B. Beyond Eros and Civilization

Any political order, including any liberal political order, Kahn tells us, has erotic foundations: “[W]e cannot understand the character of the relationship between self and polity without first understanding love.”Footnote ⁸ The attachment to a political order is not a product of interest or reason, as liberalism tells us, but rather a form of love.Footnote ⁹ In political life, this love manifests itself in the citizen’s knowledge of the possibility of killing and dying for the survival of the political community.Footnote ¹⁰ What is defended is not merely the territorial integrity of a polity, but also the transhistorical project of a political community. The political order defends “a way of life” for which the citizens are compelled to sacrifice their own lives.Footnote ¹¹ Sacrifice, in Kahn’s account, is therefore at the foundations of the political.

Taking Kahn’s account of the political as our starting point, can we talk about the EU as a political order? For decades, the consensus in EU scholarship was a resounding “no.” Love and sacrifice are not the words commonly associated with the project of European integration: “You cannot fall in love with the single market,” as Jacque Delors put it in his address to the European Parliament in 1989.Footnote ¹² The project of European integration has for the most part been described as a technocratic project about commercial interest and market integration, which could not win the hearts and souls of Europeans. For example, based on Kahn’s cultural study of law, Ulrich Haltern argued that EU law “lacks a willbased imagination of the political,”Footnote ¹³ and for that reason “the Union’s texts are merely texts and nothing more.”Footnote ¹⁴ Because of the complete absence of sacrifice at EU law’s origins, Haltern argues, EU law “fails in carrying forward a kind of social meaning that would allow Europe to imagine itself as a one transtemporal community.”Footnote ¹⁵ The EU does not have erotic foundations, Haltern maintains: “The Union was not born from belief, visionary revolution, shared sacrifices, emotions, or love, but rather from the spirit of reason and enlightenment.”Footnote ¹⁶

A similar argument was put forward by Joseph Weiler, who described the EU as a “civilizing” force that could tame the “eros” of nationalism.Footnote ¹⁷ For Weiler, this allowed for the erotic world of the political to exist, yet in a benign, “civilized” form. In Jürgen Habermas’ account, the EU held out a more radical promise of permanently overcoming the “political,” above all else war, by the creation of a new form of cosmopolitan constitutionalism.Footnote ¹⁸ In Neil MacCormick’s view, the EU represented a world of “post-sovereignty.”Footnote ¹⁹ Whereas this was welcomed by some scholars, other scholars saw the EU as an undemocratic force that was eroding the sovereignty of its Member States and hence the realm of the “political.”Footnote ²⁰ Whether the EU was viewed as an object of praise or suspicion, the dominant position remained that the EU was about reason and interests, not love and sacrifice, and hence it could not be understood in genuinely political terms: “Who will willingly die for Comecon of the EEC?,” Benedict Anderson quipped.Footnote ²¹

With the Russian invasion of Ukraine in February 2022, the shortcomings of the old consensus are becoming clear. The question of whether Europe represents a way of life worth dying and killing for was answered in the affirmative – by the people of Ukraine. If we want to understand the European political imagination, a promising though untraditional place to start might be to ask how “Europe” is imagined at its borders, where the significance of EU membership is understood with a greater degree of urgency.

C. From Ukraine with Love

In the last days of February 2022, the world witnessed a mass mobilization of the Ukrainian society. The Ukrainian people took up arms not only to defend their homes, livelihood, and the future of Ukraine as a sovereign country, but also to fight for a European future for Ukraine as a Member State of the EU. Ukrainians sacrificed themselves for the existence of a Ukrainian state and for a European future for Ukraine. In their own selfunderstanding, Ukrainians were fighting to defend Europe and European values from the invasion of an authoritarian state with imperial ambitions in Europe.Footnote ²² In his speech to the European Parliament, Ukraine’s president Volodymyr Zelenskyy expressed the political significance of Europe for Ukraine in this way:

Some people might dismiss the idea that Ukrainians are willingly dying for Europe as mere wartime pathos or Zelenskyy’s attempt to drum up European support for Ukraine, but that would be to miss a bigger point. Zelenskyy was undoubtedly trying to secure stronger European support for Ukraine. Yet reducing Zelenskyy’s speech to political strategy ignores the fact that, as all great political speeches, Zelenskyy gave expression to a core conviction of the community he represents. In his speech, Zelenskyy conveyed the Ukrainian belief that Ukrainian national sovereignty and EU membership depend on each other. To be an independent sovereign nation, Ukraine must become a Member State of the EU; to become a Member State of the EU, Ukraine must be an independent sovereign nation.

