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Constitutional Erinnerungsarbeit: Ambivalence and Translation

Published online by Cambridge University Press:  06 March 2019

Alexander Somek

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Contributions dealing with the European constitution have abounded over the last few years. Now that the amended Draft of the Constitutional Treaty has been adopted by the European Council, they are likely to burgeon even more. For scholars working in the field, this creates a paradoxical situation. Why write another piece on Europe's constitutionalization — even if it be with the unmovable confidence that it is necessary to rescue the existing debate from impending debilitation? Under current circumstances, any paper on the issue is doomed to be buried among countless other like-minded interventions.

Type
Articles: Special Issue: Confronting Memories – Constitutionalization after Bitter Experiences
Information
German Law Journal , Volume 6 , Issue 2: Article: Special Issue - Confronting Memories: European „Bitter Experiences“ and the Constitutionalization Process , 01 February 2005 , pp. 357 - 370
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 A prominent exception is Dieter Grimm. See his most recent Die Verfassung im Prozess der Entstaatlichung, in: Der Staat des Grundgesetzes – Kontinuität und Wandel 145 (Michael Brenner, Peter M. Huber, Markus Möstl, eds., 2004).Google Scholar

2 Most prominently, Andrew Moravcsik, The Choice for Europe. Social Purpose and State Power from Messina to Maastricht (1998).Google Scholar

3 There can be little doubt that the foremost philosopher fascinated by the idea of the historicity of reason was F.W.J. Schelling. See Axel Hutter, Geschichtliche Vernunft. Die Weiterführung der Kantischen Vernunftkritik in der Spätphilosophie Schellings (1996).Google Scholar

4 See Merkl, Adolf Julius, Die Unveränderlichkeit von Gesetzen – ein normlogisches Gebot, reprinted in: Die Wiener Rechtstheoretische Schule, vol. 2 1079 (H. Klecatsky et al., eds., 1968).Google Scholar

5 Nagel, See Thomas, The Possibility of Altruism 62 (1970); Niklas Luhmann, Das Recht der Gesellschaft 129 (1993). Against this background, there is scarcely anything less ingenious than analysing a constitution in terms of a “pre-commitment strategy”. See Steven Holmes, Passions and Constraint. On the Theory of Liberal Democracy 134 (1995). It is merely another way of acknowledging that the constitution is a norm.Google Scholar

6 The other author invoking a “deep past” in a constitutional context is Bruce Ackerman, by which he means the formative one-hundred and fifty years of the history of the American constitution. See Bruce Ackerman, We The People, vol. 1: Foundations (1991). A past becomes “deep” according to Ackerman once the contemporaries who experienced the past as a present are gone. This, to be sure, is a shallow concept of time's depth. A past is deep if it renders the present unruly, unstable and fragile.Google Scholar

7 Both Friedrich, W. Schelling, J. and Thomas, Mann were intrigued by this type of “deep past”. See Friedrich W.J. Schelling, Ages of the World (1997, originally written in 1813). Thomas Mann, Joseph und seine Brüder, vol. 1: Die Geschichten Jaakobs (1983).Google Scholar

8 Encounters with “evil” undermine our trust in the world. See, already, Hannah Arendt, The Life of the Mind, vol. 1: Thinking 4 (1978), and, more recently, Susan Neiman, Evil in Modern Thought. An Alternative History of Philosophy 9 (2d ed., 2004).Google Scholar

9 See Wolfram Hogrebe, Prädikation und Genesis. Metaphysik als Fundamentalheuristik im Ausgang von Schellings ‘Weltalter’ (1989).Google Scholar

10 For a tour d'horizon, see Rüdiger Safranski, Das Böse oder Das Drama der Freiheit (1997).Google Scholar

11 See Adorno, Theodor W., The Meaning of Working Through the Past, in: Critical Models. Interventions and Catchwords 89 (trans. Henry W. Pickford, 1998).Google Scholar

12 This problem has been beautifully reconstructed by John G.A. Pocock in his The Machiavellian Moment. Florentine Political Thought and the Atlantic Republican Tradition 31 (1975).Google Scholar

