The Specter of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the European Union

Michael A. Wilkinson

doi:10.1017/S2071832200001929

1 Balibar, Etienne, We, the People of Europe: Reflections on Transnational Citizenship 161 (James Swenson trans., 2004). It echoes Gramsci's: “The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.” Antonio Gramsci, Selections from the Prison Notebooks 556 (Quintin Hoare & Geoffrey Nowell Smith eds., 1971).Google Scholar

2 The two—economic and political crises—are of course often inter-related, creating the perfect storm, as in Greece with the rise of the Golden Dawn party. But political and constitutional concern for right-wing extremism is hardly unprecedented, even in the EU, and certainly predates the current economic crisis, most evidently in the Austrian affair when concern for the internal situation of a Member State, specifically the entry into government of the rightwing Austrian Freedom Party, led to the imposition of diplomatic sanctions against Austria in 2000.Google Scholar

3 For a more detailed theoretical account of this approach to constitutionalism, see Wilkinson, Michael, Political Constitutionalism and the European Union, 2 Mod. L. Rev. 191 (2013).Google Scholar

4 See McCarthy, Thomas, Legitimation Problems in Advanced Capitalism, in Legitimacy and the State 156, 159 (William Connolly ed., 1984) (paraphrasing Jürgen Habermas).Google Scholar

5 See generally Streeck, Wolfgang, The Crises of Democratic Capitalism, 71 New Left Rev. 5 (2011); see also Wolfgang Streeck, Markets and Peoples, 73 New Left Rev. 63, 70 (2012).Google Scholar

6 For many, the Constitutional Treaty itself, although it came to be known as the European constitution, was merely a Treaty “masquerading” as a constitution. See e.g., Joseph Weiler, On the Power of the Word: Europe's Constitutional Iconography, 3 Int'l J. Const. L. 173, 173 (2005). For an exploration of what was missing from the Constitutional Treaty and absent from the subsequent Reform Treaty, see Somek, Alexander, Postconstitutional Treaty, 8 German L.J. 1121, 1125 (2007).Google Scholar

7 The rationale given for the Constitutional Treaty was usually functional; it contained reforms necessary for enlargement and for simplification of the Treaties. It was presented to its citizens as a fait accompli. For this reason, its rejection was interpreted by one commentator as “the birth of the European citizen.” Herman van Gunsteren, The Birth of the European Citizen Out of the Dutch No Vote, 1 Eur. J. Const. L. 406, 406 (2005). Somek considered this rejection as evidence that “democracy was not yet dead in Europe.” Somek, supra note 6, at 1123.Google Scholar

8 With the exception of Ireland, which required a referendum for its own constitutional reasons.Google Scholar

9 For a compelling argument for its return, see Walker, Neil, The Place of European Law, in The Worlds of European Constitutionalism 57 (Joseph Weiler & Grainne De Burca eds., 2011).Google Scholar

10 Habermas, Jürgen, Why Europe Needs a Constitution, 11 New Left Rev. 5, 8 (2001).Google Scholar

11 Anderson, Perry, New Old World 47 (2009) (quoting Tony Judt, Postwar: A History of Europe Since 1945, at 799 (2005)).Google Scholar

12 Id. at 48 (quoting Jeremy Rifkin, The European Dream: How Europe's Vision of the Future is Quietly Eclipsing the American Dream 382 (2004)).Google Scholar

13 Id. at 48–9 (quoting Marcel Gauchet, Le problème européen, 129 Le Dèbat 50, 66 (2004)).Google Scholar

14 Id. at 47–8 (quoting Mark Leonard, Why Europe Will Run the 21^ST Century 4 (2005)). Anderson characterizes these images of Europe as illustrating illimitable narcissism rather than merely self-satisfaction.Google Scholar

15 Moravscik, Andrew, In Defense of the ‘Democratic Deficit': Reassessing Legitimacy in the European Union, 40 J. Common market Stud. 603, 618 (2002); Moravscik, Andrew, The European Constitutional Compromise and the Neofunctionalist Legacy, 12 J. Eur. Pub. Pol. 349, 366 (2005). European issues, Moravscik argued, were not that important to voters, being in their nature of minimal political and economic salience.Google Scholar

16 Armin von Bogdandy begins a recent article with the remarkably understated, “Europe is not a democratic showcase,” but goes on to argue that democracy beyond the state does not substitute but complements domestic forms. Armin von Bogdandy, The European Lesson for International Democracy: The Significance of Articles 9 to 12 EU Treaty for International Organizations, 24 Eur. J. Int'l L. 322, 323 (2012). Any other conclusion would be “useless” for legal doctrine because it would be unable to give meaning to a term of positive law, the “democracy” of Article 2 TEU. Id. at 323. The European Union can provide a model for the democratization of the international arena we are informed, without a trace of irony.Google Scholar

