with ‘particular’ of centre 349 weaker parties and vulnerability, notion of 348 constitutions see constitutions deceptive ideology, as 3 democracy see democracy

democratic and social constitutionalism 54, 58, 59, 68, 70 community law as complement to 62–64 discursive and dialogic notion, as 340 inability to offer a utopia 4 key principles and processes of 340 loss of utopian character 1–2 normative vacuity of discussion on change of site of decision-making 350–56 Brexit 353–54 central transformative axis of EU legitimizing status quo 356 federalists and sovereignists 351– 53, 354–55 levels of competence and decisionmaking 350–51 normative vacuity ensuring voices of different interests and democracy 355 open-endedness of constitutionalism supporting status quo 355 reducing range of social options in society 355 oppressive ideology, as 378 political utopia, as 163–65 racial capitalism in see racial capitalism in European constitutionalism return to legalistic concept of the constitution 1–2 role of constitutionalism in social transformation 339–42 citizens as agents of civic change 341–42 constitutional logic transforming EU constantly 341 constitutionalism as mode of EU management and social transformation 340 principal method of organization of social life 339 special role of constitutionalism 339–40 Treaty establishing a Constitution for Europe see Constitutional Treaty utopia, and 2, 5, 13, 25, 378 European Court of Justice see Court of Justice of the European Union (CJEU) European economic constitution 11–13 European integration 1–2 administrative character of 200–1 atavistic nationalism as default to 292 authoritarian liberalism, and 286–87 bureaucratic type of legitimacy, as 97–98

Index CJEU, and 108, 166, 205, 211, 259, 301– 2, 372 common good of market-led integration as indisputable message 222–23 difficulties in constitutive and causal approaches to generation of good from goods 224 economic convergence and lasting peace 223 new mixed public goods with significant social dimension 224–25 prosperity as social good 223 pursuit of material public goods driving political engagement and expanding jurisdiction 223 rejection of authoritarian systems of government 225 resilient national and other loyalties re-emerging as constraining dissensus 224 common market, and 37, 372 constitutional imaginary and metabolic realities of 199–213 beyond Power and Legitimacy 199–203 constitutional ideology and cultural dimension of institutional change 203–7 demos-legitimacy and metabolic constitution of European integration 207–12 Constitutional Treaty see Constitutional Treaty constitutionalization, integration as process of 165 constitutions see constitutions democratic legitimacy, and 176–78 demos-legitimacy and metabolic constitution of 207–12 current limits of EU power reflecting power-legitimacy nexus 208–9 metabolic capacity to convert social resources into public goods, need for 5 NGEU as Europeanization of fiscal capacity 209–11 ‘no-demos’ problem in EU public law 207 robust demos-legitimacy, need for 207–8 discontent with 292

389

economic integration 67 economic prosperity, political and social stability as goals of 22, 29–30 economic growth, integration contributing to 63 electoral democracy, and 96–97 EMU see Economic and Monetary Union (EMU) European constitutional imaginaries determining potentiality and viability 30 ‘ever closer Union’ see ‘ever closer Union’ federation to commonwealth, from 176–78 framework of modern social imaginaries, goals formulated within 29–30 fusing demoi into larger sovereign units at ever higher levels of integration 243 general European interest, substantive projections of 99–100 history 30–31 ideology, as 3 increasingly material to suppression of political democratic alternatives 286 institutional change, integration as 203–5 cultural dimension 203–5 expansive understanding of supranational authority, calls for 205–6 functional dimension 203–5 integration as profound change in nature of governance 205 national institutions constrained in exercise of constitutional authority 206–7 political dimension 203–5 stickiness, effect of 204–5 ‘integration through law’ project 66 nation-state, and 3, 42, 80, 139, 205, 286, 351 alternative of returning to strong nationstates 3 nation-state constitutional system 203 hierarchies of nation-states remaining popular 31 nationalist prejudices expected to disappear 31 Schuman Declaration, and 142, 144 transnational networks expected to replace nation-states 31

