I'd like to welcome you to today's lecture series.
My name is Philipp Lister.
I'm a director of the Sige Geiskräscher Wissenschaftlichen Nachruch.
This semester lecture series is an often lecture series
that we will talk about in the future.
Social Change and Politics in a Globalized World.
Today we are going to talk about the research areas of Sige Geisdwerschkein.
And today we will talk about the research areas of the Sige Geiskräscher Wissenschaftlichen Nachruch.
Today we will talk about the research areas of the Sige Geisdwerschkein.
And today we will talk about the research areas of the Sige Geisdwerschkein.
Today we will talk about the research areas of the Sige Geisdwerschkein.
I would like to present our professor Dr. Huygensprung.
Here we are in the very modern part of ourÕs religion and our
Hauke ist seit Montaner sechten Nein, sich professor of zut zulugi, and I only visited
Flensburg.
It was 2009 and 2010, Theodor Hois, professor and a new school for social research in New
York.
Die Beiteren fielenstätzen, i das ich herz allen maweck, für weiße Liebrenoch auf
eine göe pubikazione von Haukebrunkraus, waal ich meine das Ochraide lieze pubikazione
sehr schuen seig wie Breit ehr ein sein aubreiten auf geschdeltüst.
Gans neu aus der Preze, ein Buch liegitti matzungscrizen, für Fassungsprobleme die Weltgeselchafft
by Lomos, das ist aus, wie beung och momentan garde here in Hamburg, in zam mang wie einem
SFP, wir af wie meine der Plannung, für ein SFP befassen, aus oehr ist auken Prochas ein
sehr, wir kommner Stich wort gebbe für die zu wie belegomen, sö niek smer auf sein
Ersten blich zu meine sein eine Ein ein auch richtung geht ein Buch by Zwerkam, für zweit
hosn sieb, ein kommen tär zu kal mags, auch sänter premer, das Loei Bonaparte, ein ein
Breit, aus nände zet zung mit Politische Theorie, and ein mecht ich auschen das Ein wast
längät zur Röglieg in the Buch, de Buch solidarität von der Bögerfreundshaft zur Klob ein
rechtsken nausen schafft, aus ein auch nände zet zung mit Jär Klobahl, pino mein, pino
mein, der Weltgesellschaft, die un sie närifur, ima wieder her ausföhren, und wier und auch
un hei ima wieder gäne, der von her ausföhren lassen.
This is mecht ich be Weisen auf ein Zammelband, der 2000 aucht, von Häuke Räuske gim warden
ist Stadtsrecht, hanskelsen, rechts und Stadtsverständnnes, aus aucht, aus nände zet zung mit
Auch wann, aus dem Breitgesrecht, täing der Schoen, das Häuke Räuske gim Breich, der
Weltgesellschaft, und Politik, zutte lögge, und Politologie, inn
die Breitje der Rechtsutte lögge, er Auskeit und Breißeutemann, das Aunach a bien Gantem
anfang, wie nän ach aier, kamstüe auch der Pieder Goveich, aus und zu fern, ein zer Breiten,
ein zus ane Auch wann, zus thinkings die Häuke und siele der Breitställ.
Okay, Häuke ist Breichte Häute, the European crisis paradoxes of constitutionalizing democratic
capitalism.
Häuke ist nicht no Breit Auch gesställt, inn der Akademischen sicht, inn der Aus nände
zet zung mit ver sicht nände Thiem Rätischen zu Gäng, zan nän Häuke ist auch Häemann,
nän ach aier Akto ele kroze eig nätze der Politik, zet een unkommen tiet läst, gneu
där of reu ich mich ganspe sonders, und ich vijs, das Eine gefund inn, das ieben zu
türn und zu fern, wie gie mich die dannen gände zet wort.
Hät wich bekommen inn Hämburg.
Yeah, viel nänk für die ein fürung, und viel nänk für die ein lärung, zu disa föhlesung,
die Hängenam habe, die Tietel habich no ein, die Tietel habich zu ein und der Tietel gäng
wacht, und der Obert Tietel ist yet the beheading of the legislative power, oder die Gieuteneerung,
die Lägeslätiven gewalt, oder wie Gränerkoselek, zag wie ried die Kapputierung, die Lägeslätiven gewalt.
The beheading of the legislative power, ich sprei English, wal das Ovenbär, die Kondenswär,
wal nie Gränther eil Leut, die Häntin, nicht Deutschbräcken.
So the beheading of the legislative power in the beginning of the European Union, in
the beginning was not the affirmation of peace, the protection of which now is the reason
why the European Union gets a Nobel Prize next month.
Also at the same time the Union or its member states are at war in several parts of the
world.
Howsoever, in the beginning was not peace, that is the emancipation of Europe from the
dictatorship of the Third Reich.
In the beginning was not the managerial mindset of possessive individualism and comparative
struggle, in the beginning was political autonomy.
In the beginning was not choice and strategic action enabled by rule of law, but the emancipation
from any law that is not the law to which we have given our agreement.
The Finnish international lawyer, Marty Koskinjemi, called the letter the indifference to the managerial
mindset, the Kantian mindset.
The Kantian mindset in particular is concerned with the constitutional realization of autonomy
and self-legislation through structures of political representation.
Historically, the Kantian constitutional mindset is a mindset of the French revolution as it
once was expressed strikingly by the young Karl Marx in one short sentence.
So Marx has the ability to get a whole epoch in one sentence.
The legislative power has made the French revolution.
Today the memory that it was the same constituent legislative power of the peoples of Europe
that has made the European Union between 1944, that was the last year of the war in Europe,
and 1957, this memory has been repressed and displaced by the managerial mindset that became
hegemonial already during the 1950s.
However, the European unification did not begin with the treaties of Paris and Rome
in 1951, but in 1957, but with the new constitutions that all founding members, these founding
members were France, Italy, Germany, the Benelux countries, Luxembourg, Netherlands, and Belgium,
all these nations had given themselves between 1944 and 1948 new constitutions.