17 See generally Marquand, David, The End of the West: The Once and Future Europe (2012).Google Scholar

18 Balibar, Etienne, Europe: Final Crisis? Some Theses, 13 Theory & Event (2010), available at https://muse.jhu.edu/journals/theory_and_event/v013/13.2.balibar.html.Google Scholar

19 Weiler, Joseph, Editorial: 60 Years since the First European Community - Reflections on Political Messianism, 22 Eur. J. Int'l L. 303, 303 (2011).Google Scholar

20 Weiler, Joseph, Editorial: Integration Through Fear, 23 Eur. J. Int'l L. 1, 1 (2012).Google Scholar

21 See Burca, Grainne de, The Quest for Legitimacy in the European Union, 59 Mod. L. Rev. 349, 349 (1994) (discussing the general issue of the EU's legitimacy post-Maastricht); Joseph Weiler, Fin-De-Siècle: Do the New Clothes Have an Emperor?, in The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration, 238, 238–40 (1998) (describing a “crisis of ideals” that the Europe of Maastricht suffered from); see also Carol Harlow, Citizen Access to Political Power in the European Union (European University Institute, Refugee Studies Centre Working Paper No. 99/2, 1999); Christian Joerges, What is Left of the European Economic Constitution? (European University Institute, Working Paper Law No. 2004/13, 2004) (discussing specifically the social deficit). On the general democratic deficit of the Union, see Simon, Hix & Follesdal, Andreas, Why There Is a Democratic Deficit in the EU: A Response to Majone and Moravscik, 44 J. Common Market Stud. 533 (2006).Google Scholar

22 See e.g., Scharpf, Fritz, Governing in Europe: Effective and Democratic? 62 (1999).Google Scholar

23 Habermas, , supra note 10, at 9 (noting “[i]n his magnificent speech of May 28, the French Prime Minister [Lionel Jospin] spoke of this ‘European way of life’ as the content of a political project”).Google Scholar

24 Anderson, , supra note 11, at ix.Google Scholar

25 Loughlin, Martin, The Idea of Public Law 113 (2003).Google Scholar

26 See Chiti, Edoardo, Agustin Jose Menendez & Pedro Gustavo Teixeira, The European Rescue of the European Union, in The European Rescue of the European Union?: The Existential Crisis of the European Political Project 395 (Reconstituting Democracy in Europe Report No. 19, ARENA Report No. 3/12, Edoardo Chiti, Agustin Jose Menendez & Pedro Gustavo Teixeira eds., 2012)(leading to the coining of a new method of governance, the Union Method).Google Scholar

27 See Jan Werner-Müller, Beyond Militant Democracy?, 73 New Left Rev. 39, 44 (2012):Google Scholar

Countries like Greece are now effectively forced to renegotiate their basic social contracts. Such interference, without any overarching supranational architecture to generate legitimacy, is both quantitatively and, I would argue, qualitatively new: it goes beyond what might have been covered under the old post- war European understanding of constrained democracies.

28 Infringement proceedings against Hungary have been launched on the grounds concerning the independence of its central bank, its judiciary, and the date protection authority.Google Scholar

29 Müller, supra note 27, at 39–47 (identifying the factors salient to the post-war European choice for a “highly restrictive understanding” of democracy as the Cold War, the experience of Nazism, the influence of theories of totalitarianism and, not least, the domination of Christian Democracy in Western Europe at the time, making the late 1940s and 1950s the “Christian Democratic moment.”).Google Scholar

30 The idea of militant democracy was coined by the German jurist Karl Loewenstein. See, e.g., Karl Loewenstein, Militant Democracy and Fundamental Rights, I, 31 Am. Pol. Sci. Rev. 417 (1937); Karl Loewenstein, Militant Democracy and Fundamental Rights, II, 31 Am. Pol. Sci. Rev. 638 (1937). Although it clearly has a German heritage, its basic sentiment is more widespread, amongst liberals as well as conservatives. In the UK, for example, beginning in the late 1970s there were powerful and diverse political and constitutional movements against so-called tyranny of the majority, which initially attempted to justify restraints placed on democratic majoritarianism and later to moderate the tradition of parliamentary sovereignty by advocating a written constitution. The term elective dictatorship, or similar, itself has a long history from Jefferson's concern to reject “elective despotism,” to Lord Hailsham's polemic against “elective dictatorship.” See The Federalist No. 48, at 157 (James Madison) (Seven Treasures Publications ed., 2008) (quoting Thomas Jefferson, Notes on the State of Virginia 159 (1781)); Lord Hailsham, The Dilemma of Democracy: Diagnosis and Prescription ch. 20 (1978).Google Scholar