390

Index

European integration (cont.) weakening of nation-states expected 31, see also nation-state new German ideology, reflecting 286 peoples, and see peoples imagined political messianism, and see political messianism populism, and 40 post-war constitutionalist ethos, and 96–97 sovereignty, and 317 substantive promises behind integration 98 sustainable integration core idea of 256 meaning of 255–56 Transformation of Europe see Transformation of Europe utopia, as EU’s constitutional utopia 1–2, 130–31 European society as political utopia 31–32 ‘ever closer Union’ as utopia 1, 377 Pan-European utopia 292 political utopia, and 175 European law autonomous legal order, as 57–64, 160 canonical formulation of autonomy: dual claim to structural constitutionality 60–62 Community law as complement to democratic and social constitutionalism 62–64 European law as new and autonomous legal order 59 national constitutional resistance, first wave of 64 relationship between European law and national law, structure of 58–60 whether European law construed as an international legal order 57–58 autonomous to a constitutional-like legal order, from 64–70 European law unleashed: one money in one market 68–70 implicit to explicit constitutional language, from 68 national acceptance of claim to autonomy of European law 65–66 substantive transformation of European law 66–68

CJEU see Court of Justice of the European Union (CJEU) claims to constitutionality of 54 autonomous legal order, as, 45–46, 57 autonomous to a constitutional-like legal order, from 64–70 foundational ambivalences 55–57 redefining national constitutionalism in image of European law 71–73 second wave of national constitutional resistance 70–71 Community law complement to democratic and social constitutionalism, as 62–64 Community law as constitutional in all but name 165–66 creation of 56 definition of 61–62 development as complement to national constitutional orders 63 functional constitutionality of 63–64 historically -1980s to early 1990s 169–72 historically - pre 1980s 169 new supranational type, European law as 165–66 originality of 59–60 politics entering 169–70 study of 170–71 competence over delimitation of competences, preservation of 71 constitutional order, as 44–46 constitutions, and see constitutions controlimiti doctrine 65–66, 70–71 definition of 61–62 defined by reference to national legal orders 63 essential features of, CJEU defining 166 differentiated but equal standpoint thesis 175, 176 direct effect 166–67 European citizenship see European citizenship European Communities established through new set of legal norms 55–56 European Treaties constitutional charter of the EEC, as 166 form of the legal documents 56 functional equivalent of a constitutional text 163

Index interpretation of 56 Treaties setting institutional structure 56 evolution of 54–55 federal constitutional law, as 56 free movement of capital 67 free movement of goods 67 fundamental rights 167 international law, as form of 56–58 primacy of 64–65, 68, 176 CJEU, and 64–65, 166–67, 338–39 language of primacy replaced by supremacy 68 resting on national constitutional decision to open itself to supranational law 65 supremacy of national constitutions 65 supranational fundamental rights, emergence of 65 supranational law complementing national democratic and social states 62 transformative capacity of 62 European Monetary System (EMS) 66–67, 68 creation of 66–67 monetary stability as overriding goal 67 European public good and European public goods 214–30 defining and deciding what is the ‘public’ good 238–39 goods of the EU 220–25 material public goods 221–22 primary emphasis on the pursuit of material public goods 220–21 varieties of the European public good 222–25 future of European public good 226–30 culturally skewed understanding of shared value base 230 entrapment, problem of 226–28 loose coupling between European society and European polity, problem of 228–30 policy fragmentation, danger of 228 sense of common European society, precarious nature of 229–30 integration, and see under European integration public good, definition of 214–15 public goods, definition of 214–15 two types of good; two types of political association 214–20