Most crucial for the foundation and these new constitutions were by the way very different
from the former constitutions.
They were much more democratic than any former constitution.
And they were made by representatives who were new representatives.
The great parts of the former elites and ruling classes were changed after 1945 or 1944 in
France, for example.
Most crucial for the foundation of the European Union was that all constitutions explicitly
bound themselves to the constitutional obligation to unite Europe politically.
Only Luxembourg had no such explicit formulation in the constitution, but the Supreme Court
decided that it was implicit in 1951 after the Paris treaties.
Fossum and Menendez therefore aptly speak of a synthetic constitutional moment of Europe.
That fits, by the way, nicely to the mindset of the European Union.
There is a constitutional moment that is in the constitution of the member states, the
obligation to form a political union of Europe.
And that stems from new foundational constitutions after the Second World War.
And then there is a synthetic moment.
That is to say the managerial construction.
The constitutional moment is a Kantian mindset, and the managerial construction is so to
say the synthesis.
So for the latter reason, the founding treaties of Paris and Rome were directly legitimated
by the constituent power of the peoples of the member states.
This is very important because, therefore, from the beginning, the treaties were not
just intergovernmental but legal documents with a constitutional quality.
However, as one can observe in other cases of national and transnational constitutionalization,
the European Union is no exception.
The constitutional moment was followed by unspectacular evolutionary incrementalism
and a silent but gradual and steady process of ever-densor integration.
The managerial mindset took over soon after the first big changes.
However, it has not only replaced and repressed the Kantian mindset of revolutionary foundation
but also stabilized and realized it step by step legally.
Kantian works without the managerial mindset, by the way.
The European law today, the Kantian mindset, is expressed in the references of the preamble
of the European treaties to solidarity, democracy, social progress, human rights, and rule of
law, and a lot of other nice things.
It is implemented in many single articles and legal norms of primary and even more important
secondary European law, such as the famous Article VI of the Treaty of Maastricht or
the Articles IX to XII of the Lisbon Treaty.
Moreover, the Kantian mindset also is determining legal precedents, such as the famous cases
Costa and Van Gendt and Los from the early 1960s, which refer to the subject of rights
that we have as European citizens, interpreting for the first time the treaties as having
a constitutional quality, a term that I borrow from Antje and the project of constitutionalism
unbound.
Finally, the Kantian mindset also found its way into numerous jurist comments and treatises.
That is the emergence of a, as Bogdandi has made clear in a recent paper, a European Rechtsogmatik
or legal doctrine, Rechtsogmatik is something untranslatable because it is only German.
It is some, a Leinstellungsmerkmar of Germany.
Or in English, one could translate it, there is already a European common law.
And Cormac has written about that, has given about that some interesting comments.
At the end of the day, and after the symbolic re-establishment of state sovereignty through
the Constitutional Court of the European Hetrimon in Card School, the counter-Hetrimon yield
check Constitutional Court in its judgment on the Lisbon Treaty stated that the European
Union today forms a complete and capitalist system of democratic legitimization and rightly
so.
Whereas the German Constitutional Court still thinks in dualistic categories of the 19th
century.
Legally, Europe no longer has a crucial democratic deficit, in just already a full-fledged democracy
on both levels, the national and the transnational.
The problem is that nobody knows it.
The problem is not just the managerial mindset, but the Hetrimon of the managerial mindset
and the reduction of politics to technocracy that today allows the political and economic
elites to bypass and manipulate public opinion and democratically-legitimated public law
on both levels, the European as well as the respective national level.
And the same, there is no difference between a European and a national democratic deficit
any longer.
If there is a democratic deficit, it is always on both levels, or since a long time on both
levels.
At the same time, as it is growing legally, the public power of the people and its representative
organs is more and more deprived of real power and replaced by great networks of informal
government called good governance instead of democratic government, called administrative
accountability instead of parliamentary responsibility, called deliberative democracy instead of egalitarian
decision-making.
In a world where good governance has replaced democratic government, where administrative
accountability, all terminologies which are internal to the Lisbon Treaty and the European
treaties and European law, in a world where good governance has replaced democratic government,
where administrative accountability has replaced parliamentary responsibility, where deliberative
democracy of educated middle classes has replaced egalitarian procedures of decision-making,
in a world where the semantic of pluralized civil societies has replaced the unity of
capitalist society, at least semantically, where competition has replaced cooperation,
where the managerial mindset of individual empowerment has replaced the Kantian mindset
of emancipation, public in such a world, public contestation over real issues, public
debate and public struggle over substantial alternatives are just not helpful.
You will say it in the matchless managerial language of Angela Merkel, nicht heufreich.
In Angela Merkel's world, deliberative democracy begins when the doors are closed.
Hence, and this is my overarching thesis, the Kantian mindset of revolutionary foundation
has been concretized and stabilized throughout the gradual evolutionary process of constitutionalization.
This evolutionary process was performed under the lead of the managerial mindset of Europe's
political elites and professional experts. However, the hegemony of the managerial mindset
had the paradoxical result that the Kantian mindset at the same time was preserved and
repressed or is placed, was constitutionalized and deconstitutionalized, again and again
on every stage of the twisted passes of European constitutionalization.
Stage one, the economic constitution. As Carlo Torre has shown, Europe now has not only many
national and subnational constitutions, but also many transnational constitutions that
evolved gradually and in stages. The first evolutionary step was taken in 1957 with the
establishment of a functional economic constitution that consisted in the structural coupling
of the legal and economic system. What I'm doing here, theoretically, from my categorical
framework is I combine the distinction of Marty Koskinjemi, a Finnish international
lawyer, between the Kantian mindset, the Kantian constitutional mindset, and the managerial
constitutional mindset with Carlo Torre's Lumenian schema of an evolution of constitutions
in different forms of structural coupling of law with other subsystems.
