The Future of Europe: from the Protected Society to the ‘Risk Society’
Having crossed the threshold of the twenty-first century, what is the ‘fate of Europe’? Once the pillars that supported it have fallen, how do we perceive the destiny of the Old Continent within the Occidental passage that marks the course of civilisations in the globalised world?
These are the mandatory questions that force themselves upon us once we arrive at the last station in our circular journey around the nerve centres of the global era. We shall attempt to answer them by drawing upon the results of an interdisciplinary, Europe-wide working group launched by the Fondazione Basso in 1998, which culminated in the International Convention on the Public Sphere and the European Constitution held in Rome on 15–16 December 2000. The meeting (which brought together a number of jurists, political scientists, philosophers and social scientists) took place in a moment that was propitious for two reasons: that is, soon after the proclamation of the Charter of Fundamental Rights of the European Union at the Nice summit on 7 December 2000 and of the resolution to open up to the countries of Eastern Europe, and at the end of a century – ‘short’, perhaps, but certainly great and tragic – that coincides with the taking leave of the second millennium of the Christian era. The symbolic value of this coincidence and of the welding of structure and conjuncture, short wave and long wave of European historical and cultural development that it represents, had been accurately signalled by Jürgen Habermas – the mentor and instigator of the initiative – in his book Die postnationale Konstellation.
The threshold of the twenty-first century exerts such a strong grip on our imagination because it also leads us into a new millennium. This calendrical turning point is itself the product of a construction of religious history, whose starting point, the birth of Christ, marked what we recognize in hindsight as a break in world history.1
The general significance of this passage should be clear to anyone who considers the decisive function Christianity has played in the constitution of historical time and of the identities of the modern Occident, not least in defining the ‘indivisible, universal values of human dignity, freedom, equality and solidarity’ that the Charter of Rights itself places in the Preamble to the foundational ‘spiritual and moral heritage’ of the Union.
Nevertheless, if we want to grasp – beyond the ‘wall of time’ [Zeitmauer] 2 – the measure of the persistences and changes, of the continuities and discontinuities of the problems, we must free ourselves from the cage of chronology. Rarely do the round figures of the calendar coincide with the actual temporal nodes of salient historical events.
Years like 1900 or 2000 are meaningless in comparison to dates such as 1914, 1945, or 1989. What’s more, these calendrical blocs can have the effect of concealing the very continuity of far-reaching social trends, many of which have origins well before the beginning of the twentieth century and will continue well into the new millennium.3
Habermas’ admonition will be particularly valuable in helping us focus on the current political conjuncture of Europe, whose constitutional present is literally inconceivable without reference to the long-term tendencies that have crossed its history, high and low, and marked, with often violent and bloody conflicts, the troubled course of its cultural identity.
In commenting on the Nice summit, the president of the Italian Republic, Carlo Azeglio Ciampi, affirmed that the decisions taken there represent a ‘good compromise in order to march on more quickly towards a more integrated and enlarged Europe’. Along this path – which now is ‘enlarged’ – the first step to be taken should be, according to Ciampi, that of turning the Charter of Rights into a genuine European Constitution. However, in adopting this demand for ourselves, we think it necessary to pose two essential and unavoidable questions. First, what are the necessary conditions and intermediate stages for the actualisation of this passage? Second, what should the distinctive political and constitutional characteristics of Europe be? We should note that the future of Europe proposed by the different European partners currently appears not only very different but sometimes even divergent. This is an acknowledgement of fact that in no way authorises us to embrace those diffuse objections that continue to nourish the arguments of the Eurosceptics. While it is true that the Nice compromise is hardly a cause for facile optimism, we must recognise that – after the proclamation of the Charter of Fundamental Rights and the decision to open up the Union to the countries of the East – the European question has taken a step forward. This step forward potentially projects Europe towards a new horizon: passing from a ‘necessary’, eminently economic-monetary phase marked by the categorical imperative of ‘stability’ to a phase of ‘normative’ integration of a constitutional character.
The result of this new phase will depend on Europe’s ability to a) put itself in play in the world of global interdependency, shifting from the current dominant paradigm of the ‘protected society’ to that of the ‘risk society’; and b), to characterise itself, on the basis of choices and decisions, as a real political entity. However, the points of view within the Union are divided precisely with respect to the ‘normative’ political and constitutional plane, not only and not so much vertically, from country to country, but – as demonstrated by the European working group of the Fondazione Basso – also horizontally, along the borders [linee di confine] that transversally cut across the different national areas. The perceptible complication of the set of problems that follow inevitably from this should not necessarily be considered negatively. For despite the persistence of what are in many respects heterogeneous traditions and languages, the fact that there can exist a commonality of outlooks between intellectuals of different nationalities and – conversely – a divergence between intellectuals of the same country, could be seen as the symptom, if not the embryo, of an incipient process of formation of a European public sphere.
