December 16, 2009
For Law and Revolution with Hauke Brunkhorst at the New School for Social Research
World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it. The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war.
Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries.
~Robert Schuman[1]
~ May 9, 1950 ~
Schuman stood before an assembly of press in the ornate conference room of the French Foreign Office on the Quai d’Orsay. The atmosphere in the room seemed disinterested—preoccupied at best. Schuman gathered his energy behind the podium—thin and bespectacled, clad in a somber dark suit, his speech delivered with passionate resolve, perhaps the declaration that would found a new cooperative international community of Europe.[2] More so than Wilson’s Fourteen Points, or even the impassioned proclamations of the United Nations, five years after the end of the Second World War, Schuman’s proposal marked a revolutionary moment in the history of European politics—not merely for its hope for a stronger economic future, but for the new world image offered in the unity of France and Germany whose state interests had been historically pitted against each other since at least the 17th century.
Schuman correctly viewed the long standing rivalry between France and Germany as one of the most powerful catalysts of the two World Wars; thus to rebuild and to recuperate, to prevent such world-altering devastation from ever happening again, the two nations needed to ally their interests in a show of good will to each other, Europe, and future generations. In an attempt to unite Europe and diminish the prevalence of harmful economic competition during the time of post-War reconstruction, Schuman proposed an alliance that led to the Treaty of the European Coal and Steel Community[3] (ECSC) in 1951, marking the foundational moment of what would eventually become the European Union (EU), effectively pledging an oath of cooperation between France and Germany, also initially including Italy, Belgium, Luxembourg, and the Netherlands under the Treaty. As a result, the pledge of cooperation would be the cornerstone of all future political and economic endeavors on the continent, effectively plotting a new direction for Europe’s future, and through this new politics of cooperation Europeans would come to identify themselves as joint by a new commonality as never before, transcending the boundaries of national identity.
~ * ~
For his efforts, Schuman is regarded as a founding father of the European Union, effectively founded on that day in 1950,[4] when the precedent was set that the future of Europe as a whole resided in its ability not merely to coexist as a comity of nations, but to cooperate in a unity of political and economic interests with the goal of forming a new heritage founded in a legal culture of inclusion. Such a vision was not an immediate possibility, but one to be attained through diplomacy and patient strides forward as we have learned today as a global society; thus, one of the most pressing issues of Schuman’s time (and our own) has been the problem of adhering to and safeguarding our modern conception of rights[5] since the days of the League of Nations. As evidenced by the brutal outcome of World War II and the treatment and genocide of the Jews by Nazi Germany, as well as numerous occurrences of the 20th century that would come to be known as terrible instances of human rights violations, the larger problem was that there was not always a consensus on who was protected by which rights, and thus many groups and individuals have been excluded from receiving even the most basic and (in modern times) most necessary civil and human rights, otherwise taken for granted amongst non-marginalized groups in contemporary Western society.[6] In consequence, a need has risen to combat the exclusion of certain groups of individuals from the recognition and protection of certain rights, whether for ethnic, religious, or political reasons. This is a problem of civil and human rights, and of reforming an entire large-scale society in the image of a fabricated conception of modernity, morality and ethics; this was a process of culture building. It is in this light, and within the history of exclusions prior to Schuman’s declaration, that we may try to understand the dialogue of uniting Europe as a part of the dialogue of modern law and universal human rights, as a part of embracing a new image of the continent, and in the process embracing a new European identity marked by the constant restructuring of the present by remembering the past.