31 Habermas, , supra note 10, at 6; Alan Milward, The European Rescue of the Nation-State 4 (2nd ed. 2000).Google Scholar

32 This rationale was given theoretical treatment by Christian Joerges, who illustrated it with an expansion of the motto “no taxation without representation.” See Christian Joerges, Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration, 2 European Law Journal 105, 117 (1996). For a critique of this theoretical contruction, see Somek, Alexander, The Argument from Transnational Effects I: Representing Outsiders Through Freedom of Movement, 16 Eur. L.J. 315 (2010); Somek, Alexander, The Argument from Transnational Effects II: Establishing Transnational Democracy, 16 Eur. L.J. 375 (2010).Google Scholar

33 Trybunał Konstytucyjny [Polish Constitutional Court], Case No. K 18/04, May 11, 2005, OTK Z.U. 2005/6A (Pol.) (determining Polish membership of the European Union and the validity of the Accession Treaty).Google Scholar

34 The idea of ‘constitutional tolerance’ in the EU belongs of course to Joseph Weiler. See, e.g., J.H.H. Weiler, In Defense of the Status Quo: Europe's Sonderweg, in European Constitutionalism Beyond the State 18 (J.H.H. Weiler & Marlene Wind eds., 2003).Google Scholar

35 See Kaldor, Mary, Sabine Selchow, Sean Deel & Tamsin Murray-Leach, The Bubbling up of Subterranean Politics in Europe (London School of Economics, Civil Society and Human Security Research Unit, 2012), available at www.subterraneanpolitics.eu.Google Scholar

36 Müller, supra note 27, at 44–5.Google Scholar

37 Id. at 47.Google Scholar

38 Id. Google Scholar

39 On the former, charting the reaction to the concept of constituent power in German constitutional thought in the twentieth century, see Möllers, Christoph, We are (afraid) of the People: Constituent Power in German Constitutionalism, in The Paradox of Constitutionalism: Constituent Power and Constitutional Form 87 (Loughlin & Walker eds., 2009).Google Scholar

40 See Müller, supra note 27, at 44.Google Scholar

41 See Streeck, Markets and Peoples, supra note 5, at 63; see generally Streeck, The Crises of Democratic Capitalism, supra note 5.Google Scholar

42 Streeck, , The Crises of Democratic Capitalism, supra note 5, at 7.Google Scholar

43 See Streeck, Wolfgang, Taking Capitalism Seriously: Towards an Intuitionalist Approach to Contemporary Political Economy, 9 Socio-Econ. Rev. 137 (2011).Google Scholar

44 Id.; but see id. at 156 (noting, “only in a functionalist worldview” is the success of efforts at taming capitalist excesses actually “guaranteed”).Google Scholar

45 Polanyi, Karl, The Great Transformation: The Political and Economic Origins of Our Time 234 (2001).Google Scholar

46 Id. The same conviction—democracy's potential threat to capital—explains the continuing attempts by the City of London to retain effective constitutional independence in the UK. See generally, Maurice Glasman, The Labour Tradition and the Politics of Paradox: The Oxford London Seminars 2010–2011 (Maurice Glasman, Jonathan Rutherford, Marc Stears & Stuart White eds., 2011).Google Scholar

47 See Polanyi, , supra note 45, at 234. The flipside to this antagonism between populism and capitalism would be the growing sense amongst some of the Left in the early twentieth century that democracy—in the absence of a proletarian majority—would not in practice produce a socialist economy, that political equality would not lead to economic “equality,” and therefore communist groups must resort to force rather than relying on the ballot box in order to achieve their aims. According to Kelsen's historical analysis, this results in a tension between democracy and socialism. See Hans Kelsen, On the Essence and Value of Democracy, in Weimar: A Jurisprudence of Crisis, 105–6 (Arthur Jacobson & Bernard Schlink eds., 2000).Google Scholar

48 Habermas, Jürgen, The Crisis of the European Union: A Response 110 (2012).Google Scholar

49 There is some ambiguity about the ultimate fate of capitalist crises in Marxism. In Heinrich's reading of “Capital,” although Marx “attempted to prove that crises result from the capitalist mode of production itself and that a crisis-free capitalism is impossible,” there is no “comprehensive theory of crisis.” Michael Heinrich, An Introduction to the Three Volumes of Karl Marx's Capital 171 (Alexander Locascio trans., 2012). Heinrich notes that for the capitalist system crisis can be quite “productive,” at least in the short to medium-term. Id. at 121. Whether economic crises would ultimately lead to the collapse of capitalism or even whether political crisis would necessarily follow from economic crisis is far from certain, in his analysis. Id. at 178.Google Scholar

