For the Law and Revolution at the New School for Social Research with Hauke Brunkhorst
September 15, 2009
Christoph Möllers voices the underlying argument of this paper, which discusses essays by Möllers and Harold J. Berman—“the legitimacy of constitutional law does not end with laying down the constitution, but is perpetuated in the lawmaking procedures set up by the constitution.”[1] Möllers, understood within the subtext of his interest in Arendt’s analysis of constitutionalism,[2] directs our attention to a critical issue of the modern constitutional state: a written constitution must have the ability to adapt to societal change, marking its constitutive power within a nation; to be revolutionary, the constitution must establish a new political order. According to Möllers, this is the issue faced by the European Union (EU) in recent years, concerning the function and purpose of the treaties of the Union, and whether the Member States have established a de facto European Constitution. Through the historical evolution of Western law, notably outlined by Berman, the dilemma faced by EU Member States may represent the continuation of a revolutionary tradition of reordering political systems to adapt to changes in culture, economy, and social hierarchy within the nation-state (or in the case of the United States, the former colonial state); however, the latest potential incarnation of this tradition marks the establishment of a supranational government in continental Europe and the United Kingdom.
For Berman, revolutions have historically informed the development of law; the act of revolution, in the sense used by Arendt, is completed through the institution of a new political order, a new system of government that responds to the changes demanded by society. In “The Western Legal Tradition,” Berman locates the origins of modern legal tradition within the effects of the Papal Revolution of the 11th century, a series of civil wars between monarchs and the increased power of papal supporters, which established Church and secular legal authorities in Europe, spelling out a legal dynamic that would influence the structure of Western law in later centuries, owing as much to ecclesiastical courts as the royal magistracies. Of the four other revolutions Berman identifies as crucial to the development of Western law (the Lutheran Reformation, the English Revolution, the French Revolution, and the Russian Revolution), each one marks the establishment of a new political system made official by a constitution. The laws set through revolution represent its embodiment; to decide if the constitutionalization of European law marks a revolution in Western history, it is important to explore the relationship of law and European society.
Berman outlines six characteristics that define the growth of Western law, derived from this process:[3]
1) The law must be conceived as a “coherent whole,” or a body of law;
2) The body of law must be sufficiently flexible to be reinterpreted and change as society changes;
3) The law must be handled as a historical product; it is comprised of precedents and thus changes to the law reflect a pattern within the legal tradition that may be referred to;
4) The law must hold supremacy over political authorities: much in the way that the Church required secular authorities to be responsible to a higher authority, the law binds the state as a whole;
5) The various local and regional governments and jurisdictions of a nation should be able to function without undue limitation under the terms of the law;
and finally,
6) Western legal traditions are balanced upon a tension between legal ideals and social realities; revolution occurs when the law is not flexible enough to account for the social reality of the state.
With these six points, Berman illustrates a single point—the Western legal tradition has evolved as the symbolic embodiment of the nature of the relationship between the state and citizens. The written law of a constitution furthers this embodiment. According to Möllers, “Similar to a piece of art, [a constitution’s] objective character enables it to portray potential oppositions to ‘social reality.’ The objectification of the constitution in a text calls forth its symbolization.”[4] The process of constitutionalization thus becomes a process of affirming what Möllers calls the “normativity” of the terms and system established within the constitution as a product historical experience, which is the logic of the constitution.
In “Pouvoir Constituant—Constitution—Constitutionalisation,” Möllers divides the concept of constitutionalization into two categories: the politicization of law, and the juridification of politics. The politicization of law is the use of law to establish a new system of government that ideally does not amend an earlier form—or, as Möllers writes, “the new constitution founded an entirely new order. They did not just limit already existing powers.”[5] Thus, the constitution is as much a body of law, as it is the logic of the revolution and the system it has established. As such, the nation becomes the source of the power behind the constitution, the pouvoir constituant of a democratic revolution, as discussed by Arendt in On Revolution, and which Möllers suggests will be the deciding factor of a constitution’s continued relevance to its society.
