In a Handful of Dust
Last night, while news of the British Queen’s death was spreading across the world, I went to a staged reading of T.S. Eliot’s great poem The Waste Land by the Nico and the Navigators Company at the Literaturhaus in Fasanenstraße. The poem was published in 1922, exactly 100 years ago, which, like all anniversaries, is a mere numerical-astronomical coincidence, of course, but as such an opportunity for the present to mirror itself in the past and to search across the distance of the years for moments of self-recognition. The Waste Land offers such moments in almost every line. The drought of this summer („Here is no water but only rock / rock and no water and the sandy road…“) is only the most obvious. The 1922 fear that this poem puts into words mirrors the 2022 fear of the present: the old dies, and then comes nothing.
The authoritarian right bases its successes on this fear: the fear that the old will die is its capital, and in the nothingness that then comes it establishes its rule. But this fear also gives rise to the tension that pulls towards the establishment of new, better orders: Nothingness can be averted. The Waste Land can become, if not paradise, at least somewhat habitable again, with better institutions, with a better constitution. The arid wasteland that the old order has bequeathed on us is not fate, but the work of mortal men. It can be made better.
These two different conclusions from modern fear are at war with each other, quite literally, outside Kharkiv and Kherson right now. There, Ukraine is defending the values of the European Union, it is often said. That is true, at least in the sense that this war is also being waged to test to what extent these values are valued by the EU itself.
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Four days after Russia’s invasion on 24 February, Ukraine applied to join the EU, and three and a half months later it was recognised as an EU accession candidate. That was incredibly fast compared to what had been common practice on the road to accession so far. „Accession through war“ is what European law scholars Christophe Hillion and Roman Petrov call this acceleration in a forthcoming CMLR editorial: the war justifies deviating in Ukraine’s case from the standards that other potential accession countries have to undergo. Not only Ukraine has to adapt, but so does the EU.
That in itself is not a bad thing. The word „accession“ suggests (we reunified Germans know this particularly well) that there is a passive and an active part: a passive inside that is being acceded to and an active outside that is doing the acceding. This is very convenient for the inside: overcoming the gap between inside and outside is not its problem, so to speak. Those outside want in? Sure, welcome, they’ll just have to undergo all sorts of reforms, whereas we don’t have to do anything. Leaving this illusion can’t hurt at all.
Just as great is the temptation for some to demand an emergency exception for Ukraine and to accept it into the EU as it is. As if a problematically structured constitutional court could be compensated for by heroic deeds on the battlefield. The war, Christophe Hillion said yesterday at the Re:Constitution conference, should not be a pretext to soften the EU’s insistence on its values. The EU must resist this temptation, if not blackmail, he said. Anything else „would be a victory for Putin“.
Ukraine (and Moldova and Georgia, for that matter, not to mention most of the long-suffering Western Balkans accession candidates) are striving most vigorously in the direction diametrically opposed to the one towards Putin’s autocratic, reactionary, criminal Waste Land. An enormous pull for the better emanates from this constellation. The whole EU should be seized by it, also at the level of the member states. When winter comes and energy prices keep spiraling out of control and the war keeps going on and on, then the counter-dynamics will also pick up powerful momentum. The AfD is already gleefully looking forward to this prospect.
The Federal Republic is very proud of its constitutional order, and with good reason. But, as the Volkskanzler scenario has shown: one won Bundestag election may be enough to dismantle the democratic constitution in a completely legal way. In France, Laurent Pech and Sébastien Platon, both well known to our readers, together with a group of researchers, have published a study this week, commissioned by the Green Group in the European Parliament, stress-testing the French constitution. In the case of an autocrat winning the presidential election one day, would she be able, without openly breaking the constitution, to ensure that a peaceful change of power at her expense will henceforth be highly unlikely?
The result is less disastrous than one might expect. The exorbitant amount of power with which the constitution endows the directly elected Président de la République is well known. A determined president could make herself very largely independent of any parliamentary or judicial control when it comes to large areas of legislation, including possibly even the amendment of the constitution, not least through the dangerous right to have the constitution amended directly by the people through a referendum. The judiciary is fairly well protected from government intervention; the public prosecutor’s office, however, much less so. The highest administrative court (Conseil d’Etat) could be vulnerable if the government appoint a member loyal to it as its Vice Président (in fact its president) and started to circumvent or ignore the informal conventions that underpin the precarious independence of this central body of control in the French constitution. The Constitutional Council, on the other hand, appears reasonably well protected, too.
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What strikes me as remarkable about the study is how it would be in some instances precisely those aspects of the French state system that otherwise contribute little to its reputation that would make the capturing of institutions harder for an authoritarian government: the custom that the Council of State recruits its members from the graduates of the recently abolished / renamed Ecole Nationale de l’Administration (ENA), for example. Or the fact that all former state presidents are entitled to a seat and a vote in the Constitutional Council for life, where in case of doubt they might make it more difficult for their successor to command a majority in the Council.
