The Crisis of the European Union

Jürgen Habermas


A Response

Translated by Ciaran Cronin

First published in German as Zur Verfassung Europas. Ein Essay © Suhrkamp Verlag Berlin 2011
This English edition © Polity Press, 2012
Polity Press
65 Bridge Street
Cambridge CB2 1UR, UK
Polity Press
350 Main Street
Malden, MA 02148, USA
All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
ISBN-13: 978-0-7456-8153-5
A catalogue record for this book is available from the British Library.
The publisher has used its best endeavours to ensure that the URLs for external websites referred to in this book are correct and active at the time of going to press. However, the publisher has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate.
Every effort has been made to trace all copyright holders, but if any have been inadvertently overlooked the publisher will be pleased to include any necessary credits in any subsequent reprint or edition.
For further information on Polity, visit our website:


The Crisis of the European Union in Light of a Constitutionalization of International Law – An Essay on the Constitution for Europe
I   Why Europe is now more than ever a constitutional project
II   The European Union must decide between transnational democracy and post-democratic executive federalism
III   From the international to the cosmopolitan community
The Concept of Human Dignity and the Realistic Utopia of Human Rights
Appendix: The Europe of the Federal Republic
I   After the bankruptcy: an interview
II   The euro will decide the fate of the European Union 119
III   A pact for or against Europe? 127


Since 2008 we have been witnessing the laborious learning process of the German federal government as it moves reluctantly in small steps towards Europe. Over the past two-and-a-half years it first insisted on unilateral national responses, only to go on to haggle over rescue parachutes, to send out ambiguous signals and to drag its feet over concessions. Now, finally, it seems to have come to the realization that the ordoliberal dream of voluntary stability criteria to which the budgets of the member states were supposed to conform has failed. The dream of the ‘mechanisms’ which are supposed to render the process of reaching joint political decisions superfluous and to keep democracy in check has been shattered not only by the differences in economic cultures but above all by the rapidly changing constellations of unpredictable environments. Now all the talk is of the ‘construction flaw’ of a monetary union that lacks the requisite political steering capacities. There is a growing realization that the European treaties have to be revised; but there is a lack of a clear perspective for the future.

The plans recently in circulation would confine the joint governance of the seventeen euro states to the circle of the heads of government, thus to a ‘core’ of the European Council. Since this governing body is not able to make legally binding decisions, reflection is concentrating on the kinds of sanctions to be imposed on ‘disobedient’ governments. But what is actually being proposed here? Who is supposed to force whom to obey decisions with what content? Now that the rigid stability criteria have been extended and flexibilized into the invocations of the ‘pact for Europe’, the decisions of the European Council are supposed to expand to cover the broad spectrum of all those policies that could influence the global competitiveness of the national economies that have drifted apart. Thus, the European agreements would intervene in the core domains of the national parliaments, from fiscal and economic policy, through social policy, to education and employment policy. The procedure envisaged seems to be that, in order to ensure the political implementation of all goals agreed upon with their colleagues in Brussels, the heads of government would organize majorities in their respective national parliaments under threat of sanctions. This kind of executive federalism of a self-authorizing European Council of the seventeen would provide the template for a post-democratic exercise of political authority.

As was to be expected, this intergovernmental undermining of democracy is meeting with resistance from two sides. The defenders of the nation state are seeing their worst fears confirmed and are now barricading themselves more than ever behind the façades of state sovereignty, even though these were breached long ago. However, in the current crisis they have lost the support of a business lobby whose interest up to now lay in keeping both the common currency and the common market as free as possible from political interventions. On the other side, the long-mute advocates of the ‘United States of Europe’ have again found their voice, though with this emphatic conception they frustrate their own goal of first promoting integration in core Europe. For with this proposal the well-founded opposition to the precipitous path to a bureaucratic executive federalism becomes entangled in the hopeless alternative between nation state and European federal state. A vague federalism which fails to negate this false alternative in a clear-cut way is no better.

With my essay on the ‘constitution’ for Europe – that is, on its current state and its political make-up – I want to show, on the one hand, that the European Union of the Lisbon Treaty is not as far removed from the form of a transnational democracy as many of its critics assume. On the other hand, I want to explain why the construction flaw of the monetary union cannot be rectified without a revision of the treaty. The current plans to coordinate the decisions of the EMU states in major areas of policy call for an extended basis of legitimation. However, the constitutional model of a federal state is the wrong one for such a transnational democracy. Once we come to see the European Union as if it had been created for good reasons by two constitution-founding subjects endowed with equal rights – namely, co-originally by the citizens (!) and the peoples (!) of Europe – the architecture of the supranational but nevertheless democratic political community becomes comprehensible. Thus we need only to draw the correct conclusions from the unprecedented development of European law over the past half-century.