In the Ukrainian political imagination, “Europe” has played an important symbolic role in the construction of a Ukrainian national identity after the fall of the Soviet Union.Footnote ²⁴ The very existence of Ukraine as a sovereign, independent country is a point of contention between Russian and Ukrainian historical narratives. This is clear from Putin’s text “On the Historical Unity of Russians and Ukrainians,” which has been widely understood as an integral part of the Russian justification for invading Ukraine.Footnote ²⁵ The construction of Ukrainian political identity, therefore, has been constructed in opposition to the Russian narratives that Ukraine is a part of Russia, rather than an independent country.Footnote ²⁶ This importantly has entailed a rejection of Ukraine’s soviet heritage by portraying Ukraine as the victim of two totalitarianisms, for example, by public memorialization of the manmade Great Famine of 1932–33 that killed millions of peasants as a genocide against the Ukrainian people.Footnote ²⁷ In the construction of Ukraine as “not Russia,” Europe/the EU has come to play a pivotal role. This was especially clear during the Maidan protests of 2013–14, where Europe/the EU came to represent the promise of the realization of Ukraine as a sovereign, democratic country free from Russian autocracy and imperialism.Footnote ²⁸ The intuition of the Ukrainian revolutionaries of Maidan was that Ukrainian national sovereignty and EU membership depended on each other.Footnote ²⁹ In the construction of Ukrainian political identity, Europe is imagined at the same time as the natural home of Ukraine, with slogans such as “Ukraine is Europe,” but at the same time as Ukraine’s end destination. Membership in the EU holds out the promise of a “return to Europe,” from which Ukraine has endured an artificial separation. For Ukrainians, the EU means more than market integration and product standards. Europe is understood in existential terms.

Ukraine gives us a stark example of the symbolic role played by “Europe” in the political imagination, yet it is by no means unique. For most of the Member States, EU membership has been an integral part of the (re)constitution of their own legal and political orders and “Europe” is an important symbol in their political imagination. This was for the most part missed by the EU literature that declared the EU to be a nonpolitical order because the view from the Member States was largely ignored. Understanding the symbolic role played by “Europe” in the political and constitutional imagination of the EU Member States is a core aim of a cultural study of law in the European context.

With twentyseven Member States, this is a daunting task. We can, however, get a broad understanding of the symbolic role played by Europe in the political imagination of most EU Member States by dividing them into three different “varieties of constitutionalism,” three different forms of constitutional imagination, which I have labelled “post-fascist constitutionalism,” “post-communist constitutionalism,” and “evolutionary constitutionalism.”Footnote ³⁰ These varieties of constitutionalism are shaped by different historical experiences, which have led to the development of different conceptions of both constitutional democracy and “Europe.” I can only provide a brief sketch here.

D. “Europe” in the Post-Fascist Constitutional Imagination

The post-fascist constitutional imagination was born in Western Europe after World War Two, and it came to shape the constitutional regimes of West Germany, Italy, and later Spain, Portugal and Greece, but also the project of European integration, including both the European Economic Community (EEC) and the European Convention on Human Rights (ECHR).Footnote ³¹ In contrast to the constitutional project of the republican revolutions that sought to harness the power of the people and create a stable system of checks and balances, the post-fascist constitutional project was founded on a fear of the people and concerned with permanently constraining the exercise of political power.Footnote ³² Within the post-fascist constitutional imagination, the origins of the interwar breakdown is ascribed to “democratic excess,” or “hyper democracy,” in José Ortega y Gasset’s terms.Footnote ³³ A core aim of the constitution in the post-fascist constitutional imagination is to prevent the people from committing “democratic suicide” by introducing an antidemocratic constitutional order via “unconstitutional constitutional amendments.”Footnote ³⁴ Democracy has to be disciplined, or else its dark “totalitarian” side will prevail, either in its leftwing or rightwing incarnation: communism or fascism.Footnote ³⁵

