On the 13th of March 1920 Hermann Heller, later one of the great Weimar constitutionalists, was arrested. He had, together with Gustav Radbruch, opposed the Kapp-putsch in Kiel and defended the constitutional order. If the putsch had not collapsed within a few days, Heller and Radbruch could well have paid with their lives for championing the republic. What awaited the ringleaders back then was trial by martial law and ultimately a death sentence.
How far shall legal scholars go when it comes to upholding their discipline?
Although the EU is currently not on the verge of entering into a civil war-like state similar to that of the newly erected Weimar republic in 1920, I do see a striking parallel with regard to the role of the legal scholar, the constitutionalist, in a fragile and shaking legal order: in how far is a European law scholar justified, or even obliged to man the barricades, even if only in a metaphorical sense, if and as far as the European Union and European Constitutional Law are in peril?
Ultimately, this is about the question whether we as constitutionalists- and especially as scholars of European constitutional law, as EU constitutionalists – are mere chroniclers of events or whether we take an active part in them. In other words: Are we religious scholars or theologians?
Against this backdrop of clarifying the role of science of European constitutional law in times of European crisis, I would like to deal with the initial question in two separate steps.
As a first step, I seek to explore what is behind the process of European “disintegration”. In a second step, I will then look at different levels of challenges that legal science, namely European legal science, is currently facing. It will then become evident that the employment of concepts of disintegration is not considerably more rewarding compared to other approaches.
Firstly, therefore, let me introduce a few thoughts on the “processes of European disintegration”. What exactly does the term denote?
According to a working definition as it is used in academic writings, disintegration takes place when processes of erosion initiated by actors are lowering an achieved state of integration. On the basis of this definition, one is by no means hard-pressed to find examples.
Consequently I already come across my first example at the topic of membership which provides the first indicator for the disintegration-thesis. Especially the possible- and increasingly probable- exit of the United Kingdom, the “Brexit” is to be mentioned. Furthermore, the “Grexit”, Greece’s withdrawal from the Euro, has become a relevant topic yet again. At the same time, the Front National in France, whose goal is the dissolution of the country’s ties with European integration, is gaining considerable power, winning one election after the other – Frexit looming.
The second example can be titled disintegration and decay of the community of values. In Hungary, the decline of democracy and the state under the rule of law, both of which are basic conditions for the admission to the Union in the first place, has been an issue for quite some time. So far, the EU has failed to find a suitable counter-measure. Art. 7 granting the power to impose sanctions appears to be a dead letter.
Third example: The times when opening the EU into international space was a story of success seem to be all but over. Apparently, the European Commission has utterly underestimated the doubts and reservations surrounding the new comprehensive free trade agreements CETA and TTIP in general and the related investor-state dispute settlement mechanisms (“ISDS”) in particular. The ECJ opinion on EU membership to the ECHR in December 2014, basically blocking the path to EU membership, is another fairly recent case in point.
And finally, the Euro crisis surely is a topic that all of us associate with the potential for disintegration. Joschka Fischer has even written a book about this phenomenon: “Scheitert Europa” (“Is Europe Failing?”).
There is a factual level of the Euro crisis as far as the crisis touches the economic foundations of coexistence: a working currency in a functioning economic system. Angry protests in Greece or equally angry ones in France against German supremacy and German patronizing in economic and monetary matters can be interpreted as indicators of growing alienation. The solidarity, the common denominators uniting the peoples of the EU, seem to be fading as old differences re-emerge. The talk about arch-enemies at least has not yet resurfaced.
Beyond the factual, processes of decay related to the Euro crisis can also be observed on a legal level. This concerns the EU as a community of law (“Rechtsgemeinschaft”). A complaint often heard nowadays is that in the course of rescuing the Euro, rules are broken nonstop. Examples typically mentioned include the violation of the No-Bailout-clause (Art. 125 TFEU), the entrustment of the ECB with banking supervisions (against Art. 127 para.6 TFEU) or the transgression of the ECB mandate by buying more or less worthless Government bonds (OMT, now QE, Quantitative Easing). Those continuous violations of rules, the accusations run, will devalue the community of law so that European law itself might come to harm. Instead of “integration through law” there will be “disintegration through law”, or rather through breaking of law.
Fifth example: Partly caused – and partly accelerated by the Euro crisis, we may be facing a transition from the supranational towards the intergovernmental Union which, in turn, can be understood as a process of disintegration. That the European Parliament grows weaker while simultaneously the European Council, the joint heads of state or government, gains in strength is indicative to this development. This is particularly true if some decisions are not even taken by the European Council but by some kind of steering committee of the European Council, essentially composed of the German chancellor, the French president and the European Council President. Further cues include the growing preference to resort to agreements under public international law such as the ESM treaty or the Fiscal Treaty and even the recourse to mechanisms of public international law within the supranational process of legislation. This happened for instance in the secondary law-legislation on banking union when out of the blue an “Intergovernmental Agreement (IGA) emerged as a complement to the EU regulation.
