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The Constitution of Europe: the new Kulturkampf?

Published online by Cambridge University Press:  06 March 2019

Abstract

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Type
Review Article
Copyright
Copyright © 2006 by German Law Journal GbR 

References

1 The opposition between west and east was also an important theme in ancient Greek writing: see Anthony Pagden, Europe: Conceptualizing a Continent in The Idea of Europe from Antiquity to the European Union, ch.1, (Pagden ed., 2002)Google Scholar

2 European Convention, Draft Treaty establishing a Constitution for Europe (submitted to President of the European Council, 18 July 2003), CONV 850/03, Preamble.Google Scholar

3 Mark Mazower, Dark Continent: Europe's Twentieth Century (1998)Google Scholar

4 Preface to Darker Legacies Of Law In Europe, x, (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)Google Scholar

5 Lepsius, Oliver, The Problem of Perceptions of National Socialist Law or: Was there a Constitutional Theory of National Socialism?, in Darker Legacies Of Law In Europe, 19, 28 (Christian Joerges, Navraj Singh Ghaleigh eds., 2003)Google Scholar

6 Id., 30. Neil Walker therefore writes too loosely when referring to “the relentless Nazi emphasis on the primacy of the political”. See Neil Walker, From Großraum to Condominium, in Darker Legacies Of Law In Europe, 193, 199 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003). Since Nazism was unable to generate a sustainable dynamic between “the people” and their institutions of government, it is better characterized as a regime marked by the absence of politics rather than the primacy of the political.Google Scholar

7 See Michael Stolleis, A History Of Public Law In Germany 1914-1945, ch.8, Thomas Dunlap trans. (2004); R.C. Van Caenegem, European Law In The Past And The Future, 103-30 (2002)Google Scholar

8 Agustìn José Menéndez, From Republicanism to Fascist ideology under the Early Franquismo, in Darker Legacies Of Law In Europe, 337, 359 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)Google Scholar

9 Eric Voegelin, Collected Works Vol. 4. The Authoritarian State: An Essay On The Problem Of The Autstrian State, Ruth Hein trans. (1999)Google Scholar

10 Cited in Voegelin Id., 22Google Scholar

11 See, e.g. Carl Schmitt, Legality And Legitimacy (Jeffrey Seitzer trans., 2004). In case this concern seems foreign to British scholars, it might be pointed out that, as a standard practice, the British conferred parliamentary constitutions on their former colonies throughout the twentieth century only to see that within relatively short periods these were invariably transformed into presidential systems, and often in conjunction with the formation of a one-party state.Google Scholar

12 Voegelin (supra, note 9), 74. See Mussolini's famous phrase: “Everything for the state, nothing outside the state, nothing against the state”, cited in Julius Stone, Theories of Law and Justice of Fascist Italy, 1 Modern Law Review 177, 193 (1937)Google Scholar

13 Somek, Alexander, Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and its Legacy, in Darker Legacies Of Law In Europe, 361, 383 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)Google Scholar

14 Id., 383Google Scholar

15 Id., 384Google Scholar

16 It might also be noted that the Austrian model garnered some support from PIUS XI's, QUADRAGESIMO ANNO encyclical (1931), which not only promoted the idea of the corporative organization of society but also (80) recommended the principle of subsidiarity.Google Scholar

17 See Van Caenegem (supra, note 7), 120-6. He asks, rhetorically: “am I having a hallucination or were there in fact two different men with the same name?” (121)Google Scholar

18 STOLLEIS (supra, note 7), 346.Google Scholar

19 Id., 356.Google Scholar

20 Joerges, Christian, Europe as Großraum? Shifting Legal Conceptualisations of the Integration Project, in Darker Legacies Of Law In Europe, 167, 184 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)Google Scholar

21 Stolleis, Michael, Prologue: Reluctance to Glance in the Mirror. The Changing Face of German Jurisprudence after 1933 and post-1945, in Darker Legacies Of Law In Europe, 1, 1 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)Google Scholar

22 See, e.g., Ruti G. Teitel, Transitional Justice (2000)Google Scholar

23 Torre, Massimo La, The German Impact on Fascist Public Law Doctrine – Constantino Mortati's Material Constitution, in Darker Legacies Of Law In Europe, 305, 305 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)Google Scholar

24 Id., 313Google Scholar

25 Id., 316Google Scholar

26 Id., 313Google Scholar

27 Id., 319Google Scholar

28 Id., 319Google Scholar

29 Ghaleigh, Navraj Singh, Looking into the Brightly Lit Room: Braving Carl Schmitt in ‘Europe’, in Darker Legacies Of Law In Europe, 43, 45 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)Google Scholar