50 See generally Habermas, Jürgen, Legitimation Crisis (Thomas McCarthy trans., 1976).Google Scholar

51 Id.at 40.Google Scholar

52 See McCarthy, , supra note 4, at 166.Google Scholar

53 Connolly, William, who asks this question in the US context, identifies two “fundamental sets of priorities” that conflict: Greater productivity—the (dis)illusion of the American dream of increasing and universal private affluence and social mobility—and constitutional democracy. See William Connolly, Politics and Ambiguity 76 (1987).Google Scholar

54 It is Fritz Scharpf, above all, who has conceptualized and described in institutional detail the social and economic imbalances caused by Europe's constitutional asymmetry. See, Fritz Scharpf, The Asymmetry of European Integration: or Why Europe Can't Have a Social Market Economy, 8 Socio-Economic Rev. 211 (2010).Google Scholar

55 As Perry Anderson puts it:Google Scholar

In the European simulacrum of federalism, there could be no ‘transfer union’ along American lines. Once crisis struck, cohesion in the Eurozone could only come, not from social expenditure, but political dictation—the enforcement by Germany, at the head of a bloc of smaller northern states, of draconian austerity programmes, unthinkable for its own citizens, on the southern periphery, no longer able to recover competitivity by devaluation.

Anderson, Perry, After the Event, 73 New Left Rev. 49, 56–57 (2012).Google Scholar

56 Consolidated Version of The Treaty on the Functioning of the European Union art. 125, Mar. 30, 2010, 2010 O.J. (C 83) 171; see Chiti et al., supra note 26; but see Pringle v. Ireland, CJEU Case C-370/12, 2012 E.C.R. I-000, available at http://curia.europa.eu/juris/recherche.jsf?language=en‥Google Scholar

57 See Habermas, Jurgen, Does Europe Need a Constitution? A Response to Dieter Grimm, in The Inclusion of the Other: Studies in Political Theory 155 (Ciarin Cronin & Pablo de De Greiff eds., 1998).Google Scholar

58 The role of the German court is complex and ambiguous and cannot be fully explored here. But, as Scharpf puts it, “the [Lisbon] decision appears fundamentally flawed because the court has failed to consider its generalised implications in the light of the Kantian categorical imperative.” See Scharpf, supra note 54, at 242.Google Scholar

59 See Streeck, , Markets and Peoples, supra note 5, at 64.Google Scholar

60 See generally Chalmers, Damian, The Redistributive State, 18 European L.J. 667 (2012).Google Scholar

61 See McCarthy, , supra note 4, at 159.Google Scholar

62 See, e.g., Kaldor, supra note 35.Google Scholar

63 See Müller, supra note 27, at 45–46.Google Scholar

64 Authoritarian liberalism was coined just a few years before Loewenstein's militant democracy, and by another German jurist, Herman Heller. Herman Heller, Autoritarer Liberalismus?, 44 Die Neue Rundschau 289 (1933). More recently it has been used by Sisira Jayasuriya to describe the emergent state form in East and Southeast Asia under the pressures of economic globalization especially after the Asian crash of the late 1990s. See Sisira Jayasuriya, Authoritarian Liberalism, Governance and the Emergence of the Regulatory State in Post-Crisis East Asia, in Politics and Markets in the Wake of the Asian Crisis 315, 318–19 (Richard Robison, Mark Beeson, Kanishka Jayasuriya & Hyuk-Rae Kim eds., 2000).Google Scholar

65 Christian Joerges has explored this theme in the context of the Sozialstaats controversy in the new Federal Republic of Germany as well as the European Union; see Christian Joerges, Rechtsstaat and Social Europe: How a Classical Tension Resurfaces in the European Integration Process, 9 Comp. Soc. 65 (2010).Google Scholar

66 See Bobbitt, Philip, The Shield of Achilles: War, Peace and the Course of History 213–243 (2002).Google Scholar

67 The translation of Foucault's lectures given in 1979 has also recently brought to the English-speaking world the significance of ordo-liberalism and its authoritarian qualities. See Michel Foucault, The Birth of Bio-Politics: Lectures at the College de France (Michel Senellart ed., Graham Burchell trans., 2010).Google Scholar