391

co-dependence, effects of 219 constitutionalism providing institutional nexus 219–20 ‘immediately’ common goods 218–19 mixed public goods 218–19 opposition between societas and universitas, not overstating 216 public good as aggregate utility 216–17 public goods, collective action/ competence and 218 public goods, definition of 217–18 relationship between societas and universitas as internally normative 216, 218 singular public good, concept of 217–18 social public goods 218–19 societas, concept of 216–17 societas/nomocracy and universitas/ teleocracy 215–16 European societal constitutionalism see under societal constitutionalism European Stability Mechanism (ESM) 111, 209–10 European Treaties see under European law European Union as militant democracy 75–91 Hungary and Poland broader constitutional project of ‘postfascist constitutionalism 77 calls for measures beyond current framework 76–77 constitutional transformation incompatible with ‘constitutional values’ of EU 75 Hungary’s declaration of state of exception without time limit 75 ineffectiveness of Article 7 procedure 76 interventions from EU 76 rise of authoritarianism as constitutional threat 89–90 nothing above or besides parliament 82–86 evolutionary constitutionalism 83–86 reconstitution of Europe 78–82 constrain or repress political power as aim 78–79 creation of a ‘European Constitution’ as aim 79–82 return to Europe 87–89, 377 creation of sovereign nation-states in Eastern Europe 88

392

Index

European Union as militant democracy (cont.) EU as threat to democracy within postcommunist constitutionalism 89 former communist states in Eastern Europe transition to democracy 87 eurozone 212 eurozone economies remaining structurally distinct 308–9 governing 312–15 ordoliberal emphasis on price stability, competitiveness, and fiscal discipline 287 single currency removing key lever of power from Member States 286 see also eurozone’s constitutional order after eurozone crisis 294–317 eurozone crisis 30–31, 38–39, 70, 71, 295– 96, 306–15 austerity measures imposed in wake of 190 authoritarian character of integration heightened by 286 constraints of eurozone membership notable during 288 EMU multiple failures of 308 necessity of European sovereignty 310–12 political freedom at member state level making EMU vulnerable 311 reforms transforming EMU’s embodied vision of economic government 309 euro-democracy conundrum, and 239–40 eurozone’s constitutional order after see neoliberal federalism, beyond Five Presidents Report 309–10 German-led euro-crisis management 288 governing member states in emergency mode 308–15 generating federal governmental authority 309–12 governing the eurozone 312–15 response to ECB intensifying its accountability practices 112–13 economic heterogeneity of eurozone, addressing 308–9, 316–17 EMU, and 306–8 generating federal governmental authority 309–12

governing member states in emergency mode 308–15 little democratic input 317 member states financing 209–10 neoliberal outcomes, pursuit of 296, 316, 317 political responses exceeding legitimate self-constraints of legality 42 recovery fund 315–16 Pringle 39 structural drift 190 ‘ever closer Union’ 1, 147, 148, 195 concept of 148, 154–55 empty signifier, as 154, 155, 158–59 general objective of Treaties, as 166 process of ongoing transformation, as 249 moving beyond 213 new politics pitting peoples vs peoples, as 251 progressive integration, and 30 progressive replacement with motto ‘united in diversity’ 240–41 utopia of 1, 377 federalism 41, 247, 340 ‘Commonwealth’ as alternative to 178, 179 crypto-federalism 155 demoicracy, and 245, 248 eurozone crisis, and 312, 313–15, 316–17 executive federalism 190, 191 federal Europe, support for 6, 59, 99, 129, 130–31, 166–67, 249 Community law as a federal constitution 164–65 European federalist movements 164 initial federalist plans 163–64 federal liberty, and 250 federal union federal projects as federal unions 246 federal states, and 248–49 federalist and sovereignist positions in decision-making 350–54 interstate federalism 294 EMU and 16 neoliberal federalism see neoliberal federalism, beyond political utopia, as 167–68, 178–79 subsidiarity, and 178 US, and see United States