30 La Torre (supra, note 23), 307Google Scholar

31 Somek (supra, note 13), 381-2Google Scholar

32 Burgess, J Peter, Culture and the Rationality of Law from Weimar to Maastricht, in Darker Legacies Of Law In Europe, 143, 144 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)Google Scholar

33 Stolleis (supra, note 7), 169-173Google Scholar

34 Id.,172Google Scholar

35 Id., 264Google Scholar

36 His despicable behavior includes that of chairing of an infamous conference on “Jewry in Legal Studies” in 1936, which called “for a ‘cleansing’ of minds and libraries” (Id., 257) and the publication of a paper, “The Führer Protects the Law” (1934), which “gave its blessing to a piece of gangsterism and ruined the moral reputation of its author” (Id., 335).Google Scholar

37 McCormick, John P, Carl Schmitt's Europe: Cultural, Imperial and Spatial, Proposals for European Integration, 1923-1955, in Darker Legacies Of Law In Europe, 133, 138 (Christian Joerges/Navraj Singh Ghaleigh eds., 2003)Google Scholar

38 Joerges (supra, note 20), 171Google Scholar

39 Id., 177Google Scholar

40 See Stolleis (supra, note 7), 421-2.Google Scholar

41 Id., 421Google Scholar

42 Joerges (supra, note 20), 190-1Google Scholar

43 Mc Cormick (supra, note 37), 140Google Scholar

44 Walker (supra, note 6), 195Google Scholar

45 Ghaleigh (supra, note 29), 51Google Scholar

46 Carl Schmitt, Verfassungslehre, ch.1 (1928). I am using the French translation: Theorie De La Constitution, 131 (Lilyane Deroche trans., 1993)Google Scholar

47 Id., 132.Google Scholar

48 Id., ch.2.Google Scholar

49 Burgess (supra, note 32), 155Google Scholar

50 This is the main theme of Carl Schmitt, Legality And Legitimacy (supra, note 11)Google Scholar

51 See Martin Loughlin, Public Law And Political Theory (1992)Google Scholar

52 Voegelin (supra, note 9), 216-7.Google Scholar

53 Id., 217Google Scholar

54 On this issue, we might note the similarities between the authoritarian liberalism of Hayek and Schmitt, which are well drawn in Renato Cristi, Carl Schmitt And Authoritarian Liberalism ch.7 (1998)Google Scholar

55 Eley, Geoff, Nazism, Politics and the Image of the Past: Thoughts on the West German Historikerstreit, 1986-1987, 121 Past and Present 171, 172 (1988)Google Scholar

56 Cited in Eley (supra, note 55), 193. Eley also cites the Orwellian language used by Michael Stürmer: “In a land without history, whoever fills the memory, defines the concepts and interprets the past, wins the future.” (Id., 194)Google Scholar

57 See, e.g., Carl Schmitt, The Age of Neutralizations and Depoliticizations, 96 Telos 130, 130 (1993): “We in Central Europe live under the eyes of the Russians.”Google Scholar

58 See Eley (supra, note 29), 173Google Scholar

59 Habermas, Jürgen, A Kind of Settlement of Damages: the Apologetic Tendencies in German History Writing, in Forever In The Shadow Of Hitler?, 30, 43 (James Knowlton/Truett Cates trans., 1993): “The unconditional opening of the Federal republic to the political culture of the West is the greatest achievement of the postwar period.”Google Scholar

60 Eley (supra, note 55), 204Google Scholar

61 Compare McCormick (supra, note 37), 140: “Certainly the view of Europe as reconstructed Christendom had resonance in Adenauer's and Monnet's understanding of what animated the post-war Community”. And see Carl Schmitt, Roman Catholicism And Political Form (G.L. Ulmen trans., 1996), discussed by McCormick 134-6.Google Scholar

62 See, e.g., Alan S. Milward, The European Rescue Of The Nation State (1994)Google Scholar

63 See, e.g., Fritz W. Scharpf, Governing In Europe: Effective And Democratic? (1999)Google Scholar

64 Habermas, , Learning from Catastrophe?, in Postnational Constellation: Political Essays, 38, esp. 5357 (Max Pensky trans., 2001)Google Scholar

65 See Habermas, Jürgen, The Limits of Neo-Historicism, in Autonomy and Solidarity, 238 (1992)Google Scholar

66 See Jens Barelson, The Critique Of The State (2001)Google Scholar

67 Habermas, Jürgen, Why Europe needs a constitution, 11 New Left Review 5, 5 (2001)Google Scholar

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