13 For a useful introduction, see Herfried Münkler, Machiavelli. Die Begründung des politischen Denkens der Neuzeit aus der Krise der Republik Florenz 120 (1984).Google Scholar

14 A great document, it barely needs mentioning, expressing this European tradition of constitutional thinking is Charles I. Response to the Nineteen Propositions. See The Stuart Constitution. Documents and Commentary 18 (2nd ed., John. Philipps Kenyon, Ed., 1986).Google Scholar

15 See his The Constitution of Europe (1999).Google Scholar

16 See Bruce Ackerman, The New Separation of Powers, 113 Harvard Law Review 634 (2000).Google Scholar

17 See Hermann Heller, Staatslehre 113-114 (6th ed., 1983).Google Scholar

18 No doubt, this is a major theme of Roberto Mangabeira Unger's work. See his False Necessity (1987). But, see, also, Martin Shapiro, Democracy's Place (1996).Google Scholar

19 It should not come as a surprize that one of the most outspoken defenders of European technocracy has already begun to re-describe the Union in pre-modern terms and with a telling uneasiness regarding its aristocratic element. See Giandomenico Majone, Delegation of Regulatory Powers in a Mixed Polity, 8 European Law Journal 319 (2002).Google Scholar

20 We should not forget that when it comes to voting and responsiveness, the European Parliament suffers from a grave democracy deficit of its own.Google Scholar

21 Haltern, See Ulrich, Pathos and Patina: The Failure and Promise of Constitutionalism in the European Union, 9 European Law Journal 14, 19 (2002).Google Scholar

22 Haltern, supra, note 21, claims that the European integration process is apolitical also because it did not require any sacrifice. It would rest, thus understood, on the stable reproduction of multi-lateral win-win situations. But this is utterly implausible. Integration demanded substantial sacrifice, in particular on the part of Germany, and there is reason to fear that the integration process might even falter if it ceased to be fed by German resources in the future. See Niall Ferguson, The End of Europe? http://www.travelbrochuregraphics.com/extra/end_of_europe.htm.Google Scholar

23 See the European Commission's White Paper: [European Governance. A White Paper, COM(2001) 428 final of 25 July 2001, O.J. 2001, C 287/5; http://europa.eu.int/comm/governance/index_en.htm. Unfortunately, political scientists are prone to buy into this garbage—or, pardon me, molehill. For a discussion, see Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance, Jean Monnet Working Paper, No. 6/01 (Christian. Joerges / Yves Meny / J.H.H. Weiler, eds., 2001), http://www.JeanMonnetProgram.org.Google Scholar

24 See Adorno (note 11), 98-99: “[…] [T]he objective conditions of society that engendered fascism continue to exist. Fascism essentially cannot be derived from subjective dispositions. The economic order, and to a great extent also the economic organization modelled upon it, now as then renders the majority of people dependent upon conditions beyond their control and this maintains them in a state of political immaturity. If they want to live, then no other avenue remains but to adapt, submit themselves to the given conditions; they must negate precisely that autonomous subjectivity to which the idea of democracy appeals; they can preserve themselves only if they renounce their self. To see through the nexus of deception, they would need to make precisely that painful intellectual effort that the organization of everyday life, and not least of all a cultural industry inflated to the point of totality, prevents. The necessity of such adaptation, of identification with the given, the status quo, with power as such, creates the potential for totalitarianism. The potential is reinforced by the dissatisfaction and the rage that very constraint to adapt produces and reproduces. Because reality does not deliver the autonomy or, ultimately, the potential happiness that the concept of democracy actually promises, people remain indifferent to democracy, if they do not in fact secretly detest it.”Google Scholar

25 Stability, after all, appears to indicate that those subject to political rule are not dissatisfied. But a society that is merely stable without being democratic may also accumulate dissatisfaction to the point at which it may eventuate in outbursts of political violence. Autonomy defies, on the other hand, the sublation of democracy to a global state. There is no autonomy without identity. And is not identity exclusive? Is not democracy for that very reason fatally unfit for transnational governance?Google Scholar