Index financial and economic crisis 2008 145, 279, 295, 313, 319–20 asymmetrical response to 291 austerity measures imposed in wake of 190 eurozone see eurozone crisis fiscal and sovereign debt crisis for some EU member states 295–96 fiscal policy see under Maastricht Treaty Germany German Federal Constitutional Court, and 52–53, 344–45 Germany barred from belonging to an EU that would become a state 239 no-demos thesis 244 Maastricht Treaty, and 70–71, 289 new German ideology 281–82 authoritarian liberalism see authoritarian liberalism authoritarian populism, ascendance of see authoritarian populism constructed out of narratives of democratic decay 284 democracy as threat to be contained 281 dominant ordoliberal version signalling fear of people’s irrational decisions 284 European integration: authoritarian liberalism writ large 286–87 functioning through mixture of coercion and consent 287 ideology and hegemony 287–89 inter-war: Carl Schmitt and roots of authoritarian liberalism 282–83 ‘original sin’ of post-war constitutional thought 284–85 reaching a critical conjuncture 281–82 stubborn attachment of critical theory to EU 291–93 substitution of democratic constituent power with individual economic freedom 285 ordoliberalism see ordoliberalism popular sovereignty 16, 281–82 gubernaculum and iurisdictio 33–34 history, role of 8–11 Hungary 30–31

393

constitutional transformations incompatible with EU values 75, 91 EU’s political authority to intervene 89–90 rise of authoritarianism 75, 89–90, 290, 333 tools available to EU in response 76–77, 229–30, 291 Covid-19, response to 75 democracy, and 377–78 prospering inside EU 292 region of the periphery, as 344 rule of law crisis in 1 ideology 2–5 constitutional ideology 203–7 constitutional imaginaries, as see constitutional imaginaries constitutionalism as 236 criticizing ideologies, problems of 3–4 European integration see European integration ideological distortion of reality as false consciousness 3 indispensable for political rule 3 instrument of domination, as 3 legitimacy see ideologies and imaginaries of legitimacy from 1950s to today legitimizing authority and justifying domination 236 liberal-legalism see liberal legalism Mannheim paradox 3–4 new German ideology see under Germany professional ideology see professional ideology science as form of 3–4 utopia as counter-concept 4 imaginaries of progress as constitutional imaginaries 358–75 constitutional Imaginaries as social imaginaries 363–66 core constitutional question as who gets space and power to bring projects 365–66 institutionalization of social imaginaries 364 major socio-political transformations not part of traditional constitutional discourse 365 social change, requirements for 365

394

Index

imaginaries of progress as constitutional imaginaries (cont.) social imaginaries developed within several different traditions 364 stickiness of social imaginaries 364–65 imaginaries of progress as constitutional imaginaries 367–69 collective imaginaries of progress 360– 63, 367–68 legal imaginaries 361–62, 368–69 privatizing imaginaries of progress 367, 368 two imaginaries striking similar affective chords 368 imaginaries of progress behind European Project 372–74 imaginaries of progress behind Weimar 358–60, 362, 370–72 meaning of imaginary of progress 362 impartiality 110–14 ‘agencification’ of EU administration see ‘agencification’ of EU administration bureaucracy, and 111–12, 113–14 grounded in ‘negative generality’ 110 legitimacy of 110 integration see European integration intergovernmentalism 54–55, 100, 248 judicial review 328–32 judicial review utopia 328 neutral judicial review as liberal legalism 328–30 US Supreme Court 319, 326 Keynesianism 365 no longer working as intended 305 legal imagination 23–24, 58 evolution of 23 importance of art and imagination in legal adjudication 23–24 introduction of 23 prominence of 25 reclaiming temporality in 271–75 value in the system of positive law 24 legal liberalism crisis, in 134–35 meaning 132–33 neutral judicial review as 328–30 rule of law, and 135