The political elites continue to shy away from the daunting prospect of a revision of the treaty. Presumably this hesitation is not just a matter of opportunistic power interests and a lack of decisive leadership. The economically generated apprehensions are inspiring a more acute popular awareness of the problems besetting Europe and are lending them greater existential significance than ever before. The political elites should embrace this unusual boost in public prominence of the issues as an opportunity and also regard it as a reflection of the extraordinary nature of the current situation. But the politicians have also long since become a functional elite. They are no longer prepared for a situation in which the established boundaries have shifted, one which cannot be mastered by the established administrative mechanisms and opinion polls but instead calls for a new mode of politics capable of transforming mentalities.

I would like to use the means at my disposal to try to remove mental blocks that continue to hinder a transnationalization of democracy. In doing so, I will situate European unification in the long-term context of a democratic legal domestication and civilization of state power. This perspective should make it clear that the pacification of belligerent nations – hence the goal that motivated not only the foundation of the United Nations but also the process of European unification after the Second World War – has created the preconditions for realizing a more far-reaching goal, namely, the construction of political decision-making capabilities beyond the nation states. The time when the constitutionalization of international law was focused exclusively on the goal of pacification, which also marked the beginning of the development of the European Union, is long past. The shattering of neoliberal illusions has fostered the insight that the financial markets – indeed, more generally, the functional systems of world society whose influence permeates national borders – are giving rise to problems that individual states, or coalitions of states, are no longer able to master. This need for regulation poses a challenge for politics as such, politics in the singular, as it were: the international community of states must develop into a cosmopolitan community of states and world citizens.

The essay on the European constitution is followed by a paper (which has already appeared in an academic journal) which explores the connection between the systematic concept of human rights and the genealogical concept of human dignity. By ‘genealogical’ is meant that the experiences of violated human dignity foster a militant dynamic of outrage which lends repeated impetus to the hope for a worldwide institutionalization of human rights, however improbable this may be. The prospect of a political constitution for world society loses something of its semblance of utopianism when we recall that the rhetoric and politics of human rights have in fact exercised global effects over the past couple of decades. Already from the days of the French Revolution, the tension-laden distinction between civil and human rights has involved an implicit claim that equal rights for everyone should be implemented on a global scale. This cosmopolitan claim means that the role of human rights must not be exhausted by moral criticism of the injustices prevailing within a highly stratified world society. Human rights rely on finding institutional embodiment in a politically constituted world society.

The three political interventions collected in the appendix can be read as commentaries on the ethnocentric image of Europe which is reflected in the self-centred perception of the reunified Germany.

Jürgen Habermas

Starnberg, September 2011

The Crisis of the European Union in Light of a Constitutionalization of International Law – An Essay on the Constitution for Europe1

I  Why Europe is now more than ever a constitutional project

In the current crisis, it is often asked why we should continue to cling to the European Union at all, not to mention the old aim of an ‘ever closer political Union’, now that the original motive of making wars in Europe impossible is exhausted. There is more than one answer to this question. In what follows, I would like to develop a convincing new narrative from the perspective of a constitutionalization of international law2 which follows Kant in pointing far beyond the status quo to a future cosmopolitan rule of law:3 the European Union can be understood as an important stage along the route to a politically constituted world society.4 Admittedly, on the laborious path leading up to the Lisbon Treaty, the forces friendly to Europe have been worn down by disputes over such constitutional political questions; but, quite apart from the implications for constitutional law of the European ‘economic government’ now planned, this perspective recommends itself today for two further reasons. On the one hand, the current debate has become narrowly focused on the immediate expedients for resolving the current banking, currency and debt crisis and as a result has lost sight of the political dimension (1); on the other hand, mistaken political concepts are obstructing our view of the civilizing force of democratic legal domestication, and hence of the promise associated from the beginning with the European constitutional project (2).