My sixth and last observation: all of this happens in a general climate in which on the national level, the relevance of identity and individual actors increases. National-populist tendencies are by no means limited to the French Front National. There seems to be an overall trend to advocate a return to notions of nationality and nationalism.
What, then, is the interim assessment of all this? Yes, undeniably, there are problems that cannot be ignored. Indeed it seems as though all sorts of things are moving away from integration in all sorts of places.
Now let me turn to the second part of my considerations, the challenges. Legal science, that is to say European legal science, is confronted with the difficult task of processing the problems and developments described above.
Having said that, I see at least two distinct levels of challenges: On the one hand, there is the question of theorizing and categorizing the observations just made. On the other hand, I see a second level where the role and self-perception of European legal science as formulated in the introduction is concerned.
On the area of theoretical conceptualization: one way to answer the question of how to classify the events described is to subsume them under the heading of disintegration.
Disintegration-theories are selling quite well at the moment. Lately, they can be found mainly in the social science literature, for instance in the works of Douglas Webber, Hans Vollaard, Jack Hayward, Philippe Schmitter, and Jan Zielonka; all of them published in the years 2012 and 2013. In 2014, an extensive article was published in the Journal of Common Market Studies. A few months ago, I was asked to evaluate a research project on disintegration which, unfortunately, I had to decline. In Germany, Annegret Eppler, who now teaches in Austria, has tackled disintegration research from the perspective of political science.
All of these contributions worked on the assumption that disintegration is indeed happening. At the same time it is also admitted that there is a lack of theory and research on the topic.
One of the challenges for legal science is reacting to these theoretical approaches proposed by social science. A first answer can be to verify the sustainability of these theories. For this purpose, it makes sense to revisit my initial observations.
Certain observations of reality can be related to matters of telos. The widening gap separating the European peoples since and because of the Euro crisis when the EU should have been a means of bridging it is such an instant. Fundamental differences between Member States and deeply rooted reservations against German hegemony do exist, that is simply the way things are. Voicing these problems instead of drowning them in drivelling speeches may even be an asset – even though we as Germans do not like to admit that peoples elsewhere in Europe are still afraid of us.
Apart from that, even in the sobriety of the legal domain the examples mentioned in the beginning remain ambiguous.
- Exit of the UK? So what. According to 50 TEU this is legally possible. The departure from the Union is provided for in the founding treaties.
- Bailout in the Euro crisis? The ECJ said all there is to say in the Pringle-case. Help is allowed but not mandatory.
- Supervision of banks by the ECB? This is common practice elsewhere, it simply depends on the respective conception of a Central Bank.
And couldn’t it be that the core test-question asked by disintegration research (is integration increasing or declining?) is still open in the case of the Euro crisis; might not the result of all this be integration gain? The banking union, at the end of the day, means more integration. Economic policy is also integrated more strongly than before the crisis. The Stability and Growth Pact has been reformed in the course of the so-called “Sixpack”, while by means of the “Twopack”, the fiscal policy was europeanized and harmonized in an unprecedented way. ESM and Fiscal Compact are not included in the founding treaties, but overall they, too, result in increased integration. As a next step, a stronger harmonization of the capital marked (Capital Markets Union) is foreseeable. All of these are steps of integration that would not have happened without the crisis and that, moreover, are not that easy to detect from a social science perspective.
So far the lawyer’s answer to the social science thesis of disintegration.
Beyond that, I see three possible objections to disintegration theories.
For one thing, terminologically, the systematic placing of the two suggests that integration and disintegration constitute some kind of binary. A finality, a common political project called “Disintegration”, however, does not exist. This also explains why integration and disintegration can coexist. A connection between initially unrelated, independent phenomena is probably only created by labelling both “process of disintegration”. And if that is the case, then the term itself already contains a value judgement which not only sustains but actively creates its own meaning – a self-fulfilling prophecy. Even when only talking about “processes of disintegration” instead of “disintegration”, the problem cannot be fully avoided.
And here is another objection. Probably we should not focus too strongly on the “courte durée”, the short duration in the sense of a certain French historical theory. Overly excited scholars and the concentration on certain particularly visible events should not make us blind to the actual structural developments, the long-term trends, the underlying currents, the analyses that trace the course of events over many many decades.