68 See Cristi, Renato, Carl Schmitt and Authoritarian Liberalism (1998) (employing the concept of authoritarian liberalism to bridge the distance between Schmitt and Hayek). Carl Schmitt's address to a conference of the Langnamverein translated by Cristi as “Sound Economy in a Strong State” held in Dusseldorf on 23 Nov. 1932, forcefully defends “autonomous economic management”—as opposed to “economic democracy”—as a sphere in between state and individual. Id. at Appendix. On the similarities and differences between Schmitt and Hayek, see Scheuerman, William E., The Unholy Alliance of Carl Schmitt and Friedrich Hayek, 4 Constellations 172 (1997). Scheuerman concludes that there is an “elective affinity” between “free market economics and authoritarian politics” that has become “common in the contemporary political universe.” Id. at 184.Google Scholar

69 The term neo-liberalism was coined at the Walter Lippman colloquium in 1938 by one of the key protagonists of the ordo-liberal tradition, Alexander Rustow, in order to distinguish their project from laissez-faire liberalism. For discussion, see Bonefeld, Werner, Adam Smith and Ordo-Liberalism: On the Political Form of Market Liberty, 39 Rev. Int'l Stud. 233, 234 (2012). Friedrich, Carl-Joachim, in an early comment, uses the term neo-liberal to describe the ordo school, and suggests that it has strong “elitist” tendencies. See Carl J. Friedrich, The Political Thought of Neo-Liberalism, 49 Am. Pol. Sci. Rev. 509 (1955). The purpose here is not to engage in systematic analysis of ordo or neo-liberalism but rather to expose a common “authoritarian” theme. The question whether the similarities between ordo- and neo-liberalism are more significant than the differences will be bracketed here.Google Scholar

70 For a recent examination, attempting to separate Hayekian fact from fiction on this score, see Farrant, Andrew, Edward McPhail & Sebastian Berger, Preventing the Abuses of Democracy: Hayek, the Military Usurper and Transitional Dictatorship in Chile, 71 Am. J. Econ. & Soc 513 (2012).Google Scholar

71 Hayek, Friedrich, The Road To Serfdom: Text and Documents the Definitive Edition 118 (Bruce Caldwell ed., 2007).Google Scholar

72 Id. at 90.Google Scholar

73 Ordo-liberals mistakenly associate the laissez-faire view with the classical liberalism of Adam Smith. See Bonefeld, , supra note 69, at 236.Google Scholar

74 See Habermas, , supra note 48, at 129.Google Scholar

75 For an exploration of the new type of citizenship opened up by the EU, see Bellamy, Richard, The Liberty of the Moderns: Market and Civic Freedom Within the EU, 1 Global Constitutionalism 141 (2012).Google Scholar

76 See Bonefeld, , supra note 69, at 245–6.Google Scholar

77 Id. at 238 (discussing Müller-Armack).Google Scholar

78 This process is captured by Rosa Luxemburg's characterization of the invasion of social life by market capitalism as land-grabbing or Landnahme. See Rosa Luxemburg, The Accumulation of Capital 328 (Agnes Schwarzschild trans., 2003).Google Scholar

79 See Jürgen Habermas, Postnational Constellation: Political Essays 94 (Max Pensky ed., trans., 2002).Google Scholar

80 Heller, Hermann, Political Democracy and Social Homogeneity, in Weimar: A Jurisprudence of Crisis 256, 262 (Arthur Jacobson & Bernard Schlink eds., 2000).Google Scholar

81 Id. Google Scholar

82 Id. at 260.Google Scholar

83 Somek, Alexander, Austrian Constitutional Doctrine 1933 to 1938, in Darker Legacies of Law in Europe 361, 362 (Christian Joerges & Navraj Singh-Ghaleigh eds., 2003). Martin Loughlin notes that the process of constitutionalization beyond the state, as a “freestanding process of rationalist constitutional design,” one that can operate without the fiction of authorization by “the people,” “threatens to transform itself into a new phenomenon, which can be called “authoritarian constitutionalism,” through which a new “‘imperial network’ … will seek to secure the legitimacy of its global rule.” Martin Loughlin, In Defence of Staatslehre, 48 Der Staat 1, 26 (2010).Google Scholar

84 Ernst-Joachim Mestmäcker, European Touchstones of Dominion and Law, 58 Ordo Y.B. Econ. & Soc. Ord. 3, 5 (2007).Google Scholar

85 Whether this conditioning is a result of external pressures or political choices, unintended consequences or design, is complex and will be tentatively examined below. Constitutional reactions to the far Left in the guise of militant democracy in Germany with the banning of the communist party suggest a longer legacy to authoritarian liberalism's fear for the survival of the market economy. Müller notes that the “equation of Soviet Communism and Nazism” implicit in the new “disciplined democracy” (Loewenstein) was in danger of relativizing the evils of the latter. See Jan Werner-Müller, Contesting Democracy: Political Ideas in Twentieth-Century Europe 147 (2011).Google Scholar