Within the post-fascist constitutional imagination, “Europe” plays an important symbolic role. The promise of “Europe” was to save the European peoples from their primarily internal enemies: fascism and communism. The “dark side” of democracy, with its inherent logic of mass killing, had to be vigilantly repressed.Footnote ³⁶ “Europe” would be an integral part of the constitutional order created in order to save democracy from itself.Footnote ³⁷ Carl Friedrich expressed this sentiment succinctly when he wrote:

This sentiment was not merely expressed by academics but also in the post-war West European constitutions. In the preamble of the German Basic Law, it is stated that the German people exercised their constituent power based on their ‘determination to promote world peace as an equal partner in a united Europe’.Footnote ³⁹ Although vaguer in tone, declarations of ‘open statehood’ towards international law can also be found in several other post-war constitutions.Footnote ⁴⁰ Constitutional ‘openness’ or ‘friendliness’ to European law is a core feature of the “post-fascist constitutions”Footnote ⁴¹ With the creation of the EEC, as John Erik Fossum and Agustín Menéndez argue, the domestic constitutions of the core European states started to live a “double constitutional life.”Footnote ⁴² In addition to their role as domestic constitutions, they took on a “new role as part of the collective supranational constitution.”Footnote ⁴³ For these Member States, European integration cannot be seen as an alien power but is rather a part of the realization of the constitutional project that lies at the heart of the post-war reconstruction, sometimes described as “value order constitutionalism.”Footnote ⁴⁴

A similar story can be told for the Mediterranean states that joined the EU in the 1980s after the collapse of authoritarianism. For Spain, Portugal and Greece, accession to the EEC was from the very beginning intimately linked to domestic constitutionmaking and statebuilding after the fall of the dictatorships.Footnote ⁴⁵ The “return to Europe” was seen as pathway to liberal democracy and a way of consolidating regime change. Membership was understood as a means to domestic democratic consolidation, the “normalization” of the relationship to other European states, as well as the modernization of the economy.Footnote ⁴⁶ As demonstrated by several historical studies, the applicant states interpreted EEC membership as an integral part of a transition to democracy.Footnote ⁴⁷ “Europe” was invested with an idealistic yet vague meaning that was coupled to the idea of democratizing society after the dictatorship.Footnote ⁴⁸ “Europe” and ‘Europeanness’ came to be a central part of the political and constitutional identities of Spain, Portugal and Greece.Footnote ⁴⁹

In the case of Greece, perception of the EEC as a “guarantor of democracy” was strengthened when Greece’s application for membership under the 1961 Athens Association agreement was suspended as a consequence of the military coup.Footnote ⁵⁰ The suspension of the Association agreement challenged the regime’s legitimacy and contributed to the erosion of public support for the junta in Greece.Footnote ⁵¹ The symbolic impact of the EU’s intervention in Greece was lasting and European integration came to be identified with the “defense of democratic values.”Footnote ⁵² In Spain, EEC membership was widely understood by the political elites as well as the population at large as a means to stabilizing the volatile political situation after the fall of the Franco regime.Footnote ⁵³ “Democracy at the domestic level,” Víctor Ferreres Comella writes in his introduction to the Constitution of Spain, “would be more secure if it were constrained by international and supranational rules and institutions.”Footnote ⁵⁴

E. “Europe” in the Post-Communist Constitutional Imagination

After the fall of the Berlin wall, a new “post-communist” constitutional imagination was born in the Central and Eastern states that later acceded to the EU in the 2000s. This constitutional imagination was shaped by the shared experience of communist rule as part of the Soviet bloc. The post-communist constitutional imagination is in several respects similar to the post-fascist constitutional imagination. Importantly, post-communist constitutionalism defines itself against a memory of authoritarianism or totalitarianism. Yet in contrast to the post-fascist constitutional imagination, the post-communist constitutional imagination understands totalitarianism as a product of the invasion of foreign imperial power, the Soviet Union, sometimes in collaboration with Nazi Germany. In the post-communist constitutional imagination, communism was imposed on the people against their will. Whether this reflected historical realities or not, the communist were always “them” and not “us.”

