The European Crisis

Hauke Brunkhorst

The Paradoxes of Constitutionalizing Democratic Capitalism

In the beginning, European unification was not the affirmation of peace — the protection of which led to the European Union receiving the Nobel Prize in 2012 (despite the fact that the Union, or some of its member states, was at war in several parts of the world).

In the beginning, it was not peace, but the negation of fascism — that is to say, the emancipation of Europe from the dictatorship of the Third Reich — that led to the unification of Europe.

In the beginning, the EU was not founded on the managerial mindset of possessive individualism and 'peaceful competitive struggle'.

In the beginning was political autonomy.

In the beginning was not rational choice and strategic action enabled by the rule of law, but rather the emancipation from any law that is not the law to which we have given our agreement.

Martti Koskenniemi calls the latter, in contrast to the 'managerial mindset', the Kantian mindset. For Kant, in his time, the scandal of so-called absolutism was not a lack of Rechtsstaat or rule of law. Kant had no doubt that the contemporary monarchy was a Rechtsstaat. For him, the scandal of the monarchy was its lack of political 'autonomy' and 'self-legislation', and the absence of 'structures of political representation'. Historically, the Kantian constitutional mindset is the mindset of the French Revolution, as it once was strikingly expressed by the young Karl Marx in one short sentence: 'Die gesetzgebende Gewalt hat die Französische Revolution gemacht' ('Legislative power has made the French Revolution').

THE HOUR OF THE LEGISLATOR

Today, the memory that it was the same constituent legislative power of the peoples of Europe that instigated the beginning of European unification between autumn 1944 (the last year of World War II in Europe) and 1957 has been repressed and displaced by the managerial mindset that had already become hegemonial in the 1950s. However, European unification did not begin with the Treaty of Paris in 1951 or the Treaty of Rome in 1957, but with the new constitutions that all the founding members (France, Belgium, Italy, Luxemburg, the Netherlands and West Germany) had established for themselves between 1944 and 1948. Moreover, the foundation of the first Communities of 1951 and 1957 was, in effect, a global revolutionary transformation of national and international law that was as deep as that of the French Revolution. All the constitutions of the founding members were made by new representatives of their respective peoples.

1. All the founding members had changed their political leaders and had replaced large parts of the former ruling classes with former resistance fighters or emigrants who had defected. They gained a power that had not existed either before or during the time of the Nazi occupation. Rebels, guerrillas and exiled politicians became heads and members of government. They had risked their lives, not solely as patriots, but as democrats or socialists who had struggled for certain rights and universal constitutional principles.

2. All the constitutions of the founding members were new or, in important aspects, revised and more democratic than ever before. Only now, all</