Our thesis thus springs from the perspective that the catastrophe of World War II effected such trauma upon Europe (and the other participating countries) as to bring about a cultural shift, in which we may observe that the concretization of certain universal rights into what became European law (as with other international and national legal bodies) has had a “people-shaping”[7] effect on Europe (just as on much of the world), which in the EU has had the consequence of encouraging (successfully or not) a supra- or (as Donald Phillips hopes, for the sake of building a peace-centered community of European partners[8]) a post-national European identity. It does not deny national or ethnic identity, but instead embraces the unity of nations as an alliance for joint progress[9] and a safeguard against further devastation. As such, it is through the growing inclination of modern Europe to encourage inclusionary reforms (as seen in EU treaties, or amendments to national constitutions)[10] that a new cultural identity follows suit, slowly shaping a culture of inclusion, which seeks to overcome current and future social and political exclusions of different—and sometimes new—social groups, more powerfully functioning internationally as a political culture of cooperation.
Perhaps one of the hardest places to start a paper like this is choosing the point that most would mark as the start of the particular period characterized as having a formative influence on the history of Europe. To start with let us say that the block of time from 1917, when Lenin and Trotsky overthrew the Czar in Russia, until 1945 after the surrender of Japan to the United States, marks what we will call the WWII period. While WWI carries intense cultural significance, the effect of that war that is most important is perhaps that it opened the floodgates of the post-imperial age, which led to the questioning of liberal democracy and the rebalancing of geopolitical power in the West. After a period between 1945 and 1948 when the Allied occupation of Germany intended to provide stabilization in the aftermath of the war, we may identify a new block of time from 1948, with the start of de-Nazification and the formation of the United Nations and the European Council, up to 1988 or 1989, as Communism in the Eastern bloc, and eventually Russia, made the transition to more liberal capitalist economies. We can call this the Cold War period, which seems to be a very traditional periodization of the span of time actually, though it is important to concentrate on this as the time when the character of European politics was formed as the product of necessary diplomatic relations, whether at the national level as in the case of a Schuman or an Adenauer, or as a political union with the establishment of the European Council in 1948. Encompassing the period from the end of the First World War in 1918 until the present day, we can conceive of a period characterized by the dialogue of post-imperial international peace covenants and the normatization of universal human rights, starting with Wilson’s Fourteen Points in 1914. However, the earliest block of this period also included a totalitarian counter-dialogue that appeared in time to argue for newly expanded imperial practices that transcended the boundaries of foreign colonization to include a new social system that found its strength (and eventually its weakness) in the panoptic surveillance and discipline in the structure of the large-scale European empire that sought to “rehabilitate” natives, shaping their cultural consciousness.[11]
It is within the crossroads of the effects and contributions of these periods that modern Europe should be understood. The particular brand of historical responsiveness by which we may characterize European government is not merely a historical product, but it is the focal point of a particular phenomena of the modern age—namely, that as the primary geographic site of the two World Wars, in order to rebuild, Europe has had to culturally and politically negotiate the differences and controversies produced by these events, all the while reclaiming national identities from the outcomes of war. Moreover, modern Europe represents the political template for cultural amnesty, meaning that after the Second World War, not only did countries and individuals have to overcome their roles as victims or victimizers, but the very structure of European culture had to reshape itself to permit Europeans to integrate themselves amongst former enemies and perpetrators of heinous crimes against humanity, if only to peaceably rebuild both land and psyche.
If we may suppose, the reconstruction of European identity is especially remarkable because it marks the jarring transformation of the society after the catastrophe of the war. Though national leaders stepped up to plate immediately to guide their countries through the worst of the post-War period, these countries were nonetheless in the position of having had their values, their cultures, and the foundations of their society, shaken by the war. Life may have continued, but what now did it mean to live in the post-War world? Totalitarian regimes had shown that the rights of citizenship can be revoked, and thus have no inherent value.[12] The function of the state was thus under scrutiny, which contributed to a sense amongst leaders like Schuman that a new political morality was necessary. This becomes the issue that Europe must address, because it now had a task to convince a diverse group of nations that their societies were in fact bound together by common political values that were somehow, more importantly, cultural values. The culture of democracy and capitalism needed to become a culture of rights, which recognized that some rights are inalienable, and a new legal culture needed to accompany and foster this transformation.