Would this be enough when push comes to shove? I doubt it. According to co-author Thomas Perroud, one should not rely too much on social resistance either. The media, especially the private media, are dependent on state funding and are susceptible to being bought and manipulated by friends of the president (which has already happened to a certain extent under Nicolas Sarkozy). Civil society, always regarded with much leeriness by French statism, is weak and financially dependent on the state. The universities, also dependent on state funding, lack a culture of open debate and political interference, especially the law faculties.
The very fact that this study exists seems to me a very encouraging sign already. No constitution is or ever will be perfectly equipped against every eventuality. But stress tests like this can help pinpoint where it is more vulnerable than it needs to be. They can help wake society up from its „Verfassungspatriotismus“ complacency. They can spread a little fear. And a little confidence. We can use both.
The week on Verfassungsblog
… summarized by PAULINE SPATZ:
As mentioned in this editorial last week, four major associations of European judges are challenging the Council’s decision to release money of the EU’s recovery fund to Poland before the EU General Court. This prompts TOM BOEKESTEIN to reflect on the impact and fit of the Plaumann citeria in this case and beyond.
The Polish government has decided to withdraw from the Energy Charter Treaty. AGATA DASZKO examines the government’s reasoning.
TEREZA ŽUFFOVÁ-KUNČOVÁ & MICHAL KOVALČÍK give an overview over Czechia’s first climate change judgment that blazes the trail for other Central and Eastern European courts.
IZABELA JĘDRZEJOWSKA-SCHIFFAUER & PETER SCHIFFAUER take the ecological catastrophe in the Oder River as an opportunity to ask who is actually bound by duties of care to protect the environment – and who perhaps should be.
Die «KOLLOQUIA Triesen» ist eine öffentliche, interdisziplinäre Tagung zur Wissenschaftstheorie, die von 2022 an jährlich Ende November stattfindet. Sie steht in diesem Jahr unter dem Generalthema «Rationalität im 21. Jahrhundert». Die Vorträge behandeln dieses Thema insbesondere aus gesellschaftstheoretischer, wissenschaftstheoretischer und methodologischer Perspektive. Veranstaltet und ausgetragen wird die Tagung vom Institut für Rechtsvergleichung der UFL Liechtenstein. Die Teilnahme ist kostenfrei. Weitere Informationen finden Sie hier.
Pakistan calls for rich nations to pay climate reparations to developing states. MARGARETHA WEWERINKE-SINGH puts these claims in the context of international law.
The Chilean people overwhelmingly rejected the draft for a new constitution. RODRIGO KAUFMANN explains this outcome and looks at the future of the constituent process.
DOVILĖ SAGATIENĖ & JUSTINAS ŽILINSKAS explain why Gorbachev’s legacy in Lithuania is tied to the crackdown if January 13, 1991 and the legal battles that are ongoing despite Gorbachev’s death.
ULADZISLAU BELAVUSAU looks at the constitutional dimensions to the Belarusian “Year of Historical Memory” and its memory politics through the prism of his idea of mnemonic constitutionalism.
The excess profits tax is one of the instruments of the third package of measures to ensure an affordable energy supply in Germany. TRISTAN LEMKE doubts whether the excess profits tax is constitutional.
The Administrative Court of Baden-Württemberg has ruled that anti-abortion activists are allowed to gather in front of pregnancy counselling centres. EVA MARIA BREDLER criticises the ruling.
ALEXANDER TISCHBIREK is taken aback by the Bavarian Constitutional Court’s reasoning why the lawsuits against obligatory crosses in all official buildings of Bavaria should be inadmissible.
JOANNA GEORGE offers a British perspective on the idea of a new intergovernmental political forum between EU member states and other democratic European nations.
Chancellor Olaf Scholz’s speech at Charles University in Prague about his vision of the European future is critically examined by RAVEN KIRCHNER.
ASTRID SÉVILLE analyses Frank-Walter Steinmeier’s role as Federal President on the basis of his rhetoric: it is a matter of redeeming his democratic programme performatively.
The EU’s external borders management is one of the most controversial policies of the EU. The recent resignation of the Executive Director, following the presentation of a yet undisclosed report by OLAF to the Management Board, raises a number of questions. In our blog debate on Frontex and the Rule of Law, LUISA MARIN alone and with MARIANA GKLIATI & SARAH TAS, FLORIN COMAN-KUND, MARIANA GKLIATI, ELSPETH GUILD, SALVO NICOLOSI, TINEKE STRIK, MICHELE GIGLI, LAURA SALZANO and SARAH TAS try to provide answers.
And TARUNABH KHAITAN reacts to the contributions to the scholactivism debate he had triggered with his ICON editorial.
That’s all for now. All the best, and see you next week!
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