State and Constitution: The Controversy Between
Dieter Grimm and Jürgen Habermas
For these very reasons, far from constituting a querelle internal to German political-juridical culture, the alternative that emerged from the congress between Dieter Grimm’s standpoint and Jürgen Habermas’ – itself the continuation of the celebrated debate that they led in the pages of the European Law Journal in 1995 – invests a field of forces that crosses all the principal European countries. In his intervention ‘Does Europe Need a Constitution?’,4 Grimm had set out from the classical distinction between constitution, understood as the juridical foundation of the state, and treaty, understood as the juridical foundation of international institutions. He then indicated the core of the institutional identity of Europe in the separability of the constitution from the state. However, although the European Union is composed of states, it is not itself a state. Even if it is endowed with sovereign prerogatives by the member states, the European community utilises powers that are not disciplined by constitutional law. Consequently, the institutional status of the Union is marked by a structural contradiction. On the one hand, the European Union is a super-national organisation founded upon treaties, which is the reason it is not a sovereign state in the modern sense of the term (one that maintains a ‘monopoly of legitimate physical violence’, in Weber’s celebrated phrase5). On the other hand, the Union – although it is not a state – has at its disposal a capacity for domination that once belonged to states, producing legal norms that are binding on member states. Therefore, the gap that opens up between the ever-wider authority of the decision-making organs of the Union (Commission, Council of Ministers, Court of European Justice) and the processes of legitimation, which are still contained within the areas of sovereignty of the single member states, generates a democratic deficit as its ineluctable consequence.
A process of constitutionalisation, with the aim of conferring on the European Union the characteristics of a federal state, does not appear a realistic objective given the lack of a European people.
[I]t is inherent in a constitution in the full sense of the term that it goes back to an act taken by or at least attributed to the people, in which they attribute political capacity to themselves. There is no such source for primary Community law. It goes back not to a European people but to the individual member states, and remains dependent on them even after its entry into force. While nations give themselves a constitution, the European Union is given a constitution by third parties. It consequently does not have the disposal of its own constitution. The ‘masters of the treaties’, as it is sometimes put, are still member states, who have not been, as it were, absorbed into the Union.6
Certainly, at the basis of such an argument there lies the classic – linear – equation of the modern public-law doctrine, which relates the state constitution back to popular sovereignty. It would, however, be disingenuous to delude oneself that the hypothesis of such a sophisticated and competent jurist could be discounted by ascribing it to a substantialist conception of the Volksgemeinschaft. Indeed, Grimm is perfectly aware of the lack of foundation to the idea of a homogeneous popular community and of the ‘divergences of opinions and interests’7 that characterise the notion of ‘the people’. The presupposition of democratic legitimation – that Europe is supposed to lack – need not be that of a homogeneous ethnicity but, rather, that of a society able to make way for a ‘collective identity’8 and to an ‘awareness of belonging together that can support majority decisions and solidarity efforts’.9 In contrast to the United States of America, Europe lacks a unitary party system or unitary groups and civil movements (just as it lacks a common language and – consequently – a European media network in publishing or radio and television). As things stand – Grimm concludes – ‘[c]onverting the European Union into a federal state can in these circumstances not be an immediately desirable end’, for the simple but decisive reason that its degree of legitimacy would be ‘lower than a nation-state’s, also lessening its capacity to solve problems, something that has not just technical but also legitimatory prerequisites’.10
The argument put forth by Habermas in response (and then included in his Die Einbeziehung des Anderen) is equally well known and – in our opinion – decisive. If we take seriously the ‘deconstruction’ of the concept of ‘the people’ postulated by Grimm – understanding it in opposition to the homogenising völkisch à la Carl Schmitt – should we, then, not grasp ‘collective identity’ as a consequence rather than as a premise of the constitution and of democratic citizenship? Once we have left the metaphysical-substantialist conceptions behind, identity is never given a priori, independently of the democratic process, but, rather, it is the result of the relational and communicative dynamic between citizens. Soldering together the paradigm of communicative action and the procedural method of legitimation, Habermas can claim the need for a European constitution as the condition for the formation of a European society and a citizenship marked by the model of a ‘solidarity among strangers’11 that is mediated legally – in the same way, incidentally, as national identities have been formed historically.
The ethical-political self-understanding of citizens in a democratic community must not be taken as a historical-cultural a priori that makes democratic will-formation possible, but rather as the fluid content of a circulatory process that is generated through the legal institutionalization of citizen’s communication. This is precisely how national identities were formed in modern Europe. Therefore it is to be expected that the political institutions that would be created by a European constitution would have a catalytic effect.12
We have already underlined the significance of this framework. It is equally important to note, however, the tension between two unresolved nodes at the heart of Habermas’ theoretical-political proposal. On the one hand, he affirms that the American model of a nation of citizens held together by ‘constitutional patriotism’13 represents the most adequate solution to confront the challenges of the cultural and ideological pluralism of an increasingly complex and differentiated society. In contrast to the ‘culturally assimilationist French model’, this solution can enable the coexistence and cooperation of various ‘cultural, religious and ethnic forms’.14 On the other hand, the most suitable model for realising European identity, in the form of a unity in plurality of nations, is German federalism in Gerhard Schröder and Joschka Fischer’s version (the inheritors of that project of a federal state auspicated by Altiero Spinelli). But can we be certain that the two assertions are compatible and capable of converging on a single objective? And to what extent can the solution of a federal European state be considered an adequate response to the theoretical need – rightly advanced by Habermas – for a flexible, pluralistic and differentiated legal order capable of confronting the challenges of the ‘post-national constellation’?