(1) The economistic narrowing of vision is all the more incomprehensible because the experts seem to be in agreement on the diagnosis of the deeper reasons for the crisis: the European Union lacks the competences to bring about the necessary harmonization of the national economies whose levels of competitiveness are drifting drastically apart. To be sure, in the short term the current crisis is monopolizing all of the attention.5 However, this should not lead the actors concerned to forget the underlying construction flaw of a monetary union which lacks the requisite political regulatory capacities at the European level, a flaw which is rectifiable only in the longer term. The ‘pact for Europe’ repeats an old mistake: legally non-binding agreements concluded by the heads of government are either ineffectual or undemocratic and must therefore be replaced by an institutionalization of joint decisions with irreproachable democratic credentials.6 The German government has become the catalyst of a Europe-wide erosion of solidarity because for too long it has shut its eyes to the only constructive expedient, one which even the liberal-conservative Frankfurter Allgemeine Zeitung now paraphrases with the laconic formula ‘more Europe’. None of the governments concerned has yet demonstrated the necessary courage, and they are all strugging ineffectually with the dilemma posed by the imperatives of the major banks and rating agencies, on the one side, and their fear of losing legitimacy among their own frustrated populations, on the other. Their panic-stricken incrementalism betrays the lack of a more expansive perspective.

Since embedded capitalism has run its course and the globalized markets have been outstripping politics, the OECD countries have found it increasingly difficult to stimulate economic growth while at the same time ensuring social security and a tolerably just distribution of income for the mass of the population. After the exchange rates were allowed to float freely, the OECD countries had temporarily defused this structural problem by accepting rising inflation. When this policy generated excessively high social costs, they chose the alternative expedient of increasingly financing public budgets through credit. The statistically well-confirmed trends of the past two decades reveal, however, that there has been an increase in social inequality and status insecurity in most of the OECD countries, even as the governments have covered their need for legitimation through sharp rises in public debt. Now the ongoing financial crisis since 2008 has also blocked the mechanism of incurring public debt. And for the time being it remains unclear how austerity policies imposed from above, which are in any case difficult to push through domestically, can be reconciled with maintaining a tolerable level of social security in the long run. The youth revolts in Spain and Great Britain are a portent of the threat to social peace.

Under these conditions the imbalance between the imperatives of the markets and the regulatory power of politics has been identified as the real challenge. In the euro zone, the vague prospect of an ‘economic government’ is supposed to revitalize the long since hollowed-out stability pact. Jean-Claude Trichet is calling for a joint finance ministry for the euro zone, though without mentioning the parliamentarization of the corresponding financial policy which would then likewise be required – or taking account of the fact that the range of policies relevant for competitiveness extends far beyond fiscal policy and reaches right into the heart of the budgetary privilege of the national parliaments. Still, this discussion shows that the cunning of economic (un)reason has placed the question of the future of Europe back on the political agenda. Wolfgang Schäuble, the last ‘European’ of stature in Angela Merkel’s cabinet, knows that transferring competences from the national to the European level impinges on questions of democratic legitimation. However, the direct election of a president of the European Union, a proposal of which he is a long-standing advocate, would be nothing more than a fig leaf for the technocratic self-empowerment of a core European Council whose informal decisions would circumvent the treaties.

These models of a special kind of ‘executive federalism’7 currently in circulation reflect the reluctance of the political elites to contemplate replacing the established mode of pursuing the European project behind closed doors with the shirt-sleeve mode of a vociferous, argumentative conflict of opinions within the broad public. Given the unprecedented gravity of the problems, one would expect the politicians to lay the European cards on the table without further delay and to take the initiative in explaining to the public the relation between the short-term costs and the true benefits, and hence the historical importance of the European project. In order to do so, they would have to overcome their fear of shifting public moods as measured by opinion polls and rely on the persuasive power of good arguments. All of the governments involved, and for the time being all of the political parties, are flinching at this step. Many of them are instead pandering to the populism which they themselves have cultivated by obfuscating a complex and unpopular topic. Politics seems to be holding its breath and dodging the key issues at the threshold leading from the economic to the political unification of Europe. Why this panic-stricken paralysis?