A recent analytical paper presented to the European Constitutional Law Network Conference in Prague in 2004 by Rainer Arnold of Regensburg University, best states the purpose and function of this reform mindset:
National and supranational constitutional law are separate, autonomous legal orders. As the entirety of fundamental norms of EC/EU [European Council/European Union] primary law, European constitutional law has such autonomy, but in many ways is interdependent with national law. Furthermore, there are three bodies of constitutional law in Europe: national constitutional law, the EC/EU law and the European Convention on human Rights (ECHR). For various reasons, the notion of constitutional law can be extended from the traditional national level to the supranational levels which include the Strasbourg Convention. The main reason is that the functions of a state constitution are largely subsumed by the fundamental law of the EC/EU and, in part, also by the ECHR:
1) to determine the basic values of a society which serve as a protection against state intervention into the sphere of fundamental rights; and
2) to establish—insofar as the EC/EU is concerned—an institutional order to fulfill the substantial tasks of the community.[13]
For Christoph Möllers, this is a method by which the legal culture “is perpetuated in the lawmaking procedures set up by the constitution.”[14] Möllers, understood within the subtext of his interest in Arendt’s analysis of constitutionalism,[15] 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. 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 in the Treaty Establishing a Constitution for Europe (TECE)[16] of 2004. Historian Harold Berman illustrates a single point in his history of the Western legal tradition—the 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.[17] 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.”[18] 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 of historical experience, which is it’s logic.
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.”[19] Thus, the constitution is as much a body of law, as it is the logic of the system it has established.
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.”[20] The treaties of the EU,[21] similar 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”[22] regarding its supranational character, and power limiting regarding the regulated autonomy of the Member States, make difficult the task of pigeonholing the exact nature of the Union—an economic alliance, a political confederacy. Harold Berman provides a helpful thought in describing 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 are the foundation of a new ethos.[23] It is in that ethos that we may observe the evolution of European identity, and it is a process that is present, one would think, in most societies that have come to embrace or recognize human rights at an international level. What makes Europe different, at least to a degree, is that the recognition of rights enhances a joint identity because war thrust the continent into a single course of reconstruction that European nations had no choice but to involve themselves.
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 and integrative as opposed to one that purely establishes a new order or reforms an old one. It is this aspect of the Treaty and its counterparts that establish the character of the EU, and its reflection of forming[24] elements of the European society. In 1951, the ECSC joined German and French industry, followed by the formation of the European Economic Community in 1957, founded by the Treaty of Rome. Both treaties served to broker compromise between nations in the years after the war, but more importantly, they provided a political vehicle for cooperation. As Norbert Frei elaborates, this was a time of reconstruction, but also of reconfiguring the past. Amnesty in Germany acted as a sugar pill for German society, permitting a sense of psychological reunion and integration, while at the same time distinguishing the new government under Adenauer from the allied occupation, which emphasized retribution. This “policy of the past,” or Vergangenheitspolitik, according to Frei, became the method and mindset of German reconstruction of society; however, if considered from the perspective of the larger European experience, Adenauer was permitting Germany (or at least attempting) to reintegrate itself within the community of Europe. Even if the reintegration was necessary in the long term for the well being of Europe as an economic community, the psychological effect of Adenauer’s policy was to suggest a “right to political error,”[25] which in Germany may have ironed out or at least masked the discomfort of post-Nazi German political and cultural life, but more importantly widely holds the rest of Europe accountable for human damages on both sides of the war. After an attempted genocide, the “right to political error” is sadly a comment befitting of existentialist examination as much as political analysis.
