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Carl Schmitt and the De-Constitution of Europe, Part 1

This is the first in a series of five blog entries aimed at understanding the current political crisis in the European Union through a Schmittian lens. The thesis I advance here is that speculative bubbles can burst not only in the economic domain but also on the political arena. The failure of constituting the EU on a political foundation—that is to say, on the basis of the collective existence of EU citizens—is a precipitating factor for the bursting of what I call its “speculative constitutional bubble.”

A Speculative Constitutional Bubble

In a 2000 Cardozo Law Review article, “Carl Schmitt and the Constitution of Europe,” which developed out of the International Symposium titled “Carl Schmitt: Legacy and Prospects” and held in New York City a year prior to the paper’s publication, Jan Müller raised a question we can finally respond to today, over a decade after its original formulation. “[D]oes European integration prove,” he asks, “how useless the Schmittian intellectual tool kit has become, and, in particular, that ‘Schmittian sovereignty’ remains caught in existentialist, concretist ways of thinking, which have long lost touch with the intricate ‘legitimation through procedure’ or the legitimation through prosperity which some see at the heart of the EU?”[1] In the intervening period, we have witnessed, among other things, a spectacular failure of the Treaty Establishing a Constitution for Europe, signed in the end of 2004 and rejected at the French and Dutch referendums half a year thereafter; the coming into effect, in 2009, of the Treaty of Lisbon, which focused on institutional procedures at the expense of actual constitution-making; and the ongoing Euro zone crisis, which, as I shall argue, stands for the culmination of a certain economic and political speculation on the meaning, role, and form of the European Union.

In the current situation of crisis, legitimation through procedure has worked as poorly as legitimation through prosperity. Unspecified in any European treaties, the dictates of the Troika (comprised of the EU, the ECB, and the IMF) have insinuated themselves as the sovereign acts in the distinctly Schmittian sense of the term, i.e., as decisions on the exception. In so doing, they have curtailed the national sovereignty of the most adversely affected member states, forced to adopt draconian budgetary measures that are impoverishing vast segments of their populations. As soon as the era of prosperity came to an abrupt end, the illusion of legitimacy has also evaporated, with opposition to the Union on the rise in the debtor as well as in the creditor states.

As the dream of European integration teeters on the cliff of the Union’s disintegration, it is becoming clear that decisions on the shape of political life and political existential concerns cannot be easily dismissed. Much as the European policy-makers have tried to spin a purely formal and procedural framework for the EU, they have failed, due to a calculated postponement of the decision on the form of the constitution. It is, of course, quite easy to detect key elements of the bourgeois Rechtstaat constitutional form, such as “rights of the human person, freedom, democracy, equality, and the rule of law,” in documents containing the Union’s fundamental law. But there is a tremendous difference between the form of a constitution and a constitutional form. Without lending a voice to political life, the elements in question are an abstraction of the abstraction, founded upon the already distilled ideal principles of liberalism. Depoliticized and neutralized as parts of “the cultural, religious, and humanist inheritance of Europe,”[2] they do not have a necessary inner unity, which could only emanate from the intensities of political existence. Hans Kelsen’s formalism may have prevailed in the overall constitutional approach of the European Union; Schmitt’s existentialism, however, gains the upper hand at the time of crisis, deepened by these formalist illusions.

We would be justified in considering the similarities between Europe in 2013 and the indecision of German constitutional monarchies with regard to the “democratic principle.” As Schmitt puts it in a passage from Paragraph 6 of his Constitutional Theory, “In practical terms, that is, in historical and political reality, [the] condition of a postponed decision [on the form of constitution] was possible so long as the inner and external political situation remained harmonious and calm. In the critical moment, the unresolved conflict and the necessity of decision manifested themselves.”[3] The same applies to the political crisis (“the critical moment”) of the EU, where uncertainty about the nature of the Union did not matter in the period of prosperity but grew into an “unresolved conflict” once that period was over. Admittedly, there are important differences between the two situations. Despite establishing the long-term posts of a President of the European Council and a High Representative for Foreign Affairs, the Union has persisted in the condition, in which Müller encountered it in 1999; it still falls “short of being a ‘proper state’ or a ‘proper federation'” and it still suffers from “constitutional deficit.”[4] Or, more exactly, it suffers from the deficit of the political.