In combining that, I, that has advanced that, or the achievement, that we get rid of the
deep citizenistic dualism of Koskinjemi's distinction, so that the law is always suddenly
in a Wittgensteinian Gestalt switch changing from Dr. Jekyll's managerial mindset to Mr.
Hyde's Kantian mindset and back and forth, integrating it into an evolutionary schema
with a constitutional Kantian mindset as an existing concept, though to say. In the evolutionary
process that is then implemented by the managerial mindset takes it out of this dualistic, still
Kantian schema and transfers it into a social theoretical schema that can be made compatible
with sociological theory, and evolutionary theory in particular. So this is the idea.
So as Carlo Torre has shown, Europe has not only many national but also many transnational
constitutions. And the first evolutionary step was taken in 1957 in the treaties of
Rome with the economic constitution. Originally, the idea of an economic constitution was an
invention of the German socialist left at the end of World War I, in particular, Hugo
Sinsheimer and his student, Franz Neumann. I have to go a little more into the details of the
economic constitution because this is very important to understand the whole developmental
process of Europe, of the European Union. This idea of an economic constitution stems from the
Weimar left. Sinsheimer and Neumann strictly followed the Kantian presupposition that the
political constitution and the parliamentary legislator should keep the absolute supremacy
over the economic constitution. The economic constitution should have a mere service function.
It should improve the possibilities of the democratic legislator to get the markets, and in
particular, the private sphere of domination within the capitalist firm under democratic
control. At the end of the Weimar Republic, auto-liberates rather hijacked the idea of an
economic constitution from Sinsheimer and Neumann, watered it down, and reversed its severely famous
book from Franz Bröhm, 1933. During the 1950s, they turned the idea upside down,
transnationalized the economic constitution, decoupled it from the national political
constitution, and subsumed the letter under the former. Now, the whole society should be
subsumed under the principle of market compliance as the, at that time, Peier's former Nazi Alfred
Müller-Amer wrote in 1960. In 1957, treating negotiations, the German auto-liberates under
the lead of Müller-Amer, and strongly supported by the American government, finally won the
battle against the recalcitrant French government that, at that time, defended a constitutional
project that was much closer to the original idea of the Sinsheimer and Neumann. Therefore,
Medbewurm's recht, competition law, became the axis of the economic order. My thesis is that with
the establishment of the economic constitution in 1957, a Carl Schmittian constitutional Grund and
Seidung, a basic decision was made. It consisted in the radical negation of a political constitution
of Europe. Instead of subsuming the economic under the political constitution, the political
constitution was subsumed under the economic constitution. In case of doubt, the concrete
order of law and economics trumps the formal constitution of law and democracy. Whereas formal
constitutional law still adhered to the current priority of democratic legislation, the concrete
order of law and economics became Europe's informal prerogative constitution. Europe's hidden
curriculum, as Klaus Offel has written in an essay a couple of years ago. The legal link between
visible constitutional law and invisible prerogative constitution was article two of the
Treaty of the European Economic Community from 1957. One of the most crucial effects was that the
negation of any transnationalization of the political constitution and the hegemony of the
hidden curriculum of the transnational economic constitution stimulated and reinforced the
Europeanization of big enterprises and employers' federations, but at the same time, strictly limited
unions, activities, and employee organizations to the sphere of the national state. Autoliberals
today are proud of the fine differences that distinguish them from neoliberalism. But it was
indeed autoliberalism that disclosed the historical path to the latest great transformation of
globalization that lasts since the 1980s. If you resume the three basic ideas of autoliberalism,
it becomes evident that only one idea is different. Therefore, the relation of auto and
neoliberalism resembles more a cooperative historical division of business than a fierce
opposition. The first basic idea of autoliberalism is to get markets rid of state control. The specter
of socialism and communism must be bent as long as it is haunting Europe under the mask of macro
economic state interventionism. Here, auto and neoliberalism meet from the beginning. Today's
representatives of the power elite, such as the president of the German Bundesbank, Jens Weidmann,
or the former judge of the Fasson-Skiricht, Uro di Fabio, are accusing even the president
of the European Central Bank, Mario Draghi, of creeping socialization, Schleichen des
Ötzerisierung, and planned central state's economy, Blängerchaftliche at Centralitet,
Fasson and Giedem Aufzärz. Draghi, the creeping socialist who learned his job at the communist
Carla Training Center, Goldman and Sachs. However, autoliberalism not only distrusts the
bureaucratic state, but also big size, and that is bureaucratic capitalism and its tendency to
concentration and centralization of capital that has led to monopoly capitalism since the beginning
of the 20th century. Therefore, the second basic idea of autoliberalism is to get rid of monopoly
capitalism, the term from the 1920s, to get rid of monopoly capitalism. Competition law shall keep
the economic chances of all market participants equal any time. This idea is called market justice.
But it is indeed a very poor idea of justice. From the beginning, it was mere ideology, in fact,
as Hans Kelsen has demonstrated in his Skarting Criticism of Hayek already in 1955, it worked in
favor of the heifs who disposed over the means of production and at best regulated their competition.
However, in this respect, autoliberalism is clearly different from neoliberalism. Neoliberalism
bluntly has abolished competition law and reduced so-called market justice to shareholder value
that then has been identified with a common good by Milton Friedman and others. That's why we can
no longer sidestep the bright lights of the latest stock market news everywhere we go. The third,
and in terms of constitutional law, most important basic idea of autoliberalism, and this is the
crucial point, is to get rid of democratic legislative control. Here again, auto and
neoliberals meet in applying the categorical imperatives, give the judges what you have
taken from the democratic legislator and the parliamentary bound government, promote the
judges and to the guardians of functional autonungstrecht regulatory law. One cannot
translate autonungstrecht because this stems from a very deep rooted German as a word,
as a semantic, from a deep rooted German legal background that goes back to the Protestant
legal revolution, what was by the way a legal revolution in the 16th century. And therefore,
you can't find that today everywhere. Macht autonung, Schul autonung, Universitätz autonung,
and so on. Yeah, poli ci autonung, autonungstamt. It is full of autonung. Yeah, that is a specific
Protestant heritage. Autonungstrecht. In the words of Jernst Joachim, a messmaker,
die Stittere, die Wichtigsten Aufgaben, oblique nicht die Ligeslätiv, oder der Gierung, sonder,
der Echtschberung. The most important decisions have to be taken not by the legislator or the
government, but by the judges. The beheading of the legislator is the true end of the French
revolution and the Kantian political era. If it really comes true, it will be the final triumph
of the counter-revolution that is, that in this case is a counter-revolution against 1789. Never
again a legislator shall be able to make a revolution. That was Maggie Setcher's actual message.
