A couple of years ago Martti Koskenniemi has introduced the important distinction between two different constitutional mindsets: the Kantian and the managerial mindset. The differentiation between the Kantian and the managerial mindset is one of many variants in the eternal struggle between Mr. Hyde and Dr. Jekyll which is fought throughout Koskenneimi’s whole work, beginning with Kantian utopia vs. managerial apologia. It was followed up with his outstanding Gentle Civilizers of Nations and the struggles between Kelsen and Schmitt, Lauterpacht and Morgenthau, finally between Dr. Jekyll Wolfgang Friedmann, the last hero of the gentle civilizers, and the many Mr. Hydes who were the embedded jurists from the American State Department. They then justified the invasion and replacement of a democratically elected government at Dominican Republic spring 1965. The fight between Dr. Jekyll and Mr. Hyde was renewed in 2003 in an essay with the title What can International Lawyers Learn from Karl Marx? At that time the good people of the world had said “No” to the infringement of international law by the United States second Iraq War, and their willing coalition of States and international lawyers.
I begin with a rough juxtaposition of the meaning of the two mindsets: The Kantian mindset’s key-words are autonomy, egalitarian self-determination, representative government and universal rights. Law shall enable government of and by the people, and that means the emancipation from any law to which we have not given our assent. The language of the Kantian mindset is the normative language of the constitutional revolution, the pouvoir constituant, and the rhetoric of radical change. The Kantian mindset is the “legislature” who “produced the French Revolution” (Marx). At the center of the Kantian mindset is the internal relation of law and democracy.
By contrast, the managerial mindset is more about law and economics. Keywords are rule of law, judicial review, possessive individualism, and – in the ironic formulation of Marx – “peaceful competitive struggle”, best watched by a competition commissioner and some judges, such as in the EU (or in the WTO-IMF-World Bank regime of global economic governance). The managerial mindset is performed by incremental decision making, gradual change, muddling through a jungle of hegemonic opinions, managing a complex mix of ideal and material class-interests, of unexpected evolutionary hazards and coincidences. The managerial mindset’s language is the technical language of courts, committees, conferences and all kinds of agencies which are implementing and stabilizing the pluralized powers of the pouvoir constitué. Managerial government – from Lenin to Angela Merkel – is government for or against the people. The Kantian and Marxist (and American presidents) rhetoric of changing the world is displaced by negotiation, diplomacy and compromise, by new public management and the noiseless implementation of ‘structural reform’. In the world of the managerial mindset public contestation is just “not helpful” (Angela Merkel), and parliamentary rule must be restricted to “market-conform” “parliamentary participation” (originally: “parlamentarische Mitbestimmung”) – again the words of Angela Merkel, the master mind of the present European managerial class of politicians, bankers, chief-economists, jurists and embedded journalists.
If you want paradigms then the European South today is full of it. The Troika-enforced replacement of elected governments by technocrats and bankers such as Mario Monti or Lucas Papademos is a paradigm case of the functioning of the managerial mindset. By contrast, the Italian elections February 2012 which ended technocratic government, are a paradigm case of the functioning of the Kantian mindset. In both cases the results can be catastrophic. Mr. Hyde who wants the bad can cause the good – but without any Mandevillean metaphysical guarantees; and Dr. Jekyll who is the bearer of the Kantian Good Will can cause bad – but must not.
Both mindsets have not only different meanings but also different socio-linguistic extensions. Whereas the Kantian mindset speaks the universal language of everybody, the extension of the managerial language is the exclusive medium of understanding between professional experts, and the political and economic class. The specialization of their language allows them to draw a sharp distinction between the internal systemic discourse, and the human beings out there in the environment of the system. The borderline between system and environment is watched and observed by simple codes (such as legal/ illegal) and complicated programs (such as EU-laws, ESM-norms, Troika soft-law etc.). For the human beings out there the programs are translated into the hopelessly under-complex language of the kitchen morale of the “Swabian housewife” and her “housekeeping money”, as Angela Merkel has said, explaining economy to the Greeks. From the point of view of his own Kantian mindset, Kant himself would have called the members of the managerial class sorry comforters.
However, from the point of view of the managerial mindset the opposite is true. As Mr. Hyde Niklas Luhmann argues, the Kantian constitutional mindset is just another empty signifier: “Illusions of manageability”, “solemn declarations” and “revolutionary chants” (Machbarkeitsillusionen, feierliche Erklärungen und Gesänge) – and rightly so, at least as far as declarations and constitutions are only legal text books, and not yet legal norms. Luhmann’s thesis is: As far as legal and constitutional concepts are evolutionary advances with a certain cash-value, they are due to adaptive cognitive learning that is performed by the managerial class, or independently by social systems once they have completed their self-referential closure (hence, have become learning or Turing machines).
Legal and constitutional advances are good examples. A functionally differentiated, hence self-referentially closed legal system produces itself (autopoiesis) through the combination of normative closure with cognitive openness. From the perspective of cognitive or systemic learning, normative expectations and moral points of view are nothing else than learning blockades, used for the functional purpose of reduction of environmental complexity. As far as constitutions fulfil the functional requirements of structural coupling they contribute to the enhancement of the adaptive capacities of modern society through cognitive learning alone. This, however, requires the Kantian mind-set no longer. All that has to be done, must be performed by managerial incrementalism, legal experts, career politicians and bureaucrats.
I agree, and I disagree with this argument of Luhmann. First my disagreement. The social evolution is not only characterized by cognitive learning that enhances adaptive capacities, but also by normative learning that is not adaptive but channelling and constraining systemic adaptation. In particular the normative closure of the legal system through constitutional law is not just functionally adjusted to adaptive cognitive and systemic learning, but is an embodiment of normative learning processes which have a lasting internal relation to the minds, actions and bodies of all individual addresses of legal norms. Because legal norms cannot get rid of their internal connection with the colloquial language and the moral self-understanding of their addresses, normative closure does not only enable cognitive and systemic adaptation but also the continuation of normative learning.
