The International Spectator
The Difficulty in Building a European Identity
By Gian Enrico Rusconi
European Citizenship does not Create a European People
One of the clichés most often heard prior to the signing of the Treaty of Maastricht, or before its psychological and cultural repercussions began to be felt, was that the European construction would definitively put paid to European nations or at least their state form. In any case, national identity was to give way to a supranational European identity.
Today dominant opinions and expectations are more sober and the problems of building Europethe links between citizenship and identity or sense of belongingappear in a different and more problematic light.
For a start, European citizenship as it stands on our passports neither attests to nor creates a European people in the strong sense of the word, that is, an active and founding political subject, as set down in national constitutions. Europe is not a nation, nor are its citizens a people or Staatsvolk, to use the suggestive German term. And the European Union is not a state in the sense of traditional constitutional jurisprudence. What is it then?
Europe has come to a standstill before the most decisive and important step in its construction. It is hesitant to undertake the kind of institutionalisation required to provide full democratic legitimacy and exercise of its sovereignty. Declarations concerning the future of the European Union, the growth and efficiency of its governing and representative structures, in particular, the prospects of federalism, are increasingly hard to believe.
Europe is incapable of thinking in strong political terms. The conceptual and semantic framework of traditional statehood appears to be inadequate if not totally misleading, yet it conditions the way in which the inadequacies of the European construction are perceived. At the same time, the process of institutionalisation cannot be entrusted to a judicial practice lacking theory and gratified by antiquated comparisons such as the unfailing analogy with the Holy Roman Empire, described as a monstro simile by seventeenth century scholar, Samuel von Pufendorf.
The German Constitutional Court, with the prestige it enjoys not only in Germany but in all analogous European bodies and among all constitutional jurists on the continent, suggested an interesting definition of the Union in its ruling of 12 October 199: The Maastricht Treaty establishes an inter-governmental community ( Staatenverbund) for the creation of an ever closer union among the peoples of Europe, which peoples are organised on a State level, rather than a state which is based upon the people of one state of Europe ( Staatsvolk). 1 The definition is generous and reasonable, but it cannot hide the fact that the European Union lacks the traditional prerequisite for statehood: the Staatsvolk, the people in the political sense of the word.
People, Ethnos, Demos: Beyond Semantics
It should be underlined here that this is not a formal, legal-constitutional problem to be left to the experts, but one that involves the substance of European citizenship. What does it mean to be a citizen of a European Union in which the citizens of an individual nation are citizens of the Union but not of the other nations that are part of the Union? For example, we are Italian citizens and European citizens, but this does not mean that we are German or French citizens, even though they are contemporaneously European citizens.
This paradox will no doubt be explained and justified by the jurists. But it seems to contain a pitfall that is not only semantic. In this regard, it may be illuminating to take a look at German legal-theoretical language which, as is well known, does not have a direct equivalent for citizen/ citoyen/ cittadino. In fact, the term Bürger, 2 is qualified only by the noun or adjective that supports it: Staatsbürger = the citizen of a state. Consequently, for German judicial practice, Europeans are Staatsbürger in that they are Germans, Italians, French, etc. but inasmuch as they are Europeans, they are Unionsbürger,in an all-embracing meaning that rules out the inter-exchangeability of the subordinate national citizenships. One can be a citizen of the Union without being a citizen of the member states making up the Union. The German language can reveal ambiguities and multiple meanings hidden by the general and deceptively generous concept of citizenship.
Leaving semantics aside, the problem of European political institutionalisation is being approached from two different conceptual points of view and strategies. The first, influenced by the historical and conceptual development of the modern state, accepts the difficulty or even impossibility of seeing the European construction as a direct continuation of that development. The institutional level currently reached by the European Community/Union is the maximum if not the optimum level acceptable. There are a number of variations on this approach oriented towards the status quo: the so-called Eurosceptics or Europessimists, more or less marked by neo-nationalist tendencies, and the possibilists, who do not exclude in principle that Europe could take a road that is totally uncharted and unknown at the moment.