In 2002, Eric Stone-Sweet only could state that in today's, I quote, multi-tired European
policy, the sovereignty of the legislator and the primacy of national executives are dead.
In concert or in rivalry, European legislators govern with judges, end of quote. One has to add
that in combined, transnational and national constitutional jurisdiction have reinforced one
another. And in a way, the European, a term from Udo de Fabio has a constitutional court combined
has reserved for itself the most basic function of all three classical state powers, at least
in normal times of incremental and managerial evolutionary constitutionalization.
For these reasons, the implementation of the euro without political government was not just a
mistake or the worst possible compromise that it was, at least from the perspective of the
negotiating parties. But actually, it was nothing else than, as Wolfgang Streig says,
the Frivolo's experiment to realize a market economy emancipated from all political bonds
and to establish a political economy without parliament and government, end of quote.
The implementation of the euro finalized the prerogative constitution and perfected the
hidden curriculum of European governmentality by immunizing the markets against democratic
corrections. This immediately resulted in an increase of the social differences between
the rich north and the poor south. When finally the crisis came, European,
Wolfgang Streigt derogated national as well as transnational constitutional law. As a result,
the social gap that is separating the north from the south grew dramatically in favor of the
northern hegemon that is Germany. Hence, the beheading of the legislator, by beheading the
legislator, order liberalism has opened the evolutionary path for the neoliberal globalization
of capital beyond state control intentionally or not doesn't matter. Order liberalism has done its
job. Order liberalism can go. Once neoliberalism has taken over, the great transformation of the
last 30 years could begin, the transformation of state-embedded and state-controlled markets,
at least in the rich countries of the world, the affluent societies,
the transformation of state-embedded and state-controlled markets into market-embedded and
market-controlled states. The new world order of market-embedded states makes it extremely hard
for any political actor to get rid of the pressure to market compliance, to get independent
from the bad nerves of a highly sensitive class of investors, and to get back to macroeconomic
steering, be it national or transnational. From this perspective, one really does not want to
have a job like that of Wolfgang Schäuble. Stage two, the eurelical constitution. For all that,
economic constitutionalization is not the only evolutionary formation of European constitutional
law, and even if it remains the hegemonial constitution to date, it more than is not the
last stage of Europe's constitutional evolution. The latter is, as we have seen, conducted by the
managerial mindset of law and economics. However, once a Kantian mindset has been constitutionalized
and integrated to the public authority of European law, it counteracts the managerial mindset of blind
evolutionary adaption as a normative constraint. However weak it may be, it operates no longer as
a Kantian, allegedly empty ought, but as a Hegelian existing concept as a moment of objective spirit,
so to say, once it is constitutionalized. In the European constitutional history,
the Kantian mindset of autonomy came back already in the early 1960s, together with a rapidly
increasing volume of European regulations or European law. It came European norms.
It came back in the reduced and for professional lawyers, manageable form of individual law
suites and issues of private autonomy. In two landmark decisions of the European court from
1963, Van Genden-Loss and 1964, Koster, the emancipatory side of the legal form flashed up.
As public authority was binding legal force, a Kantian mindset remained, it's true,
privatized. However, to establish only private autonomy, the judges in a bold teleological
interpretation of the treaties had to create an autonomous European citizenship and European
citizens' rights as rights of an autonomous legal order. That was really a bold strike,
and a very objectionable and controversial interpretation of European law. But to establish
private autonomy, it needed the prior establishment of a European citizenship,
though to say, a European public law and not only private law.
The two decisions from 1963 and 1964, therefore, and particularly were described by lawyers
as the Declaration of Independence of Community Law. However, the Kantian flesh of the two landmark
decisions would have disappeared immediately from the trajectory of constitutional evolution
if the two decisions had not been followed by thousands of cases appealing to European law
in national courts of all member states and the backing of the national courts
by the European Courts of Justice submission procedure under Article 267
of the present treaties, Treaty of the Functioning of the European Union.
So this submission procedure was not clear what that means, but suddenly,
how does that work, evolutionary? So they have these two precedents. Well, two landmark decisions,
but they are in the empty space, so to say. But then, a court in Van Eichel or in Hamburg
or in Rheinbach has a case where someone is applying with European law against German law.
