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Carl Schmitt and the De-Constitution of Europe, Part 3

This is the third in a series of five blog entries aimed at understanding the current political crisis in the European Union through a Schmittian lens. (For the previous posts, see part 1 and part 2.) The argument of the third installment is simple: Because the European Union lacks a political existential vibrancy, its institutions—the formal stratum of its constitution—are equally hollow. In other words, what we get in the EU is form without substance, provided that substance is understood in a markedly existential sense, as the underlying subject of political existence.

Europe’s Formal De-Constitution

The constitution conceived as “a special type of political and social order” is the second meaning of the term Schmitt isolates in Constitutional Theory.[1] It is important to understand that he operates with a deformalized concept of form as a direct expression of existential content; constitution is “a special form of rule not detachable from . . . political existence.”[2] If so, then everything we said about the existential vacuum of the EU applies to its substantial form: since this does not exist, empty procedural formalism laboriously creates a façade of order, a speculative arrangement not grounded in actual political life. As a result, an artificial division of competences is established between national and European laws, putting in place an abstract order with the indispensable formulation of the relations of supremacy and subordination. (Hence, the Articles 3.a.1 and 3.b.1 of the Treaty of Lisbon: “The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.”)

Seeing that there is no political content to be expressed in the constitutional form, the latter proves to be irrelevant when the real question of competence, “Who can decide on the exception?”, crops up in the period of crisis. It is in these limit situations that the constitutional status of the European Union is decided. Whereas, in keeping with Schmitt, “the word ‘form’ also denotes something already existing, a status,”[3] the political deficit at the foundations of the EU prompts an ongoing search for the status, which, as we have seen, may change abruptly from one day to the next (think of Germany entering and unilaterally breaking agreements on the Euro zone debt crisis). The extreme arbitrariness, attributable to the equally extreme separation of constitutional form from the content of political existence, ultimately invalidates a distinct order with its clearly marked relations of supremacy and subordination.

We should not be surprised if, in this description, we hear some resonances of Hannah Arendt’s theory of totalitarianism, where the endless displacement of power masks the death of politics. Schmitt’s sovereign decision on the exception makes sense exclusively within a given order that does not extend to the singularity of a case decided upon. Like many of his concepts, it stands between two antithetical ideas that, in the end, merge into one: (1) liberal legalism, where nothing is presumably exceptional and, therefore, everything is, since laws do not interpret themselves, and (2) totalitarianism, where everything is exceptional and, therefore, nothing is, since exception is always an exception to a rule. At this stage of its history, the European Union is well on its way toward the convergence of these two ideas. And, much in the same manner, it exemplifies still another coincidence of opposites, both of them incompatible with the middling position of the political. The Union is the site where a happy marriage is consummated between disembodied spirit, which makes itself known in the discourse of abstract values (peace, human rights, etc.) and the crudely materialist economic interest.

Notes

1. Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham, NC: Duke UP, 2008), p. 60.

2. Ibid.

3. Ibid.

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