All law that is public, is not only opened cognitively to its environment but also normatively to the general and diffuse public sphere. Normative learning (or unlearning) is at stake for instance in parliamentary or legal landmark debates and decisions which are affecting the general public. Normative learning is at stake when new social movements emerge. Normative learning is at stake in all public conflicts and struggles of assembling and uprising crowds over the validity and the right interpretation of the law, it is at stake when words and cobblestones strike back, and the discourses spark off. What appears as a learning blockade from the perspective of systems theory is itself the result of evolutionary learning that consists in an increase and categorical progress of moral insight, measured in categories of social inclusion, moral universality, political egalitarianism, reciprocal understanding, justice as fairness and societal individualization (e. g. Kant’s enthusiasm of moral progress, or Durkheim’s modern cult of the individual). The results of normative learning are embodied within the whole system of positive law, and in particular in constitutional rights and principles such as public and private autonomy, democracy, check and balances, due process, social equality, human and civil rights, thus the whole list of solemn declarations and revolutionary chants: “The International unites the human race.” “Die Internationale erkämpft das Menschenrecht.” These are holistic statements and empty legal signifiers which everybody understands. Revolutionary declarations such as the declarations of 1776, 1789 or 1948 are seldom significant for professional jurists but they are often very significant for philosophers, and for the people, especially when it comes to social conflicts that are structural. Why? – Because they express a better, or at least presumably better justified (or better interpreted) idea of freedom that seems to be more universal, more inclusive, more individualized and decentred than all former ideas of freedom. Hegel has called a historical sequence of these ideas with the corresponding public discourses: progress in the consciousness (or understanding) of freedom.
The latter is due to the fact that constitutions are not only evolutionary but also revolutionary advances. Revolutionary advances such as human rights and democracy are neither designed as improvements of adaptation nor can they be explained as improvements of adaptation. For the latter purpose they emerge far too rapid, such as punctuational bursts in the evolution of living systems. Instead of improving adaptation, revolutionary advances constrain the morally neutralized adaptive mechanisms of society normatively. As normative constraints they limit adaptation in a similar way as the construction plans (Baupläne) of animals limit the adaptation of living organisms to their environment. The “role of historical and structural constraints” consists in “channelling directions of evolutionary change.” The same must be said about the role of normative constraints in the social evolution. Constraints that are normative, do not only close a legal system for the purpose of adaptive improvements, they disclose new evolutionary paths for cognitive and normative learning. As results of successful normative learning, the normative constraints of systemic adaptation contain the whole emancipatory potential of a respective society. Under the selective pressure of (a) functional (and in particular economic) imperatives, (b) dominating (and dominated) class-interests and (c) hegemonic (and counter-hegemonic) mindsets the emancipatory potential that is embodied in constitutional textbooks and legal practices „can be halted and inhibited. But it cannot be eliminated.“ Because they are normative, the constraints of blind evolutionary adaptation can be violated, neglected, derogated again and again. The violation of a legal norm is the proof of its existence. But as long as they „will not be forgotten” (Kant) they can “strike back” (Friedrich Müller). This distinguishes revolutionary documents since the Dictatus Papae from 1075 from mere words, celebrations and chants. It is the emancipatory progress of revolutionary advances that made Kant’s “enthusiasm” and “moral rapture” vis-à-vis the French Revolution never disappear, not even at the height of Jacobean terror. Once revolutionary advances have become a Sign of History (Kant), moreover, once they are implemented in constitutional law, legal practices and mindsets – they are no longer empty signifiers but (Hegelian) existing Notions.
So far I am more or less in agreement with Koskenniemi. But now comes my disagreement with Koskenniemi and my partial agreement with Luhmann and the managerial mindset. The Kantian enthusiasm vis-à-vis the flash light of the revolution that makes “men and things seem set in sparkling diamonds” and “ecstasy (…) the order of the day”, regularly is followed by “a long Katzenjammer [hangover]”. What remains is a „sober reality“, managed by “its own true interpreters and spokesmen”: “the Says, Cousins, Royer-Collards, Benjamin Constants, and Guizots” – managed in the aftermath of the French Revolution in the same way as in Europe today with the Method Monet. In a long period of managerial incrementalism and gradual adaptation society learned (after Napoleon’s final defeat as well as after the Treaty of Rome) “to assimilate the results of its storm-and-stress period soberly”. However this means that not only the managerial mindset of law and economics had to be legally implemented and soberly assimilated but also the Kantian mindset of individual and public self-determination. Therefore not only cognitive and systemic adaptation never stops, also normative learning never stops. Therefore there is not only a revolutionary normative discourse, there is also a continuing normative discourse in the aftermath of revolutionary change – for example as after the French Revolution in practical discourses over ‘absolute freedom and terror’, in the wide spread and long lasting public debate and praxis of ‘socialism and communism’, or in the powerful scientific, legal and popular controversies on ‘constitutions and representative government’.
During the long Katzenjammer not only Mr. Hydes evil genius was needed to stabilize Dr. Jekyll’s high-flying plan of a just society. Also Dr. Jekyll was forced to defend himself against his other self that was Mr. Hyde. Even if the long lasting fight between Dr. Jekyll and Mr.Hyde often, even regularly led to the reduction of socially related human emancipation to professionally specialized political emancipation (Marx), of egalitarian mass-democracy to facade democracy (Habermas), of constitutional advances in the consciousness of freedom to constitutionalism as kitsch and cliché (Koskenniemi). However, the latter was not always the last word of history.
In the technical language of systems theory one can say, that during the process of managerial adaptation and stabilization of revolutionary advances, the difference between Mr. Hyde and Dr. Jekyll again had to be copied into the character of Mr. Hyde. Because he must interact and argue with Dr. Jekyll, from within a shared holistic frame of inferential, normative and discursive relations, Mr. Hyde cannot just get rid of the revolutionary established normative constraints of the Kantian constitutional mindset. He has to cope with them, if he wants it or not. They are becoming effective as his own existing contradiction (“daseiender Widerspruch”). Here we can see that – in accordance with the reading of negative dialectical logic by Marcuse, Adorno or Theunissen – Hegel’s existing notion only exits as contradiction and conflict within and against the existing, and that the existing Notion only as existing contradiction can become the driving force of normative learning, and evolutionary as well as revolutionary progress.