And then the judge thinks, well, what shall I do? Yeah. So there is a clearly, it seems clear,
the lawyers of the law suite argue, yeah, they are the judgments of the European Court, yeah,
this is prior to German law. And then the judge says, oh my God, yeah. And then
he thinks, well, I get a second law suite, I get a second instance, yeah, an appeal,
I get an appeal, yeah, and judges don't want to have appeals, yeah. And then the lawyers or someone
tells them, oh well, there is this Article 267, yeah, with a preliminary or what is that called
here, I always forget it in English, the four lager for fahr and in German, yeah, the submission
procedure, the submission procedure, yeah. And so, and then I go to the court and get a report from
the court and I put the European Court's report to my judgment and then it is sure. And the next
court, yeah, court of appeal, reach it and say, oh my God, from the European Court, no, no, not for us,
so we don't go to the European Court, yeah. So, and that is the way the thing works and in a time,
fascinating study from current order on that, yeah, in a time when the goal was totally against the
European Union, yeah, the British wanted to get out of it, yeah, again and so on. So the European
process was decaying, yeah, the unification process. In that time, one court after the other
made decisions against national law all over Europe, yeah, and even Maggi-Shetra accepted the
things they could not, what shall they do? They cannot abolish a judgment of a national court,
yeah, it's impossible. So either they make a revolution, yeah, so, and that's the way European
law was integrated to national law, yeah, national law integrated to European law, yeah, so just
interwovenness of these two legal system, yeah, and ever, ever denser by thousands and thousands of
legal acts, yeah. In this case, the old evolutionary insight becomes true that not the elites,
but the masses make the evolution, and here I mean the masses of negative legal communications
that filled the variety pool of the legal evolution and finally engendered a new constitutional
formation, the European Rechstadt verfassum, the European constitution of Europe. Rechstadt is
already an English word, so I must not translate it. The European Rechstadt verfassum or Rechstadt's
constitution consists in the reflexive structural coupling of law and law, or maybe better, the
structural coupling of law and subjective rights. The European Rechstadt finally
has transformed Europe into one single internally differentiated legal order,
negatively described as fragmented, positively as pluralized, and it is an order that is not
topless, as just these days, angry, had to experience. However, all these legal advances
remain limited to legal experts and individual plaintiffs. On the rule of law, stage two of the
constitutional revolution of Europe, the Kantian mindset was constitutionalized under private law
in a kind of Tobnirian civil verfassum, but with a presupposition of a European public citizenship.
However, at the same time, it was repressed and displaced again in public, the Kantian mindset.
On the second stage of constitutional revolution, we can get aware of a paradox,
constitutionalization at once, advances, and is deconstitutionalized by its own advances.
So this is even a strict autonomy.
I come to stage three, the political constitution.
Since the middle of the 1970s, the long latent conflict between the ever closer united
executed powers of Europe and the parliamentary legislative bodies became more and more manifest.
At the same time, the European Court of Human Rights turned into an active court,
not backed by the ECJ's doctrines, now backed by the European Court of Justice,
doctrines of European laws of primacy and uniform application. It radicalized its human rights
jurisdiction, supported also by the zeitgeist of the 70s, when they forbid
the use of the stick as a punishment in English schools.
There was typical zeitgeist of the 70s, but they radicalized it
because of the close link with the European Union, the European Court of Human Rights. This was important
for the process of democratization because, different from civil and economic law, human
rights have an internal relation to democracy and cannot be dissociated from public autonomy and
public self-determination. The pressure to reduce the growing democratic deficit of Europe finally
urged the political and professional power elites to take into account the Kantian mindset's longing
for public autonomy. Again, it became evident that the Kantian mindset of emancipation can be repressed
as Alexander Zomak writes, can be halted or inhibited, but it cannot be eliminated.
It can be repressed, it can be halted or inhibited, but it cannot be eliminated once it is
constitutional last. Since the first direct elections to the European Parliament in 1979,
the power of the Parliament increased persistently. The managerial mindset and stubborn
incrementalism of everyday parliamentary work over a quarter century made the weak and restricted
European Parliament a controlling and law-haping Parliament that now is one of the strongest
institutions of the European Union. The final step to the parliamentary legislative procedure
taken in the Treaty of Lisbon completed the political constitution of Europe largely.
The third stage of structural coupling of law and politics was reached. However,
the problem again is that nobody knows it. However, even this time the managerial mindset
stayed off the pack, the polling stations and the marketplaces remained empty to the same extent
as the shaping power of the Parliament increased in its public legitimation that legitimacy
decreased dramatically from election to election. The most crucial act of the Kantian mindset,
the political implementation of representative government based on fierce public debate,
had the paradoxical effect of democratic public legislation without democratic public life.
The increase of constitutionalization of public legislation was paid at the price
of a deconstitutionalization of the public discourse. Again, the managerial mindset,
the ever closer united executive bodies in concert with the political economic power elites
supported by the chief economists of the big bank present everywhere by willing, supported by
willing legal and political experts and by embedded journalists seems to prevail over the Kantian power
of the people. Public debate is not oppressed or limited but more effectively bypassed by
political and economic power not helpful. Again, Audemars-Recht delegates constitutional law and
stabilizes the new collective bonapotism of Europe. However, these days the repression returns.
The economic crisis and in particular the banking crisis can no longer be displaced by the budget
crisis. As a consequence, the long latent crisis of political legitimization suddenly becomes
manifest. The Kantian mindset ganks up in the streets, in Athens, as well as in Madrid and
elsewhere. The disregarded constitutional textbooks are striking back. Stop law and economics,
support law and democracy, they say. As it seems, the structural coupling of law with the system
of social welfare and security no longer can be performed silently behind closed doors
and at low costs. The crisis makes it evident that there is no modern mass democracy without
the rough equality. The national state looked like the big winner of the outbreak of the global
economic crisis in fall 2008 and many political theorists analyzed, sorry, and many political
theorists and analysts triumphed. But in fact, the state maybe looked not like Honinger but
came close to it. But in fact, the state was already weak and therefore became one of the
greatest losers of the crisis. Wolfgang Streig rightly had an essay two years later with
another victory like that and we are lost. The great crisis of 2008 has proven
that the national state already was deprived of its most basic alternatives in economic
and social politics. The national state's capacity to act and shape the future
always relied on the existence of two major instruments to get modern capitalism under
control and to enforce the legislative will of democratic majorities, either the stick of the law
or the carrot of money. However, it seems that from the beginning of the present crisis,
the national states as well as the European Union and other continental regimes such as the U.S.,
China, Brazil or India no longer were able to perform or not yet were able to perform
macroeconomic steering through an effective mix of stick and carrot of legislation and investment.
The political actors had already lost most of the legislative power that is needed to regulate
and control capitalist economy. Up to now, they did not regain it at the global level.
On the contrary, during the last 30 years of neoliberal global hegemony, the fragile
balance of power between democracy and capitalism dramatically has shifted in favor of capitalism.
