Rethinking constitutionalism and democracy . . . again?

Each of the three recently published books that deal with constitutionalism and democracy in the European Union brings a different perspective on the same issue: the legitimacy crisis of European integration and its currently dominant form, the European Union. Dieter Grimm’s collection of essays translated from German is markedly a constitutional lawyer’s analysis of what he perceives to be the EU’s central problem: its “over-constitutionalization.” Athanasios Psygkas, as the subtitle suggests, focuses on the administrative side of the EU’s governance and seeks to extrapolate the argument to the EU as a whole. Finally, Turkuler Isiksel offers a new theory of “constitutionalism beyond the state” and applies it to the EU, arguing that it has a specific type of constitution based on functionalist legitimation. It is worth reading (and reviewing) the three books together, as each of them sheds light on the shortcomings of the other. As will be shown, Grimm’s analysis is firmly grounded in the state-based theory of constitutional democracy. It sees the lack of accountability as the main problem of democratic legitimacy and reconnecting the EU’s governance structures back to the member states as the chief solution. Psygkas directly contradicts this view. Having chosen a deliberative-participatory ideal of democracy as the starting point, he sees the EU as a structure that can in fact improve democratic credentials of the member states. Unfortunately, it does not offer answers to numerous concerns raised by Grimm, in particular the lack of social basis for establishing democracy at the EU level and the need for political contestation that goes beyond stakeholders’ participation. Isiksel’s book is the most innovative of the three and presents a genuine attempt to rethink the notion of legitimate constitutional authority anew. It provides a powerful (re-)construction of what the central commitments of constitutionalism might be, while remaining critical to the central object of inquiry. The question remains, however, whether Isiksel applies such standards correctly. If she did, this reviewer opines, the EU could not be considered as a case of “constitutionalism beyond the state” but rather as evidence that it is hard to establish legitimate constitutional authority in structures that are different from the state. I will take each book in turn and then conclude on a rather pessimist note. Grimm’s book collects articles published in various places, and this at times harms the coherence of the whole collection: some chapters are more scholarly than others, which have been published as opinion pieces in outlets addressed to the general public.1 There are several themes that run throughout the whole volume. Altogether they express Grimm’s skepticism regarding the possible establishment of democratic constitutionalism at the EU level. The themes are the following: (i) The EU member states are the basic units of democratic government; the EU and its institutions can never replace them; the EU’s legitimacy depends on its member states. (ii) “[T]he real democracy problem of the EU lies in the autonomy of its executive and judicial institutions vis-à-vis its political institutions and the will of the Member States”;2 relatedly, the EU is “over-constitutionalized” and the European Court of Justice (ECJ) is the main culprit of this phenomenon. (iii) The whole analysis is provided by a jurist. As Grimm himself declares, his “discipline is law, and law plays a predominant role in this book, both with respect to the diagnosis and with respect to the cure.”3 The continuous centrality of the nation state and its democratic constitution, which derives its legitimacy from popular sovereignty, is the founding stone of Grimm’s analysis. Very often Grimm compares the EU to its member states in order to show that the nation state is a far more advanced form of political organization, which the EU cannot achieve (at least not in “the foreseeable future”).4 So in his view, the “European Union draws, as it always has, on the legitimation that emanates from the Members State, which for their part are democratic.”5 Grimm adds that “one might quarrel with one’s own state and execrate its current rulers, but the state’s purpose and right to exist remain undisputed.”6 But how solid is this founding stone? Regarding the state of democracy in the member states, Grimm is of course not blind to the problems that Western democracies are facing today (interestingly, half of the EU member states in Central and Eastern Europe do not seem to be part of his story).7 Commenting on the problems of parliamentary democracy, Grimm notes: “In our highly individualized Western societies traditional ties of family, church, class, and milieu are unravelling, resulting in pluralism of values,”8 which makes it hard (according to Grimm) for parliaments to act as truly representative institutions for their societies. This is a remarkably conservative rendering of the crisis of Western democracies. It does not include in the analysis the fact that parliaments today not only do not represent but do not govern either. Representative democracy became “hollowed” as the institutions that had mediated the relationship between the society and the state, especially political parties, have lost their significance and became empty shells.9 There is a “void” between the society and the state, “a zone of disengagement,” since citizens have mostly withdrawn to their private