86 See, e.g., Schirrmacher, Frank, Democracy Has Junk Status, Frankfurter Allgemeine Zeitung, Nov. 2, 2011, http://www.presseurop.eu/en/content/article/1128541-democracy-has-junk-status (describing the earlier horrified reaction to Papandreou's promise of a referendum to the Greek people: “[T]he moral conventions of the postwar period are being wiped out in the name of a supposedly higher financial and economic rationale.”).Google Scholar

87 Although formally outside the EU legal framework the Fiscal Compact is, like the prior Euro Plus Pact, substantially within it. On this legal ambiguity see, Chiti et al., supra note 26, at 400–1.Google Scholar

88 See Jan Werner-Müller, What do Germans Think About When They Think About Europe, 34 London Rev. Books 18, 19 (2012) (noting that Romano Prodi recently said, “Germany is Europe's paymaster. Even Franco-German summits are now really ‘German- German summits’ “). A recent editorial conveys the message, apparently without irony, that “[w]e are all speaking German now.” LB & JHR, The Fiscal Compact and the European Constitutions: We are Speaking German Now, 8 Eur. Con. L. Rev. 1 (2012).Google Scholar

89 See Chiti, et al., supra note 26, at 421.Google Scholar

90 See Chiti, et al., supra note 26, at 417. According to them, “ ‘the in and out’ from the constitutional framework operates as a precondition for the rise of executive emergency constitutionalism, as it tends to minimize public debate and to avoid the ordinary filters of the democratic constitutional state” Id. Google Scholar

91 Étienne Balibar, Europe's Revolution from Above, The Guardian, Nov. 23, 2011, http://www.guardian.co.uk/commentisfree/2011/nov/23/europe-revolution-from-above.Google Scholar

92 CGH, 'If the Euro Fails, Europe Fails': Merkel Says EU Must Be Bound Closer Together, Der Spiegel, Sept. 7, 2011, http://www.spiegel.de/international/germany/if-the-euro-fails-europe-fails-merkel-says-eu-must-be-bound-closer-together-a-784953.html.Google Scholar

93 Id. The notion of a “revolution from above” is advanced by Sheldon Wolin as characteristic of the totalizing shifts in political and economic power generated by elites in postmodern democracy and its hybrid of the corporatist state. See Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought 605 (2004).Google Scholar

94 See Chiti, et al., supra note 26, at 395.Google Scholar

95 For more detail on the various phases of response to the crisis, see Id. at 404–416. See also, Agustin Menendez, The Existential Crisis of the European Union (in this issue).Google Scholar

96 Consolidated Version of the Treaty on European Union art. 10, Mar. 30, 2010, 2010 O.J. (C 83) 15 [hereinafter TEU].Google Scholar

97 Id. art. 3.Google Scholar

98 Id. art. 4(2).Google Scholar

99 This has been evident in the line of decisions on the ECJ on citizenship. For an overview, see Ferdinand Wollenschläger, A New Fundamental Freedom Beyond Market Integration, 17 Eur. L. J. 1 (2011).Google Scholar

100 Final Report of the Future of Europe Group of the Foreign Ministers of Austria, Belgium, Denmark, France, Italy, Germany, Luxembourg, the Netherlands, Poland, Portugal and Spain, Sept. 17, 2012, available at http://www.auswaertiges-amt.de/cae/servlet/contentblob/626338/publicationFile/171838/120918-Abschlussbericht-Zukunftsgruppe.pdf.Google Scholar

101 Id. at 1.Google Scholar

102 The “external” dimension of authoritarian liberalism, no less significant than its internal dimension, cannot be explored here.Google Scholar

103 See Final Report of the Future of Europe Group, supra note 100, at 7.Google Scholar

104 On the neo-liberal roots of the present crisis, see Harvey, David, The Enigma of Capital and the Crisis of Capitalism 10 (2010).Google Scholar

105 It was a slogan famously associated with Margaret Thatcher in the 1980s. See, e.g., Krämer, Michael, There is No Alternative!, The Guardian, May 4, 2013, http://www.guardian.co.uk/science/life-and-physics/2013/may/04/no-alternative-bayes-penalties-philosophy-thatcher-merkel.Google Scholar

106 See Weiler, , supra note 19.Google Scholar

107 See, e.g., CGH, supra note 92.Google Scholar

108 Through steps of concrete achievements building on de facto solidarity is of course how integration was envisaged to proceed in the Schuman Declaration. See generally Robert Schuman, Schuman Declaration, May 9, 1950, available at http://europa.eu/about-eu/basic-information/symbols/europe-day/schuman-declaration/index_en.htm.Google Scholar