This, in fact, is the reason why normative learning – different from Luhmann – does not end with the hangover after the revolutionary job has been done. A good example is the global popular protest against the Iraq War of 2003. In his essay “What Should International Lawyers Learn from Karl Marx?” Koskenniemi implicitly has argued that the cleavage between the international lawyers from the US-State Department and elsewhere (who justified the intervention with legal expertise) and the global peoples “No!” indicates a learning process that was anticipated more than 150 years ago by Karl Marx when he criticised the bourgeois reduction of national constitutional law from socially related human emancipation to de-socialized and functionally specialized political emancipation. In taking the “emancipatory promise” of international law serious the “peoples” – We, the Peoples of the United Nations (Preamble UN) – “condemned” the American war of aggression univocally as a “universal violation” of international law. The socially related constituent voice of the peoples silenced the functionally specialized, constituted voices of political leaders, of “diplomats and academics” – demanding the inclusion of all human beings in international legal discourse and decision making, to enable a radical and democratic reinterpretation of international law. The normative learning process here was twofold: one from politically specialized to socially related human emancipation, and one from national to transnational constitutional law (and constituent power).
In my second part I will try to combine the Kantian mindset of the Finish jurist Martti Koskenniemi with the managerial mindset of another Finish jurist, Kaarlo Tuori, and apply the combination to the evolution of European constitutional law. Tuori has suggested to try a highly plausible schema of a general and incremental development of a plurality of European constitutions. Koskenniemi constructs a non-dialectical, unbridgeable, and therefore too fundamentalist opposition between the two mindsets that only allows for a gestalt switch between closed linguistic universes (and not for contradictory but inferential relations such as in Hegel’s normative logic). Complementary, Tuori neglects and represses the action of the Kantian mindset within the managerial praxis, and in particular he ignores that the Kantian constitutional and cosmopolitan mindset that was at the outset of the European unification process. I will try to combine both in a way that avoids their complementary blind spots.
The European Union once was founded on the battle fields of the Second World War. It was founded by the Kantian constitutional mindset of peoples and social classes who emancipated themselves from fascist rule over Europe. The battles and struggles were fought in the name of comprehensive democratic and social self-determination. Liberating violence was transformed into the constituent power of a new foundation and the unification of Europe. It was the new foundation that replaced the classical Peace Treaty that was no longer possible after the European and Asian atrocities of the former Axis Powers.
European unification did not begin with the Treaties of Paris and Rome in 1951 and 1957, and it did not begin with the Method Monet but with the new constitutions that all the founding members (France, Belgium, Italy, Luxemburg, the Netherlands, and West-Germany) had given themselves between 1944 and 1948. All constitutions of the founding members expressed a strong emphasis on human rights and had opened themselves (explicitly or implicitly) to international law. They were committed to the egalitarian project of mass-democracy and social welfare. Even the programmes of conservative parties advocated ideas of democratic socialism. Already in 1941 Spinelli, Rossi and Colorni (all three communists or socialist resistance fighters) in the Manifest of Ventotene had outlined the project of a European federal social welfare state that preceded the later foundation of the national welfare states. End of the war, and immediately after the war there was a strong intellectual support for European unification and the project of a United States of Europe, reaching from Churchill over Arendt and Sartre to Helmut Kohl.
Finally, and most crucial for the foundation of the European Union, all founding members of the European Communities bound themselves by the constituent powers of their peoples to the project of European Unification. Only Luxemburg had no explicit commitment to Europe in its constitution but their constitutional court decided that it was implicit. Fossum and Menendez appropriately are speaking of a synthetic constitutional moment of Europe.
In consequence, it can be concluded that, from the very outset, the European Union was not founded as an international association of states. On the contrary, it was – speaking in legal terms – founded as a community of peoples who legitimated the project of European unification directly and democratically through their combined, but still national, constituent powers. At the same time and with the same founding act, these peoples, acting in plural, constituted a single European citizenship. Therefore, from the very beginning, the Treaties were not just intergovernmental, but legal documents with a constitutional quality. However, what followed was the long Katzenjammer of gradual incrementalism and the Method Monet. Following Tuori, the evolutionary narrative is structured by a sequence of evolutionary stages.
Stage I: The Kantian mindset of emancipation from fascism was repressed by the rhetoric of peace, reconciliation and anti-communism. The first stage of the constitutional evolution was triggered by the invention of the economic constitution of Europe that consisted in the structural coupling of law and economics. In 1957 treaty negotiations German Ordoliberals – then strongly backed by the conservative American government – took the chance to realize their old dream of a mere technical constitution without government and legislator. The economic constitution was centered in competition law, and watched by the Court. If we look back from today, the beheading of the legislative power that once produced the French Revolution, exactly represented the overlapping consensus between (otherwise very different) German-Austrian Ordoliberals from the Freiburg-school and the later Neoliberals from the Chicago-school of economics. In the words of Ernst-Joachim Mestmäcker, the leading legal theorist of the Freiburg-school: “The most important powers in economic concerns should be reserved for the judiciary, and taken away from legislation and government.”
Retrospectively the program of economic constitutionalization appears as an immunization of free market capitalism against democratic control in two great steps: First, Ordoliberals took Europe, then Neoliberals took the rest of the world. First the transnational constitution of Europe, then the transnational constitution of the WTO should be detached from national political constitutions. The basic constitutional idea that finally unites Ordo- and Neoliberalism is the idea to change law from functioning as the immunity system of society into law that functions as the immunity system of transnational capitalism, triggering an autoimmune disease by declaring civil war against the rest of the societal body and its legislative organs. The immunity system of the many stakeholders and their clients should become an immunity system of the few shareholders. Hans Kelsen was the first who made the democratically catastrophic, legal and constitutional implications of Ordo- and Neoliberalism evident in his 1954 critique of Hayek, and it is here (by the way) where Luhmann’s fear of a loss of freedom through de-differentiation and Habermas’ fear of a loss of freedom through colonization of the life-world coincide. In 1957 Mr. Hyde had won his first round against Dr. Jekyll. However, until the 1980th the national social welfare regimes were strong enough to cope with the slowly emerging, transnational liberalization machinery of “peaceful competitive struggle” (Marx). A quick knock out of Dr. Jekyll seemed impossible.