The second considers civil society , already emancipated from the nation state, the subject and foundation of a new European construction, which has already entered the post-national stage. There are a number of variants here as well: the zealous Eurofundamentalists, who see Europe as such as a new (and almost meta-political) reality, and the Euroconstructivists, who are convinced of the feasibility of a long process of collective education. 3 It does not seem as though any one position is dominant in current European debate.
The problem of passing from national citizenship to European citizenship (not merely in bureaucratic-formal terms) involves the substance of citizenship, taken to mean the right of access to certain public goods (in the form of rights) which implies a willingness to share the costs of those goods. This willingness is based on elements (trust, loyalty) that have nothing to do with a mere calculation of convenience. Expectation of reciprocal satisfaction of ones legitimate interests and rights is part of an interdependence rooted in a common historical experience. When citizenship is considered in this sense, the instrumental and utilitarian dimension becomes inseparable from the historical and identity dimension and, therefore, from the discursive-communicative component.
As we know, the citizens of a nation are not such for ethnic reasons, but for their ability to identify with and act in a politically democratic way (practising civic virtues). The nation of the citizens is the seat of interaction between interests to be satisfied and reciprocal identification. Thus, the nation in this sense postulates a political subject which builds the state as an operational structure. This subject is the people, the Staatsvolk, or, to fall back on an ancient Greek term that has reappeared in contemporary political science literature, demos. Used as a substitute for the traditional concept of people, demos refers to the collective political subject which founds and practices democracy: the bearer of active democratic citizenship.
At this point, the question arises whether or not it is reasonable to try to extend this concept of demos to the European Union. Does the European citizenship printed on our passports imply the existence of a European demos? Can it create a feeling of trans-national belonging with its bonds of reciprocity and solidarity, without colliding with those of national citizenship?
The Concrete Contents of Citizenship
Before attempting a response, another clarification is in order. The feelings of belonging to Europe referred to here are certainly not those meant in the general questionnaire-type query: Do you feel more Italian or European? or Are you more proud of being a Frenchman or a European? The indicators that count in this case are not these subjective ones, but the concrete and objective ones referring to wage and pension systems, trade unions and social services, which differ from country to country. These are the factors that concretely make a European citizen feel that he/she is German rather than Italian. Let us fly our national flags together or collectively write a post-national European history, many German citizens who were convinced Europeanists until yesteday say, as long as there is no confusion or contamination of the various pension systems or public services, much less currencies. It is this material perception of their social rights, acquired in their national system, that generates opposition to the deepening of European integration. Many Germans, English, Danes, etc. see this prospect as a threat to the contents of their status as citizens.
On the other hand, it cannot be denied that the concrete rights of citizenship are actually guaranteed (albeit in a differentiated manner) by and in the nation states. From this point of view it is not clear what their extension to the Community can produce. This brings us back to the same paradox mentioned earlier: if national citizenship is the depository of the concrete substance of rights while European citizenship merely records them, then it is not surprising that European citizenship does not give automatic access to the citizenship of another member country.
A victim of this paradox, however, is the claim that the European Community/Union is the privileged seat of the fundamental rights of the citizen, almost as if this were the specificity of Europe (as the preambles and declarations of principle of recent decades frequently infer). This is not true, even if the countries that make up the Union jointly declare that they protect and promote these fundamental rights. The point is that these common stances do not constitute per se the ethical and political specificity of Europe as such.
Given this context, how can a trans-national democratic institute arise that is not limited to proclaiming the inviolability of the human, political and social rights of its citizens, but that actually produces a new collective identity, the source of new trans-national civic virtues? A benevolent hypothesis is that we are faced with a political-cultural undertaking not dissimilar in some respects to the birth of the European nations, which started out from quite diverse cultures, ethnic forms and in some cases organisational structures that were already developed.
Even accepting this hypothesis, if what has been said up to now is not to be contradicted, it must be acknowledged that there is a much higher degree of artificiality in the European undertaking. As the use of coercive instruments is ruled out, everything depends onapart from economic and administrative efficiencyhuge cultural investments. An important part of this investment involves a rereading of the past; without a critical and solidary rereading of the common (and separate) past of European nations, it will not be possible to create a new and efficacious democratic political culture. This is a much more difficult and demanding job than the one carried out in the past to give identity to nations.