109 According to Hannah Arendt, politics is characterized by freedom and the non-political—the “social” in modern times—by necessity, “where technical mastery rather than speech and deliberation fittingly hold sway.” See Keith Breen, Law Beyond Command? An Evaluation of Arendt's understanding of Law, in Hannah Arendt and the Law 15, 25 (MacCorkindale & Goldoni eds., 2012).Google Scholar

110 David Cameron's Conservative Party Conference Speech: In Full, Daily Tel., Oct. 10, 2012, http://www.telegraph.co.uk/news/politics/conservative/9598534/David-Camerons-Conservative-Party-Conference-speech-in-full.html (delivering a speech on October 9, 2012 to the Tory Party conference).Google Scholar

111 Susanne Lütz & Matthias Kranke, The European Rescue of the Washington Consensus? EU and IMF Lending to Central and Eastern European Countries (London School of Economics, ‘Europe in Question’ Discussion Paper Series No. 22, 2010). That paper discusses the harshness of EU conditions compared to the IMF in the case of CEE countries. But the initial bilateral loans applied to Greece were subject to harsh conditions and harsher rates of interest than applied by the IMF.Google Scholar

112 See Connolly, , supra note 53, at 82.Google Scholar

113 See Habermas, Jurgen, Jurgen Habermas on Society and Ethics: A Reader 266 (Steven Seidman ed., 1989).Google Scholar

114 Id. Google Scholar

115 Id. Google Scholar

116 See Habermas, , supra note 48, at 106. Habermas notes that the transformation of law and politics in the process of European integration is bound up with capitalist dynamics of “functionally driven opening” of integration-inclusion followed by a “socially integrative closure.” See Habermas, supra note 48, at 113.Google Scholar

117 Gunther Teubner provides a contemporary articulation of this Weberian thesis in the context of Europeanization and globalization.Google Scholar

118 For an exploration of this theme, see Walker, Neil, The Anti-Political Polity, 73 Mod. L. Rev. 141 (2010).Google Scholar

119 See McCarthy, , supra note 4, at 160 (noting, “the class relationship is institutionalized through the labour market and therefore ‘depoliticised’ “); see also McCarthy, supra note 6, at 166 (arguing “the public realm, whose functions have been reduced largely to periodic plebiscites in which acclamation can be granted or withheld, is structurally depoliticized.”).Google Scholar

120 McCarthy, , supra note 4, at 166. The supposed naturalness of the economic order advanced in forms of ordo and neo-liberalism is also picked up on by Foucault. See Foucault, supra note 67, at 15, 21.Google Scholar

121 See McCarthy, , supra note 4, at 167.Google Scholar

122 Mestmäcker is worth quoting in full:Google Scholar

The mutual opening of legal and economic studies to one another made possible the insight into their joint significance for market economy order. Contrary to other social sciences and to law, economics had no difficulties to progress from the wealth of the nation to the wealth of nations. But, like a shadow, private law follows the transactions from which markets and competition emerge without consideration for national borders. Despite methodical difficulties that have yet to be overcome to this day economics and law are closely linked to one another. The hinge is formed by the firm discipline imposed by the shortage of economic resources and the political symbiosis of the public interest in democracies with the economic prosperity of their populations

See Mestmäcker, supra note 84, at 5–6.

123 See Foucault, supra note 67, at 295. I examine the notion of freestanding constitutionalism in more depth in Wilkinson, supra note 3, at 200. Foucault was not the first to notice ordo-liberalism's neglect of the concept of popular sovereignty. See Friedrich, supra note 69.Google Scholar

124 Mestmäcker, supra note 84.Google Scholar

125 The authority for what came to be known as the “no demos thesis” was none other than Herman Heller. The disingenuity of the German Court's reference to Heller was noted by Weiler in his response to its judgment. See Joseph Weiler, Does Europe Need a Constitution? Reflections on Demos, Telos and Ethos in the German Maastricht Decision, 1 Eur. L.J. 219 (1995). For Heller, contrary to the German Court's reading in its Maastricht decision, homogeneity is a predominantly social and economic category rather than a spiritual, cultural, or ethnic one. What is decisive for the question of homogeneity is not the intellectual or ideological superstructure but the reality of economic disparities. He recognizes, nevertheless, that the bourgeoisie as a class will attempt to resurrect ideologies, including those of nationalism and of monarchy, in order to maintain its own position of power amid the eternal “cycle of elites.” See Heller, supra note 80, at 261.Google Scholar