In working out our strategic response to these questions, we will adopt two distinct – but strictly complementary and interdependent – registers of argument. One will be theoretical and political; the other historical and comparative. With the help of the former we will attempt to gauge the degree to which the categories of public law endure or become obsolete. With the aid of the latter we will seek to situate the process of European constitutionalisation within the dynamic of so-called globalisation and so attempt to overcome the risks of a ‘Eurocentric’ perspective.
The Perils of Constituent Power
If we observe the ongoing process from the perspective of political and constitutional doctrine, the question of the ‘identity’ of Europe seems to demand setting aside the oscillation between legality and legitimacy: procedural normativism and the mythology of constitutive power. In reality, the poles of this supposed dilemma have never arranged themselves along a one-way axis but – rather – in circular fashion. Besides, from Hegel onwards we should know how difficult it is to identify the beginning, the commencement, the fiat of a constituent process. Nevertheless, the modern doctrine of sovereignty, which centres on the legal fiction of the Person-State, has never – from Bodin to Hobbes, from the Rousseauist and Jacobin idea of the ‘General Will’ to the German dogmatics of public law as in Jellinek or even Carl Schmitt – ceased basing itself on two postulates: a) the distinction between pouvoir constituant and pouvoir constitué; and b) the counterfactual hypothesis of the homogeneity of the People-Subject. Insofar as it is a limit question of constitutional law, the theme of constituent power is still considered by an authoritative heir and prosecutor of this tradition such as Ernst-Wolfgang Böckenförde from four standpoints.
1)From the historico-genetic angle, the notion of constituent power aims to identify the eminently political origin of the constitution: its formative dynamic and the forces that come together to determine it.
2)From the standpoint of the theory of law, the concept of constituent power concerns the philosophical and legal problem of the substantive foundation of the constitutional norm. That is, to the normative presuppositions from which is derived the presumption of validity of the constitution (understood as ‘legal arrangement fundamental to the community’).15
3)From the perspective of the theory of the constitution, this notion is concerned with the petition [istanza] or subject that is able to confer legitimacy (or democratic legitimacy) on the constitution.
4)From the viewpoint of the doctrine of constitutional law, it aims to fix the procedures of revision of the constitution anticipated by the constitution itself, right up to and including the transformation or suppression of its very core: ‘acts no longer reserved for the legislator of constitutional revision but to the very constitutor (pouvoir constituant)’.
The theory of constituent power contests, at its very roots, the normative conceptions that – like Kelsen’s pure doctrine of law – posit a ‘fundamental norm’ (Grundnorm) as the axiom of opening/ closure of the ordering/regulation. Such a ‘hypothetical assumption’ – argues Böckenförde, repeating Schmitt’s famous critique almost word for word – merely serves to ‘pose the question of legitimacy without actually resolving it’.16 Consequently, it subtracts the moment of pouvoir constituant from ‘the sphere of the political to which it, nevertheless, belongs’. In short, the force that produces and legitimates the constitution cannot be reduced to ‘a point of ideal-normative imputation’ but, rather, must be a ‘real political entity that founds the normative validity of the constitution’.
The logical cogency of the argument set out by the German constitutional theorist results in a definition that is as concise as it is conclusive: ‘Constituent power is that (political) force and authority that is able to create, sustain and overcome the constitution’s presumption to normative validity’.17 As such, it cannot subsist within or on the basis of the constitution, as does an ‘organ’18 created by it, but must pre-exist the constitution and the ‘pouvoir constitué’ 19 that it delimits and regulates. However, a corollary follows from this pre- and over-determination of the pouvoir constitué that is decisive to the definition of constitutive power: it is never identical to constituted state power but, on the contrary, precedes it. The bluntly revolutionary imprint of constituent power resides here, argues Böckenförde. It stands in relation to the state as the dynamic does to the static, as ‘life’ to ‘form’. Such a quality reveals itself even more forcefully if we take into consideration the other postulate upon which the concept is constructed: the fiction of the People as a homogeneous subject.