Which European Demos?
An initial conclusion may now be drawn. The Europeans do not constitute a demos, there can be no democracy without a demos. These are two very strong theses of Eurosceptics. In using the word demos, even as a provocation, they avoid the objection that they have a vision of the nation that is determined by ethno-cultural characteristics rather than oriented towards the political-participatory elements of democracy, they avoid the objection that they give priority to ethnos rather than demos. 4
In any case, the contrast between ethnos and demos is not the issue here, what is of interest is the precise definition of demos. If it is a synonym for the set of politically active citizens in the democratic sense, then at least three specifications must be made, and some surprises are in order:
First of all, in the concept of demos there is no contradiction in principle between democratic citizenship and identification with a certain historical nation. We all know that no nation has ever been founded by a homogeneous ethno-cultural unit (a pure ethnos),as claimed by nationalistic mythology (and by Italys Northern League when it rambles on about a Po Valley-Celtic ethnic nation). We also know that the convergence of people, nation, state and democracy was the product of a long-term strategy, fraught with contradictions, pursued by the groups politically dominant in the formation of these nations. As regards the European nations, the processes which more or less coercively led to the national demoi can be considered positively completed.
If things are considered from this point of view, a unique situation arises in Europe. It is not true that there is no European demos in absolute terms, that is, no European political subject: it simply has the reduced form of an electorate. The European people are essentially a people of voters. 5 But is this a prohibitive legal obstacle or a cultural and political challenge to be met?
If the challenge is accepted, the creation or if preferred refining of a European demos, an active subject participating in democracy, calls for more intense communication with the public. Today, European voters are closed into their national circuits. Even if it were possible to make some progress on parliamentarisation in Strasbourg, turning the European Parliament into a body with strong legislative competencies and real powers, there would still be the problem of having the formal multinational representation correspond to effective communication among the citizens of the Union distributed in the various nations. Why can we not learn at the European level from the lessons of the national level: the foundation of a vital democratic state is not a fictitiously homogeneous ethno-nation, but a civil society that becomes a nation through communication. The European demos is guaranteed by the presence of citizens who communicate intensely within the borders of geographic Europe and beyond.
This is the core of the European historical and political culture, virtually able to recover what was initially defined here as republicanism. In this sense, the European republican culture is not an acquis communautaire, but an objective that still has to be achieved.
Towards a European Civil Society
The uncertainty that still surrounds the final decision on if and when the single European currency will be adopted lends strength to a prediction: in the end, for the territory under German sovereignty, the German Constitutional Court will have the last word on the Euro. This would only be another demonstration of the fact that, through its control of the constitutionality of legislative activity, the Bundesverfassungsgericht in Karlsruhe hands down judgements that are, de facto, of systematic and not contingent political relevance. The conviction that the German Constitutional Court is the final and therefore sovereign decision maker has been formed by examining its activity and the effect of its rulings on the German political and social system in the medium and long term.
Then again, the political and psychological clout of the Bundesbank (which many feel is the decision-making body in direct competition with the Chancellor) depends to a large extent on the fact that the Court has underlined that price stability security is a constitutional imperative.
Thus, Germany offers an important example of the contemporary version of a constitutional state or a constitutional democracy, with its typical tensions between political parliamentary responsibility and constitutional justice.
It may be worthwhile to recall a few of the most significant rulings of the German Constitutional Court in recent years: the approval of the use of German troops in the NATO out of area, thereby abandoning the jurisprudence and practice of rigorous military abstentionism maintained since 1945; the restrictive reinterpretation of Art. 16 of the Constitution relative to the right of asylum, putting an end to Germanys extremely liberal practice in this field; the judgement on the legality of road blocks during protest demonstrations and the one on the non-defamatory nature of the statement soldiers are murderers (a quote, by the way, from Kurt Tucholsky). Of particular significance, due to the intensity of the controversy it raised, was the judgement on the criteria that must regulate the presence of the crucifix in public schoolrooms.