As such, the history of the European Union is of a system founded in political responsiveness to the devastation of World War II and the legal changes that ensued at international and global levels. As written by Halbwachs, “there are no recollections which can be said to be purely interior…from the moment a recollection reproduces a collective perception, it can itself only be collective.”[26] Thus, the nature by which the EU responds to the necessities of past experience, of trauma and the determination to rebuild together, marks a special model of collective memory at work. Not because of living witnesses of war, or because the Union is a specifically post-Holocaust institution; what makes the EU special is that the very structure of its system is one of rebuilding, and thus it is a system that looks ahead constantly, and as a product of the war, it is the response to the children of that generation, and it is the political sire of their historical memory. This is, for Frei, one of the more fascinating aspects of contemporary history—namely, that the specter of the past has intense psychological relevance to the generations of children and grandchildren who never experienced the war or Holocaust, but its reality is not subject to a process of contemporary subjective interpretation, fetishization, and emotional manipulation (comparing political leaders or movements to Nazis, fascists, Hitler, etc.).[27]
This has much to do with the social currency of WWII in our culture, and also of the sometimes uncomfortable debate on imperialism in the 21st century. Of special significance to the history of the EU, for instance, is the context of the time of its founding, when individuals and groups all over the world began to seek and often gained acceptance into the expanding order of global rights, whether through appeals to the United Nations Decolonization Committee,[28] or open protest, opening a dialogue at governmental and popular levels on the universality of rights, which, with the reintegration of survivors after the war, and the introduction of a host of Europe-bound immigrants during the time of decolonization, became a vital concern for the re-formation of post-War Europe.
The impact of the break up of the major European empires cannot be ignored, and to a great degree, we may contend that the EU is also a systematic response to the need to recover from or prevent an economic downswing as the former imperial nations found themselves at a loss after the war. Moreover, the process of decolonization introduced a new political terrain to the post-War climate that increasingly became a dance between the supporters of capitalism and socialism. Former colonial peoples represented influxes of new immigrants; their countries represented new players on the international field. Britain provides an excellent example of the transformation to ensue from WWI until the 1960’s for much of Europe’s imperial power. As India, South Africa, Ireland and others sought their independence following the close of the First World War, a new problem arose for the West: where do those lands and peoples fit into the cultural and geopolitical spectrum, and moreover, where do they fit legally? The colonies were run under a separate regulatory system from the imperial home-state. As explained by Fanon,[29] this was understood as necessary for organizing and maintaining the human resources (colonized peoples) of the empire, emphasizing chain of command and discipline as opposed to democracy and representation. The success of empire was the manipulation of biopower, as we may borrow from Foucault,[30] and this biopower was the discipline and control of the human body and mind, the re-creation of the individual into the image of the imperial state. However, as Arendt reminds us, the terrible effect of this process is the circulation of imperial practice in the colonies into the home state. This “boomerang effect,”[31] to use Arendt’s words, is our evidence that the empire was a single society from the start, a system ordered by its internal disparities of wealth, class, race, and geography.
In consequence, the dialogue of imperial society mirrored that of the national society, in which marginalized populations are silenced by their lack of (and barricaded) access to positions of cultural and political agency. The effect is dialectical, a systemic rebalance of society, including human resources whose role in society may have previously been disempowered, disdained, or ignored. The discovery of a political voice is the same for colonized peoples as for groups repressed or persecuted for religious, ethnic, political, social, or sexual reasons within the imperial home state. Once the marginal populations rejected the imperial state (a counter ethos, or actual violent or non-violent disobedience) and struggled for autonomy and independence, a chain reaction inspired an incensed solidarity against paternalistic surveillance and correction, and rage at the dispossession of culture and land. Moreover, in Europe after the Second World War, a new political consciousness arose following the intra-European imperialism of Germany, fears of Communist expansion from Russia, and a somber recognition that the attempted genocide of the Jews represented a horrific hallmark in the history of cultural antagonisms based upon differences of birth, body, self, or belief.