With respect to origin and content, pouvoir constituant is a ‘democratic and revolutionary concept’ that is legitimately situated ‘only within a democratic theory of the constitution’. Coined by the Abbé Sieyès on the eve of the French Revolution, it represents a significant example of ‘political theology’, in the sense of a transference to the People-Subject (understood politically) of the typically theological attributes of divine maiestas: creation ex nihilo, norma Normans, potestas constituens. In virtue of this ‘transposition’, the People becomes – in the height of the revolutionary climate – the exclusive subject of sovereignty and the authentic possessor of pouvoir constituent. The sovereign centrality and indivisibility of the new subject should not, however, be understood in the fully metaphysical or substantialist sense. In the same way as Grimm, Böckenförde rapidly qualifies the category of ‘the people’ by saying that although it cannot be resolved into that of ‘the citizenship’, ‘neither does it coincide with the people conceived in the natural or ethnic sense, as a group united by a language, by descent or by a common civilisation’.20 The People is, rather, a political and legal notion. In the political sense, by people we understand a group of men and women that ‘has become conscious of itself as a political entity and that, as such, intervenes as an agent in history’. In the legal sense, the ‘sovereign people’ – the legitimate possessor of constituent power – is a ‘concept of public law’ that plays a decisive role ‘not only in France but also in German constitutional development’.21
An axis is delineated through the limit-notion (Grenzbegriff) of constituent power, which links the model of the French Revolution directly to the German dogmatics of the ius publicum that turns on the towering notion of ‘sovereign decision’ – instituting an ideal continuum between Sieyès Qu’est-ce que le tiers état? and Schmitt’s Verfassungslehre – and that ends with this drastic conclusion:
The constituent power of the people, understood as the pouvoir constituent that precedes the legal constitution, cannot be legally regulated by the constitution itself, nor can it be regulated in the forms in which it manifests itself. It has preserved its original, immediate and even elementary character; consequently it is able to procure and create – precisely inasmuch as it is a political entity – its very forms of appearing.22
However, the Continental dogmatics of the ius publicum europæum misses the decisive element of the historical period of the constitutions; namely, that the inheritance of the French Revolution does not consist only in the people-sovereignty-state axis (with the paradoxical exchange of roles between the ‘revolutionary’ appeal and ‘reactionary’ appeal to the constituent power of the People-Subject that follows from it), but also in that phenomenon of deterritorialisation of law that – according to Arendt – represents the extraordinary historical significance of the revolutionary processes that took hold in America and France at the end of the eighteenth century. Carefully examined, it is clear that the political theology of constituent power hides the fact that the constitutions resulting from those revolutionary processes are preceded by declarations of universal rights and principles that should be valid extra-territorially and not only within the space of a single sovereign nation state. Hence, democracy does not coincide sic et simpliciter with popular sovereignty. It counter-balances this principle with constitutional guarantees advanced to protect the citizen. The source of democratic legitimacy is, in other words, neither exclusive nor unique but dual. It is properly constituted by the binomial – or by the bipolar interaction – of popular sovereignty and fundamental rights.
The tragic course of the twentieth century should have proven sufficiently that the plebiscitary drift and the direct appeal to the popular will represent the typical features of totalitarianism. To take up a theme of Arendt’s, once again, it is more the offspring of Napoleon than of Louis XIV; more the perverse by-product of equality and ‘mass politics’ than of ancien régime absolutism. The theoretical implication of this line of argument is that what really counts is not the single act of constituent power, but the dynamic unfolding of the process of constitutionalisation, that is to say, the concrete passages that lead to the assertion of a table of universally valid values and principles and, through them, to the fundamental rights that lie at the basis of a constitutional charter. Jon Elster has correctly observed that, to this very day, a ‘comparative study of constitution-making is practically non-existent’.23 Although comparative constitutional law has been for some time an established discipline; although the comparative study of ordinary legislations constitutes a central part of political science; although the comparative analysis of the revolutions now has a long history; despite this, we are still missing works that discuss ‘the process of constitution-making in a general comparative perspective’.
If, within a relatively short time, we could be presented with the synoptic tables requested by Elster, we would certainly have a further tool to help us orientate ourselves in relation to that phenomenon of ‘synchrony of the asynchronic’ (Gleichzeitigkeit des Ungleichzeitigen), in the suggestive expression introduced in the mid-1930s by Ernst Bloch in Heritage of Our Times, from which stem the forest of different and, at times, contrasting points of view on the political and institutional identity of Europe. It is enough to bear in mind, just to widen the range of examples, the British position – expressed baldly by Anthony Giddens in an interview with Nina zu Fürstenberg, published in Focus – in which Europe cannot constitute itself in a super-state of either the centralised, French type or of the federal, German type. Or, think of the recent and instructive encounter between two European political personages of the highest order, Jacques Delors and Václav Havel, in which the former proposes the transformation of the Union into a federal state as a constitutional solution and the latter responds that ‘what is emerging in Europe is not a federation in the classic sense of the term’24 but something new, for which political scientists will have to ‘invent a new category’. From this game of counterpoints and dissonances there emerges a common recognition that the political unity that must be constructed will be all the more effective and credible the more it is fully able to valorise the plurality of traditions, languages and cultures that constitutes the richness of our inexpugnable continent. Not for nothing does the Preamble of the Charter of Fundamental Rights of the European Union decline the People-Subject in the plural rather than the singular: ‘The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.’ As if to say, the conditions authorising the adoption of a formula of the type ‘We the people of the United States …’ are lacking. And the common values, defined at the start of the second paragraph as the ‘indivisible, universal values of human dignity, freedom, equality and solidarity’, are placed, at the start of the third paragraph, in a two-way relation in ‘respecting the diversity of the cultures and traditions of the peoples of Europe’. So, if it is true that the choice which lies before Europe today is well expressed – as Jacques Derrida and Étienne Balibar have lucidly observed – by the alternative between the fortress and the open space of liberty and democracy, it follows that its common identity will be unable to possess the exclusive (and, in the final analysis, ethnocentric) character of the demos. Rather, it must have the inclusive character of the civitas. The ‘Roman way’ – the voie romaine, as Rémi Brague called it – clearly still has much to teach us in view of the twenty-first century.25
However, the reference to the value of plurality must avoid the perils of a ‘patrimonial’ rhetoric and logic. The new form can be born neither of a mechanical summation nor of a simple convergence – or worse still, by a compromise – between the constitutional traditions of the member countries. In other words, it is necessary that the Union is able to express ‘added value’ with respect to the significant (and historically hypercelebrated) ‘European constitutional heritage’. From this point of view, the Charter – at least in the light of some of its formulas – appears somewhat ungenerous to itself in its forceful underlining of continuity, of its ‘patrimonial’ links with the past and in the faint markings of novelty that it brings to all the preceding constitutional traditions on crucial themes such as life and the body, the new horizons of bioethics (art. 3) and the problem – which should, perhaps, have been made more explicit – of gender differences (art. 23). It is thanks to this spirit of cultural openness that the Charter ‘deconstructs’ the other benchmark of the Continental legal dogmatic: the counterfactual assumption of the homogeneity of the people. The critique of the concept of ‘the People’ in terms of a ‘totemic mask’ that hides the multiplicity of differences that constitute the social community had, as is well known, already been widely discussed by Hans Kelsen – long ago in 1920 – in Vom Wesen und Wert der Demokratie. The ‘unity of the people’ – the great Austrian jurist had underlined, in the spirit of the most unadulterated Hobbesian tradition – was not to be understood in a sociological sense, but in a legal and constitutional sense. The text of the Charter goes even further. It is not limited to the destructuring of the unitary idea of the People understood as a ‘substance-concept’ (Substanzbegriff in Kelsen’s terminology) but as a ‘function-concept’ (Funktionsbegriff), and as a political fiction. The instance of plurality and difference no longer invests only the metaphysical-substantialist presuppositions underlying the classical doctrine of the ius publicum europæum, but irrupts into legal language itself, permeating its syntax and semantics. The homogeneous postulate of ‘identity’ is also left behind on the ‘fictional’ plane of legal and constitutional science.