spheres.10 The reason for this, contrary to the conservative story, is the cartelization of politics, whereby “political competition is increasingly oriented around the question of the efficient management of the state (‘competence’) rather than rival ideological programmes.”11 “Efficient” means maintaining the current political and economic order, no matter how much injustice and suffering it produces. The EU’s response to the financial crisis and the distribution of costs (or suffering) confirms this.12 There is no (or doesn't seem to be any) alternative to the regime of “authoritarian liberalism.”13 Grimm mentions that “most parliaments in democratic states see their significance dwindle,”14 but he misses the ideological dimension of this phenomenon—the “void.” Questions can be also raised at the conceptual level: it seems rather outdated to say that—conceptually speaking—member states (which means for Grimm nation states) are for their part democratic, without at least considering externalities that territorially bounded democracies (no matter how perfect internally) impose one onto each other and also globally.15 It may be true that boundaries are practically necessary for democracies to be able to make decisions and externalities thus inevitable.16 It should, however, not exclude the possibility that democracy’s closure is in tension with its foundational ideals, such as that all affected are included. The EU on this view surely produces externalities in the global system; at the same time, however, it may be helping to address this problem at least among its member states. In light of the twentieth-century history of the European nation state it is not an achievement that should be entirely overlooked by Grimm. Objections can be also raised against the seemingly unquestionable “right to exist” of the state, both at the practical and conceptual level. Regarding the former, it may be true that the big member states and their nations that have existed (some of them in various forms, to be sure) for centuries have never raised questions regarding their right to exist and possibly their purpose. Most of the states that have been formed after the collapse of the Austrian-Hungarian Empire after World War I have quite different experiences, as quite drastically the book by the American historian Timothy Snyder’s Black Earth17 documents. Since their establishment, these states had to justify their existence to the Great Powers and some of them employed quite sophisticated propaganda tools, as, for example, Andrea Orzoff’s The Battle for the Castle shows on the example of interwar Czechoslovakia.18 Czechoslovakia’s founding figures successfully created the myth of East-Central Europe’s most devoted democracy, a myth which has survived until today and has motivated the country’s “return to Europe,” from where it was apparently kidnapped by the Soviet Empire or the communists.19 The “right to exist” might not be a matter of course for the big states either, however. This is true for not only Germany, which had to justify its semi-independent existence to the Allied Powers after World War II, but other countries as well. As the title of a book by Alan Milward, The European Rescue of the Nation-State,20 suggests, the continuous existence of European nation states has been dependent on establishing structures of economic and political cooperation that would later start to transform the nature of their statehood. This is well shown by another recent book by Chris J. Bickerton.21 In his analysis combining comparative politics, sociology, and economy, European states became capable of governing their societies only through external structures and rules. The “void” between the state and society, mentioned above, is covered by the EU and its byzantine governance structures, where national governments take part, but nobody really knows who holds the ultimate power to make decisions. What sticks rather firmly with the people living in Europe, both in the West and in the East, is merely “the fable of the wise nation,” as the already-mentioned historian Timothy Snyder calls it. Snyder claims firmly: In history there was no era of the nation-state: generally (with exceptions such as Finland), empire ended while integration began, with no interval in between. … Europeans settled for a falsehood. The fable of the wise nation, learned in childhood, comforted adults by allowing them to forget the true difficulties of history. By reciting the fable of the wise nation, leaders and societies could praise themselves for choosing Europe, when in fact Europe was an existential need after empire.22 Bickerton’s book links to another objection concerning the centrality of the nation state in Grimm’s analysis, this time conceptual. Jens Bartelson opens his book The Critique of the State, published in 2001, thus: “Today there is a widespread conviction that the sovereign state is unlikely to remain the main source of political authority in the future.”23 Since the advent of neoliberalism in the 1970s and the fall of communism in 1989, the state as an idea and an institution is in both in constitutional theory and and the economic and the of the states (or democracy, to the matter more is one of Grimm the in the EU constitution, on his analysis of the same time, however, he sees it as a problem on the member states by the rather than as at least by national governments that more than to the from “a of through the of the The fact that “the Member could no which to to the and which to govern