Möllers writes, “The constitution determines the form and the content of the sovereign power, and in doing so, terminates the previous political order.” Moreover, “because the constitution must ignore and abolish already existing political power structures, it must make individual freedom its systematic reference point.”[6] The treaties of the EU, similarly to those of the United Nations, attempt to establish an overarching European system of government that will have authority over Member States, unifying their political and economic state efforts, though potentially limiting their capacity to act autonomously of EU regulations, whether or not state actions may be deemed destructive to other European states or citizens. This dual character of the EU formation as “power founding”[7] regarding its supranational character, and power limiting regarding the regulated autonomy of the Member States, makes difficult the task of pigeonholing the exact legal nature of the Union, especially regarding its role as an international actor representing a European body politic and not merely the independent states of the Union. However, in reading Möllers, we must consider this question—do the treaties “terminate” a “previous political order,” or do they represent, instead, a new form of self-limiting government?
Berman describes the EU system as an intergovernmental contract to protect economic development that has blossomed into a political institution whose border-crossing economic and humanitarian laws may be described as supranational.[8] As such, Möllers would argue that the treaties of the EU actually serve to limit the power of member states and the Union as a whole by maintaining an economic system. Even with this understanding, however, the source of the power behind the Union ultimately remains invisible. The juridification of politics, as Möllers discusses, is not a revolutionary act; instead, it is the act of amending and reforming a previously existing political order—limiting the power of an already sovereign government. In his examination of On Revolution, Hauke Brunkhorst remarks, “the revolution ‘submits the constituent power to the people’—and the system of check and balances here has the only function to constitute, organize and stabilize that constituent power.”[9] This suggests that in the absence of a revolutionary act, of the establishment of a new political order through constitutionalization, a constitution is not a symbol of the constituent power of the nation, but a symbol of the protection of the nation from certain interference by the state. In this regard, the EU is a newly instated system; however, its purposes are unclear regarding the integration of Member States as economic participants or as a system similar to a federal union. This is the problem Möllers explores at the end of his essay—namely, that a federalized EU would have to decide where it derives it pouvoir constituant—the citizens of Member States, or the states themselves? Or both?[10] If the Treaties of the European Union represent the constitution of Europe as agreed upon by Member States, then the states have authorized the power of the Union, and in this way, the Union may be conceived of as constituted under treaty, but not necessarily a constitution, according to Möllers, as the original treaties were not specified as such.
Within the constitutional tradition of Western law, the Constitutional Treaty of the EU enters the debate over the role of the state in modern international politics, and more historically, the establishment of new political orders. The EU represents a supranational order, which has no prior history under a legitimate constitution, except perhaps as compared to empires of the past century, including Western colonies outside of Europe and expansion of totalitarian states. The system seeks to unify Europe economically and politically through the integration of many diverse political systems, and as such may seem to be an adaptive, integrative constitution as opposed to one that purely establishes a new order or reforms an old one; by doing this, though, the act of integration is revolutionary because a system of its scale has not been seen before as democratically derived.
[1] Möllers, Christoph, 2007, “Pouvoir Constituant—Constitution—Constitutionalisation,” in E. O. Eriksen, et. al., eds., Developing a Constitution for Europe (London: Routledge, 2nd Edition), 204.
[2] Arendt, Hannah, 1963, “Constitutio Libertatis,” from On Revolution (New York: Viking), 139-178.
[3] Berman, Harold J., 1998, “The Western Legal Tradition: The interaction of revolutionary innovation and evolutionary growth,” in Political Competition, Innovation and Growth: A Historical Analysis (Berlin: Springer), 38-39.
[4] Möllers, 188.
[5] Möllers, 185.
[6] Ibid., 186.
[7] As discussed concerning the United Nations Charter of 1945 in Brunkhorst, Hauke, (as of) 2009, “Reluctant Democratic Egalitarianism: Global Constitutionalism, democratic inclusion, and Arendt’s Idea of the Revolutionary Foundation of the Modern Nation State,” (Forthcoming), 1.
[8] Berman, 47.
[9] Brunkhorst, 14.
[10] Möllers, 221-226.