‘Behind’, as it were, the formulations adopted by the Charter, we can detect the pressure exerted by the complex (and currently discontinuous) dynamic of the formation of a European ‘civil society’ and ‘public sphere’, whose phases and modes of realisation must still reckon with an epochal passage of traumatic proportions. In this dynamic, the old coupling of civil society and state appears to be traversed by a dual process of integration and disarticulation: the integration of social contexts and the disarticulation of traditional functions of the territorially enclosed sovereign nation states. From this ongoing process new powers and new subjects, new discriminants and new dimensions of existence are generated. These are mutations of civilisation that invest, as Habermas would say, the Lebenswelte, the lifeworlds, but appear, to this day, to have been unable to scratch the self-reproducing political oligarchies. In this passage, European legal space risks situating itself in a no-man’s-land, in a sort of interlude or time suspended between a ‘democracy of identity’ and a ‘democracy of differences’. Despite Habermas’ hopes, we are still far from a theory and a praxis able to legitimise itself through the ‘inclusion of the Other’.
The European Union and the ‘Post-Hobbesian Order’:
The Multilevel System of Government
The crucial question that still awaits an answer concerns the political nature of that mysterious object called the European Union within the ‘postnational constellation’. In some recent interventions, Giuliano Amato has defined Europe as an ‘unidentified flying object the nature of which is not yet ascertainable and that flies, nevertheless’. The European Union, the outlines of which have emerged in the course of the postwar years, represents an absolutely novel institutional model in political and constitutional history. ‘It is the model of an authority above the states, which adopts rules that will increasingly become effective within the states themselves’.26 From the theoretical standpoint, for Amato – in a way similar to Havel or Giddens – it is ‘entirely unrealistic to view our future as that of a mega-sovereignty’.27 The national states have certainly lost much of their sovereignty. However, sovereignty has not been transferred elsewhere. In other words, there has been a ‘dispersal of sovereignty’ or, rather – to return to the socio-institutional interpretation of Alessandro Pizzorno – a dispersal of powers. Certainly no one could define the member countries of the Union as ‘sovereign states’ in the same way they were half a century ago. ‘They lack monetary sovereignty … ; in many areas the laws that judges apply are laws that come from above and not from them, so they can no longer be said to have the jus superiorem non recognoscens over their territory’.28 But that by no means entails that the European Union is a sovereign organisation. Not even in the sense of a federal state in fieri. Strictly speaking, it is ‘not a state; it does not even have a legal character and the Maastricht Treaty was careful not to give it’. So, how are we to define this mysterious object? The Union, says Amato, constitutes
perhaps the analytically most clearly identifiable and explanatory example of that phenomenon of our time that some of our thinkers define as the ‘multilevel system of government’. This corresponds to a phase when human interrelations have left the confines of the nation, but whose regulations are found at different levels.
The ‘novelty’ that the European institutional model represents in comparison to all the preceding, classical and modern, typologies of the forms of government belongs, then, to the new dimension that Philippe Schmitter has called the ‘post-Hobbesian order’. On the one hand, this order is open to the future, to an outlook of the after-Leviathan. On the other hand, at least some of its features reveal not insignificant analogies with the phase that precedes the ‘Westphalian model’ and the formation of the modern sovereign states. Indeed, European society has already experienced non-state-like orders. It ‘experienced the multilevel system of government before it closed itself within the nation-state’, in the form of an ‘untying of law from the state’.29 Without question, new and important perspectives open up, not only on the theoretical plane but also on the political. Only on the condition, however, that we heed a warning concerning the discourse on the ‘multilevel system of government’. The historical and structural analogy between the ‘before’ and ‘after’ should not be taken literally, nor should it become absolute. Whereas the forms can be considered analogous, the nature of the subjects is different. The differences that follow the Leviathan, or the modern state, are not the same differences that preceded it, for the wedge of equal rights and political universalism (unknown to the medieval legal order, where differences necessarily implied hierarchy) inserted itself dynamically between these differences, the before and after.
