What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer

Abstract

Does Europe need a Constitution? Does it already have one, albeit one which does not generate the type of legitimacy that good European governance would require? What are the failures of the European construct that we have to address? How could the necessary changes be brought about? Such questions nurture endless discussions among lawyers and political scientists all over Europe and beyond. To its surprise, this learned community hears about a talk given on 12 May 2000 at the Humboldt University in Berlin by Joschka Fischer. “Allow me . . . to cast aside for the duration of this speech the mantle of German Foreign Minister. . . . Although I know it is not really possible to do so,” Herr Fischer explained. Whether possible or not, one huge virtue was on display: that this was not a speech with electoral returns or the prospects of pre-election pep-talks in mind—a truly bright and a refreshing breath of fresh air in today’s politics. His talk became immediately accessible in three languages not only through the website of the Walter Hallstein Institute at the Humboldt University but also as a “Grundsatzrede” on the website of the German Bundestag. A wide degree of public attention was hoped for and was, in fact, received. The German Foreign Minister had initiated an intensive public debate. The responses in Europe were heard primarily in the various political arenas of the Union’s Member States and were often enough articulated by citizen Fischer’s high ranking colleagues. Public attention was not restricted to the political system and organised public opinion. Only rarely do politicians free themselves in public from the constraints of their roles of being either the specialist managing necessities or the generalist delivering uncontroversial messages. Our initiative was born out of academic curiosity for a tertium. We witnessed the emergence of a European-wide discussion on problems and prospects of the European polity inspired by an unconventional type of political act and wondered whether we could mirror this event: how does the academic world address the issues raised in the political system and what, indeed, do academics have to say when they themselves leave their own circles to raise their voices as citizens? Such an initiative can neither be representative or original in any way nor can it articulate some form of communis opinio—academics, appropriately, are good at unveiling ever more problems but not, perhaps, at coming up with common answers. What we sought to bring about was a multi-disciplinary, multi-national, pluralist response which would document common concerns and the existence of a European public sphere—at least in the social sub-system we inhabit. With our initiative, we step outside the ordinary confines of the academic world in much the same way as Joschka Fischer operates outside the conventional borders of the political system. This is neither to suggest that both worlds could merge nor to establish a hierarchy among them. However, it nonetheless remains our ambition to enrich the public debate. How might one read this collection of essays? We did not try to assign specific tasks to the individual contributors. Each and every one of them represents specific research priorities, long-term orientations and normative preferences. Their interdisciplinary and multi-national composition ensured a range of responses which, in some, would, to some degree, be complementary, in others controversial, but never ever simply redundant. We also did not bother too much with editing style: on the websites where these contributions were made accessible, the voices one could read were authentic, having met only with the lightest of touches from the editor’s pen. In these printed versions, the English of non-native writers has been edited, albeit not with the ambition of camouflaging the origin of texts. Hence, it would be futile to try to organise their collective contents in line with some all-encompassing system. It may, however, be useful to sketch out briefly just three main common themes of this collective exercise. Such guidance may help readers to identify the contributions which are closest to their particular interest. They should, however, also be prepared to discover many more interesting comments which are not included in the following sketch. “Less than a Federation. More than a Regime”: this famous characterisation of the European project has proved to be of long term validity. But this success stems from its very indeterminacy. When proclaiming “a very simple answer” to the queries posed by this formula, namely “the transition from a union of states to full parlamentarisation as a European Federation,” Joschka Fischer rejects what has so far been a very successful compromise formula. Charles Leben, the contitutionalist, cannot imagine what a “federation” which is not a state, or, as Giuliano Amato puts it, not a Bundesrepublik, would look like, even though the European citizen, Leben, would apparently very much like to see it come into being; Klaus von Beyme, the political scientist, recalls the Lebenslüge of Germany’s federalism and Helen Wallace confirms this—not only does the term “federation” irritate many Britons, as Joschka Fischer knows so well, “his focus on the finalité of the European Union also baffles” most of them. Tanja Börzel and Thomas Risse have delivered a systematic treatment of the issue which juxtaposes the conventional legal reconstruction of the EU (with which they find Fischer still identifying himself) with the multi-level governance models circulating in the world of the political sciences: tertium datur! Reservations about the “federation” vision are particularly marked in the contributions by Iulia Motoc and Jan Zielonka. Both are afraid of the implications of such a move for the “standing” of putative new members; the loss of their newly gained autonomy. The present institutional system cannot work with so many new member, Joschka Fischer argues. Deepening, however, will provoke the mistrust of the new Member States, von Beyme warns. And Jan Zielonka adds that enlargement is simply incompatible with Joschka Fischer’s finalité: to insist on the “adoption of an 80,000 pages long acquis communautaire” cannot be the “Königsweg” into a democratic future. The threat of a core Europe may, indeed, strengthen new alliances with British opponents of further integrationist moves. It is illuminating to observe that all the contributions are fighting with an apparent dilemma: the adherence to a formal structure which will be accompanied by the emergence of new non-formalised hierarchies on the one hand, and institutional changes which should focus on the efficacy of decision-making procedures in the future on the other. The quest is for a tertium, i.e., an institutional reform within which the economic and social discrepancies could be addressed and the acceptance of the Union by all its new and old citizens be ensured. How, then, does one get there? The title Johan Olsen has chosen for his contribution refers to the institutional framework outlined in Fischer’s talk: “a constitutional treaty centred around basic human and civil rights; shared sovereignty and a clear definition of competences between European and nation-state levels of governance; a division of powers among the European institutions, including full parliamentarisation and a European Parliament with two chambers, a European Government and, possibly, a directly elected president” entrusted with broad administrative powers. It its not just the individual elements of this building which meet with reservations, but the very idea of prescribing the ends of the integration process. All disciplines, including even the law, have come to understand integration more as a Hayekian discovery procedure than a pre-thought-out blueprint, and constitutionalisation more as a process than as an interpretative exercise. Constitutionalism beyond the state has become a theme even within nation-states with a strong “Staats-tradition”. All this implies a search for legitimate governance structures which cannot simply be copies of the model of the democratic nation-state. Joschka Fischer, the citizen, may be less surprised than Joschka Fischer, the Foreign Minister, by the observation that so many among the contributors seem to be more radical than he is in their readiness to rethink Europe’s institutional future. There is a lot more to be found in the contributions—and, indeed, in Joschka Fischer’s speech. This speech was politically successful in that it moved so many otherwise silent minds in the European public. Its was also successful in strengthening the sensitivity of the academic world to a series of issues which deserve to be explored and debated further—in both worlds.

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