Stage II: Despite of the early ordoliberal hegemony this hegemony was not without contestation. Mr. Hyde had to cope with the copy of Dr. Jekyll within himself. Caused by a growth of legal conflicts over newly created European law, the second stage of European constitutionalization was reached. It consisted in the establishment of a rule-of-law constitution (or rights-constitution) that – in a reflexive manner – coupled law and rights structurally. The growth of European norms and legal conflicts urged European and national courts to construct, apply and implement European rights and the direct effect of European law, together with the corresponding European citizenship. At the end of this process European and national law became one single (howsoever fragmented or pluralized) legal order.
The counter-hegemonial Kantian point here is, that subjective rights no longer can be normatively neutralized by law that is technical, such as competition law, and all the other branches of law and economics. To implement European subjective rights for mere economic purposes of private autonomy it needed – at least counterfactually and anticipatory – the construction of full-fledged European citizenship. There is no private autonomy without public autonomy, as already Rousseau has argued, and rightly so. The opposite view was the great illusion of classical, ordo- and neoliberalism. In a famous essay on Eros and civilization of European citizenship Joseph Weiler once had argued that “you could create rights and afford judicial remedies to slaves” because “the ability to go to court to enjoy a right bestowed on you by the pleasure of others does not emancipate you, does not make you a citizen.” I think, Weiler is wrong, even if there are many empirical cases of rights bearers who are denied full citizenship. He is wrong because once I go to a public court I must – if I want it or not – participate in the judicial “concretization” (Kelsen) of the respective legal norms, and that means that I must participate in a procedure of creating and changing law. For this purpose I must make myself an active citizen. Therefore, the legislative power of the people does not end once a statuary law is ratified by parliament, and therefore on every level of concretization there is need of direct democratic legitimization and further public contestation. Christoph Möllers rightly speaks of individual legitimization through legal actions which are part and parcel of the whole procedure of democratic legitimization. Thus, the existing notion of European rights contradicts (as an ‘existing contradiction’) the status of slavery once the slave makes use of them (if he or she has any right, however fragile and partial it is, such as the right of Dred Scott to go to court in Missouri in 1847, and who’s case became one of the triggers of the Civil War).
Thus, the European Court in Van Gent en Loos rightly has interpreted the Treaties as „agreement between the peoples of Europe that binds their governments and not simply as agreement between the governments that binds the peoples.“ The construction of European citizenship by the Court thus must be derived from the synthetic constituent power of the peoples of Europe. This brings the Kantian mindset back in for a simple reason. Once European rights and citizenship are created, no longer a single people can quit membership alone, out of its sovereign will. Not only all other peoples but also the European citizens as a whole must have a say in such a case. If Denmark quits the Union I (as a German and European citizen) lose my European rights in Denmark, now even including active citizenship’s rights such as voting for the Danish contingent of the EU-Parliament (if I live in Denmark). Therefore today the Treaty of Lisbon allows withdrawl of a nation only due to European procedural rules.
Habermas rightly has called this a civilization of state power by overcoming state-sovereignty and individualizing popular sovereignty. Thus, there is not only existing justice of the national state at stake once it comes to a transfer of sovereign rights from the national state to the European Union. There is also the already existing justice of the European Union at stake once it comes to a return of powers of the Union to the national state. There is not only a requirement of solidarity between national states and their different demoi but also a requirement of solidarity between the individual European citizens as bearers of European rights. This could be called the European cosmopolitan moment.
So, it seems that the second round goes to Mr. Hyde. The growing audience of European lawyers applauds. The two decisions of the Court from 1963 (van Gent en Loos) and 1964 (Costa) emphatically have been described by the jurists as “the declaration of independence of Community law”. May be, a little bit too early – because as long as there was no full-fledged political constitution of Europe, active citizenship remained virtual and arbitrary. Individual, or better: private legitimization without public legitimization keeps structurally incomplete on the level of the rule-of-law constitution. Round two between Dr. Jekyll and Mr. Hyde is drawn, and the hegemony of the economic constitution prevails.
Stage III and Crisis: But then comes the third round with an impressive progress of European parliamentarization. On the third stage of constitutionalization the political constitution couples law and politics structurally, and even the beginnings of a European social-welfare and security constitution – a fourth and fifth stage of constitutionalization – are now observable. Again Dr. Jekyll is contesting the hegemony of the economic constitution and its liberalization machinery seriously. The Czech constitutional court in its judgment on the Lisbon-Treaty states that the European Union today forms a complete and gapless system of democratic legitimization, and rightly so. The Kantian mindset of comprehensive democracy now is legally articulated in many single articles and legal norms of primary and secondary European law, such as the famous Art. 6 of the Treaty of Maastricht, or the Articles 9-12 of the Lisbon Treaty. Bogdandy rightly has argued that the latter Articles are not only containing the democratic substance of the Lisbon Treaty but also a cosmopolitan project. However, I would not argue that they are “developing the democratic credentials not just of the EU, but of public authority beyond the state in general”, hence showing “what lessons can be learnt for international organizations.” If one changes from this international lawyer’s participant perspective that is not completely free from Eurocentrism, to an evolutionary perspective we can argue that the Art. 9-12 are not so much credentials and lessons for other global regions but manifestations of an evolutionary universal or an evolutionary advance (such as the brain, the eye, bureaucracy or constitutions) that probably has been realized elsewhere, and not only in Europe, and already long ago, for example in the constitutional order that was established after the Papal Revolution of the 11th century. Be that as it may, it seems as if the third round goes to Dr. Jekyll.
Unfortunately, just at the moment when the hard issues of unequal distribution of wealth, unequal life conditions and unequal life-chances came to the fore, the body guards of Dr. Jekyll – the European Council, the German hegemon, and the hastily established Troika – reach for their guns. The economic state of siege is declared. Technical knockout, Mr. Hyde is the winner, and the winner takes all. What has happened? The economic constitution (stage I) was at the beginning of a long, and for a long time democratically open process of a transformation from nationally restricted democratic class struggle to the “peaceful competitive struggle” (Marx) between nations for location advantages such as low taxes, low wages, and flexible jobs. From the beginning there was ordo-, then neoliberal hegemony, however it was challenged by counter-hegemonic powers that constitutionalized more and more Kantian legal constraints, organs and competencies. Europe’s liberalization machinery was one of many alternative programs, however that changed, first after the global epochal watershed of the 1980th, and finally, after the unique introduction of a common currency without legislator and government, reinforced by the ECB’s priority of prize-stability over employment. This was at the best thing ever, that could happen to the transnational social class of investors, bankers and big business, but it was due to a bad political compromise that none of the political actors of the early 1990s ever wanted.