But the ruling that is of special interest here is the one on the Treaty of Maastricht, in which the Constitutional Court speaks of the limits on the competencies of European institutions with respect to the sovereign rights of the German parliament. At the same time, the Court released a series of statements on the political nature of the European Union that were so exacting that they put a straitjacket on Europes political development.
There is nothing scandalous about all this. On the contrary, the construction of a political Europe, the very hypothesis of a European Constitution, has brought back into play the classic concepts of people, sovereignty, statehood, and democratic legitimacy, which a certain sector of contemporary political science had somewhat hastily labelled as obsolete, leaving them to the philosophical exercises of a few scholars or the jurisprudence of some constitutional jurists. Today, these concepts are coming back into the limelight, once again posing the classic dilemmas of constitutionalism and of the constitution as the statute of freedoms, a political contract and a form of government. It is illusory to think that the emphasis on European civil society can simplify these dilemmas.
The Legalisation of Politics and the Politicisation of Constitutional Law
Discussion will be restricted here to a few statements on the general problem of sovereignty and concrete exercise of it. This constitutional democracy referred to here recognises the sovereignty of the constitution, of which the court is the indisputable interpreter. This way of conceiving and exercising sovereignty can enter into conflict with the principle of sovereignty of the people and/or parliament.
The problem is manifested in the German experience in a number of crucial ways:
The confines between the competencies of parliament and court are set down in the constitution which attributes the competency for legislation to parliament, while reserving the last word for the Constitutional Court. The delicate and controversial relationship between jurisdiction of constitutional judgements and the legislative initiative of politicians has led to what is called the legalisation of politics and the politicisation of constitutional law.
The Court has been attributed competencies not only of passive control of constitutionality but also of active initiative in implementing the Constitution, meaning the objective order of values. As a consequence it is inevitable that some rulings of the Court appear to be political in the strong sense of the word, or that its law is (or appears to be) politicised when it rivals and in some cases conflicts with the initiative of parliament or other political actors.
The Constitutional Court is a prisoner of the paradox which arises between the political nature of its action and the apolitical vision subjectively demanded of the judges in working out their judgements. The indisputability of constitutional jurisdiction is de facto the prerogative of a few persons chosen on the basis of non-partisan political criteria, who take decisions practically without control (by means of judgements often handed down with a narrow difference between majority and minority).
The choice of constitutional judges is as important, if not more important than the election of members of parliament. This is something that should not be underestimated. The only real check on the virtual abuse of the indisputability of magistrates work is their self-control.
The Court has no powers to execute and implement its judgements. Its power is based on the willingness of other constitutional bodies (above all government or parliament) to follow its instructions. Trust and prestige are the Courts irreplaceable resources: if a ruling is not persuasive, it appears to be an unjustified claim on power, an abuse that generates a lack of confidence in law and bewilderment about the very fundaments of democracy.
All of these problems taken together sometimes seem to push the German Court to the brink of collapse (not so much for the amount of work involved as for the dissent it raises). But on the whole the institution seems to hold up. Above all, its role is bound to be strengthened as important political decisions are gradually shifted from the national to the European plane. From this point of view, the Courts involvement in the European question is far more than an official duty. The transition taking place in Germany from a legislative parliamentary state to a jurisdictional democratic state, thanks also to the interpretation of fundamental rights as provisions of objective law entrusted to the exclusive competency of the Constitutional Court, 6 signals the emergence of a new kind of constitutional state at the European level.
The German Court Has Set Limits on the Competencies of the European Union
It is well known that in addition to the famous criteria for economic and financial convergence in view of the adoption of the single currency which monopolise the attention of governments and the media, the Treaty of Maastricht reiterated the need for Community policy to be close to the citizens by expanding the prerogatives of the European Parliament and strengthening the influence of regional and local governments; by reaffirming the principle of subsidiarity and giving greater attention to the national identity of member states and, above all, respect for fundamental human rights.