In the post-communist constitutional imagination, there is therefore no foundational fear of the people, nor a fear of nationalism or political power. On the contrary, the end of communism came to signify the liberation of the people of its from its foreign oppressors, the joyful return of national sovereignty and the nationstate. The problem, however, was that the experience of being a nationstate had always been fragile and shortlived in Eastern Europe.Footnote ⁵⁵ In fact, most of the post-communist states in Central and Eastern Europe only a had a brief experience of being sovereign nationstates in the interwar period. During the Soviet Union, nationalism and national identity had been repressed as a symbol of the bourgeois world of the capitalist West. For that reason, the Central and Eastern Europe states in many cases had to invent nations for their newly independent states based not on a historical experience of being sovereign states in the past, but rather based on a politics of memory, in which the ‘virtuous nation’ had been a constant victim of foreign aggression.Footnote ⁵⁶

In the post-communist constitutional imagination, the idea of the “return to Europe” is an important symbol. “Returning to Europe” was an integral part of the “reconstitution” of the former communist states in Central and Eastern Europe, where it came to be understood as the pathway to democracy, human rights and independent sovereign statehood.Footnote ⁵⁷ In post-communist Europe, European integration was a statebuilding instrument tied to the creation of liberaldemocratic regimes after the fall of communism, but it was also intimately linked projects of nationbuilding after the fall of the Soviet Union. The post-communist revolutions were widely interpreted as “rectifying revolutions”Footnote ⁵⁸ that allowed the Eastern European peoples to return to their “native” Europe from which they had been “abducted” by the communists.Footnote ⁵⁹ The “reunification” of Europe allowed the peoples in the former communist states to imagine that they were returning to their “true path;” the path they had been denied when they were invaded by the Soviet Union; the path of the West. In this way, European integration was understood as a pathway that would finally allow the states and peoples of Central and Eastern Europe to realize their destiny by restoring “the region’s historical and cultural unity with the West.”Footnote ⁶⁰

The political world that the “return to Europe” was imagined to recreate was not so much a world of historical reality as a world of “national memory.”Footnote ⁶¹ The dominant narrative was that the “return to Europe” would restore the centuries long tradition of sovereign, European nationstates that had been wrongfully suppressed by the invasion of hostile empires.Footnote ⁶² For the post-communist states, returning to Europe meant national liberation and the return of sovereign, national democracy.Footnote ⁶³ Because of the experience of being satellite states of the Soviet Union often propped up by façade constitutions, the post-communist states were keen to avoid a new form of imperialism by legal means. The nation, and national democracy, had to be protected from outside influence. As a rule, therefore, they did not constitute themselves as a “open” to international or European law.Footnote ⁶⁴

From the very beginning, “Europe” was an integral part of the reconstitution of Central and Eastern Europe after the fall of communism. Nevertheless, this project is characterized by significant internal contradictions because the supremacy and direct effect of European law, not to mention the substantial structural transformation entailed by the Copenhagen criteria, threatens the idea of sovereign national democracy. Under European law’s rule, something stands above the “sovereign nation”: EU law. Perhaps for that reason, the EU was widely viewed both as a pathway and a threat to democracy in Central and Eastern Europe; a potential new form of empire.Footnote ⁶⁵

F. “Europe” in the Evolutionary Constitutional Imagination

In both the post-fascist and the post-communist constitutional imagination, Europe is an important symbol that in different ways represents a means for the Member States to realize their own constitutional project. For most of the Member States, therefore, Europe is a structural part of their political imagination. There are, however, some exceptions, namely, the states shaped by what I have labelled “evolutionary constitutionalism”: the UK, Denmark, Sweden, and at least to some extent, Norway.Footnote ⁶⁶ Albeit for slightly different reasons, in the constitutional selfunderstanding of the UK and the Scandinavian Member States, they are distinct from the rest of “Europe.” In the UK as well as Denmark and Sweden, European integration and EU law are overwhelmingly interpreted as something “alien” to the constitution, rather than a pathway to constitutional selfrealization.

In contrast to both the post-communist and the post-fascist Member States, the constitutional imagination of the evolutionary democracies is not shaped by a legal and political rupture in time that signifies a new beginning, nor are they shaped by an experience of authoritarianism or totalitarianism. On the contrary, in their constitutional self-understanding, the evolutionary democracies are founded on a long, “unbroken” tradition of civilized government.Footnote ⁶⁷ In the evolutionary constitutional imagination, the people is neither feared, as in the post-fascist constitutional imagination, nor is the nation seen as a victim of history, as in the post-communist constitutional imagination. The people is on the contrary seen as a benign power that for the most part has succeeded in realizing its transhistorical identity through its institutional expression in a sovereign Parliament. The evolutionary democracies therefore have “political” conceptions of their constitutions, at the heart of which lies the idea that nothing can stand above or beside the sovereign will expressed by CrowninParliament.Footnote ⁶⁸ In the evolutionary constitutional imagination, democracy is understood as a procedural framework for decisionmaking rather than a substantive theory for a democratic “content” in the form of fundamental rights or human dignity. The post-fascist vision of the “substantial” democracy by the judicial protection of human rights is largely viewed with incomprehension or even as a possible “threat” to constitutional democracy expressed by the sovereign will of Parliament.Footnote ⁶⁹

