The Smile on Their Faces
There is no more conservative facial expression than the smile. Musil’s Sektionschef Tuzzi likes to smile at the Weltösterreich parallel action of his witty wife and her chaste lover. Feuchtwanger’s Minister of Justice Otto Klenk likes to smile at the desperate zeal of the lawyer Dr. Geyer. The gentleman likes to smile at the shrill voice of the woman he belittles, the Bildungsbürger likes to smile at the droll German those foreigners are articulating their complaints in, and the honourable pillar of society likes to smile at the general silliness and commotion of the world as it is. The smile combines courtesy with humour and a drop of contempt, by no means hostile, because why would it be, a gesture of friendly, relaxed, detached unsurprisedness that expresses like no other what seems to be most important to the conservative: to be entirely at ease with oneself.
This week, I attended a lecture by Jens Kersten, a professor of constitutional law from Munich, who presented the theses of his recently appeared book on the possibility of an ecological Grundgesetz at Berlin’s Humboldt University. About halfway through the lecture, after explaining his proposal to add an ecological obligation of private property to the existing social one in Article 14 (2) of the Basic Law, Kersten interrupted himself to say to the audience: I see you are smiling! Kersten did not sound particularly surprised. No need to worry, he said with a little smile on his part: “Three and a half colleagues are agreeing with me here, at most. All the other 800 are on your side.”
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Kersten’s theses are not even particularly radical. All he is calling for is the constitutional implementation of the realisation, inevitable anyway in the midst of the climate catastrophe, that so-called nature is also full of actors no longer prepared to put up with being turned into mere objects of human action. He has worked out a number of entirely reasonable, balanced and well-founded proposals on what this realisation would constitutionally entail, which adjustment to the preamble, the principles of the state, the fundamental rights and the law on the organisation of the state would be advisable, proposals whose strengths and weaknesses can and should of course be discussed, but which have nothing even remotely subversive or otherwise frightening about them.
This is the kind of thing constitutions are all about and always have been. Actors who no longer put up with being made into mere objects: whether it’s the 18th century’s taxpayers and military conscripts, the 19th century’s workers, the 20th century’s colonised and discriminated-against people – all of them, in long, hard struggles and with tenacious patience, made it increasingly difficult for the conservatives of their time to keep up that arrogant smile, whereupon, in order to restore their serenity, constitutional law was swiftly enacted, representation and rights were granted, legal subjects were recognized in order to do politics and live together on a reasonable footing with them. In the long run, after all, living under the permanent threat of mutual violence isn’t much fun for either side. If that isn’t a compelling conservative argument, what is?
So now: ecosystems. Rivers as legal subjects. Trees that have standing. Primates as persons. It’s doable. It has been practised for a long time. It’s not just some utopian crackpot pipe dream. It’s real. It exists. There is case law, practice, lived experience. Ecuador has had an ecological constitution for almost a decade and a half. It works. And those who still raise their eyebrows ironically on these things must take care not to appear as uninformed, unread bumpkins. Not something that most honourable conservatives want to be seen as, I suppose. So you have to have read up on this Latour fellow, it seems, to be able to join the conversation without embarrassing yourself and to keep up that self-confident smile. Okay, the conservative person is sighing, let’s read those books, then. And lo and behold, the smile of cognition starts to radiate from his lips. That’s actually really interesting! And it is also kind of compatible with many things held in high conservative esteem, it turns out. Except for that last book, of course, the one about ecological class struggle, total left-wing balderdash, that one. But the previous ones? Not bad at all. Can’t wait to tell my friends at the Rotary Club about that stuff!
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I don’t think I’m making a mistake in assuming that jurists are to a large extent conservative people. Thirty years ago, when I studied law in Munich, many of these ecological constitutional proposals already existed, and rarely could a broader smile be seen than the one on the faces of my Munich law professors when talking about the ideas of those untidy East German civil rights activists in the aftermath of the re-unification. Highly amusing, gentlemen, what those fellows intend to write into their constitutions, and then probably also into ours, in terms of rights of nature and the like, isn’t it? They saw to it that all we got in the end was the Staatszielbestimmung of Article 20a of the Grundgesetz, the actual importance of which for the longest time of these thirty years amounted to pretty much zero. Three years ago, a splendid specimen of a conservative smile could be observed on the thin lips of Friedrich Merz when he met the climate activist Luisa Neubauer on the Markus Lanz TV talk show. That smile then quickly narrowed and disappeared in the course of the encounter. As to Article 20a, thanks to the Federal Constitutional Court, that is a norm that absolutely has to be reckoned with today. Times are changing, whether quickly enough is another question, but changing they are. And who will be the one who smiles in another thirty years, the Munich law professor who in the year of 2023 came up with the first draft of an ecological constitutional reform for Germany, or those who thought the adequate reaction to that idea was a smug grin – we’ll see about that. (If we survive until then.)