As such, we must view this history as engaged within a larger joint cultural and legal problem of what sociologist Hauke Brunkhorst calls a problem of the “global inclusion of the other” and of the “global exclusion of inequality,”[32] and in so doing understand that the problem is engaged in the process of transformations of society and of individuals during and after the Second World War and Holocaust, and the ensuing Cold War years. Moreover, to understand this dialogue we have to understand the interconnectedness of the imperial, totalitarian, and liberal traditions. As Enzo Traverso wrote:
The massacres of the imperialist conquests and the final solution are linked by more than “phenomenological affinities” and distant analogies. Between them runs a historical continuity that makes liberal Europe the laboratory of the violences of the twentieth century, and Auschwitz an authentic product of Western civilization. **
Traverso’s point is that we should concentrate on the genealogy of this violence and not its uniqueness, of the systemic formulation of the historical events that led up to the Second World War and on which the Cold War was firmly seated. Within the continuity of the dialogue of modern European formations, the EU is the first institution of its kind that does not merely try to mediate between parties, but it is, instead, the conversation itself. There is certainly a mitigatory aspect to the method of mediation practiced by members of the Union, especially evident in the role of the Merkel administration in the process of negotiations between the U.S. and Russia. This is where the conceptualization of the Union as site of cooperation, as much as of a method, becomes important.
The purpose of a joint Europe, as hoped for by Schuman, is to lead to cooperation, as we have repeatedly insisted; the EU is, however, also constructed to found the permanent concept of a cooperative Europe. It is “everyone’s Europe,” as Romano Prodi stated in 2000[33]—and this is not to say that the reality of the European Union is a Utopic dream of brotherly love! Instead, the significance of Prodi’s statement is that the political message of the Union is cultural unity, thus conceptual reformation of the role of the government. Much in the way that France conquered its rural provinces with a colonial fervor during the 19th century,[34] the modern European culture is the product of a conceptual conditioning process based on the representation and structuring of the Union government as a repository for modern universal values, and in that way, as an experiment in shaping future generations into the image of humanitarian values. Whether this is an actual human result of the political and cultural process is not necessarily true or relevant—it would be an odd thing, indeed, to characterize Europeans or any cultural group as a culture of humanitarians. The point is that the concept of humanitarian values—of universal human rights, of having citizenship and civil rights that cannot be denied by the state—is embedded within Western discourses, and increasingly within the representation of the European political identity.
As with any identity, it is derived from individual and collective sources. We can imagine American (U.S.) identity as closely bound to pride in our Constitution and revolutionary heritage as a nation. While American identity may be a value of the individual, and to some extent, the modern European identity is also formed by this value; it is also the value of a respect for rights. Of course, there are groups and individuals who are excluded from certain rights, as in any society, but the value of rights as a human value is the defining character of modern European law and its influence on society.
We can compare this influence to the civil rights legislation of the 1950’s and 1960’s United States. New and controversial law eventually became taken for granted as normative to the protection enjoyed by American citizens, and the concept became a value of the American identity, even in such cases where some Americans would want to block the rights of others based upon race or sexuality. There is a normative quality to the concept of civil rights in American society, and our identities are tightly bound to a belief in their inherency in our lives and the lives of others. Essentially, this is a matter of conceptualization and the formation of an image of the world that adheres to our values. Amos Goldberg has offered tremendous observations on the importance of understanding transformations of the dramatically altered “world-image” of “fundamental concepts, which form the infrastructure of any given culture”—what Goldberg describes as “deep categories”[35] within a culture, and of metaphor; an analysis owing a debt to linguistics, [36] and which we may concentrate on as the analysis of conceptual metaphor and the formation of our reality, the internalized world-view, as explored by linguists Greg Lakoff and Mark Johnson during the 1980’s.[37] Our questions, of course, need not adhere solely to the historiography of the Holocaust, to which Goldberg refers, but may apply more widely to our needs in a more sociologically linguistic treatment of a historical analysis of contemporary European identity. A large part of this analysis depends on understanding the process and lasting effects of the reintegration into society of the survivors of war and genocide, alongside perpetrators complicit with (what would come to be known as) state crimes, and neighbors whose blindness or inaction further raise the controversy of complicity or even their own victimization. We may also include the tepid reception of an influx of immigrants from the East and Africa within the structure of this new integration, a process closely bound to the protean shifts of the world order, as closely bound as the World Wars were to the onset and institutionalization of the universalist tenets of the global legal revolution, situated (by Brunkhorst)[38] after the First World War, solidifying with the creation of the United Nations. Indeed, we must also take under consideration the effects of the concentration camps on survivors, and more broadly, on our understanding of the contemporary world, which still, philosophically and experientially through historical memory, must come to terms with the very human creation and use of such places. Moreover, integral to this process is the development and embracement of what Brunkhorst describes as the “concretization” of new universal legal norms—the “normative progress” of global and international rights; in other words, the ways law becomes incorporated into the morality and ethics of a society, over time influencing and forming a different world-view then was there before; in this case, the established normativity of the “right to have rights,”[39] by which, it may be safe to say (at least legally) that all people have a right to an identity, both political (in citizenship) and cultural (as Europeans, for example).