126 Hayek's vision of interstate federalism was “expressly designed to safeguard the free workings of the market from democracy, against whose dangers he was always on his guard, proffering to envisage a ‘demarchy’ dispensing with the fetish of universal suffrage.” See Anderson, supra note 11, at 104. For further discussion, see Somek, Alexander, The Social Question in a Transnational Context (London School of Economics, Europe in Question Discussion Papers Series No. 39/2011, 2011), available at http://www2.lse.ac.uk/europeanInstitute/LEQS/LEQSPaper39.pdf.Google Scholar

127 Streeck, , The Crises of Democratic Capitalism, supra note 5, at 28 n. 21:Google Scholar

[P]olitical appeals for redistributive ‘solidarity’ are now directed at entire nations asked by international organizations to support other entire nations, such as Slovenia being urged to help Ireland, Greece and Portugal. This hides the fact that those being supported by this sort of ‘international solidarity’ are not the people in the streets but the banks, domestic and foreign, that would other - wise have to accept losses, or lower profits. It also neglects differences in national income. While Germans are on average richer than Greeks, although some Greeks are much richer than almost all Germans, Slovenians are on average much poorer than the Irish, who have statistically a higher per capita income than nearly all Euro countries, including Germany.

128 Streeck, , The Crises of Democratic Capitalism, supra note 5, at 28 n. 21.Google Scholar

129 Although as Featherstone notes, the comparison has to be handled with care due to very different economic circumstances. See Kevin Featherstone, Le Choc de la Nouvelle? Maastricht, Deja-Vu and EMU Reform (London School of Economics, Europe in Question Discussion Papers Series No. 52/2012, 2012) available at http://www2.lse.ac.uk/europeanInstitute/LEQS/LEQSPaper52.pdf.Google Scholar

130 As Perry Anderson notes:Google Scholar

All but universally, the prescriptions applied to restore the faith of financial markets in the reliability of local intendancies include cuts in social spending, deregulation of markets, privatizations of public property: the standard neo-liberal repertoire, assorted with increased tax pressures. To lock these in, Berlin and Paris are currently resolved to force the requirement of a balanced budget into the constitution of all seventeen nations of the Eurozone—a notion long regarded in America as a shibboleth of the crackpot right.

Anderson, supra note 55, at 57.

131 On the US movement, see Graeber, David, Occupy and Anarchism's Gift of Democracy, The Guardian, Nov. 15, 2011, http://www.guardian.co.uk/commentisfree/cifamerica/2011/nov/15/occupy-anarchism-gift-democracy.Google Scholar

132 See Streeck, , Markets and Peoples, supra note 5, at 64.Google Scholar

133 See Streeck, , Markets and Peoples, supra note 5, at 67.Google Scholar

134 See Streeck, , Markets and Peoples, supra note 5, at 67.Google Scholar

135 For a narrative that now seems to persuade, see generally Habermas, supra note 48.Google Scholar

136 See Arendt, Hannah, Between Past and Future 17–19 (1968); see also Hannah Arendt, The Human Condition 222 (1958) (making the same strong point). “Escape from the frailty of human affairs into the solidity of quiet and order,” Arendt notes, “has in fact so much to recommend it that the greater part of political philosophy since Plato could easily be interpreted as various attempts to find theoretical foundations and practical ways for an escape from politics altogether.” Arendt, The Human Condition, at ch. 5.Google Scholar

137 This substitution is not in fact distinctively modern, but takes its cue from the Platonic inauguration of the “great tradition.” Arendt, The Human Condition, supra note 136, at 110.Google Scholar

138 Block, Fred, Introduction to Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time xviii, xxxviii (2001).Google Scholar

139 Id. at xxxvii.Google Scholar

140 See, for example, Bonefeld, Werner, who identifies an innate connection between the state and the market in neo-liberal capitalism, suggesting the capitalist state is a liberal—but not a weak—state, based strongly on maintaining divisions of class. Werner Bonefeld, Neo-Liberal Europe and the Transformation of Democracy, in Globalisation and European Integration 51 (Nousios, Overbeek & Tsolakis eds., 2011).Google Scholar

141 Weiler, Joseph, The Transformation of Europe, 100 Yale L.J. 2403, 2477 (1991) (emphasis added). Oddly this powerful claim about the market qua political choice doesn't feature much in his recent scathing assessments of the EU, although there is brief mention the loss of transnational solidarity in an editorial. See JHHW, Editorial: 60 Years Since the First European Community—Reflections on Political Messianism, 22 Eur. J. Int'l L. 303, 305 (2011).Google Scholar

142 See Streeck, , supra note 43, at 161.Google Scholar

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