Europe is a constitutional state. At least since Maastricht and Amsterdam, the treaties are the substantial constitution of the Union, to which in the case of opposition even national constitutional law must give way. The Lisbon Treaty allows exit from the EU only according to its conditions. In the two-year process strictly prescribed in the treaty, the state wishing to exit is the petitioner and the EU is the master of the process. This asymmetrical process, like all EU law, is no longer governed by intergovernmental international law but by a new transnational Union law.
Unlike international law, which can alter and derogate from national constitutional law only in extreme and manifest cases such as wars of aggression or mass cruelty amounting to state terrorism (Article 103 of the UN Charter), transnational Union law changes every day our national law, penetrates it into its most remote provincial corners and often contributes more to the silent but permanent and continual process of constitutional change than its national reformulation by legislature, government, administration and judiciary. In the past decades simple parliamentarised Union law, together with the constitutional changes formally agreed between states have not just superficially but massively and fundamentally changed the national formation of democratic self-determination and of the rights included in it.
Union law therefore extends the scope of national rights to the totality of EU citizens who travel through a member state (and thereby enabled the author of this contribution, years ago in Aberystwyth, to benefit from the still free, socialist health care of the UK), and however above all those who work and live in the state. All EU citizens have this right of free movement. EU law changes national rights on the spot. Even the holiest democratic right must be shared in the case of the franchise for the European Parliament by Germans and Britons with their fellow Europeans from Portugal or Poland whose lives are centred in Germany or Britain (and vice versa).
These two examples, important for democratic constitutions, are enough to prove that European constitutional law has an emancipatory dimension, which enables a progressive development and realisation of the democratic principle embodied in the political self-determination (and self-legislation) of all those who are individually affected by norms. People from other EU states resident in Germany who fell into the clutches of German law but were not citizens already enjoyed, above and beyond their universally valid human rights, equal individual rights under the German constitution, but were excluded from political rights of self-determination and their social facilitation. Now they are largely included.
All this means that, in the case of an exit following EU law, the withdrawal of a member state not only has to take place according to European constitutional law but must necessarily infringe fundamental national rights of those inhabiting the territory. This infringement of basic rights affects not only the British rights of a Polish worker immediately affected by Brexit or the European rights of a British investment manager, but an infringement of the rights of all citizens of the United Kingdom and moreover of the whole EU. It can therefore only be remedied by the relevant constitutional legislative body by means of a constitutional change.
The ruling Conservative Party in the United Kingdom not only misunderstood how far the kingdom is already integrated into the EU. It also disregarded the consequential changes to its own constitution and passed an unconstitutional referendum law which enabled 37% of those entitled to vote to alter its own constitution in the core domain of its citizen rights. When the Supreme Court effectively charged it with high treason and declared the referendum null and void, the government and parliament were required to make the decision to secede dependent on an ultimate act of the legislature – and that is in the Kingdom merely the people acting as parliament. The ruling party which, like the north American Republicans, more and more resembles a Kantian people of devils, held together only by the possessive individualism of its leadership cliques, initially fell into confusion and then scrambled itself together for fear of its own collapse into a divided government in which every member concealed a dagger.
So as not to be overrun and defeated by its own people and driven out of Westminster, Parliament took upon itself the consequences of its self-inflicted impotence, giving in, against its better judgement, to a popular decision degraded to the status of a popular desire, and giving the act of withdrawal the legal force of a constitutional change. It sanctified the constitutional violation by a fake referendum with a fake act of parliament, turning the still really existing democracy back into an illusory democracy.
The mere act of Brexit was a regressive dismantling of emancipatory achievements and a massive restriction of political self-determination. The damage to democracy and democratic rights was exacerbated by the undemocratic implementation and undiscussed implementation of an irremediably fake referendum. Here the blame lies solely with the Conservative Party.
But this is not yet the whole story of the thoroughly European Brexit. Even though there should never have been the sort of Brexit which we have experienced, the Brexiters’ slogan, ‘To take back control’, contains an element of truth. Although the antidemocratic Leave camp misused it to create a fascist pogrom mood directed at ‘foreigners’, citizens termed ‘foreigners’ and opponents of withdrawal condemned as internal ‘foreigners’, which in the end did not shrink from murder.
But there has been a far-reaching loss of democratic control over society which cannot wholly be attributed to functional imperatives of self-preservation and uncontrollable complexity. It is no accident that the theory of the great post-democratic transformation which can now be observed everywhere was first developed and discussed in the United Kingdom. The political transformation, carried out according to a plan, of a democratic welfare society into a post-democratic and post-solidaristic society is largely due to the Thatcher government, which was the earliest to begin this transformation, the most radical in implementing it and the most far-reaching in carrying it forward.
The political programme based on Thatcher’s teacher Friedrich Hayek could however only be realised during her long period in government if it was possible to remove all or at least the most important national labour, money and property markets from the growing authority of democratic national states, to turn state-embedded markets everywhere in the world into market-embedded states. This was precisely Hayek’s anti-Polanyiist political programme of embedding the state in the supposedly spontaneous order of the market.