As long as modern, functionally differentiated economy with capitalist markets is embedded
in democratically controlled state power, the parties of the have-nots, either the exploited
social classes or the peoples or nations who are the losers of the global economic competition
between states and regions have two means to enforce rough compensatory justice against
market justice. They can perform macroeconomic steering in times of crisis, A, nationally by
legal regulation and investment, in particular increasing taxes for high incomes and assets,
and, or, B, internationally by devaluating their national currency. Franklin D. Roosevelt's
New Deal administration in the 1930s, supported and pushed by a fighting working class and young
and strong unions who had nothing to lose, finally regulated and controlled Wall Street,
increased taxes for the rich, cut banks and industrial corporations in pieces, created jobs
administratively, printed money, and so on. This way, New Dealers and other social democrats and
socialists in advanced societies were able to square the circle. That is, to socialize the means
of production within the capitalist mode of production, to socialize the means of production
within the capitalist mode of production, and that means in particular without destroying the
machinery that enables a consumer capitalism or a consumer society. However, this seems no longer
possible. After 2008, nowhere taxes increased in measures comparable to the U.S. or other western
countries in the 1950s and 1960s. Not one of the banks too big to fail was nationalized or cut in
pieces. Except Lehman, all were bailed out again and again. Moreover, in Europe, the common currency
excluded all possibilities of current currency devaluation. Deprived of its legislative power to
regulate the economy, the state no longer had an alternative except spending the rest of its money.
Therefore, the state has become susceptible to blackmail at Maggie Thatcher's lie
that there is no alternative became true as a self-fulfilling prophecy. Former democratic
governments are now in the hands of bankers and their staff of technocrats directly as in Greece
and Italy or indirectly. Messmaker, again writing,
detect the danger for the technocratic regime. It stay in states where the bankers
have not yet taken the lead. Their advice resembles the advice of the old Roman senate,
the zenatus consultum. That was an advice without any legally binding force, soft law.
But whoever did not follow was already a dead man even if he left the room alive.
Once the money comes to an end, the state loses its power to enforce the legislative
will of democratic majorities. The taxing state that is in control of capitalism becomes a
borrowing state that is controlled by capitalism. The problem is that the borrowing state can no
there any longer A, increase taxes, nor B, devaluate the currency and make use of the other means of
macroeconomic steering. Therefore, it must C, execute the neoliberal program with microeconomic
means and devalue labor and public and the public sector, put pressure on wages, pensions,
labor market regulations, public services, and then sell the whole thing as the form, modernization,
new public management, and individual empowerment. Best served by third-way labor parties,
reform social democrats, and red green coalitions of the new bourgeoisie. Unfortunately, neither
Keynesians nor Marxists ever have tried to develop transnational, continental, and global
alternatives to national state power. They have socialized the means of production not only with
inter-capitalist mode of production, but also with in one country, to quote leaning. They
ought to vary to vary leaning. They not even have made up a plan to establish a transnational
political power that can measure up with global big money and the unless communicative forces of
the world market. And I think without that, it is impossible to control global capitalism.
Only with negative integration, it is impossible, and positive integration needs power to enforce
the law and needs more power than the states today have. The auto and neoliberals had such a plan,
as we have seen, and it worked even if finally with catastrophic results. It was easy for them
because they only needed negative integration. They only needed to make markets, but the problem
is how to constrain them. Making markets needs not that much power. It needs even the destruction
of power, and constrain them needs power. And this is to say if you compare the neoliberals with
Keynesians or even the Marxists who were worse off, if you compare them, then there's some
historical truth in neoliberalism. Why they prevailed? They had a plan for globalization.
The others had no plan for globalization. The auto and neoliberals had such a plan,
as they have seen, only that explains the strange non-death of neoliberalism after a crisis that
following the pure Chicago doctrine should only happen all 50,000 years. Now, national state power
is over, at least as a power of the so-called sovereign state. The state still has a lot of
power, to be sure. But the sovereign state is over. To take up a metaphor of A.L. Benveniste,
an Israeli international lawyer, in the process of globalization, the state politically, legally,
economically, and culturally has been transplanted completely and from a detached villa into a condo
in the middle of a house of 200 condos with many different and overlapping forms of real estate
ownership. However, the network of transnational public and arguably also constitutional law
and politics and the already emerging formation of transnational statehood is by far too weak
to get the global markets under control again. The coordinated state powers together with
international organizations at best can make the global market hence negative integration,
but nowhere are capable to constrain it normatively. That is in the general interest
of all of us, hence positive integration. In 30 years of globalization,
in 30 years of globalization, for the good and for the bad by far most powerful states of history,
the Western democracies have been turned, as Wolfgang Streig writes,
into debt-collecting agencies cease on behalf of a global oligarchy of investors,
compared to which C. Wright Mills' power elite appears as a shining example of liberal pluralism.
And you should read C. Wright Mills and you will not find very much shining in this
liberal pluralism of the power elite, but compared to which it appears as a kind of liberal pluralism.
Thank you.
I just have a very brief question because the
whole simultaneously didn't, you know, have a good track record in your house, of course,
in what I heard a lot of that. And I'm wondering how you would include more recent decisions
on cartoons actually strengthen parliamentarian control of the process. Is there, I don't know,
if there's a bit of a road to that part of the, is this a real project or maybe
so in behalf of the legislator back on top? As most, if you talk to constitutional lawyers,
so they usually say that this is only
on the surface, yeah. This does not really strengthen the power of the parliament,
so because this is simply symbolic politics. And on the other hand, they usually support
Europe, but with arguments against it. And this has often disastrous,
disastrous symbolic consequences. For example, the Lisbon judgment
was based on the idea that either you have a parliamentary democracy in Germany
or in Europe, tertium non d'artour. There are no third way. Nothing,
either or, because there can only be one sovereign, undivided. You never would find that in American
constitutional textbooks or judgments of the American Supreme Court,
because they have to care about the sovereignty of the states.
And by the way, five of the judges are anti-federalists, now anti-religious fundamentalists.