legal pluralism 22, 31–32 concept of law as plurality of normative orders outside nation-state 32 European and global legal pluralism reconstituting power in global society 29 European constitutional debates, and 32 networks of 28–29 self-constitutionalization of 28–29 socio-legal problem of plurality of social systems, as 32 legitimacy bureaucratic legitimacy see under bureaucracy democratic legitimacy see under democracy demos-legitimacy see under European integration ECB’s legal legitimacy and normative autonomy 200–1 elections, and see under elections from 1950s to today see legitimacy from 1950s to today, ideologies and imaginaries of impartiality, legitimacy of 110 increasing conflicts between elitist and populist legitimations in EU institutions 41 law’s legitimacy and its broader ‘social imaginary’ 259 nation-state as legitimate organization of constitutional democratic politics 31 popular sovereignty as source of 326 social imaginary as common sense of 26 legitimacy from 1950s to today, ideologies and imaginaries of dual foundation of democratic legitimacy: elections and bureaucracy 94–103 bureaucratic champions of peace, prosperity, and progress 97–98 democratic legitimacy collapsing 102–3 electoral legitimacy 100–2 European generality and the ‘European common good’ 99–100 European integration and post-war constitutionalist ethos 96–97 revolutionizing legitimating ideologies, decentring democracy 103–14 impartiality 110–14

Index proximity, the People’s Europe, and openness and transparency 103–7 reflexivity, the Court of Justice, and EU governance 107–10 sources of legitimacy 147 unpolitical democracy 114–16 liberal legalism 132–33 communitarian utopia, and 131–35 ideology: creating the community of law 135–38 Transformation’s liberal legalism see under Transformation of Europe liberalism authoritarian liberalism see authoritarian liberalism equality among individuals, liberalism assuming 140 legal liberalism see legal liberalism ordoliberalism see ordoliberalism Maastricht Treaty 69, 160–61, 282 aimed at reinforcing Community powers 169 CJEU’s decision-makings after Maastricht 67–69 consolidating neoliberal socio-economic turn 68 constitutional imaginary 297–306, 307–8 crisis of governability and the EMU 304–6 Maastricht constitutional structure 298–301 neoliberal theory of inter-state federalism 301–5 constitutional pluralism, and 160–61, see also constitutional pluralism deeper disconnect between political class and citizen since 292 ECB, and 297–99, 312 Economic and Monetary Union see economic and monetary union (EMU) European citizenship see European citizenship eurozone, and 297, see also eurozone fiscal policy ban on monetary financing of member states by ECB 300–1 fiscal responsibility remaining with member states 299–301

395

no-bailout clause 300–1 Treaty outlining general substantive aims for 300 Germany constitutionality, and 70–71, 289 principle of respect of national identities of member states 70, 298–99 ratification 69, 70, 71 difficulties with 104–5, 106, 169 resistance to constitutional claims of European institutional actors, and 70–71 subsidiarity 177–78 Mannheim, Karl 3–4 migrant crisis 30–31, 42, 333, 335 states’ ability to receive migrants, impacts on 336–37 militant democracy, EU as see European Union as militant democracy monism 29 constitutional 28–29 legal 32 nation-state 41, 104–5, 138, 141, 247, 302–3 democracy, and 106 EU limiting 353 European integration, and see European integration genuine deliberation, based on 340 inherent problems of 88 legal pluralism, and 32 legitimate organization of constitutional democratic politics, as 31 political society of 228 socialist movement, and 149 see also constitutional patriotism and solidarity beyond the nation-state neoliberal federalism, beyond 301–2 EMU, and 295, 296, 304, 307–8, 309 eurozone crisis, and 312, 313– 15, 316–17 eurozone’s constitutional transformation 296 eurozone crisis, challenge of 306–15 generating federal governmental authority 309–12 governing member states in emergency mode 308–15 governing the eurozone 312–15 governability not adequately addressed by federal construct 307–8