In the effect democratically organized, national class struggle (based on strong trade unions and strong parliaments) was replaced with the international struggle between nations (based on weak and disempowered trade unions, and weak and disempowered parliaments). Now it again becomes evident that there were two (and only two) generalizing mechanisms that enabled the establishment of a democratically controlled market economy in parts of the world of national states after World War II. For the first time in history egalitarian mass-democracy – now called democratic (so, democratically controlled) capitalism – successfully was established (even if affirmative action remained white, but not for a long time). These generalizing mechanisms were, roughly speaking, strong unions and strong parliaments, backing each other reciprocally. They are no longer. What we now have is weak unions and weak parliaments within a system of capitalist democracy, and that means capitalist controlled democracy, or democracy that is “market conform” and therefore rightly reduced to “parliamentary participation” (Merkel). The neo-liberal deconstruction of unions and parliaments has reduced the binding power of solidarity to a level that is best expressed by an ironic line of one of the last Madonna songs: “Hold me like your money!” After the transformation of the national states “into debt-collecting agencies on behalf of a global oligarchy of investors, compared to which C. Wright Mills’s ‘power elite’ appears a shining example of liberal pluralism”, the race to the bottom became unavoidable, and the cold war between the Northern and the Southern States of the Union began. The austerity regime with constitutionalized debt breaks became the prerogative constitution of Europe. The European constitutional situation now resembles that in a sketch of Monty Python: “If you have guests, you can make games. All guests are divided in two teams, A and B. And A are the winners. (…) Well you can make it more complicated if you want to.” The problem of democracy and cosmopolitanism today is, how to make it more complicated again. But therefore a renewal and transnationalization of democratic class struggle is needed but still highly unlikely. However, there will be no democratic cosmopolitanism without a turn from international economic differences to transnational social differences, from national identity politics to transnational redistributive politics.
At least a first step has been done because the cold war between North and South has made the emergence of a European mass-public unavoidable. It already exists, and that will bring democratic alternatives back in, such as the alternative between keeping the Euro with government and legislator vs. returning to national currencies. One must not be a prophet to predict that at the price of a comprehensive and deep crisis of legitimization such a decision no longer can be made behind closed doors, bypassing the European public sphere. In such a case the national peoples and the European citizens must have a say, and that means voice and vote.
Martti Koskenniemi, „Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization”, in: Theoretical Inquiries in Law 8:9, 2006, pp. 9-36.
Koskenniemi (1989): From Apologia to Utopia: The Structure of International Legal Argument, Helsinki: Lakimiesliiton.
Koskenniemi (2002): The Gentle Civilizer of Nations, Cambridge: Univ. Press, pp. 413-415, 494-509.
Koskenniemi, What Should International Lawyers Learn from Karl Marx, in: Leiden Journal of International Law, 17 (2004), pp. 229–246, at 245.
Alexander Somek, “Europe: From emancipation to empowerment”, unpublished e-man 2012.
Marx, Kritik des Hegelschen Staatsrechts, MEW 1, 260, English quoted from: Marx, Critique of Hegel’s Philosophy of Right, p. 57)
Karl Marx, Der 18. Brumaire des Louis Bonaparte, p. 97, English quoted from here. (19.03.2012).
Immanuel Kant, Zum ewigen Frieden, in: Werke XI, Frankfurt: Suhrkamp 1977, 191-251, hier: 210.
Niklas Luhmann, „Verfassung als evolutionäre Errungenschaft“, in: Rechtshistorisches Journal 9/ 1990, 176.
On the distinction: Friedrich Müller, ‚Richterrecht’. Elemente einer Verfassungstheorie IV, Berlin: Duncker&Humblot 1986, 13, 34, 38, 47ff, 88ff; Müller, Demokratie zwischen Staatsrecht und Weltrecht. Nationale, staatlose und globale Formen menschenrechtsgestützter Globalisierung. Elemente einer Verfassungstheorie VIII, Berlin: Duncker&Humblot 2003, pp. 52-53; Müller/ Ralph Christensen, Juristische Methodik II: Europarecht, pp. 170, 185, 198-199, 363, 437-438.
Luhmann, Das Recht der Gesellschaft, Frankfurt: Suhrkamp 1993, pp. 78-95, p. 555.
For the sociology of rationalization, law and religion see Jürgen Habermas, Zur Rekonstruktion des Historischen Materialismus, Frankfurt 1976; Habermas, Nachmetaphysisches Denken II, Frankfurt: Suhrkamp 2012, 7-53; Wolfgang Schluchter, Die Entwicklung des okzidentalen Rationalismus, Tübingen: Mohr 1979; Klaus Eder, “Collective Learning Processes and Social Evolution: Towards a Theory of Class Conflict in Modern Society”, (1983) Tidskrift för Rätssociologi, S. 23-36; Eder, “Learning and the Evolution of Social Systems – An Epigenetic Perspective”, in: M. Schmid, F. M. Wuketits, Evolutionary Theory in Social Science, Reidel 1987, 101-125; Robert Bellah, Religion in Human Evolution – From the Paleolithic to the Axial Age, Cambridge MA: Harvard Univ. Press 2011; Brunkhorst, Critical Theory of Legal Revolutions – Evolutionary Perspectives, London: Bloomsbury 2014 (forthcoming); for social history see: Barrington Moore, Injustice. The Social Bases of Obedience and Revolt, New York: Sharpe, 1978; for the social-cognitive development of individual human beings see: Jean Piaget, The Moral Judgment of the Child, trans. M. Gabain (London: Routledge & Kegan Paul, 1968; Kohlberg, Lawrence: Essays on Moral Development. 2 Vol., San Francisco 1981/1984.
See for example Helmut Dubiel, Niemand ist frei von der Geschichte. Die nationalsozialistische Herrschaft in den Debatten des Deutschen Bundestages, München: Hanser 1999.
See Klaus Eder, Geschichte als Lernprozeß? Zur Pathogenese politischer Modernität in Deutschland, Frankfurt: Suhrkamp 1985.