was at least the or by (some This does not however, that this has been it can be Member states can be the of the but this is true only in increasingly when they on and this only to a The example of and its on the shows that some member states do not have this This to Grimm’s analysis of in Europe, much based on the German of the of the to European constitutional by the Grimm between power and in his view the EU can the quite the with the member states Grimm rather the to make his while the EU has a deal of in to its and law it is not the of that would make the EU The type of which is an of sovereignty, to the existence and form of a political to the constitutional in European to the is an that has this it seems to a political sovereign that cannot its its its form, and its This is the case with the It the Grimm idea of sovereignty, whereby the EU its power in European citizens who can act in as such and at the same time as the citizens of their member In Grimm’s analysis, European citizens are not in and “the power of the EU in the of the Member another Grimm of the is not popular sovereignty, but rather state chapters of the book then on this they the of the such as constitutional or national for the legitimacy of the in the has Grimm considered an how for the legitimacy and the existence of the member states the EU The centrality of states should, to Grimm, the EU from the political of the Member and the of their democratic structures and This is not to say that the EU’s legitimacy depends on national institutions In Grimm’s view, the EU’s legitimacy on one in the and governments of the Member and the other in a European by EU Grimm, however, “the are not The of legitimacy from the Member is in part the more in part the for a living merely a democracy are much more in the Member than in the The problem of democratic legitimacy in a between power and This to Grimm’s of the most institutions of the the and the and especially the In Grimm’s view, was by based on its was the least European the European Court of on its the became which in Grimm’s view is the central problem of the This is in Grimm’s view, the of political but they do not themselves make political The with their of with the of the (and later however, do Grimm notes: be the is not to but to from the that has There the of Grimm’s analysis, which confirms that it was by a his are most of the each on a different of the EU’s legitimacy from they should of the following: (i) all of a nature as law the could then be by as in democratic (ii) be a based on in which are to the the (iii) to be a of ultimate of the that such will be addressed when the time for with political be The is the most Grimm’s of the political in the EU are by the analysis of the of the one by the numerous (and of the EU well by (and it does not make much to one’s on the EU’s and that it will some on the of the European are to a it may to than to the in both are quite each for different The seems it after the of the to a on the by for a and of in the European As has recently however, such based on is The main reason of the to or as one or another Grimm’s analysis, however, as no such The a some time by and they a rather sophisticated on how to for such contestation the EU’s to be Grimm to a rather empty “the of the European and the of truly European that are in with society, on the basis of European and then the on European and the of their the in to do this Grimm does not however. It is true that there is a between the national that run in European and the European parliamentary that the of the The real however, is that in the EU’s byzantine governance structure it is not how the of the European can the of the on the role of the member states in the democratic legitimacy of the EU against is never by Grimm. response to Grimm, the that states and their democratic institutions can be that the EU in fact to address By part in the EU’s governance the member states more democratic, not is the argument by Athanasios It directly Grimm’s view the lack of accountability in the EU and that “the structure of the EU state may of the democratic accountability of national at the level through the of for European It is based on a different of democratic accountability than “the representative it a which is in the of the The chapters how the in one of EU which the course of the and The book a comparative of this in three EU member the and the of this I will on the and the it makes democratic legitimacy in the to Psygkas, there are three of democratic in the the that “the and of EU should be through the European This in view on a of legitimacy that is from national parliamentary onto the EU level. it or other that EU law has on the national that might the notion of the EU The of democratic most to Grimm’s analysis. to this the EU’s democratic legitimacy derives from the member states. they lost their power in the with the of their national parliaments lost as and the of legitimacy was Psygkas three to this of the member states as the most of legitimacy is not to an for its which as increasingly as integration This in is a however. Grimm would most say that it is the of the which to be by a by national in the which are to “[T]he power might to the democratic since it only a European citizens through their in the to the decisions of the of the This is which Grimm does not at it is a view, however, which that there some political at the EU of EU citizens who in the would a of the EU for their political the and institutions that are at the level