European Law Journal, Vol, 1, Ne. 3, November 1995, pp. 303-307 4© Blackwell Publishers Lid. 1995. 108 Cowky Road. Oxford OX$ [JF UK, ‘and 238 Main Stoo, Carabridge, MA 02182, Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution?’ Jiirgen Habermas” I basically agree with Dieter Grimm’s diagnosis; however an analysis of its presuppositions leads me to a different political conclusion. The Diagnosis From a constitutional perspective, one may discern a contradiction in the European Union's present situation, On the one hand, the EU is @ supranational organisation established by international treaties and without a constitution of its own. In this respect itis not a state (in the modern sense of a constitutional state characterised by a monopoly on violence and a domestically and internationally recognised sovereignty). On the other hand, Community institutions create European law that binds the Member States ~ thus the EU exercises a supreme authority previously claimed only by individual states. From this results the oft-bemoaned democratic defic Commission and Council pronouncements, as well as decisions by the European Court, are intervening ever more profoundly into the Member States’ internal affairs. Within the framework of the rights conferred upon the Union, the European Executive may enforce its pronouncements over and against the opposition of the national governments, At the same time, as long as the European Parliament is equipped with only weak competences, these pronouncements and enactments lack direct democratic legitimation. The executive institutions of the community derive their legitimacy from that of the member governments. They are not institutions of a state that is itself constituted by the act of will on the part of the united citizens of Europe. The European passport is not as yet associated with rights constitutive for democratic citizenship. Political Conclusion In contrast with the Federalists, who recommend a democratic pattern for the EU, Grimm warns against any further European-law-induced eroding of national com- petences. The democratic deficit would not be effectively filled by a ‘statist shortcut’ to * Professor Emeritus, Fucuity of Philosophy, J. W. Goethe University, Frankfurt (Main), This contribution was translated by lin L, Fraser & John P. MeCormick, Copyright © 2001. All Rights Reseved.Europes Law Jounal Volume | the problem, but rather deepened. New political institutions such as a European Parliament with the usual powers, a government formed out of the Commission, a Second Chamber replacing the Couneit, and a European Court of Justice with expanded competences, as such offer no solutions. If they are not filled with life, they will instead accelerate tendencies already apparent within the national frameworks, tendencies towards autonomisation of buresscratised politics, The real prerequisites for a Furopean-wide integtation of citizen will-formation have been absetit up to now. Constitutional Euroscepticism thus amounts to the empiricatly-based argument that raus as such: as long as there is aot a European people which is sulliciently “homegenous’ to form a democratic will, there should be no constitution, ‘The Discussion My reficctions are directed ayainst (a) the ins account of allernative eourses and (b) the not entirely unambiguous nermative underpinnings of the functions requirements for democratic will-formation, {a} Grimm sets before us the undesired consequences thal would result from the transition of the European Community to 4 democratically-constituted, federal state should w institutions not take root. So long as a European-networked civil socisty, a European-wide political public sphere aad a common political culture are lacking. ths supranational decision processes would become increasingly independent of the still nationally organised opinion- and will-formadion processes. This dangerous prognosis is plausible as far as am concerned. However what is the alternative? Grimm's option seems to suggest that the constitutional status quo can at least frecce the extant democratic deficit. Completely independent of constitutional innovations however this deficit expands day by day because the economic and social dynamics even within the existing institutionsl framework perpetuate the erosion of national powers through European law. As Grimm himself acknowledges: ‘The democtatic principle is valid for the Member States whose own decision capabilities ave however diminishing: decisional capability is accruing to the European Com- munity where the democracy principle is developing only weakly.” But if the gap is steadily widening between the European authorities’ expanding scope and the inadequate legitimation of the proliferating European regulations, then decisively adhering to an exclusively nation-state mode of legitimation does not necessarily mean opting, for the fesser evil. The Federalists at least face the foreseeable — and perhap avoidable risk of the autonomisation of supranational organisations as a challenge. ‘The Eurescepties have, from the start, acquiesced in the supposedly irresistible erosion of de: atic substance so that they do not have to leave what appears as the reliable shelter of the nation-state. In Tact the shelter is becoming increasingly less comfortable. The debates on national economic competitiveness and the international division of labour ia which wwe are engaged make us aware of quite another gap ~ a gap between the nation s increasingly limited maneuverability, and the imperatives of modes of interwoven worldwide. Modern revenue-stales profit from their respective only so long as there are “national economies’ that can still be influenced by political means. With the denationatisation of the ceonomy. especially of the financial markets of industrial production itself. national governments today ‘ede Sod © Mluewll Pabiers Copyright © 2001. All Rights Reseved.November 1995 Comment on Grimm growing minority for the sake of international competitiveness. If there is to be at least some substantive maintaining of the welfare state and some avoiding the further segmentation of an underclass, then institutions capable of acting supranationally must be formed. Only regionally comprehensive regimes like the European Com- munity can stil affect the global system in line with a coordinated world domestic policy. In Grimm’s account, the EU appears as an institution to be pur up with, and with whose abstractions we must live. The reasons why we should want it politically are not presented. I would submit that the greater danger is posed by the autonomisation of globalised networks and markets which simultancously contribute to the fragment- ation of public consciousness. If these systemic pressures are not met by politically capable institutions then the erippling fatalism of the Old Empires will grow again in the midst of a highly mobile economic modernity. The decisive elements of this future scenario would be the postindustrial misery of the ‘surplus’ population produced by the surplus society — the Third world within the First — and an accompanying moral erosion of community, This future-present would in retrospect view itself as the future of @ past illusion ~ the democratic illusion according to which societies could still determine their own destinies through political will and consciousness. (b) Apropos the second problem, Naturally any assessment of the chances for a Furopean-wide democracy depends in the first place upon empirically grounded arguments, But we first have to determine the functional requirements; and for that the normative perspective in which the former are supposed to fit is crucial. Grimm rejects a European constitution “because there is as yet no European people’. This would on first glance scom founded upon the same premise that informed the tenor of the German Constitutional Court's Maastricht judgment: namely, the view that the basis of the state's democratic legitimation requires a certain homogeneity of the state-constituting people. However Grimm immediately distances himself from a Schmittian kind of definition of vélkischen homogeneity: ‘The presuppositions for democracy are developed here not of the people, but from the society that Wants to constitute itself as a political unit. But this presumes a collective identity, if it wants to settle its conflicts without violenee, accept majority rule and practice solidarity.’ This formulation leaves open the question of how the called-for collective identity is to be understood. I see the nub of republicanism in the fact that the forms and procedures of the constitutional state together with the democratis mode of legitimation simultaneously forge a new level of social integration, Demo- cratic citizenship establishes an abstract. legally mediated solidarity among strangets. This form of social integration which first emerges with the nation-state is realised in the form of a politically socialising communicative context, Indeed this is dependent upon the satisfaction of certain important functional requirements that cannot be fulfilled by administrative means. To these belong conditions in which an ethical- political self-understanding of citizens can communicatively develop and likewise be reproduced ~ but in no way a collective identity that is independent of the derocratic process itself and as such existing prior to that process. What unites a nation of citizens as opposed to a FolAsnation is not some primordial substrate but rather an intersubjectively shared context of possible understanding It is therefore crucial in this conteat whether one uses the term ‘people’ in the juristically neutral sense of “state-constituting people’, or whether one associates the term with notions of identity of some other kind. In Grimm's view the identity of a 6 lachovell Puhlishors Lie 1995 305 Copyright © 2001. All Rights Reseved.Foropeun Law Journal Volume | ation of citizens ‘need not’ be “rooted in ethnic origin, but may alse have other bases’ think on the contrary that it must have another basis if the democratic process is to finally guarantee the social integration of a differentiated — and today increasingly differentiating society, This burden must. not be shifted from the levels of political will-formation to pre-political. pre-supposed subsirates because the constitutional state guarantees that it will foster necessary social integration in the legally abstract form of political participation and that it will actually sccure the status of citizenship in democratic ways. The examples of culturally and ideologically pluralistic societies aly serve 10 emphasise this normative point. The multicultural self-understanding of the nations of citizens formed in classical countries of immigeation like the USA is more instructive ia this respect than that derived from the assimilationist French inodel. If in the same democratic political community various cultural, religious and ethnic forms of life are to exist among and with each other then the majority culture must be sufficiently detached from its traditional fusion with the political culture shared by all citizens, ‘To be sure, a politically constituted context of solidarity among citizens who despite rerwining strangers to one znather are supposed to stand up for each other is a comniunicative context rich in prerequisites. On this point there is no dissent. The core is formed by political public sphere which enables citizens to take positions at the same tine on the same topics of the same relevance, This public sphere must be deformed neither through external nor internal coercion. [t musi be embedded in the sontext of a freedom-vatuing political culture and be supported by a liberal associational structure of a civil society. Socially relevant experience from still-inlact Privete spheres must low into such a civil society so that they may be processed there for public treatment. The political parties not state-dependent ~ must remain rooted in this complex so as to mediate between the spheres of informal public communie- ation, on the one hand, and the institutionatised deliberation and decision processes, on the other. Accordingly. from a normative perspective, there can be no European Federal state worthy of the name of a demo: a European-wide, integrated public sphere develops in the ambit of a common political culture: a civil society with interest associations: non-governmental organisations: citizens’ move- menis. etc.: and naturally a party system appropriate to i arena. In short, this entails public communication that transcends the boundaries of the until now limited national public spheres. Certainly, the ambitious functional requirements of democrati¢ will-ormation can scarcely be fulfilled in the nation-state framework: this is ail the more (tue for Eurcpe What concerns me, however, is the perspective from which these functional prerequisites: are normatively justified: for this, as i were, prejudices the empirical evaluation of the present difficulties. These must, for the time being, scem insuperable if a pre-political collective identity is regarded as uecessary, that is an independent culiural substrate which is articulated only in the fulfilment of the said functional requirements, But a communication | understanding of democracy. one that Grimm also seems to favour. can no Jonger rest upon such a coneretistie understanding of “the people’. This notion falsely pretends homogeneity, where in fact something still quite heterogeneous is met The cthical-political self-understanding of citizens in a democratic community must not be taken as an historical-cultural u prisri that makes democratic wili-formation possible, but rather as the flowing contents of a circulatory process thai is generate] through the legal institutionalisation of citizens’ communication, This is precisely how theoretic 306. “Blas Ptshers Fuh 1998 Copyright © 2001. All Rights Reseved.November 1995 Comment on Grimm national identities were formed in modern Europe. Therefore it is to be expected that the political institutions to be created by a European constitution would have an inducing effect. Europe has been integrating economically, socially and administra- tively for some Lime and in addition can base itself on a common cultural background and the shared historical experience of having happily overcome nationalism. Given the political will, there is no @ priori reason why it cannot subsequently create the politically necessary communicative context as soon as it is constitutionally prepared to do so. Even the requirement of a common language ~ English as a second first language ~ ought not be an insurmountable obstacle with the existing level of formal schooling, European identity can in any case mean nothing other than unity in national diversity. And perhaps German Federalism, as it developed after Prussia was shattered and the confessional division overcome, might not be the worst model, Blackoell Polishers Lad, 1995 307 Copyright © 2001. All Rights Reseved.