So anyway, but in the German case, yeah, this either or, yeah, leads to a symbolic
consequence that, yeah, either we have a parliament in Germany, in Switzerland,
in Europe, or the other way around, yeah. And the same way they interpret
federalism in Germany. So, and the symbolic disastrous effect was to argue that this is
a list, yeah, of reserved powers. So, or this list of minimal standards for a state, yeah.
They argue that any further step, yeah, to give power to the European Union or to give sovereignty
to the European Union would mean that we come to the limit of the constitution. And that means
Article 146, and that means a revolution or a referendum about a new constitution, yeah.
And then all the politicians took that up, talked about it. We need a referendum, how shall we do
that? And the constitutional lawyers went back, yeah, and a lot of lawyers came to the Greens,
and told them, no, no, no, that you don't need Article 146. Not now, later, later, much later,
Di Fabio made an interview in the Spiegel. It's absurd to use Article 246, yeah. But the effect
was, symbolically, really disastrous, yeah, because there is no procedure for Article 146 and so on.
This is really something that is not really imaginable, yeah, to do that, and at least for
a treaty change, yeah. And on the other hand, they say yes to the European stability pact,
and then the fiscal pact, and so on, yeah. So, that's it. But this is, that they are opportunistic
politically. This is normal for, for constitutional courts, or that they make political decisions,
yeah. They are not simply juridical decisions. This is in between.
Yeah, well, thank you very much for this very complex lecture. I think it might be a very
first semester, I don't know why, but you probably answered yours, so.
No, no, not for the first.
We wanted you to explain all this, and the bit is in the speech, and the time in the mindset
of the example of the picture of that was a, no, but I want to push you a little bit, but in the sense,
I think you've noticed in the story about a poor decision you know, and your mind tell us that
Europe is not at fault, and, you know, it's really not a federal thing, but Europe is a process of
deliberation where they're poor, or they have to be somewhere in their life. Now, I'd love to have
a show where the legal agreement here is, and I, in the sense that this is trying to suggest
that the law has the longest bank power, and it has to be over the strategy of the market
and politics is somehow rooting out, and I just want to talk about the key sponsors.
One is, I'm not entirely sure about the country mindset, I know it's kind of
jargon, but I'm not sure whether it's in a recent number of times, but I think it's kind of a
popular legal context version of regulatory politics, that everyone is one of the one on
come, but I don't think that that matters at all. It's not at all true, but actually what you
know about it, the word, the list of concepts is one. Now, I want to point out, the list of concepts
that you learn within the direction, in any angle type of context, that's the first number,
which you learn as a team, which means there is no other lack of knowledge of what's going on,
as long as the topic isn't opposing, but the point is that the explicit consensus has turned out to
not be so that the foolishness and ignorance of the masses, but that of the release, and that, I
think, is an interesting point, and you refer to Fechard and others who have not noticed what
immigration, political law, and actual issues. So I want to point you there a little bit, because
you're talking about strategy. Who's strategy, are you talking about, especially when you're referring
to the moment of citizenship, in my view, citizenship, in 1993, and that's what citizenship
is, in my view. That's a true moment of, a Kantian moment of, you're a teacher for years,
who have been working on it for 20 years and for one, and citizenship will have an implication for
the future. Now, but you talk about citizenship, and strategy is kind of, I see you sort of
underline a rhyme for the thought, or the question I'll tell us a little bit, I mean, it's sort of
the thought. Yeah, I think, yeah, I don't disagree about the permission of contentors and so on,
and I think this is also not a process which leaders and elites are steering.
They play a role, but they are not steering it. That's why I used this evolutionary approach,
with thousands and thousands of decisions that made the European legal community stronger and
stronger under stature and under the goal, and against them, and they couldn't do anything about
it. So the permission of contentors is only one aspect of it. So, and this is the background
contentors also, and that explains how the thing is constitutionalized, yeah, step by step,
and the European citizenship is a Kantian mindset, that yeah, or Kantian moment, okay,
with yeah, in that way, I have defined it, yeah, so, but that means in particular that it is,
that it has to do with public autonomy. Public autonomy is the main, it's at the core of it,
so, and that means citizenship, yeah, and, but it had, the tradition of 1993 had only made
explicit what in a way was even there from the beginning, because of the constitutional,
constitutive, constituent will of the founding members, yeah, so this is my thesis, yeah,
and the court in 1963 was, at the first time that it came explicit, yeah, at least in a judgment,
yeah, not in a treaty, but in a legal document, yeah, and then, then came a discourse about it
and so on, and then finally in the treaties, yeah, the same was the legislative procedure
in the Lisbon Treaty, so that was already there, it was made explicit and formalized and further
developed in the treaty then, so, yeah, but who are the agents, yeah, that was your question,
yeah, who are the agents? I think there are a lot of agents, yeah, and in the beginning,
it was important that the Germans won over the French, yeah, and that in the German CDU,
there was the only pro-European party in Germany, yeah, who was in charge, that in the German CDU,
there was a majority for a political union and the minority of the auto liberals who were very
strong, yeah, because of the economic politics, yeah, because of the Germans were so in favor,
in the CDU was so in favor of the auto liberal politic and not a more centralized politic, yeah,
as in France or so, but they all had some ideas about third way in that time, and they won the
battle, though to say, yeah, and then in the negotiations supported by the Americans,
and that was, so to say, a kind of Grundencheidung, yeah, I use the Schmidian vocabulary, yeah,
a kind of Grundencheidung that later could not, it was hard to revise it, yeah, but on the other hand,
the Kantian mindset was pro-institutionalized on every step, so judges, yeah, not so intentional
actions, yeah, because there was no nothing on the streets, yeah, there was not much public debate
about it, because usually if the Kantian mindset would work, yeah, at least in crisis situations,
public debate would have a say, yeah, this is one, another, the other side of the Kantian mindset,
I think that is undispensable, this is Unverchichte, yeah, for a constitutional theory,