It is not clear whether and how this set of recommendations will affect the politico-institutional structure of the European Union, in reference to which the treaty expressed itself very cautiously, speaking generally of an ever closer union among the peoples of Europe. In its controversial judgement on the Treaty of Maastricht of October 1993, the Bundesverfassungsgericht reiterated that the principles inspiring the Union (fundamental rights, democratic principles, rule of law, federalism, etc.) must conform wholly with those ensured by the Constitution of the Bundesrepublik. This statement shows that the German court is concerned that institutionalisation of the European Union should respond to genuinely democratic criteria. At the same time, it poses questions concerning the Unions possible state configuration and the meaning of the transfer to it of the sovereign rights of the member states.
Central to the problem is thus, democracy or more precisely, the legitimacy of its institutions. According to the judgement of the Court, this can be ensured only by combining the action of European bodies with that of national parliaments. If the peoples of the individual states (as is true at present) convey democratic legitimation via the national parliaments, then limits are imposed, by the principle of democracy, on an extension of the functions and powers of the European Communities. The German Federal Parliament must retain functions and powers of substantial import. 7
This declaration can be read in a number of ways. On the one hand, the ruling acknowledges that European institutions have large democratic deficits. But instead of hypothesising that this deficit can be overcome by extending the competencies of the European Parliament, the Court reiterates that the national parliaments must maintain substantial competencies. This reinforces the principle of statehood (of the members) as the only source of the Unions democratic legitimacy, and of course the implicit need for (relative) homogeneity of the peoples ( Staatsvölker).
The rulings goes on to say that as long as it is the nation states and their parliaments that provide the European Union with democratic legitimacy, overburdening the latter with tasks and competencies would permanently weaken democracy at the state level. The Treaty of Maastricht certainly does not yet deprive the Bundestag of competencies involving decision and control to the point that it compromises the democratic principle set down in the Constitution. But limits must be established on the further extension of Union competencies.
Exactly what these limits entail is not made clear by the Court. The only definite point is that it will oppose any extension of the pacts stipulated among members states which would be the exclusive competency of the Union. The ruling explicitly declares that legal acts that go beyond those limits would not be binding in the sphere of German sovereignty. This is followed by the unambiguous statement: The German Constitutional Court must examine the question whether legal instruments of European institutions and governmental entities may be considered to remain within the bounds of the sovereign rights accorded to them, or whether they may be considered to exceed those bounds."
This reservation maintaining control over sovereign rights ( Hoheitsrechte) makes one think of an early objection to the authority of the European Court of Justice, which was established to verify whether the legal acts of the organs of the Union go beyond their competencies. If this is the case, a serious situation may arise; the only thing to do is wait for a controversy between the Court in Luxembourg and the one in Karlsruhe.
One wonders whether the German Courts preoccupation with sovereign rights is not aimed at a much more restricted but nevertheless crucial objective: monetary stability as a specific constitutional duty of the Federal Republic. This in not an extemporaneous stance but one derived from Article 88 of the German Constitution, introduced in view of the establishment of the European Central Bank to which some prerogatives of the Bundesbank will be attributed.
The political anxiety and controversy raised in Germany by the idea of abandoning the Mark for the new European currency is well known. It is understandable that the Court be the spokesman for these concerns, recalling the dictates of the Constitution, as generic as they may be with respect to an effective monetary policy. But while the operational content of the imperative of price stability may be problematic, the underlying political considerationthat is, that only Germany can decide on its currencyis not.
From this standpoint, it is irrelevant that the stability of the currency is entrusted to an institution, the Bundesbank, whose course is not set by the mechanisms of parliamentary democratic legitimation. The objective of monetary stability is so important for the German Constitutional Court that it is no longer seen as a constitutional duty (pursuant to Art. 88 of the Constitution) but as a duty of reciprocal loyalty between the members of the Community (pursuant to Art. 5 of the Community Treaty) to the point that annulment of the Treaty is not ruled out.
What Kind of Constitution for Europe?