Brunkhorst, Critical Theory of Legal Revolutions – Evolutionary Perspectives
I am thankful for a controversial discussion with Rudolf Stichweh on that point, on a conference that Marcelo Neves had organized in Brasilia September 2013.
G. W. F. Hegel, Werke 12, Frankfurt: Suhrkamp 1970, 32.
To be sure, all revolutionary advances are existing only because they are adapted. Nothing that is not adapted, exists. To be adapted, modern constitutions must fulfil functional requirements of structural coupling.
See Steven Jay Gould, “Darwinian Fundamentalism”, in: New York Review of Books, vol. 44, 10/ 1997 Gould/ Richard C. Lewontin, The Spandrels of San Marco and the Panglossian Paradigm, quoted from here (04.04.2012).
Steven Jay Gould, The Structure of Evolutionary Theory, Cambridge: Harvard Univ.-Press 2002, p. 26; see Gould, „A Developmental Constraint in Cerion, with Comments of the Definition and Interpretation of Constraint in Evolution”, in: Evolution, Vol. 43, No. 3 (May, 1989), 516-539, hier: 517; for an application on the legal evolution, but without recognizing the normative character of constraints in the social evolution: Marc Amstutz, Evolutorisches Wirtschaftsrecht, Baden-Baden: Nomos 2001, 267-270.
See Brunkhorst, Critical Theory of Legal Revolutions – Evolutionary Perspectives.
Somek, Europe: From emancipation to empowerment, p. 8.
Kant, Streit der Fakultäten, Werke XI, Frankfurt:Suhrkamp 1977, p. 361 (my transl. of the German „vergessen sich nicht“); Müller, Wer ist das Volk? Eine Grundfrage der Demokratie, Elemente einer Verfassungstheorie VI, Berlin: Duncker & Humblot 1997, p. 56.
Harold Berman, Law and Revolution. The Formation of the Western Legal Tradition, (Cambridge MA: Harvard University Press, 1983).
As Pauline Kleingeld has argued in a recent essay, mid of the last decade of the 18th century, Kant became more radical, cosmopolitan, egalitarian and republican than in his earlier writings, see Pauline Kleingeld, “Kant, Conflict, and Colonialism”, paper presented at John Cabot University (Conference on Cosmopolitanism and Conflict), Rome, Oct. 13, 2013. The reasons seems to be (1) theoretical and (2) historical. In that time (1) Kant worked out the consequences of his theoretical and practical philosophy for a theory of public and republican law, and he developed his ever more republican but modern (hence individualistic) theory of popular sovereignty (see Ingeborg Maus, Zur Aufklärung der Demokratietheorie, Frankfurt: Suhrkamp 1992). Moreover, (2) only after the victory of the Jacobean troops over the reactionary European coalition (1792), and after Jacobean rule and the beheading of the king (1792-1794), it became historically evident all over Europe, that a modern republican regime (that is no longer monarchic) is empirically possible. Therefore, only now, after the final triumph of the revolution, it became evident that the French Revolution is a Sign of History (Geschichtszeichen) that never ever will be forgotten. This was due to Jacobean rule and the trial against citoyen Louis Capet, and despite the moral and legal injustice of the trial against the sovereign who counterfactually represented the people (in a provisional state of law).
Hegel, Wissenschaft der Logik II, Hamburg: Meiner 1975 (1934), 424; see Hegel, Lectures on the History of Philosophy, quoted from here (15.9.2013).
Karl Marx, Der 18. Brumaire des Louis Bonaparte, Berlin: Dietz 1985, 97, 101, English quoted from here (19.03.2012).
Jaques Delors, „Entwicklungsperspektiven der europäischen Gemeinschaft“, in: Aus Politik und Zeitgeschichte B1/ 1993, 3-9, zit. n. Möller, „Die Europäische Sozialunion“, Lexikonartikel, e-Ms., Berlin 2013, im Erscheinen.
Marx, Der 18. Brumaire des Louis Bonaparte, p. 101, English quoted from here. (19.03.2012)
Habermas, Theorie des kommunikativen Handelns II, Frankfurt: Suhrkamp 1981, p. 228; see: Armin Nassehi, Der soziologische Diskurs der Moderne, (Frankfurt aM: Suhrkamp Verlag, 2006), pp. 126-127.
Marx, „Zur Judenfrage“, in: Marx-Engels I. Studienausgabe, Frankfurt: Fischer 1966, 31-60.
Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16 European Journal of International Law 2005, 113ff, hier 122.
The functionalist language of reflection, copy, projection, recursion, system, code, program, and so on is philosophically problematic and philosophically much less advanced than sociologically. It still depends on the optical metaphor(see Richard Rorty, Philosophy and the Mirror of Nature, Princeton: Princeton University Press, 1980). In comparison the language of reciprocal, intersubjective and interactive understanding, of reciprocal role-taking and generalizing significant others that constitutes the social relation between Dr. Jekyll and Mr. Hyde, is much more compatible with modern pragmatist and linguistic philosophy (see Tugendhat, Selbstbewusstsein und Selbstbestimmung. Frankfurt: Suhrkamp 1979).
See Robert Brandom, Making It Explicit: Reasoning, Representing & Discursive Commitment (Cambridge, Mass.: Harvard University Press, 1994).
Hegel, Wissenschaft der Logik II, 59.
Koskenniemi, What Should International Lawyers Learn from Karl Marx, p. 245. See Marx, “On the Jewish Question,” in The Marx-Engels Reader, ed. Robert C. Tucker (New York: W.W. Norton & Co., 1978).
Kaarlo Tuori, “The Many Constitutions of Europe”, in Tuori, K. and Sankari, S. (eds) The Many Constitutions of Europe, Farnham: Ashgate 2010, pp. 3–30.
I use European Union as a notion that covers both the former European Communities and the present European Union.
See Alexander Somek, “Europe: From emancipation to empowerment”, e-man., University of Iowa 2012. Even the present president of the European Commission, the Portuguese Barroso owes his job a late effect of the emancipation of Europe from fascism.
