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Carl Schmitt and the De-Constitution of Europe, Part 4

This is the fourth 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, part 2, and part 3.) The hollowness of the EU’s political institutions implies that they are not lively enough to re-constitute themselves so as to cope with new challenges and changing circumstances. That is why the current crisis strikes so deeply at the foundations of the EU and threatens to overwhelm the order it had attempted to institute without taking the question of sovereignty into account.

Europe’s Dynamic De-Constitution

In line with the existential provenance of the form of constitution, such a form cannot be conceived as a static thing but, rather, as a process of formation, or, in Schmitt’s words, “the principle of the dynamic emergence of political unity, of the process of constantly renewed formation and emergence of this unity from a fundamental or ultimately effective power and energy.”[1] It would appear that this dynamic concept of constitution holds a redemptive hope for the EU, which prides itself on being a work-in-progress oriented by the still incomplete tasks of European integration. But this dynamism is just that—a mere appearance. First, as a “union,” the European Union postulates the apriori conditions of unity, those pre-established guidelines with which candidate states must comply and which do not dynamically (organically) emerge in the heat of political life. An incomplete project of unification, it adds on new members in the manner of mineral accretion, as extraneous layers superimposed on an equally dead core. Second, the inherent limits of unity are determined by the limits of the EU competence that acknowledge an irreducible fragmentation of political existence, as diverse as the distinct constitutional traditions of member states make it out to be. The feigned dynamism of the Union’s expansion occludes from view the stagnation of its ossified form, drained of “effective power and energy.”

Significantly, in the rare instances when political life was allowed to flourish more or less directly in constitutional referendums, the form imposed from above was discarded from below. We know, from Schmitt’s analyses in Legality and Legitimacy, that even these bits of direct democracy are highly mediated, for example, by the way questions are enunciated, by the rather arbitrary determinations of what constitutes a majority (absolute or qualified), and so on. Still, this is not to diminish the work of constitution’s negative formation, whereby the political life that “rises from below to above” clashes with and rejects an alien political order that “proceeds from above to below.”[2]

This, then, is the basis for the Schmittian reductio ad subjectum or, in other words, for the idea that “only something existing in concrete terms can properly be sovereign.”[3] When it comes to the subjectivity of sovereignty, we are not just talking about the legal personality of the EU but about its constitutive subjectivity, a political will that generates its own unity.[4] At the present conjuncture, two outlets for this generation are in effect in Europe, both of them acting outside the confines of the closed system of the fundamental law and ultimate norms of the EU. They are the supra-political economic agents and the infra-political seeds of popular sovereignty.

As it often happens, the vacuum of political existence is filled with formally undefined struggles and with what Schmitt terms “apocryphal acts of sovereignty,” a necessary supplement to “the fiction of absolute normativity.”[5] Just as the sovereign decision on the exception arises ex nihilo from the standpoint of the existing legal order, so these acts of sovereignty are apocryphal (that is to say, secret, encrypted, hidden, or obscure) from the perspective of the normative constitutional framework. In point of fact, the so-called apocryphal acts of sovereignty—whether by the abovementioned Troika or by national unions organizing general strikes—are within plain sight. From above and from below, they temporarily fill in the constitutional void, though they generally animate the European body politic in an uneven manner, without bearing upon the European Union as a unity. But, at the same time, decisions on the exception made by these supra- and super-political actors tend toward synchronization, with general strikes coordinated in Portugal, Spain, and Malta, and intended to coincide with the European day of struggle against austerity measures. Or, as Schmitt puts it, with reference to the dynamic concept of constitution: “Political unity must form itself daily out of various opposing interests, opinions, and aspirations. . . . [I]t must ‘integrate’ itself.”[6]

Notes

1. Carl Schmitt, Constitutional Theory, trans. Jeffrey Seitzer (Durham, NC: Duke UP, 2008), p. 61.

2. Ibid., p. 62.

3. Ibid., p. 63.

4. Ibid., p. 70.

5. Ibid., p. 155.

6. Ibid., p. 61.

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