396

Index

neoliberal federalism, beyond (cont.) heterogeneity of the constituent parts, importance of 308–9, 316–17 ideology and governmental capacity in time of Covid-19 315–17 economic convergence, quest for 316–17 ECB interventions, inadequacy of 315–16 increasing irrelevance of neoliberal theory of federalism 316 sovereignty, European integration and 317 interstate federalism, neoliberal theory of 298, 300, 301–5 continued existence of constituent states as autonomous entities 302 difficulty of states reaching true agreement 302–4, 312, 316–17 EMU, and 304 federal legislation, obstacles to 302–3 negative integration, as 301–2 single market and a single currency 303 Maastricht constitutional imaginary 297– 306, 307–8 crisis of governability and the EMU 304–6 Maastricht constitutional structure 298–301 neoliberal theory of inter-state federalism 301–5 Maastricht Treaty, and 294–95 macroeconomic federalism 306 markets, and 307 neoliberalism 285, 293, 365 discontent with 292 eurozone crisis, neoliberal outcomes pursued in 296, 316, 317 governmental capacity constrained by economic laws 305 integrated into EU’s micro and macroeconomic constitutions 286 inter-state federalism, neoliberal theory of 301–5 market behaviour, and 307 neoliberalism and nationalist populism emerging in EU 292 policy outcomes associated with 308 uncontested reign of 130 New Legal History movement 5, 8, 9

ordoliberalism 37–38 ‘iron cage’ of 288 nature of 221 narrow emphasis on negative integration 221–22 supranationalism standing above partisan politics 221–22 patriotism see constitutional patriotism people’s Europe 103–6 peoples imagined 231–57 constitutionalizing horizontality: varieties of ‘peoples-across-borders’ 251–54 collective ideality or laos, the people as 252 constitution makers, the people meeting as 253 law maker of normal politics, the people as 254 ‘masses’ of the population or plethos, the people as 254 nation or ethnos, the people as 251–52 people as a group accepting majority decisions 252–53 publics, the people as 252 imagining the third way: a fragile equilibrium 245–51 community model as demoicratic third way 246–47 contrasting unity with union instead of community 248–51 explicit articulation of demoicratic third way 247–48 Paul Ricoeur’s social imaginary 234–37 reimagining sustainability: immortal peoples, mortal planet 255–57 commitment to long-term goals 255–56 connecting demoi of today with demoi of tomorrow 255 globalized localities and new technologies 256 sustainable integration 255–56 resisting technopopulism through demoicracy 238–41 defining and deciding what is the ‘public’ good 238–39 growing disconnect between locus of political authority and political life 241

Index ideal of demoicracy starting from meaning of peoples 241 increasingly inclusive definition of ‘peoples’ resisted by governing elites 239 interconnection between peoples as empowerment against privileged few 239 interests and values etc of European peoples clashing and converging 239 peoples adapting to condition of ‘reciprocal democratic interdependence’ 239 peoples appearing powerless 238 Three Meanings of Brexit, Unbound 2019 231–34 un-imagining oneness: imagining a union between peoples 241–45 concept of demoicracy see demoicracy past blueprints for peace 241–42 third way for Europe 243–51 pluralism accommodating divergent interests and values in post-national polity 343 constitutional see constitutional pluralism constitutionalist/pluralist analysis 343– 44, 345–46 constitutionalist/ pluralist exclusion by narrative and interpretation 346–50 institutional relationships 343 legal see legal pluralism legal order seen as heterarchical 343 Poland 30–31 constitutional transformations incompatible with EU values 75, 91 EU’s political authority to intervene 89–90 rise of authoritarianism 75, 89–90, 290, 333 tools available to EU in response 76–77, 229–30, 291 prospering inside EU 292 region of the periphery, as 344 rule of law crisis in 1 political constitutionalism 13–14, 25, 32 calls for genuine political constitutionalism 42 concepts of 38 political economy constitutional theory, and 11–13