At this point a further question arises. How can Europe, on the basis of a plural and multilevel framework, play a united, autonomous and clearly recognisable political role? We cannot disguise the fact that one of the crucial questions today is that of the absence of Europe as an active and authoritative subject in the final phases of international politics. Once again – as is always the case – the internal aspect and the external aspect of politics appear intimately connected. This is the reason the problem of the institutional form of the Union coincides with the problem of its role in a globalised world. An analogous problem is forcefully raised by Habermas: Europe’s economic unity risks imploding if the question of its political nature is not put on the agenda. Not, however, for ethical reasons – because of a rejection of the presumption that the economic market should expand to the point of becoming a market society – but for a realistic, rigorously structural and functional reason: a purely economic/market society is – theoretically speaking – a contradiction in terms. From the perspective of political ideology, it is the most illusory of utopias.
Europe and the “Postnational Constellation”:
The Glocal Pincer and the New Tendencies
to Universalisation
What characterises the ‘post-Hobbesian order’ or, if you prefer, the ‘postnational constellation’? The inescapable first step to respond to this question is to note that the new situation is determined by factors that pass over – and through – the horizons of Europe and escape Europe’s current capacities for control. They are the factors that give rise to that set of phenomena that are customarily summarised in the passe-partout term ‘globalisation’. The antecedents to this process stretch far back in time: from the opening of markets in the first phase of modernity following the discovery of the New World and the scientific revolution, through to the internationalisation of commodities and capital produced by the Industrial Revolution at the turn of the seventeenth and eighteenth centuries. However, the current phase of mondialisation, symbolically inaugurated by the fall of the Berlin Wall and the collapse of ‘real socialism’, is characterised by an ambivalent structure, signalled by the paradoxical coexistence of two aspects: technical-scientific uniformity and ethical-cultural differentiation. These do not coexist harmoniously or peacefully. Instead, there is an apparently conflictual cohabitation of two vectors that are in reality complementary and that imply one another: deterritorialisation and reterritorialisation, ‘uprooting’ and ‘habituation’. The technological-mercantile mondialisation, which imposes standardised laws and models of consumption, is accompanied by a localisation of identities and values of belonging. The true frontier and point of contrast does not, however, pass through the global and the local, but on the one hand through the glocal block – or perverse short-circuit – and on the other hand through the search for new universalising practices that burst out from the contexts of experience of the Lebenswelte. In short, today there is a – tendentially antagonistic – conflict between globalisation and universalisation. Whereas the former exemplifies a mechanics of uniformisation and separation, the latter displays an interactive and communicational dynamic of the forms of life. In this conflict, the local does not constitute itself as an alternative to the global, but rather as its ‘interface’, its specular double. The logic of localisms belongs entirely to the logic of globalisation. Localisms are nourished by it even as they affect irreducible hostility to it, to the point that they demand compensation for the migratory flows towards the rich regions that are an inevitable consequence of globalisation. The technocratic self-referentiality of the global logic and populist drift of the local contexts of symbolic identification relate to one another as to two sides of the same coin. Together they describe an axis that is in conflict with the politics of universalisation.
In addition, the European Union in its exhausting process of institutionalisation appears to be conditioned, not only externally but internally as well, by the antagonistic structure that marks the relationship between economics and politics, globalisation and universalisation (or, in the terms of Stefano Rodotà, market and rights). In this way we can explain the questions and pessimistic warnings of those who – from Claus Offe to Gian Enrico Rusconi – have invited us to take note, with the required level of disenchantment, of the situation of deadlock in Nice. Indeed, the necessary push that led to monetary unification (to the Europe of the euro and of financial technocracy) has not met with an equally powerful imperative towards constitutionalisation. Despite this and in spite of all manners of paralysing scepticism, we must also accept these undeniable difficulties as an opportunity and challenge. The construction of an institutional identity of the Union cannot be given spontaneously, as the natural outlet of a process of economic integration, but it invests – as Habermas has vigorously underlined – the normative plan of the political choice and will.
The imbalance in the intensity of investment on the monetary plane when compared to the institutional one leads back, in turn, to an even deeper problem, that is, to that symbolic deficit of politics which is particularly evident in the younger generations; this deficit is rooted in the fact that the processes of identification are today produced principally at the local dimension of belonging. In this way, the processes of identification remain caught in the pincer of the glocal (which sociologists such as Ulrich Beck tend to understand with overly rose-tinted lenses). After the nationalistic racism of the twentieth century, the twenty-first century is opening before us under the sign of regionalistic xenophobia. The new phenomenon of regionalisms makes the relationship between the global and local dangerously close to a short-circuit, due to the falling away – this is the punctum quæstionis – of the intermediate ring between the two dimensions that was traditionally formed by nation states. One of the crucial knots that the European Union will have to increasingly face up to is the transformation of the symbolic dimension of belonging. Not only does one feel more Scottish than British or more Catalan and Basque than Spanish (this is old news), but also more Lombard or Venetian than Italian.