26 Intriguingly, the predominance of the European Union has actually removed ambivalence in the concept of democracy. It concerns the ontological and the deontological rendition of loyalty and solidarity. National democracy is nowadays often cast in ontological terms. Solidarity among citizens is possible because citizens are ready to sacrifice out of a feeling of belonging. Such solidarity is absent on the transnational level simply because people do not experience themselves as conjoined with others by a common destiny. The sense of belonging (“collective identity”) accounts for the willingness to sacrifice. The fatherland asks its soldiers to risk their lives on the battlefield. Soldiers do, indeed, risk their lives out of a sense of obligation to a larger whole of which they consider themselves to be part. Unfortunately, this ontological conception of national solidarity prevails in current discourse. It eclipses the deontological understanding that lends nationalism a much more defensible form. The deontological understanding does not jump from the alleged fact of homogeneity to the conclusion that there is loyalty. It simply says that if the existence of certain obligations is desirable then in all likelihood some political boundedness is indispensable to see them fulfilled. The source of such boundedness is irrelevant. In its deontological understanding, nationality is neither as sweet nor as abysmal as in its ontological from. It provides a critical principle to assess the progress of transnational governance, for if its growth threatens to thwart the existence of morally valuable obligations, then such progress may not be desirable after all. The potential for a nationalist critique of supranationality is far from being exhausted. See Fritz W. Scharpf, Governing in Europe. Effective and Democratic? (1999).Google Scholar

27 For a much more balanced and sober critique of the OMC, see Christian Joerges, What is Left of the European Economic Constitution. A Melancholic Polemic, 13 EUI working papers in law (2004).Google Scholar

28 Declaration of the Future of the Union, European Council 15 December 2001, http://europa.eu.int/futurum/documents/offtext/doc151201_en.htm.Google Scholar

29 The exception is, of course, the work by Michael Hardt / Antonio Negri, Empire (2000).Google Scholar

30 In the meantime, a literary cottage industry has emerged on American imperialism. For an overview, see New York Times Book Review of 24 July 2004.Google Scholar

31 See the intriguing book by Niall Ferguson, Empire. The Rise and Demise of the British World Order and The Lessons for Global Power (2002).Google Scholar

32 In his book Colossus. The Price of America's Empire (2004), Niall Ferguson is inclined to underestimate how much America owes its hegemony to the celebration of trite, even vulgar, consumerism.Google Scholar

33 Kunst, See Christiane, Imperium, in: Der Neue Pauly vol. 14 577 (M. Landfester, Ed., 2001).Google Scholar

34 See Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europeaum 28 (1950).Google Scholar

35 Timeless discourses, we are in the position to realize at this point, are able to flourish under imperial conditions.Google Scholar

36 See Peter Sloterdijk, Falls Europa erwacht. Gedanken zum Programm einer Weltmacht am Ende des Zeitalters ihrer politischen Absence (1994)Google Scholar

37 I add that nobody would disagree more with such a statement, if it were taken to be a statement of facts, than Ferguson. See, supra, note 32, 256–257.Google Scholar

38 Ferguson (note 32), 229-230 cites remarks by the British diplomat Robert Cooper calling for a “new kind of imperialism” that would be “acceptable to a world of human rights and cosmopolitan values”. Indeed, according to Cooper, the “post-modern EU” offers a vision of a co-operative empire.Google Scholar

39 Having criticized some of the ideas of my colleague Ulrich Haltern above, I now have to admit that these observations make me vulnerable to a criticism of his. See Ulrich Haltern, Raum – Recht – Integration. Ein Beitrag zum Verständnis von Souveränität, to appear in: Europäischer Raum und Grenzen. Probleme der Räumlichkeit und Identitätenbildung in einem vereinten Europa (R. Hettlage / P. Deger, eds., 2004). In his eyes, all tacit appeals to an imperial past are on a plane with the public relations humbug with which European institutions try to sell the EU to its citizens. I would reply that all the the “republican” means, such as fundamental rights charter and constitutional documents?, are doomed to be ridiculous, at best; however, this is not the case for the positioning of the Union against its deeper historical background.Google Scholar