397

imaginary of prosperous imperium, and 37–39 policy documents 39 Transformation of Europe 144–45 political imaginary 28, 219 political messianism empty signifier 154–55 more nuanced concept of 150–54 original polemical concept 148–50 ‘ever closer Union see ever closer union origins of concept of 149–50 distinguishing features of 149 Scholem’s ‘validity without significance’ 156–58 Schuman Declaration see Schuman Declaration Weiler’s claim 147–48 political utopia European constitutionalism, as 163–65 European federalist movements 164 federal Europe as political utopia 178–79 European integration 175 European society, as 31–32 meaning of 163 professional ideology, and 163–68 popular sovereignty 16, 40, 273, 283 authoritarian liberalism distrusting 280–81 Brexit, and 293 concept of 251 EU as polity of interconnected popular sovereignties 239 fear/threat of 286, 291 German ideology, and 16, 281–82 individual economic freedom, and 285 joint cross-border popular sovereignty 253 minority rights, and 177 ‘people’, and 238, 251, 353 lack of a European demos 330 multiple demoi exercising popular sovereignty, utopia as 243 source of legitimacy and counterweight to judicial governance, as 326 suspicion of 97 US, in 326, 327 populism authoritarian populism see authoritarian populism constitutionalism, and 40 democratic mobilization emerging as response to populism 40

398

Index

popular sovereignty (cont.) imaginary of mobilized European democratic communitas 39–41 populism as one kind of 13–14 European integration, and 40 growing populism 40 identity populism, rise of 40 increasing conflicts between elitist and populist legitimations in EU institutions 41 nationalist populism 292 popular sovereignty, and 238 powerlessness and 338 technopopulism 237 authoritarian populism and authoritarian liberalism combining 290 resisting technopopulism through demoicracy see under peoples imagined threat of 114 post-communist Europe 376–78 post-communist constitutionalism 87– 89, 90 professional ideology constitutionality, as 165–68 European legal profession, and 175, 176 meaning of 163 theorization of specific character of Community law, as 167–68 political utopia, and 161, 168–74 rationalization of law as a pyramid 178–79 supporting EU’s constitutional imaginary 175 public good/goods see European public good and European public goods racial capitalism in European constitutionalism 318–37 adverse consequences of Europe’s dominant constitutional paradigm 332–36 shortcomings of EU anti-racist legislation 334–36 suppression of racial capitalism in European constitutionalism 332–34 legacy of Eric Stein in constructing European vision of US Constitutionalism 322–27

judicial supremacy: from Marshall Court to Warren Court 322–25 Stein’s strategic omission of states’ rights 326–27 Mauro Cappelletti and Joseph Weiler’s vision of judicial review 328–32 downplaying states’ rights jurisprudence of Rehnquist Court 330–32 neutral judicial review as liberal legalism 328–30 refugee crisis 1, 194, 279 asylum, changing character of solidarity and 268–69, 274–75 rule of law 1–2 CJEU, and 120 collective self-rule, and 26 crisis in Hungary and Poland 1 legal liberalism, and 135 meaning of 1–2 utopia, as 141 Schuman Declaration 143, 147, 223, 249– 50, 333 democracy and human rights, and 148 excesses of nation-state, addressing 142 little substantive vision in 147–48 social democracy see under democracy societal constitutionalism 13–14, 22, 28–29, 36–37, 42–43 birth of sociology 35–36 defining imaginaries as background power 22, 40 emphasis on societal laws operating independently of political decisionmaking 35 European administrative calculemus, imaginary of 35–37 European societal constitutionalism 42–43 gubernaculum and iurisdictio 33–34 nature of societal constitutions 34 unlimited by legality and power 33–34 new constitutional subjects and imaginaries, recognition of 33 plurality of power regimes evolving in society 29 populism, and 40 positive law system, assisted by 33 reconstituting power in global society 29