Maybe we do need to put things into the context of a longer temporal line of development in the sense of a “longue durée”, the long duration. Since December 2009 with the Lisbon Treaty, the European Union has after almost two decades finally completed reforming the legal foundations of European integration. A reform process initiated with the Treaty of Maastricht in 1992. Today, after only five years, it is clearly too early to make a final evaluation of the new Treaty’s overall performance. Some of its innovations have not even been activated yet; just remember the transition from QMV to a double majority voting system in the Council, effective November 2014.
A final objection I would like to address concerns the added value. Is all that disintegration talk truly news to us? From the failure of the EDC 1954 until the rejected Constitutional Treaty of 2005 the story of European integration can be told as a series of major and minor pro- and regresses, of success and crisis, as a sequence of integration and counter-integration. It is remarkable that, in the person of Philippe Schmitter in 2012, one of the senior researchers on Europe writes in this context that crisis is not a novelty in the history of integration but can in its sum even have a positive effect conducive to integration. Accordingly, the process of thinking about disintegration has been going on for some time. The complete disintegration of historical states such as the Soviet Union or Yugoslavia has been of special interest in research on disintegration. Going back further in time, states’ rights- and interposition theories as developed by secession theorists in 19th century USA are theoretical approaches to disintegration in a federal context.
One of my academic teachers, Joseph Weiler, applied Albert Hirschmans concept “Exit, Voice and Loyalty” to European constitutional law in “Transformation of Europe”. The exit-option already hints at disintegration. More recent theoretical reflections on European integration from the perspective of legal science such as the corresponding concepts of constitutional pluralism – I would also include the multi constitutionalism-approach (“Verfassungsverbund”) here – have sufficient leeway and flexibility to cover the topic of counter-integration as well. Indeed, it may well be the added value of the more traditional theories on non-unitary polities right down to federalism that they see the entire picture instead of limiting the perspective to a single point of view and focusing on only one facet.
There is, after all, a reasonable amount of evidence suggesting that most of the phenomena initially connected to “processes of disintegration” could be processed without necessarily requiring a specific theory of disintegration. True – it is certainly possible to conceptualize certain recent events as processes of disintegration. But this is not imperative, perhaps not even particularly plausible.
The second area of challenges touches upon the role and self-perception of European legal science. If we think this through, processes of disintegration – if they do exist – could in the long run lead to the disappearance of the research topic of European legal science. For an academic, this is a disconcerting thought. How is European legal science supposed to deal with this? By sitting tight, solely being a chronicler of the developments; religious scientist rather than theologian, neutral?
Or are we something more; theologians, as it were, that vouch for their object of research and that – even though they do not man actual barricades as did Hermann Heller – are nonetheless manning those of political discussion by making a statement for – or, if that is what is meant to be, against Europe.
Well, for or against European integration – for post-war Germany, this choice has already been made by European law and the German constitution (the Grundgesetz). The “ever closer Union” can still be found in the preamble of the Charter of Fundamental Rights. The preamble of the German constitution and its Art. 23 define a united Europe as “Staatsziel”, a constitutional objective. The exact nature of this united Europe is open to debate, of course. Seen from the point of view of 1949, however, the intention is clearly integration, not disintegration. The German Constitutional Court also postulates a friendly attitude toward Europe as constitutional principle.
What does this mean in concrete terms? This is not about barricades, as in the case of Hermann Heller in 1920. But neither is it about a legal science that is just a Glasperlenspiel or an air guitar contest. According to my understanding of academia, European legal science has to be about developing and offering coherent, conceptional ideas that counter actual or perceived processes of disintegration. Ideas of that nature include e.g. the emphasis on principles protecting pluralism, the development of limits to a monolithic understanding of primacy of EU law, the reflection about differentiated integration and an integration-proof national constitutional identity.
As a minimum, European legal science is in charge of providing accurate information about linkages and causal relations and offer alternate interpretations in order to make sure that the label of disintegration is not used rashly. In my view European legal science, even after more than 60 years of European integration, is first and foremost still a science that explains.
As a final point, a widespread prejudice against EU law scholars needs to be addressed. According to this stereotype, particularly pervasive in Germany, European legal science lacks the critical distance towards its object of study. That distance, of course, is indispensable. Maintaining some critical reserve and upholding European integration, however, are not mutually exclusive.
At the beginning of the 1970’s a famous article "Of Blind Men, Elephants and International Integration" was published in the Journal of Common Market Studies. It is still cited today. Pointing out the challenge of correctly capturing European integration as a whole, it uses the parable of the blind men who each touch a different part of the Elephant’s body and reach quite different conclusions as to how the animal might look like. Based on an isolated observation, the message reads, one should not jump to conclusions. The disintegration theories I was talking about remain in this logic of the individual that touches the Elephant’s trunk and afterwards thinks the Elephant a fragile animal. In the field of European constitutional law, we definitively have moved on.