Chris Thornhill, A Sociology of Constitutions. Constitutions and State Legitimacy in Historical-Sociological Persppective, Cambridge: Univ. Univ. Press 2011, 327-371; Fossum, John Erik / Menéndez, Augustín José (2011): The Constitution’s Gift. A Constitutional Theory for a democratic European Union, Plymouth: Rowman; on the two basic ideas of a constitution (power-foundiung vs. Power-limiting see Brunkhorst, Solidarity. From Civic Friendship to the Global Legal Community, Cambridge MA: MIT-Press 2005, p. 67 et seq.; Christoph Möllers, “Pouvoir Constituant – Constitution – Constitutionalization”, in: Erik O. Eriksen/ Fossum/ Menendez, (ed.), Developing a Constitution for European, London: Routledge 2004.
See, on the German case, which was not exceptional: Rainer Wahl, Verfassungsstaat, Europäisierung, Internationalisierung, (Frankfurt aM: Suhrkamp Verlag, 2003); Udo Di Fabio, Das Recht offener Staaten. Grundlinien einer Staats- und Rechtstheorie, (Tübingen: Mohr, 1998).
Ernesto Rossi/ Altieri Spinelli, Manifest von Ventotene, August 1941, here (27.8.2013); Das Manifest bringt “den Kern einer Zeitdiagnose zum Ausdruck, die damals die meisten politischen Kräfte des antifaschistischen Widerstands teilten” (Möller, Die Europäische Sozialunion; vgl. a. Menéndez, Hg.: Altiero Spinelli: From Ventotene to the European Constitution, Arena Report 1/2007).
Vgl. Möller, Die Europäische Sozialunion. Lutz Leisering hat ähnliche Beobachtungen generalisiert und gezeigt, daß der international welfarism der Entstehung des modernen Wohlfahrtsstaats vorhergegangen ist: Lutz Leisering, “Gibt es einen Weltwohlfahrtsstaat?”, in: Mathias Albert/ Rudolf Stichweh, Weltstaat und Weltstaatlichkeit, Wiesbaden: VS 2007, 185-205; vgl. a. Ulrike Davy, „The Rise of the Global ‚Social’. Origins and Transformations of Social Rights under UN Human Rights Law, in: International Journal of Social Quality (www.journals.berghahnbooks.com/ijsq) vol. 3, 2/ 2013, im Erscheinen. Die Bindung des Verfassungsgedankens an den Staat ist neueren Datums, unterschlägt aber die weit zurückreichende und auch noch für die Herausbildung von protodemokratischem National- (19. Jhd.) und demokratischem Sozialstaat (20. Jhd.) konstitutive Co-Evolution von kosmopolitischer und nationaler Konstitutionalisierung, wie neuere Studien zeigen, s. nur: Thornhill, A Sociology of Constitutions; Brunkhorst, The co-evolution of cosmopolitan and national statehood – Preliminary theoretical considerations on the historical evolution of constitutionalism, in: Cooperation and Conflict vol. 47, 2/ 2012, 176-199; Brunkhorst, Critical Theory of Legal Revolutions – Evolutionary Perspectives.
John Erik Fossum & Agustín José Menéndez, (2011): The Constitution’s Gift: A Constitutional Theory for a democratic European Union, (Plymouth: Rowman & Littlefield, 2011), p. 80 et seq., p.175. The only instance of a constitution of a founding member that made no declaration about Europe, the Constitution of Luxemburg, is of itself a revealing case. In this case, the Luxemburg Conseil d’Êtat decided in 1952 that the Constitution implicitly committed the representatives of the people to join the European Coal and Steel Community, and to strive for further European unification. It is argued that, even if the constitution of Luxemburg did not contain anything vaguely resembling a proto-European clause, the Conseil d’Êtat constructed its fundamental law along very similar lines. When reviewing the constitutionality of the Treaty establishing the Coal and Steel Community, the Conseil affirmed that Luxembourg, not only could, but also should, renounce certain sovereign powers if the public good so required. See the Report on the 1952 judgment of the Conseil d’Êtat.
German Ordoliberals already in the early 1930th had “hijacked” the idea of an economic constitution from the political left, from Hugo Sinzheimer and Franz Neumann Tuori, Multi-Dimensionality of European Constitutionalism, p. 16. The hijeking was organized by: Franz Böhm, Wettbewerb und Monopolrecht, (Nomos 2010) 1933.
See Wolfgang Streeck, ‘Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit’ (unpublished e-manuscript of a Lecture, Verona 20 September 2012), p. 8.
Ernst-Joachim Mestmäcker, “Einführung”, in: Böhm, Wettbewerb und Monopolrecht, pp. 5-14, at 9 (my transl.); the same argument seems to fit the present crisis, see Mestmäcker, “Ordnungspolitische Grundlagen einer politischen Union“, in: FAZ 262, Nov. 9, 2012, p. 12. In the same way Milton Friedman and the Chicago School argues that the main threat to political and economic freedom „arises out of democratic politics“ and must be „defeated by political action“ (Gabriel A. Amond, „Capitalism and Democracy“, in: Political Science and Politics, Volume 24, Number 3, September 1991, pp. 467-474, at 231.
Thanks to Willis Guerra Filho for this hint (in a discussion on a conference ‚Problemas Juridicos e Constitucionais da Sociedale Mundial‘, Brasilia, 18.9.2013); for comparative points of view (investment law, Latin-America) see David Schneidermann, „Compensating for Democracy’s ‚Defects‘: The Case of International Investment Law“, paper given at the Workshop Conflict-Law Constituionalism v. Authoritarian Managerialism, Loccum 7.10.2013.
See Colin Crouch, The Strange Non-Death of Neoliberalism, Oxford: Polity 2011; Harm Scheppel, “Free Movement of capital and so called ‘Finacialism’”, paper given at the Workshop Conflict-Law Constitutionalism v. Authoritarian Managerialism, Loccum 7.10.2013.
Kelsen, „Demokratie und Sozialismus“, in: Kelsen, Demokratie und Sozialismus. Ausgewählte Aufsätze, (Ed. by Norbert Leser), 170-201; an old but still brillant analysis and representation of Kelsens position see: Peter Römer, „Die reine Rechtslehre Hans Kelsens als Ideologie und Ideologiekritik“, in: Politische Vierteljahresschrift, 12/1971, pp. 579-598.
Tuori speaks of a juridical constitution and the structural coupling of law and law: Tuori, Multi-Dimensionality of European Constitutionalism, pp. 3, 18.