Index society of many constitutions evolving at national and supranational levels, as 28 transnational and private law regimes, shifting attention to 28–29 social imaginary/ sociological imagination 21, 22–23, 284, 364, 366 collective social imaginary 369, 374 Weimar constitutionalism 370–72 common sense of legitimacy and meaningful life, referring to 26 constitutional Imaginaries as social imaginaries 363–66 core constitutional question as who gets space and power to bring projects 365–66 definition of social imaginary 181–82 history of European social imaginaries and their destabilization 29–32 introduction of 22–23, 26 law’s legitimacy and its broader ‘social imaginary’ 259 major socio-political transformations not part of traditional constitutional discourse 365 Paul Ricoeur’s social imaginary 234–37 privatizing social imaginary 368–69 relationship between symbols and structures of institutions, importance of 23 social change, requirements for 365 social imaginaries developed within several different traditions 364 stickiness of social imaginaries 364–65 institutionalization, and 364 transformative constitutional imagination to social imaginaries 25–26 sovereignty European 243–44, 311–12, 315–16, 317 late sovereignty 184, 192–93 national 164, 169–70, 243–44, 246–47, 266–67, 274 exercised at supranational level 297–98, 313, 314–15 membership of EU checking ‘excesses’ of 91 parliament’s authority to interpret constitution 353 nature of 313

399

parliamentary 86 popular see popular sovereignty primacy of 186 sovereignty claims multiplying and intensifying 289 ‘sovereignty from below’, assertions of 290 unpopular, becoming 285 subsidiarity 177–78, 328, 355 Brexit, and 354 demands for greater subsidiarity 178, 343–44 democracy, and 106, 107 transparency, and 107 technopopulism see under peoples imagined Transformation of Europe 119–46, 245, 330 communitarian utopia 131–35 community vision concerning interpersonal level 138–39 community vision of Europe 139–40 politics based on interests 140 community model as demoicratic third way 245–46 concept of law, characterization of 135 constitutional imaginaries playing twin role 235–36 equilibrium reached in EU 245–46 ideology critique: making visible what Transformation conceals 141–45 history as argument 142–44 neglect of political economy 144–45 interpreting and making the community constitutional 123–31 beyond 1992: ideology, ethos and political culture of European integration 129–31 1958–92: changing equilibrium between exit, voice, and loyalty 125–29 Transformation’s brief genealogy 123–25 liberal legalism 132–35 crisis in legal liberalism 134–35 law portrayed ass constraining member states’ freedom of action 134 meaning of 132–33 overestimating force of law in assessing impact of CJEU 133–34 trust in courts 133 liberal legalism’s ideology: creating community of law 132–38

400

Index

Transformation of Europe (cont.) community of interpreters 136 constitutional discipline 137 law and politics 136–37 power of legal discourse 135–36 reading Transformation as constitutional imaginary 121–22 Troika 38–39, 111, 113, 288 United Kingdom (UK) authoritarian liberalism, and 292–93 authoritarian populism as UK’s neoliberal project 292–93 Brexit see Brexit United States (US) legal realism 329–30 racial capitalism 318–19, 320, 331–32 Supreme Court failure to protect minorities 331–32 judicial review power 319, 326 judicial supremacy: from Marshall Court to Warren Court 322–25 Rehnquist Court 330–32 rulings on relationship between federal and state powers, contested 326 US constitutionalism 318–19 legacy of Eric Stein in constructing European vision of 322–27

natural law influence on drafting 324 open-ended nature of 326 US popular sovereignty 327 utopias 2–5, 377 aspirational schemes seeking actualization, as 4 authoritarian liberalism 281 communitarian utopia see communitarian utopia with liberal-legalist ideology constitutional imaginaries, and see constitutional imaginaries Constitutional Treaty see Constitutional Treaty counter-concept to ideology, as 4 equality, utopia of 357 European constitutionalism see European constitutionalism European integration, and see European integration ideology, utopia as counter-concept to 4 judicial review utopia 328 normative orientation to political actions, giving 377 papering over differences in social status 236 political utopia see political utopia Transformation, and see Transformation of Europe