What consequences derive from all of this for the political growth of Europe and for a possible European Constitution? According to the Court decision: The principle of democracy does not prevent the Federal Republic of Germany from becoming a member of an inter-governmental community which is organised on a supranational basis. However, it is a precondition of membership that the legitimation and influence which derives from the people will be preserved within an alliance of states. But does this definition of the European Union as an inter-governmental community organised on a supranational basis exclude the adoption of a constitution? Or, in other words, can a European Constitution change the existing state of things? It is difficult to respond because the Court has never expressed itself on the subject and the opinions of German constitutionalists are divided. Only two will be mentioned:
The work that most effectively summarises the legal arguments that throw doubt upon the possibility and advisability of a European Constitution is by Dieter Grimm. 8 It has two strong points: statehood as a prerequisite for any kind of constitutional construction, and the constituent nature of the inter-governmental treaties that gave rise to the Community/Union and its competencies.
It is true, the European Union lacks statehood; it is a simple legal community ( Rechtsgemeinschaft) in which the inter-governmental treaties are the only source of primary Community law. It is debatable whether primary Community law itself can be defined as a constitution as the science of European law claims. In any case, the treaties are not equivalent to a constitution tout court because there is an enormous difference in the kind of political will underlying them. The treaties refer back to the governments of the member states; the constitution is an emanation of the people and therefore, in the case of Europe, should emanate from the people of the Union, which notoriously does not exist. This leads to what Grimm calls the democratic hiatus: the democratic principle is brought into exercise in the Union through the member states at the very time in which their decision-making prerogatives are decreasing; vice versa, the decision-making powers of the Union are growing while its democratic legitimacy remains weak.
Hence the need for specific legitimation of European policy, which brings us back to the problem of the (pre)conditions for democracy. First of all, there is the question of language, of public opinion, of communications and of political discourse at the European level. As long as this problem remains unsolved, full parliamentarisation of the European Union, after the model of the constitutional nation state, will be insufficient. What is hindering European democracy is the weak collective identity and the scarce capacity for supranational discourse. Under these circumstances, the transformation of the European Union into a federal state is not an objective to be hoped for in the short term. According to this analysis, the European Union must maintain its specificity as a supranational institution without copying models of national (or federal) statehood.
This is the background to the issue of the European Constitution. The institutional reforms needed to deal with the enlargement of the Union do not, in themselves, call for a constitution like that of nation states. If one really wants to highlight, for the benefit of the citizens, the common legal bases of the Union, it would be enough to keep the diverse Community regulations distinct from a nucleus of founding elements. This central core of Community pacts could superficially be compared to a constitution despite its contractual nature.
If, on the other hand, one wants to add to the treaties the elements needed to turn them into a constitution in the full sense of the term, then one would inevitably have to give the Union some kind of state-like configuration. This outcome must be clear to all those who demand a European Constitution in the name of democracy or simply because they like the idea. What keeps the treaties from being a real constitution is popular legitimation of the constituent legal act of the Union and the self-determination of the Unions citizens regarding the form and the contents of its political unity. But if this operation were to be undertaken, it would change the foundations of the legitimacy of the European Union: the constituency would be the people of the Union.
As can be seen, Grimms reasoning is classic and circular: people-legitimation-statehood. But anyone with a positive outlook towards the European Constitution must take a different approach, giving importance, for example, to European civil society or to the new tasks that the European democratic states must take on to implement fundamental human rights. This is argued by, among others, Erhard Denninger, who questions the thesis that a European Constitution is impossible simply because of the contractual (inter-governmental) nature of the European Union and the superiority of statehood. 9 In his opinion, this narrow way of thinking is linked to the 19 th century idea of the nation state and the people and evades the question of if and how a European civil society can arise. Denninger also disputes the idea that a constitution must be preceded by statehood; historically, state power has always been linked in some way to the power of the law. While acknowledging the difficulties in the formation of a European republicanism, he is convinced that the conditions exist for a public sphere capable of discourse, that is, ready for a different legal and constitutional basis for the European Union.