Tanja Hitzel-Cassagnes, Entgrenzung des Verfassungsbegriffs. Eine institutionentheoretische Rekonstruktion (Nomos 2012); see Karen J Alter, ‘The European Court’s Political Power’ (1996) 19(3) West European Politics (1996) 458; Karen J Alter, ‘Who are the “Masters of the Treaty”’? (1998) 52 International Organization 121. On the perpective dependence of evaluating a legal system as fragmented or pluralized, see Möllers (2010): Fragmentierung als Demokratieproblem, in: Franzius, Claudio / Meyer, Franz C. / Neyer, Jürgen (Hg.): Strukturfragen der Europäischen Union, Baden-Baden: Nomos, 150-170.
See Maus, Zur Aufklärung der Demokratietheorie; Habermas, Faktizität und Geltung (Suhrkamp 1997).
Weiler, „To be a European citizen – Eros and civilisation“, in: Journal of European Public Policy 4/ 1997, 495–519, hier 503.
Damian Chalmers/ Gareth Davies/ Giorgio Monti, European Union Law, Cambridge: Cambridge Univ.-Press 2010, Kindle-edition: Pos. 5677; See Claudio Franzius, Recht und Politik in der transnationalen Konstellation, Buch-Ms. Berlin 2012, 87ff; Franzius, Besprechung von „Habermas, Die Verfassung Europas“, in: Der Staat 2/ 2013, 317-321, hier: 318; Franzius/ Ulrich K. Preuß, Europäische Demokratie, e.-Ms. (Studie f. d. Böll-Stiftung) Berlin 2011, 16ff.
The example is from Brunkhorst, Solidarity – From Civic Friendship to a Global Legal Community, Cambridge MA: MIT-Press, p. 168.
Habermas, Zur Verfassung Europas – Ein Essay, Frankfurt: Suhrkamp 2011, 57.
See Sabine Frerichs, „Gold or Guilt? Reconstructing the Moral Economy of Debt“, paper given at the Workshop Conflict-Law Constituionalism v. Authoritarian Managerialism, Loccum 7.10.2013.
Kaarlo Tuori, ‘Multi-Dimentionality of European Constitutionalism: The Many Constitutions of Europe’ in Kaarlo Tuori and Suvi Sankari (eds), The Many Constitutions of Europe (Ashgate 2010) 3, 17.
See Phillip Dann, ‘Looking Through the Federal Lens: The Semi-Parliamentary Democracy of the EU’ (2002) 5 Jean-Monnet working paper; Jürgen Bast (2010): „Europäische Gesetzgebung – Fünf Stationen in der Verfassungsentwicklung der EU“, in: Franzius /Meyer /Neyer, Strukturfragen der Europäischen Union, 173-180.
See Tuori, Multi-Dimentionality of European Constitutionalism; Sonja Buckel, ‘Welcome to Europe’ – Juridische Auseinandersetzungen um das Staatsprojekt Europa (Habilitation Frankfurt 2013).
Isabelle Ley, ‘Brünn betreibt die Parlamentarisierung des Primärrechts. Anmerkungen zum zweiten Urteil des tschechischen Verfassungsgerichtshofs zum Vertrag von Lissabon vom 3.11.2009’ (2010) 65(4) Juristen-Zeitung 170.
Armin von Bogdandy, “The European Lesson for International Democracy: The Significance of Articles 9–12 EU Treaty for International Organizations”, in: The European Journal of International Law Vol. 23 no. 2, 2012, pp. 315–334, at 315, 317, 321-325, 333; see already (with respect of the Maastricht-Amsterdam Treaty and in particular the Constitutional Treaty that failed in 2005 but to a large extend is identical with the Lisbon Treaty): Christian Callies, “Das Demokratieprinzip im Europäischen Staaten- und Verfassungsverbund”, in: Jürgen Bröhmer/ Roland Bieber/ Callies/ Christine Langenfeld/ Stefan Weber/ Joachim Wolf, ed.: Internationale Gemeinschaft und Menschenrechte, Heymanns 2005, pp. 399-421, at 402-404.
See Mung-Sung Kuo, „The Moment of Schmittian Truth: Conceiving of the State of Exception in Global Governance in the Waken of the Cyprus Bailout Crisis“, paper given at the Workshop Conflict-Law Constitutionalism v. Authoritarian Managerialism, Loccum 7.10.2013.
Walter Korpi, The Democratic Class Struggle, London: Routledge1983.
Claus Offe, “Europe Entrapped – Does the EU have the political capacity to overcome its current crisis?” Ms. 2013.
Wolfgang Streek, „Zum Verhältnis von sozialer Gerechtigkeit und Marktgerechtigkeit“ (unpublished e-man. of a Lecture Verona Sept. 20, 2012); See Kerry Rittich, „Fragmented Work: Informality, Uneven Austerity and an Eypanded ‚Law of Work‘“,paper given at the Workshop Conflict-Law Constitutionalism v. Authoritarian Managerialism, Loccum 7.10.2013.
Henrik Enderlein, „Grenzen der europäischen Integration? Herausforderungen an Recht und Politik“, DFG-Rundgespräch in Zusammenarbeit mit der Friedrich-Ebert-Stiftung Berlin, Ms. 25.11.2011.
Ira Katznelson, When Affirmative Action was White: An untold History of Racial Inequality in Twentieth-Century America, (New York-London: W.W. Norton, 2005).
Streeck, Crisis of Democratic Capitalism. As a consequence popular sovereignty has been fragmented and marginalized, beyond and within the national state, see Prien, Fragmentierte Volkssouveränität.
See Streek/ Daniel Mertens, Politik im Defizit. Austerität als fiskalpolitisches Regime, MPIfG Discussion Papers 10/5, Köln 2010.
But now a European public exists, and we can observe first changes of opinion that are going in the direction of the following last sentence, see Paul Statham/ Hans-Jörg Trenz, ”Understanding the Mechanisms of EU Politicization: Lessons from the Euro-zone crisis”, electronic paper, Kopenhagen 2013.
Early observations: Brunkhorst, Zwischen internationaler Klassenherrschaft und egalitärer Konstitutionalisierung. Europas zweite Chance, in: Peter Niesen/ Benjamin Herborth (ed.): Anarchie der kommunikativen Freiheit, Frankfurt: Suhrkamp 2007, pp. 321-350, at 321-325.