The crisis of the nation state means not only – as we have seen – crisis of the ‘Westphalian model’, of a system of international relations resting on closed territorial sovereign centres. It also means a decline in the way of understanding and practising the law through an undisputable monopoly over its sources – by whose means one was able to govern the processes of symbolic inclusion and identification of social subjects. There is but one road to take to resolve the logic of this crisis and draw the appropriate political consequences from it. One must look back over the process of the genesis of the modern state as though one were projecting a film backwards. Only by projecting the film in reverse will we be able to identify the building blocks, the multiple components that have come together to establish the ‘Great Leviathan’. We will then begin to see the emergence of the modern-day physiognomy of Europe in the guise of a policraticus, of a polycentric structure far more similar to the respublica Christiana than to the scaffolding of a super-state in becoming. We will find a proliferation of autonomistic and localistic pressures: mayors who presume to act as princes; regional presidents that adopt the manner and severe, frowning demeanour of governors; and, as though that were not enough, the reawakening of the potestates indirectæ, represented today by the ‘Soldiers [cavalieri] of Fortune’ of media power,30 financial lobbies and religious authorities that interfere directly in politics and the workings of institutions, attempting to condition or even hegemonise them.
In this situation, the Old Continent figures on the scene of the global world without a precise political physiognomy. It is not a case of a transition but of a suspended time, pregnant with uncertainties that threatens to disarticulate and even inhibit the formation of a civil society and of a European public sphere. The challenge of globalisation presents Europe with three fundamental unresolved problems.
Europe, in its tripartite economic, political and cultural aspects, is caught in the vice of two other colossi of the global age: the American colossus and the Asiatic colossus. America – which is not only synonymous with political and military hegemony, technological leadership and the new economy, but also with the crisis of acquisitive individualism, the politics of difference and struggles for recognition – provides a striking example of a phenomenon that is destined to mark the future of Western society in the coming years: the gap between the stalling of a democratic system that has become simply a self-referential machine for the reproduction of oligarchies, and the pluriverse of languages and experiences of groups of people caught up in a mutation of civilisation – which is also anthropological – that invests the hierarchy of values, the structure of desire and the dimension of the bíos, of corporeality and of life in a planetary world-environment. Asia is not only synonymous with the ‘economic miracle’ and the ‘Pacific tiger’. It bears the challenge of ‘Asian values’ as well, that is, of those ‘Asian values’ that – as Amartya Sen has explained – presume to break the Western equation of capitalism with the ethics of individualism, founding, instead, development and productivity on associative structures of a hierarchical and communitarian type. That is, on the subordination of the objectives (and rights, of course) of individuals to those of collective entities (from the family to the business, from the group to the state). Caught in this pincer, Europe must formulate its own autonomous response; its own alternative ethical and cultural model that cannot be pierced by either horn of the dilemma, nor attempt a compromissory mediation.
Another crucial problem for the Union is the enlargement to Eastern Europe. It is certainly an important decision, which should by no means be placed in competition with the vector of the Mediterranean (which, more correctly, should be seen as complementary). But it would be foolish to hide the significant problems that such a choice bears with it. The indisputable fact that those countries have, for centuries, been constitutive components of great importance for ‘Europe’s cultural heritage’ should not lead us into facile optimism. If it is true that Budapest and Prague, St. Petersburg and Kaliningrad belong to the ‘spirit of Europe’ as much as Paris and London, Berlin and Rome, it is equally certain that the social and institutional contexts from which they emerge appear, in the medium term, difficult to ‘synchronise’. The inclusion of these areas, were it to occur according to the logic of annexation of an Anschluss, is destined to bring with it enormous problems and difficulties, equal to those that the integration of Ostländer have for Germany. Such a risk can be avoided only on three conditions: a) by not underestimating the economic, cultural and socio-psychological fractures that the ‘contemporaneity of the non-contemporaneous’ necessarily bears with it; b) of not conceiving (or putting into practice) Europe as a ‘fortress’, that is, as a geometrically closed space of integration but as a space of variable geometry with elastic and dynamically open borders [confini]; and c) of not postulating the opening to the East as an alternative to another vector, constituted by the pluriverse of Mediterranean cultures that formed the original vector of Europe.
The final problem is constituted by the British variant. From the standpoint of the legal and institutional culture, with its common law, it represents a true alterity with respect to the tradition of civil law that is dominant on the continent. It is no accident that during the convention at the Fondazione Basso, the comparativist Mads Andenas warned against the undifferentiated usage of words such as ‘state’, ‘constitution’ and ‘civil society’ that have a different meaning in Britain than in Continental debates that are characterised by the ius publicum. The British resistance to full participation in the institutional destiny of the European Union is certainly not of an economic or generically political order. In the final analysis, it is of a cultural nature. To overcome this, it will be necessary not to effect a mere contamination but a hard and intense labour of ‘translation’ and confrontation of the two traditions of common law and civil law, specifically in relation to rights and their constitutional translation.