All this however required the concerted action of many states, the consolidation of their relations in international organisations (G20, WTO etc.) and – something important which is often overlooked – the formation of strong elements of transnational statehood on a regional basis of organisation (Europe, Latin America, Asia etc.) and a global one (UNO etc.), by means of which the already well developed global constitutional and public law was subordinated to capital-friendly private law.
The European Union’s constitutional law, with its substantial primacy of the principle of competition (which Claus Offe fifteen years ago described as the ‘hidden curriculum’ of the Union) over the principles of democracy and human rights, was tightly bound into this system of the globalisation of capitalist markets driven by finance capital. Democratic supervision and steering of the economic and social sphere was replaced by a system of unchangeable equal rules applied on an increasingly uneven playing field latest since the Euro was implemented. The EU, thanks to its denationalised labour, money and property markets and its tremendous economic power, was itself undoubtedly one of the strongest motors of capitalist globalisation.
The United Kingdom played a substantial part in this process, which served very well the interests of its neoconservative and neoliberal political and economic elites Therefore, Margaret Thatcher complied with any judgment of the European Court, even if it was at odds with the actual interests of her own government. Even without intervention from the UK, the EU’s-economic policies were mostly in accordance with neoliberal globalization and the interests of the Thatcher-government. The Commission presidency of Jacques Delors tried to oppose neoliberalism in the name of Social Europe but had not the means to realize it, and finally failed when the Euro was implemented. The establishment of a depoliticised and denationalized currency (another idea going back to Hayek) left nineteen states without a central bank and a central bank without a state, and completely removed financial policies from democratic supervision. As earlier, in the 17th century, the neoconservatives, in conjunction with the City of London and its concentrated power of blackmail, now had the politics of the kingdom so firmly in their grip that Labour Party, when it finally won, was so ground down that it betrayed its voters and continued Thatcher’s policies in the rebadged form of the Third Way.
This is the dark, anti-emancipatory, regressive and post-democratic aspect of the Union’s constitutional law. It remains its dominant aspect, but not one incapable of transformation.
It was only in the transnational political and legal union briefly outlined here that European society could be so quickly turned around from the progressive equalisation of social differences to rapidly increasing class differentiation. The effect of this transformation was, to draw a drastic comparison, the same as that of the brutal and bloody destruction of all possibilities for effective organised opposition in the first three months of the Nazi regime, when all potential opponents were murdered, arrested or driven out, with the help of compliant conservative officials in the military, police, administration and courts, or disappeared into the first concentration camps (1). Neoliberalism had previously experimented with this approach ‘only’ in Chile and Argentina. Globalisation driven by finance achieved the same result, in the countries of the rich north-west of our world, by relatively peaceful and democratic means as the Nazis had earlier with the aid of police, paramilitaries and concentration camps. We have a democracy without opposition, which is not a real democracy since it no longer offers any choice to the bottom third of society. As Greece tried to change its own macroeconomic policies by a referendum in 2015, it took the EU and its hegemonic powers (Germany) a week, and the Greeks gave in to the overwhelming blackmailing power of the European Central Bank that threatened them with the destruction of their entire banking-system. As in the old Roman Empire: Those who try to oppose, are given exemplary punishment.
Therefore, the people from the lower strata of society who do not vote are not just apathetic but have good reasons not to. Why should they vote if they are no longer represented in the spectrum of political parties? Their behaviour is also rational, because it reminds us that there is no democracy if democracy is nothing else than free elections, a list of rights, and courts to care for their fair implementation plus free markets. To be democratic, democracy must be much more than majority rule plus minority rights. It must represent all of us who are subject to legal norms (Rousseau’s general will). And that means that all of us, at least all groups and classes of society (vertically) from social top to bottom, and (horizontally) from centre to periphery must participate (and must have reasons to participate) in (a) inclusive and egalitarian public debates and deliberations and (b) general “elections and other votes” (Article 20, para. 2 of the German Basic Law). Therefore, there is no democracy beyond deliberative and participatory self-legislation (Rousseau). Participatory inequality (of relevant numbers) of (vertically) excluded, precarious and exploited social classes as well as of (horizontally) discriminated, oppressed and persecuted social groups (like women, coloured people, religious communities etc.) kills modern democracy. Since the European Union, combining finance-driven globalisation and conservative, libertarian and ordo-liberal national governments, has deconstructed the ‘democratic and social’ state (Article 20, para 1) to such an extent that the Union states can no longer represent all of us, and therefore, are robbed of deliberative and participatory self-legislation. The national states are irreversibly damaged and powerless in the face of globalization. Therefore, there is no alternative to risking what seems quite impossible: the reconstruction of the democratic and social state in a newly founded Union of all the Euro-states.
(1) For a very instructive comparison between Germany in 1933 and America in 2016 see Christopher Browning‚ Lessons from Hitler’s Rise
Hauke Brunkhorst is Senior-Professor of Sociology at the University of Flensburg. From 2009 to 2010 he was Theodor-Heuss Professor in the Graduate Faculty of the New School for Social Research, New York. Books include Critical Theory of Legal Revolutions – Evolutionary Perspectives, London: Bloomsbury 2014. Das doppelte Gesicht Europas – Zwischen Kapitalismus und Demokratie, Berlin: Suhrkamp 2014.
Image Credit: Wikimedia Commons, Clem Rutter, Rochester, Kent