yeah, or for the concept of constitutional quality, yeah, that is, that there is,
and for any democratic quality of a constitution, yeah, so therefore we have this paradoxical
situation, yeah, and this paradox is something objective to cope with, and it can, on the one
hand, the growth of power for the parliament and formalized citizenship and legislative procedure
and so on, on the other hand, the loss of public, of the public dimension, yeah, so there's only
public law and no public debate, yeah, so, and that is, but on the other hand, and this is now
my second point, so to say, yeah, on the other hand, it is already in the law, it is already
in the treaties, and the more it is in the treaties, it can be used to change the thing,
yeah, but only if we find actors for that, and now the window is open, yeah, now the window is open
as long as the crisis lasts, and maybe the situation changes that way, I mean, I think
there is no democratic achievement in Europe, and also no possibility to control the markets,
again, without a strong parliamentary power that is not excluded from the most important
economic decisions, yeah, and that means the integration of everything, what now the Troika
and European Central Bank and the European, the European Council, yeah, is deciding
that must go through the legislative procedure at least, yeah, this is a huge step, but one can
think on a process of unconventional legislation, yeah, in the sense of Bruce Ackerman, yeah,
who made that clear, the American cases of the New Deal and former examples, unconventional
legislation, yeah, that changes the law not really within the Constitution, yeah, also a little bit
beyond it, yeah, for example, when the Parliament begins, take, has to make four or five decisions
about the Central Bank where they must give their yes, yeah, then they bundle that and say if we
cannot decide in the central decision about the buying of state bonds, yeah, if we cannot decide
that together with the four or five issues, yeah, then we don't want, then we will not decide the
four issues, they have no competence to decide about the state bond decisions, yeah, but
present they can get that competence, yeah, and then it can be, and, but such a process
must go together, I think Ackerman, Bruce Ackerman's analysis is interesting in this respect because
it must go together with the streets, yeah, it must go together with the public fights about it,
and we have now the first time in Europe a public debate, and European public debate, I think even
for the first time a general strike, at least in two countries, but in two different countries,
I think that there was never before in history, yeah, or very seldom, yeah, I think a general,
yeah, so one can imagine that these kinds of events come together and lead to a
stronger parliamentarization of the whole process, and because they, if they do not want to get,
go into the risk that the euro goes down, yeah, and I think Michael is right,
when the euro tried to, tried to, and the consequences are not calculable, yeah, to say
the least, yeah, are not calculable, and if they, if they build institutions to progress that,
yeah, they must do it with an authoritarian economic government, that's what they do now,
but this poses a question of democracy, brings the question of democracy to the fore in a way
that it is no longer, uh, uh, bypassable, so to say, yeah, so this is a question for the actor,
so I haven't, I have the public actors and primarily, primarily in mind because
constitutions are something that needs public actors and, uh, even, and representative organs
and so on, yeah, sorry, it was a complex question, sorry,
uh, yeah,
yeah
What is the necessary tool to consider development as where, for instance, it's kind of a process
to figure out?
To consider?
To consider development as where outside the, sort of the, the idea that, you know, it
wasn't a whole level made out and, and, and couldn't be in the future.
But, um, currently, uh, the kind of, I think it's pretty applied to housing market business,
but also, uh, ideas about, um, public, um, kind of partnership and so on, the idea that
it's going to be, um, a different kind of partnership that's going to be, um, a different
kind of partnership.
Uh-huh.
Yeah thou.
Um, yeah, um, I'm, um.
I, I, I think I agree, yeah, there are a lot of other causes, yeah, for the, this is not
simply an internal thing, there is a global thing, the crisis, yeah.
This is interlinked, and that is one of my thesis.
That's auto-liberal development that was designed for Europe,
open at a certain point of time, unintentionally,
the path for the neoliberal transformation in the 70s.
And you can even see that from the judgments of the court,
Cassie's decision and later judgments of the court
where they changed their anti-discrimination
judgments from rights constraining freedoms
into freedoms constraining rights,
Vikings and so on.
And so your point, yeah, I think I agree in so far
as I do not want to defend any Kantian reading or neo-Kantian
or at least foundational reading,
let me say this better, a foundational reading
of the Kantian mindset.
And I don't think that neither that Kostin-Yemi
has not such a thing in mind.
But on the other hand, I have a problem
with Kostin-Yemi's Gestalt switch model.
And so therefore, I try to integrate the Kantian mindset
in the way that the Kantian mindset works
within the evolution as a evolutionary established
normative constraints of further evolutionary processes
in which all subversive and Foucaultian and so on things
happen.
And also a lot of hardcore interests are operating.
And they change that.
The constraints are only normative constraints.
That means they would not be there
if they would not be broken.
So there is no norm once it is not broken.
So they can be violated.
The direction can be changed.
It is not predictable at all.
So there is no, I don't, with this notion of Kantian mindset,
I only refer to, yeah, I do more.
I only refer to Kostin-Yemi on the one hand,
but on the other, to what he also quotes from Kant,
that the idea of democracy as public autonomy.
But I do not conceptualize that in a way
that buys all the Kantian metaphysics,
or even the Kantian progress ideas, which are now so strongly,
and by the way, unfair, I think, criticized
by the post-colonialists as the most imperialist thinker
of the 18th century.
I think this makes not really, and even, I mean Kant,
I think, was a less imperial.
He was imperial, sure, and he had a lot of prejudices.
There's no problem.
I have no problem with that.
So that doesn't matter theoretically, by the way.
But he was imperial, but he was a less imperial
from the enlightened thinkers, I think.
I mean, and so far, also therefore Foucault
was not wrong to refer to his idea of criticism,
or critique.
Even if that is a little bit too weak, the Foucaultian.
He has not written a lot about it.
So Foucault has not made a long essay about that.
So you have an idea.
So that's it.
OK, it's a good idea, but I think I can integrate that.
And I want to integrate it, because I
think one should avoid any foundationalist constructivist
theory here.
So it was not a final answer to your question.
OK, thank you very much.
We are done?
Yeah.
Thank you.
Thank you very much.
Thank you.