It is difficult to establish the opinion of the jurists of the Court in Karlsruhe with regard to this debate among German constitutionalists. As seen, they assert the peculiar associative status of the European Union which does not cancel the sovereignty of the nation states and denies the existence of a European people which, in analogy to those of nation states, can found a new European state. That said, the Court does not support the opinion of those who firmly exclude that the Union can evolve with respect to its current status. Of particular significance is the fact that the Court does not feel that the absence in Europe of a common language, a common public opinion, or a common political system is a sufficient reason to deny a priori the democratic legitimation of the Union or a process which might in the future overcome these handicaps. Even if it excludes the existence of a European Staatsvolk, it considers Union citizenship a lasting legal bond which, although not comparable to that of belonging to a nation state, gives sufficient legal expression to that which is already existentially common. In order to reinforce these bonds, efforts must be made to establish a homogeneous European electoral system, a converging party system and all those measures that allow the citizen-voter to communicate in his/her language with the authorities to which he/she is subject. The Courts qualification of the European Union as an inter-governmental community ( Staatenverbund) in an attempt to create a tertium genus lying somewhere between the historically well defined models of a federation of states ( Staatenbund) and a federal state ( Bundesstaat) can be interpreted either as an act of good will towards Europe or as a terminological compromise concealing totally different intentions.
Towards a European Constitutional State?
The difficulties in convincingly describing in conceptual terms the current political construction and that of tomorrows Europe should not be underestimated. Behind what may seem a punctilious operation relating to Europes Staatsqualität (the quality of the state) and its Verfassungsfähigkeit (capacity to have a constitution) is the political-institutional definition of one of the most important phenomena of our time. That this is not a question of nominalism is obvious and will become even more so in the future from the way in which the German Constitutional Court is establishing (or trying to establish) competencies and rules of behaviour through attentive definition.
However one wonders whether, above and beyond the results obtained by this effort of definition, what really counts is not the fact itself and the quality of the involvement of the German Court (and all the other courts together with the European Court in Luxembourg) in drafting a constitutional state of a special kind as already perceived in the evolution of some nation states. It is only through the rulings of the Court that the discourse on the rights of citizenship, the values of civil society, a multiple European identity, etc., take on substance. Furthermore, as was mentioned in the beginning, it is likely that the Court in Karlsruhe will have the final word on the adoption of the Euro as well. According to the logic of the legalisation of politics, one cannot rule out that the contrasts in parliament about the European currency will not be so heated as to lead one of its members (or some other political subject) to submit the decision of parliament to the Court.
This would only make the problem of defining a European Constitution more acute. It must be underlined that a constitution is not a simple list of fundamental norms based on universal values, it is a bond of political obligation that must be effective if it is to be valid. This means that one cannot speak of constitution without speaking of government, of command, of decisions that discriminate and give rise to conflict and dissent. In traditional terms, all of these things make up state and statehood; one cannot seriously speak of a European Constitution without a state (or more modestly beyond the state).
In this context, the theories of political constitutionalism that do nothing more than insist on the objective of promoting the values of citizenship and creating a good society appear insufficient. 10 All operations aimed at rationalising and civilising the political by means of a constitution, with increasingly explicit normative demands, run enormous risks. 11 They are vehicles, in fact, for democratic utopianism which, with its new constitutionalism, once again proposes a radicalisation of the democratic revolution under the guise of the primacy of civil society, transfigured and excessively idealised. As a consequence, the risk is to attribute to constitutional jurisdiction a pedagogical-constructivist function which was, under other historical circumstances, attributed to other political actors (political parties). In reality, this attitude typical of the German Left finds itself in the contradictory position of supporting in principle the jurisdictional function of the Court (custodian of the constitution of a civil society 12 ) while criticising it for its lack of discursiveness, given a long series of rulings of which it disapproves.
The questions of constitutional justice, the friction that is generated on the borderline between legislative competencies and legal competencies are not a symptom of political illness or new variants of anti-politics. They are simply a form of political reality typical of constitutional democracies, 13 which is where the future of Europe lies. In the light of the uncertainties in both legal doctrine and political practice, the Courts, in particular the European Court, are pragmatically and progressively weaving, by means of judgements and ad hoc procedures, a fabric of bonds that should keep Europe together.
It is difficult to say whether this undertaking will end in success.