What would be the alternative anyway? The answer seems obvious: to get nasty. To have the fossil, patriarchal, colonial basis of one’s own smiling superiority so massively and inescapably disputed as is happening to conservatives today, is an enormous thing to put up with, and when it can no longer simply be smiled away as it used to, that only makes you all the more angry. If remaining calm and at ease with oneself is what being a conservative is ultimately about, however, then you’ll have to drop your cultural-warrior rage at some point, or else you turn into something altogether different. There is no lack of evidence of what happens to conservatives who replace their smiles with the grimace of ressentiment. Who wants to end up like the US Republicans or the UK Tories?
In the 1980s and 1990s, our Christian Democratic Union kept being somewhat reluctant to go along with the neoliberal snarl of the Reagan/Thatcher era, and when they tried to make up for that omission in the early 2000s by means of the legendary Bierdeckel-Steuererklärung propagated by a certain fellow named Friedrich Merz along with the German constitutional law professor Paul Kirchhof, the German conservative party promptly suffered a traumatic electoral defeat. That just wasn’t who they are. They are a Union. They unite the different. They are a party-shaped compromise. They united Protestants and Catholics under one common conservative roof; that is literally part of their name, that is their greatest pride. Their greatest shame is that it was German conservatives who made Adolf Hitler chancellor in the early 1930s. That must never happen again. Most of them know that.
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The climate catastrophe is present and real, and so is the presence of formerly colonised people in our lives. In the countryside, where the Greens and their urban condescension are fervently detested, the reality of drought, forest fires and mass extinction is experienced in a brutally direct and physical way. Offering some credible, sensible, well-crafted, conservative, post-fossil solutions to these issues would gain a lot of traction in many rural areas, I’m sure. In the cities, there are hundreds of thousands of deeply religious, thoroughly conservative potential voters of Muslim faith waiting to be harvested by a smiling, confident, conservative, decidedly non-authoritarian-populist CDU. So, what’s keeping them?
The week on Verfassungsblog
… summarised by PAULA SCHMIETA:
Hundreds of people died on the 14th of June in the Pylos Shipwreck in the Ionian Sea. NIAMH KEADY-TABBAL & ITAMAR MANN condemn the Greek government’s perverse legal defence and the normalisation of extreme border violence.
In order to gain Turkey/Türkiye’s support for its NATO application, Sweden introduced a new anti-terrorism law which criminalises membership in a terrorist group. Whilst this new offence is not a problem per se, ESTER HERLIN-KARNELL warns that catering to other countries’ repressive demands is a dangerous path to take.
The EU Commission’s proposal for a nature restauration law is controversial and, according to NIELS HOEK, subject to active misinterpretation by the agroindustry lobby. Hoek debunks some legal myths spread about that piece of legislation.
Hungary, no longer a democracy, is supposed to take over the EU Council Presidency soon. How this could be prevented in a perfectly legal fashion is analysed by PETRA BÁRD.
Prison inmates who are subjected to humiliating physical searches may have a right to protection – but that doesn’t necessarily mean they have a right to compensation under the restrictive German state liability law. That, according to the Federal Constitutional Court, fails to take into account the European Convention of Human Rights. MARTEN BREUER analyses the decision.
More on prison inmates: This week, the Federal Constitutional Court issued its ruling on remuneration for prisoners’ labour. Although at first glance the ruling appears to be in the complainants’ favour, it actually softens the requirements for adequate recognition of work, say LARA MANN & JAQUELINE STEIN.
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Using public transport without a ticket risks a prison sentence under §265a of the German Penal Code. HANNAH VOS & VIVIAN KUBE consider this provision to be more harmful than the offence itself. Decriminalisation would be the reasonable, just and economically sensible thing to do.
The German Federal Police Act is to be reformed. The reform, according to ALEXANDER TISCHBIREK contains only half-hearted efforts to effectively protect against racial profiling.
The ruling of the Berlin Regional Court on climate activists glueing themselves to the street is analysed by ANNIKA DIEßNER who senses disagreements between chamber members regarding the charge of resisting law enforcement officers.
Finally: our blog debate Nachhaltigkeit in Zeiten planetarer Krisen ended this week with contributions from CAROLIN HEINZEL, KATHARINA GELBRICH, LUCIA SOMMERER, ISA BILGEN, FELICITAS SOMMER, ANDREAS BUSER and ANDREAS NITSCHKE.
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That’s it for this week. In the meantime, all the best to you!
Max Steinbeis
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