On 4 March 2019, shortly before the elections to the European Parliament, French President Emmanuel Macron wrote a letter addressed to the “Citizens of Europe” and translated into 22 languages. Given the problems, crises, and challenges with which the readers of Verfassungsblog are amply familiar, he calls upon us “to chart together the road to European renewal”.
Jupiter’s words are powerful, but they are not omnipotent. The newly elected Parliament and the newly elected Commission have reacted by putting forward a proposal for a conference on the future of Europe. Because of the pandemic and some laborious compromise-building, however, it took two years, until 10 March 2021, for the President of the Commission, the President of the European Parliament, and the President of the Council to announce, in a long-winded declaration, that this conference would finally be put on track. 9 May 2021 saw the official launch and much hoopla.
All the European institutions profess to be concerned with many things, but their chief objective is, one, creating an exchange between European Union institutions and its citizens and, two, more democracy. April saw the launch of a website called “Citizens’ Dialogue”. When I visited this website as part of my research for this post, I was intrigued by a link that read, “A new push for European democracy”. Upon clicking on this link on 30 April, seeking to gather material for this post, I happened upon the “page not found” notice.
By now, fortunately, this webpage is live. Yet the entire website has not received the attention it ought to have, particularly when compared to similar initiatives. Consider, for instance, Ferdinand von Schirach’s manifesto on European citizenship. On 30 April 2021, it had already generated 185,749 hits, while the combined efforts of three European institutions to enter into an exchange with citizens had garnered a mere 6,578 hits. At first blush, this disparity corroborates much too easily the suspicion that the politics of the European institutions lack the requisite social substrate – just like the politics Robert Menasse describes in his book, The Capital. Carl Schmitt, one surmises, would think his gloom with regard to Europe justified.
Yet this impression of societal insubstantiality is deceptive, particularly if one is inclined to trust the concepts, theories, and methods of the fields represented by Verfassungsblog. To substantiate this claim, this post will reflect upon what is simultaneously an insight, a pledge, and an act of law-making of the Lisbon treaty maker – that is, of the united political systems of the Member States in cooperation with the European institutions: Article 2 of the Treaty on European Union. Truly everyone who holds political responsibility ought to have read this highly visible provision. To date, however, legal scholarship has paid hardly any attention to it.
What I wish to throw into relief is that, according to this provision, the citizens of Europe as well as the twenty-seven Member States together constitute one society. 70 years of Europeanization have not yielded a European people, the treaty maker is saying, nor – God forbid – created a European federal state. They have, however, given rise to a European society.
Is this European society of any relevance to Verfassungsblog? After all, many European societies are likely of little interest, such as the 3,000 odd European stock corporations and thousands of Europe-wide civil-society associations, which range from the European Society of International Law to the European Society of Cardiology and the European Society for Spiritual Repatriation. The term used in Article 2 evidently refers to something different, however. Hegel’s concept of the state helps us grasp its true meaning. As is well known, Hegel’s state had two meanings (Volkmann, “Gespräche mit Hegel”). According to the first, narrow, one, the state describes the totality of public institutions. According to the second, broader, one, the state refers to the totality of the social, which is often also labeled the nation or, indeed, society.
Now, Max Weber already wrote quite naturally about public authority, the nation, and the state in his Economy and Society. German terminology thus ties in with the broader European discourse – which includes, after all, Jean-Jacques Rousseau’s On the Social Contract; or, Principles of Political Right. Today, nobody expects to read anything about stock corporations in Niklas Luhmann’s Das Recht der Gesellschaft (The Law of Society).
There is much to suggest that what the treaty maker meant by “society” is the totality of the social constituted by the Treaty on European Union. This conforms to the long-established meaning of the term in European law. The “democratic society” to which the European Convention on Human Rights refers in many places – such as Art. 6 Para. 1, Art. 8 Para. 2, Art. 9 Para. 2, Art. 10 Para. 2, and Art. 11. Para. 2 – designates the public institutions of the convention states. But it is hardly surprising that a convention concluded in 1950 does not allude to a “European” society, for such a society required about half a century of political and legal unification.
Article 2 conceptualizes a European society absent a European state, but it does not conceptualize a society devoid of states. The treaty maker expressly includes all the Member States, with all their public institutions, in the European society. And the society of Article 2 is by no means limited to the sphere that Hegel calls civil (bürgerliche) society, i.e., the network of economic relations. As Article 3 demonstrates, the treaty maker equates this network with the internal market, the engine of European socialization since 1952. Nor is the treaty maker solely concerned with the sphere of societal engagement, to which it refers in Article 11(2) TEU as civil society. By contrast, the society to which Article 2 refers has a broader meaning – to wit, the totality of the social, which encompasses the institutions of the Union, its Members States, and all their citizens. Article 2’s society, on that view, constitutes the ultimate social reference point of the European public law that it is discussed on Verfassungsblog.