Schmitt begins his Concept of the Political with the now-famous statement: “The concept of the state presupposed the concept of the political.”[5] The uncertain status of the EU, which is neither a state nor a federation, is merely a symptom for the dearth of political life at its foundations. What is presupposed by the concept of the union? Nothing more than the concept of integration, assembly, the process of unification. Presumably, this is the lifeblood of the EU, its dynamic core analogous to the way Schmitt, in Constitutional Theory, defines the nation as “a formless formative capacity.”[6] Yet, European integration is, in the first place and in the last resort, economic, not political. Having originated from the European Economic Community, the EU has never really been politicized. Liberal depoliticization, magnified manifold in the absence of the state, perfectly matches the essentially non-political, economic arrangement that has clothed itself in political discourses and institutions. It superimposes the already non-political framework over the not yet political (economic) set of agreements.[7]

With the economic foundations of the EU already weak, the political crisis has erupted in earnest. The introduction of a common currency in 1999 and other monetary stipulations of the Union were not grounded in a common fiscal policy, just as the community of “values” and of a shared European “inheritance” was not rooted in the existential vibrancy of political life. That is one of the reasons why the two crises have infinitely mirrored and intensified one another, plunging into a deadly downward spiral. According to Karl Marx’s explanation for the crises of capital, the tendency of exchange-value toward dematerialization severs it from its connection to the materiality of use-value, until this separation turns unsustainable and the concrete underpinnings of the self-idealizing capital come back with a vengeance, asserting their irreducibility. Following Carl Schmitt’s theory of political or constitutional crises, constitutions exhaust themselves in their formalization, that is to say, in the historical phenomenon, whereby a political form loses touch with the very political existence, whose expression it was meant to be. Worse yet is the state of affairs where, as in the case of the EU, political forms and procedures conceal the initial lack of substance, the fact that they had nothing to do with the life of the entity they are said to formalize. The economic as well as the political crises are due, therefore, to a certain exaggerated trajectory of dematerialization, an excessive detachment of institutions and institutional processes from their sources in actual existence, be it productive-economic or political life. In economic affairs, we speak of speculation and speculative bubbles, when, for instance, real estate prices no longer correspond to the actual, “on the ground” conditions for their realization. Analogously, in politics we can discuss constitutional bubbles, such as the one that has burst in the EU, when the inflation of formal and procedural mechanisms no longer relate to the existence of the entity they are supposed to regulate.

Jointly, the idea of speculative constitutional bubbles and the criteria Schmitt outlined in his Verfassunglehre for what (or who) constitutes a constitution help us understand the genealogy of the crisis now unfolding in the European Union and the possible ways for overcoming it. It would not be sufficient to tweak and fine-tune the existing political mechanisms of the EU, unless the Union as a form of political existence is rethought and, in fact, reconstituted as a whole. After all, crises are also opportunities for radical change: here, this would imply going back to the drawing board, as it were, and considering 1) whether the citizens of Europe share a common political existence and 2) if so, what corresponding form of expressing this existence could be. What I call “the de-constitution of Europe” thus involves, like Jacques Derrida’s deconstruction, on the one hand, a critical, negative process of dismantling accelerated by the crisis, and, on the other, a new positivity—the possibility of re-constitution, faithful to the historico-political being of Europe. In what follows, I will take up, in turn, Schmitt’s reflections on the various senses of constitution, demonstrating not only their incompatibility with the present state of the EU but also their relevance to attempts at reimagining the European political project.

Notes

1. Jan Müller, “Carl Schmitt and the Constitution of Europe,” Cardozo Law Review 21, nos. 5–6 (2000): 1779.

2. See Article 1.1.a of the “Lisbon Treaty.”

3. Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham, NC: Duke University Press, 2008), p. 105.

4. Müller, “Carl Schmitt and the Constitution of Europe,” p. 1777.

5. Carl Schmitt, The Concept of the Political, exp. Ed., trans. George Schwab (Chicago: Univ. of Chicago Press, 2007), p. 19.

6. Schmitt, Constitutional Theory, p. 129.

7. Tellingly, where the process has been political from the start, “unity” figures as an adjective in the names of countries: United States, United Kingdom, United Arab Emirates, etc. In “the European Union,” on the other hand, it is featured as a noun, supplanting “States,” “Kingdom,” or “Emirates” (principalities). While the old constitutional structures have been left behind, the Union does not put forth a new model of a political regime.

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