of the member states. Psygkas, however, does not argument in that respect and that there is a political beyond the member states. The of response concerns the of the role of member states institutions other than their and especially national This response concerns the central argument of the book, and I will back to it The of the democratic considered by Psygkas concerns that while the of member states is the EU member states in social In view, this is not democratic but rather “a lack of to a specific It a of the to a of democratic contestation that would to the of one or another Psygkas sees this of democratic as a of the with both from national institutions more from the of The central of his book is to an alternative based on a of In own as by Psygkas, society, which provides the social of is as from the economic as it is from the of should through as well as through of democratic and The opinion which is democratic power cannot but can only the of administrative power in specific Psygkas this from that may and his main question is whether the can be to the administrative state, and to the EU as than in Psygkas that need to be reason and judicial and the of the book to the comparative in book offers an of the legitimacy of the administrative state. extrapolate that to the whole of the EU or to make an argument democracy is a however. there is a general argument against the of democracy Psygkas presents as an democracy, especially in the of lies at the of the mentioned It that in the is mostly the and not contestation among that have different and also different political and more his concerns where the legitimation are much as various standards in the than when and as a political It is hard to see how the same can in the Europe, where and as became and The book provides a to the It the central of arguing for “the of political critical new of political and of its in order to do It offers a theory of constitutionalism beyond the state and applies it to the EU as a It has a deal to say constitutionalism as such and beyond the EU its in the in the same time, it does not democracy to and accountability and questions the of the EU to in the with a and and competition its to has to beyond a of It on the question that the conservative by Grimm does not and does not the problem of the “void” between the society and the In order to a of constitutional Isiksel applies a of whereby the of constitutionalism and the it both as a conceptual to (and of constitutional while the same may to a of that Isiksel that most of constitutional authority on central and popular The EU has to Isiksel “a form of constitutional which is or one may Isiksel does not that this is for the EU, as is a but for constitutional Isiksel thus presents a general of constitutional constitutional be not only in of how well it autonomy and for but also in of how well it can commitments and Isiksel argument around this and it both in political theory and in political Isiksel various a notion of constitutional authority that can be to It can it is to the nation state as able to constitutional authority without its practical law may that this to between and the practical power and authority of the thus that a conceptual the authority of a is to the power it is able to by Isiksel may that authority is a legitimate then part of the legitimacy be the of that In Isiksel’s view, the EU is in how this of constitutional authority the other which remain the EU’s focuses on one a other and The the and of Isiksel’s book and at most to see the of the EU’s as evidence that it has beyond its economic however, I that the is the of the EU’s has the of of by institutions to and govern a The is the of of political legitimacy such as democracy, and and of institutions such as and constitutionalism through the of economic Isiksel quite one that may be as the Union that has the after and shows that the functionalist of establishing the lies at their there is the regime of EU the most means of in to the commitments to EU is one of the and who but mostly for who and against to govern more the EU has for a and of of social that might include social and of The is thus from the European and it the of EU in light of the and the EU’s response to it. lies the central of the on the one Isiksel to that there may be new of constitutional beyond the state and that the EU may this argument Isiksel with of the constitutional authority and adds as a If all three need to be at the same at the same time they cannot the the EU does not the and that may that in fact it is not possible to the idea of constitutionalism to other of political than the state. The with which Isiksel opens the book, may then to a different than that which she In Grimm’s view, the European democratic not in a other than the but rather in the of by national by European Grimm that “most for the EU’s legitimacy however, the In view, however, he the same he does not the EU to a at the same time, however, his conceptual is to that of the nation state or at the time when the state could be the of political Psygkas Isiksel with the conceptual should Grimm, who their on the (and of the nation state. with it may be true that this the state is on a of which no and as that of was able to its power from the of a of nation states, then can a new on This may be the The is that no one has to an alternative to the and power of the Isiksel’s book especially is a in the right I would to and for their on an of this The was as part of the which has from the European the European and