The familiar ‘no demos’ answer suggests itself from a perspective wedded to the nineteenth century: there is no European people; therefore a political Union worthy of the name is built on sand.8 To this interpretation I would like to oppose a superior one: the enduring political fragmentation in the world and in Europe is at variance with the systemic integration of a multicultural world society and is blocking progress towards civilizing relations of violence within societies and between states through constitutional law.9

(2) I would first like to recall what the civilizing force of democratically enacted law involves by briefly reviewing the precarious relation between law and power. Ever since its inception in the early civilizations, political authority has consistently constituted itself in the form of law. The ‘coupling’ of law and politics is as old as the state itself. Over thousands of years, law has played an ambivalent role in this regard. It served as a means of organization for an authoritarian mode of government, and for the prevailing dynasties it was simultaneously an indispensable source of legitimation. While the legal system was stabilized by the sanctioning power of state, political authority, in order to be accepted as just, relied in turn on the legitimizing force of a sacred law which it administered. The law and the judicial power of the king derived their sacred aura originally from the connection with the mythical gods and spirits and later from the appeal to religious natural law. But it was only after the medium of law had become detached from the ethos of society in the Roman Empire that it could bring its stubborn orientation to bear and finally produce rationalizing effects by legally channelling the exercise of political authority.10

However, political authority first had to be secularized and law had to be positivized throughout before the legitimation of authority could become dependent on the legally institutionalized consent of those subject to authority. Only with this development could that democratic juridification of the exercise of political authority which is relevant in the present context begin. For this juridification develops not only a rationalizing but also a civilizing force insofar as it divests state violence of its authoritarian character and thereby transforms the character of the political as such. As a political theologian, Carl Schmitt viewed this civilizing tendency with suspicion because, by diluting the authoritarian core of political rule, it also robbed it of its sacred aura.11 He conceived of the ‘substance’ of the ‘political’ as the ability to assert itself of a legally constituted authority, on which, however, no normative fetters may be placed.

On Schmitt’s interpretation, this substance was still able to manifest itself at the beginning of the modern era in the struggle of sovereign states against external and internal enemies. It disintegrated – at first in the domestic sphere – only with the constitutional revolutions of the eighteenth century. The constitutional state transforms private citizens into democratic national citizens; it rejects the notion of ‘internal enemies’ and treats its adversaries – even the terrorists – exclusively as criminals.12 Only the relations of the sovereign state to its external environment were temporarily ‘spared’ the normative fetters of democratic legal domestication.13 One need not share the associated evaluation in order to appreciate the descriptive force of freeing the concept of the ‘political’ from the fog of a mystified counter-enlightenment and restricting it to the core meaning of a democratically juridified decision-making and administrative power.

In international relations, it was only after the collapse of the League of Nations and since the end of the Second World War – with the founding of the UN and the beginning of the process of European unification – that a juridification of international relations began which goes beyond the tentative attempts to place restrictions on state sovereignty (at least in bello) through international law.14 The civilizing process that continues in these trends, which have accelerated since the end of the Cold War, can be described under two complementary aspects. The immediate objective of the domestication of international violence is to pacify relations between states; however, by curbing the anarchic competition for power and promoting international cooperation, this pacification also makes it possible to establish new supranational procedures and institutions for political negotiation and decision-making. For it is only through such new transnational steering capabilities that the social forces of nature that have been unleashed at the transnational level – i.e. the systemic constraints that operate without hindrance across national borders, today especially those of the global banking sector – can also be tamed.15

Of course, to date the evolution of the law has been neither peaceful nor linear. Insofar as we wish to speak of accomplishments in this dimension at all – as Kant did in his day in the light of the consequences of the French Revolution16 – such accomplishments, or ‘progress in legality’, have always been incidental consequences of class struggles, imperialistic conquest and colonial atrocities, of world wars and crimes against humanity, postcolonial destruction and cultural uprooting. But remarkable innovations appeared on the horizon of such constitutional change. Two of these innovations explain how a transnationalization of popular sovereignty is possible in the shape of a democratic alliance of nation states. On the one hand, nation states subordinate themselves to supranational positive law; on the other hand, the EU citizenry as a whole shares the constitution-building power with a limited number of ‘constituting states’ which acquire a mandate from their peoples to collaborate in founding a supranational political community.

If one regards the development of the European Union under these aspects, the route to a politically workable and democratically legitimized (core) Europe is by no means blocked. Indeed, with the Lisbon Treaty the longest stage of the journey has already been completed (II). The civilizing role of European unification acquires prominence especially in the light of a more far-reaching cosmopolitanism. In the last part I will take up those trends in international law which began with the prohibition of violence in international law and with the founding of the UN and its human rights policy. I will attempt to assemble the various pieces of the puzzle into a constructive image of a global democratic order (III).

II  The European Union must decide between transnational democracy and post-democratic executive federalism

The dense network of supranational organizations has long inspired fears that the connection between civil rights and democracy vouched for by the nation state could be destroyed and the democratic sovereigns disenfranchised by globally operating independent executive powers.1718