That this is the case for the UK is wellknown. Yet the Scandinavian states are characterized by a similar constitutional imagination, albeit for somewhat different reasons. In Scandinavia, the post-war political imagination is built by social democrats rather than Christian democrats, which sets it apart from its continental neighbors.Footnote ⁷⁰ Importantly, this means that Scandinavia is shaped by a different historical interpretation of the twentieth century, which attributes the interwar breakdown and World War Two not to the “excess of democracy” but rather the “excess of the market” leading to economic inequality. Following that interpretation, democracy should therefore not be constrained but rather protected via social and economic policies that as a minimum could limit the impact of economic crises. In contrast to the “conservative human rights revolution” that shaped the reconstitution of postWWII continental Europe, the ideology that emerged in Scandinavia firmly believed in the “primacy of politics” over law. Footnote ⁷¹ The social democrats looked upon human rights and natural law philosophy as an impediment to democracy rather than a vehicle for it.Footnote ⁷² EU law, therefore, is perceived as an external legal order that erodes the constitutional autonomy of its Member States and as a potential threat to democracy at the domestic level.

G. The Rise of “European Sovereignty”

An important task of the cultural study of law in the European context is to shine a light on the worldview sustained by the political imagination of the Member States in order to understand the place “Europe” occupies within them. However, that should not come at the expense of understanding the political imagination sustained at the European level, by European institutions and EU law.

At the moment, the European political imagination is undergoing a transformation at the center. The multiple crises Europe has faced in the last decade has led to a strengthening of the power and authority of EU institutions, not merely vis-à-vis its Member States but also with regard to the projection of Europe in a geopolitical sense. Notwithstanding that the power exercised by EU in response to the Covid19 crisis and now in response to the Russian invasion of Ukraine far exceeds what was imagined possible a decade ago, many European leaders remain convinced that the power and authority of the EU still needs to be strengthened. This has led to a recasting of the foundations of EU authority with a much stronger accentuation of Europe as an autonomous political existence. EU power and authority is increasingly exercised in the name of the people of Europe and there are increasing calls for European sovereignty.Footnote ⁷³

This emerging political imagination of a sovereign Europe governing on behalf of the people of Europe has internal dimensions in shoring up the power and authority of European institutions within Europe. During the Eurozone crisis, for example, the European Central Bank started to describe itself as a representative of the people of Europe, rather than merely the central bank of the common currency.Footnote ⁷⁴ However, calls for European sovereignty has at least as much to do with the assertion of European geopolitical autonomy in response to the erosion of the American military guarantee of European security, and the emergence of Russia and China as more direct threats to European security. In his 2018 State of the Union address, Jean Claude Juncker argued that “[g]eopolitics teaches us that the time has come for European sovereignty, for Europe to take its destiny into its own hands.”Footnote ⁷⁵

It is the emerging political imagination of European sovereignty that justifies the EU’s wideranging sanctions against Russia, which includes sending lethal weapons to Ukraine, and granting all Ukrainians temporary residency status in the EU, with the right to live and work, and access social service benefits.Footnote ⁷⁶ In her address to the European Parliament Plenary session on the Russian aggression against Ukraine, Commission President Ursula von der Leyen said:

The sanctions against Russia will come at significant price for Europe and European citizens, and to justify that, Ursula von der Leyen addressed “the people of Europe” directly:

The discourse of European sovereignty is an unambiguously political discourse that is willing to defend a European way of life. The calls for “European sovereignty” represent a new emerging European political imagination that goes beyond the post-fascist imagination of Europe as the representation of a “post-sovereign” world.Footnote ⁷⁹ In this emerging European political imagination, Europe is in competition with other superpowers. To do that, Europe must relearn “the language of power.”Footnote ⁸⁰ A cultural study of European law’s rule has at its task to shine a light on the emerging worldview of “European sovereignty.”