Gian Enrico Rusconi is Professor of Political Science at the University of Turin.
Note 2: There have always been problems in distinguishing the term Bürger from bourgeois, taken from the French word for middle-class in the sociological and political sense. Indeed, to strip the concept of civil society ( bürgerliche Gesellschaft) of any 19 th century ambiguity, recourse to the term Zivilgesellschaft is systematically made. This is not of minor importance or the mere competence of linguists, if one thinks that some German scholars, in protesting against the inadequacy of European citizenship, characterised more by belonging to a market than to a state, have coined the term Marktbürger in opposition to Staatsbürger. Back.
Note 3: The classification is somewhat dubious, however, if a scholar like Ralf Dahrendorf defines himself as a Eurosceptic. In Warum Europa. Nachdenkliche Anmerkungen eines skeptischen Europäers, Merkur, no. 7, 1996, he explains that he considers civil society the elixir of freedom. Civil society is the world of associations which, in liberal conditions needs the state only as the guarantor of a few rules (and in illiberal conditions becomes an opposition front). Yet, Europe has some countries that have been shaped more strongly by a sense of civil society (Great Britain, Italy, Switzerland) and some countries with societies more oriented towards the state (Germany, France). He feels it would be a problem if Europe ended up totally in the hands of those societies directed more towards the state. (p. 517). Back.
Note 4: This fertile analytical scheme has been brought back into use in a number of works by Rainer M. Lepsius. It has also been discussed in chapter two of G. E. Rusconi, Se cessiamo di essere una nazione (Bologna: il Mulino, 1993) and Patria e repubblica (Bologna: il Mulino, 1997). Back.
Note 6: The task of the Constitutional Court changes from jurisdictional application of law to constitutional jurisdiction in the old sense which preceded the separation of production of law and application of law. (... ) The Court becomes a strong (non-partisan) political body, an aeropagus of the Constitution: the piece of sovereignty that it holds by way of its competency for the final word, tends to expand. This leads to the question concerning the democratic legitimacy of the Court. writes Ernst-Wolfgang Böckenförde, in Grundrechte als Grundsatznormen , Staat, Verfassung, Demokratie (Frankfurt a. M.: Suhrkamp, 1991), p. 191. Back.
Note 7: The Court underlines that The Federal Republic of Germany is not, by ratifying the Maastricht Treaty, subjecting itself to an uncontrollable, unforeseeable process which will lead inexorably towards monetary union; the Maastricht Treaty simply paves the way for gradual further integration of the European Community as a community of laws. Every further step along this way is dependent either upon conditions being fulfilled by the parliament which can already be foreseen, or upon further consent from the federal government, which is subject to parliamentary influence. Back.
Note 8: Braucht Europa eine Verfassung?Paper presented at the Siemens Foundation, Munich, January 1994. Translated into Italian in Il futuro della Costituzione, edited by G. Zagrebelsky, P. Portinaro and J. Luther (Turin: Einaudi, 1996) pp. 339-67. Back.
Note 10: This seems to be the shortcoming of the otherwise suggestive arguments of R. Bellamy and D. Castiglione, Costituzionalismo e democrazia in prospettiva europea, Teoria politica, no. 3, 1996. Back.
Note 11: The concept of a constitution based on the normative elements of citizenship is clearly aimed at linking the bond of a genuinely political unit with the discursiveness of a voluntary association.... Only the process of a common constituent act produces what a constitution presupposes: citizens who reciprocally recognise themselves as equals. U. Preuss , Der Begriff der Verfassung (Frankfurt: Fischer, 1994), p. 28. Back.
Note 13: The term constitutional democracy overcomes many of the traditional contrasts between the principle of constitutionalism and that of democracy, but at the same time, it is the concrete manifestation of tension between the constitution as a guarantee and the constitution as a guideline which the activism of the Court tries to keep under control. In this regard, three lines of critical reading which can also be seen as reasons for possible intervention can be mentioned: constitutional conservatorism, hyperconstitutionalism and deconstitutionalism. Portinaro, Il custode delle Costituzione, Il futuro della Costituzione, p. 31. Back.