Political Pluriverse and ‘Constitution without a State’
(Provisional Conclusions)
Continuing along this line of argument, I propose to decline Habermas’ well-known proposal of a third normative model of democracy – alternative to procedural liberalism and to communitarianism – in post-state terms, by emptying it of what I believe are the persistent classical elements inherent to the Continental tradition of the Rechtstaat. In order to construct a constitutional form that is able to confront adequately the challenges of the ‘post-Hobbesian order’, we must become accustomed to thinking and practising politics by projecting it beyond the modern dimension of the Leviathan state. The political forma mentis of Europe must shift from the paradigm of the universum to that of the multiversum, imagining a model of political association that turns on a plurality of pillars, of ‘sovereign powers’ in equilibrium. It must delineate a dynamic field of tensions between nation states (in decline, but nevertheless persisting) and Union (a novel institutional form that is, nevertheless, still in formation). In other words, we must think of a constitution without a state, founded on a balanced plurality of demands, in which – as Maurizio Fioravanti has rightly argued – the role of constitutional jurisdiction is accompanied by the representative and legislative process (without, therefore, situating itself hierarchically above or below).
Equally correctly, Eligio Resta has observed that the Charter of Rights voted on in Nice acts already as a source of political legitimation in virtue of its inclusive character. But this does not mean that the elaboration of a constitution, to which the Charter itself would be prefaced, would be useless or redundant. Every declaration of rights ideally refers back to a constitution that, in its organisational section, determines the articulation of powers with their respective areas of reciprocal autonomy, and – at the same time – defining the dispositifs of limitation of control over their exercise. Behind this requirement there lies a fundamental theoretical question. If it is true that, on the one hand, rights are not the notary’s or stenographer’s registration of subjects but, on the contrary, constitute them and simultaneously change the actual power relations, it is also true to say that they are not, in themselves, a sufficient condition for the production of a process of symbolic identification. For that to occur, it is necessary that rights become connected to the dimension of belonging. Not in the traditional sense of the ‘community of destinies’ but in that of the set of experiences and practices expressed by the ‘life-worlds’.
To conclude, the labour of ‘reconstruction of the ship on the open sea’ that we find in the process of the constitutionalisation of Europe will have to delineate itself – as Erhard Denninger has shown in his writings – less in terms of sovereignty and increasingly in terms of a dynamic equilibrium and of reciprocal limitation between a plurality of demands and of powers, not so much in accordance with the classical models of the transfer of sovereignty, and increasingly the shift towards a Union not only of technical (or technocratic) capabilities, so much as by means of effective procedures of legitimation. From this perspective, the form of the pact and of the treaty will be able to and will have to act as the essential stage for the constitutionalisation of fundamental rights (as was already the case with the birth of the first Occidental democracy, the American one). Only the trinomial formed by a Parliament endowed with real powers, by a Commission transformed into an effective executive and by a Court of Justice as a truly Constitutional Court will we be able to assure that the European ship – like Plato’s ship of the Republic – keeps equidistant from the contrasting risks of technocratic proceduralism and from the mythological or populist appeal to sovereignty and to the constituent power of the People, and thereby safeguard fundamental rights and guarantees from the prevarications of the majority.
Only by keeping to this course will it be possible to solder rights onto the forms-of-life and experiences of social subjects, of concrete women and men who will contribute, through their practices, to the construction of a Europe-wide public political sphere that is able to situate itself – in accordance with Hannah Arendt’s indication – beyond the state and the market, beyond any obsession with identity and without any nostalgia for reductio ad unum. But, above all, without ever forgetting the warning – which is at once post-liberal and anti-totalitarian – from the old teachers of Frankfurt Critical Theory: only limited power is good power. The totum is the totem.
1Jürgen Habermas, The Postnational Constellation, p. 38.
2Ernst Jünger, An der Zeitmauer.
3Habermas, The Postnational Constellation, p. 38.
4This is the English version of a lecture given in January 1994 at the Carl Friedrich von Siemens Stiftung. See Dieter Grimm, ‘Does Europe Need a Constitution?’.
5Max Weber, ‘Politics as a Vocation’, p. 33.
6Grimm, ‘Does Europe Need a Constitution?’, p. 248.
7Ibid., p. 250.
8Ibid., p. 254.
9Ibid., pp. 254–55.
10Ibid. , p. 255.
11Habermas, The Postnational Constellation, p. 102.
12Jürgen Habermas, The Inclusion of the Other, p. 161.
13Habermas, The Postnational Constellation, p. 74.
14Habermas, The Inclusion of the Other, p. 160.
15Ernst-Wolfgang Böckenförde, Staat, Verfassung, Demokratie, p. 92.
16Ibid., p. 93.
17Ibid., p. 94 – our italicisation.
18Ibid., p. 93.
19Ibid., p. 94.
20Ibid., p. 96.
21Ibid., p. 97.
22Ibid., p. 99.
23Jon Elster, ‘Constitution-Making in Eastern Europe: Rebuilding the Boat in the Open Sea’, p. 174.
24Jacqueline Henard and Daniel Vernet, ‘La Grande Europe vue par Jacques Delors et Vaclav Havel’.
25Translator’s note: For a translation, see Rémi Brague, Eccentric Culture.
26Giuliano Amato, ‘L’originalità istituzionale dell’Unione Europea’, p. 82.
27Ibid., p. 81.
28Ibid., p. 84.
29Ibid.
30Translator’s note: In Italy, Silvio Berlusconi – media mogul and, at the time of writing, Italian president – goes by the nickname of ‘il Cavaliere’, the Knight. There is more than a passing reference to Berlusconi, although Marramao is speaking of the power of the media more broadly, even beyond the very specifi c Italian situation.