Article 2 refers to a European society – and not to the societies of the Member States – because it uses the singular, “society.” It does not allude to the global society, moreover, because it refers to the EU Member States and to the foundational significance of values (on the poverty of values of the World Society see Luhmann, “Die Weltgesellschaft”). At the same time, the reference to values throws into relief that Article 2 does not conceive of society in opposition to the concept of community: The German dichotomy between society and community, which goes back to Ferdinand Tönnies, distinguishes between the two phenomena by emphasizing the specific significance that values hold for a community.
The European society comes with clear contours. The readers of Verfassungsblog should be immensely pleased that the treaty maker defines European society in terms of public-law principles. Thus, the society of Article 2 is one “in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail” and which is characterized by “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”.
Therefore, the authors of Verfassungsblog may see themselves as protagonists – or at least agents, or at least chroniclers – not only of European public law but also of European socialization, of European identity, and, with a little courage, perhaps even of the European spirit. Many theories ascribe a significant role to scholarly reflection. Ernest Gellner, for instance, stated with confidence that “at the basis of modern social order stands not the executioner but the professor”.
As a foundational concept of European thought, society has been the subject of diverse theorizations. To address Article 2 TEU in legal terms, a rudimentary understanding of society as social interaction or a communicative practice suffices, however. Jurists primarily focus on disputes carried out through the law, a particularly intensive form of social interaction and communicative practice. European society materializes in conflicts that implicate the concepts of Article 2, conflicts in which European rights, European justice, European solidarity, European democracy, and the European rule of law are at stake. In doing so, it brings itself into being, as it were.
Most of the relevant conflicts have been well documented on Verfassungsblog. Unless one sticks to a crude form of Marxism or a rational-choice approach, one is bound to ascribe to European public law a role in constituting the European society: It frames the conflicts as European conflicts, cabins them, and lends the outcomes of their collective management validity, efficacy, and legitimacy throughout Europe.
Is the designation, in Article 2 TEU, of all Union citizens as members of a European society an external assignation or, conversely, an instance of self-description? Skeptics will point out that the wording of Article 2 goes back to a few people who, while working in the Brussels bubble in the Rue de la Loi area, concocted it for the failed Constitutional Treaty. However, the German Basic Law and the US Constitution probably originated in even smaller bubbles. The process from 2003 to 2009 that led to the Treaty of Lisbon was arguably more public and more controversial – that is, more political – than the process to draft the American and the German constitution. It included a convention tailored to the requirements of publicity, a first dramatic failure in the French and Dutch referenda as well as, subsequently, two referenda in Ireland, a multitude of Member State ratifications that required supermajorities, and, finally, spectacular lawsuits.
When Hartmut Kaelble published, in 1987, his seminal study on the European society of the EEC, he conceptualized European society in purely analytical terms, as an external description. He distinguishes the European society from other societies based on multiple characteristics, but he observed almost no processes of self-reflection. Since 1987, however, the societies of the Member States have, according to Kaelble in 2020, continued to grow together “substantially”, despite and because of many crises and major conflicts. If we draw together how European public law has developed since 1987 as the structure of European society, it seems obvious to me that the society postulated, in Article 2, by the treaty maker in 2007 constitutes a self-description.
This is not public-law science fiction. Recall how the concept of European citizenship, introduced in 1993, was ridiculed and even dismissed as an “almost cynical” advertising stunt of the Brussels political establishment. Today, only a stick-in-the-mud will cling to such beliefs. According to the 2019 Eurobarometer, which still included the Euroskeptic Britons, 73 percent of the participants believe they are citizens of the Union; what is more, many Union citizens trust the Union institutions more than their Member State parliaments, governments, administrations, and courts (Standard Eurobarometer 91 (2019), pp. 5, 16). Evidently there is a bond that does not become apparent in the meager 6,578 clicks.
In constitutional theory and public law, consequently, we should not disdain the European institutions’ awkwardness, mediocrity, and low opinion leadership, which again comes to light in the conference on the future of Europe. Perhaps we should consider it an achievement of the European society that charismatic statesmen who promise both unity and a powerful narrative – such as Johnson, Macron, Obama, Orbán, Putin, Renzi, Trump, and Xi – have not made it to the pinnacle of its institutions. We can thus look to literary studies, which to date has not featured sufficiently on Verfassungsblog, for an appreciative approach. “We should not disregard the merits of a political entity,” Albrecht Koschorke writes in summarizing his narrative-theoretical reconstruction of the European We, “that survives, albeit barely, without a strong self-narrative,” by being “a cosmopolitan, incomplete future project with little exclusionary force”.
The European institutions, then, can rely on this decentered conception, cherish the spontaneity and the autonomy of European society, and incorporate into their future conference, as an instance of democratic participation, Schirach’s European manifesto with its 185,749 clicks.
Translated by Martin Jarrett and Theodor Shulman. A German version will appear as an editorial of Der Staat 2/2021.