To start with, we can consider the words of Talcott Parsons:
The normative elements of a social system do no stand alone, of course. The reason for emphasizing them here is their involvement in the problem of order…[40] Whereas one can think of liberty primarily in terms of casting off restraints, equality inherently involves relations among units that are positively valued. Units that claim the right to equality cannot legitimately oppose recognition of the equality of others. Whereas in the context of liberty the evil is illegitimate constraint, in the context of equality it is illegitimate discrimination.[41]
As we may understand from reading Parsons, the practice of order—of rules, spoken or not, of standards, values, and beliefs—is integral to the formation of any system. The format of the written constitution is not merely the codification of law, as we have discussed, but the representation of those “normative elements” of a society, the values recognized and proposed within the document, which are regarded as inherent to the system instituted or reformed by constitution, thereby protected as the rights of the citizens. However, as we have discussed, these rights are not initially normative, but must become so. The aim of such legislation is that in time the underlying values of the reform laws will be absorbed into the larger schema of the culture, eventually becoming embedded within the discourse not only of law, but of how a society comes to identify itself and express that identity.
We may start with the emphasis placed on “cooperation” by the European Council (EC) in their presentation of the EU as a democratic and cultural body on their website,[42] in their publications, and within the tenets of the various treaties of the past century, and decade. However, it is important that we situate “cooperation,” the character of the Union, within the early doctrinal platform of the Union’s early foundation in Schuman’s speech, of the “coming together of nations,” to create a “de facto solidarity” intended to solidify a permanent “European” system. As such, cooperation is a necessary concept intended to insinuate itself into the conceptual foundations of the political thought experiment that is the structure of Europeanness as an identity. There is no “European” identity without cooperation—not merely as a practice, but as a way of thinking about the self as a “European” in conjunction with a national identity, and the understanding that all Europeans thus have a double identity.
Cooperation as a concept and practice is integral to the process of “coming together,” not merely as a political process, but one that is now normative to the reconstruction of modern Europe. Lakoff and Johnson tell us “metaphor is pervasive in everyday life, not just in language but in thought and action. Our ordinary conceptual system, in terms of which we both think and act, is fundamentally metaphorical in nature.”[43] These metaphors extend into our very conceptualization of the world, and are the vehicles of the majority of our communications, the expressive capability of our common world-images. He built up my expectations, only to let me fall—an expression with an underlying metaphor of construction. Under her administration the government ran smoothly, which expresses a metaphor of machinery. This is fundamental to language, and especially our ability to communicate along lines of common understanding. Moreover, the metaphor does not need to be direct or even intentional. “The policy of the past” marks two meanings: 1) an actual policy for dealing with events that occurred in the past; 2) the psychological aspect associated with dealing with the past, which uses the metaphor of a policy, when really it is a form of denial.
The play of words involved in understanding the past and forming a better understanding of the future has a great deal to do with how we express memories and conceive of history, and the politics of language are very much a part of the limitations of our ability to express the past. As Frei discusses, terms such as “war criminal” or “Final Solution” are embedded in the discourse of the history and historiography of WWII, but their use also conveys a particular political perspective.[44] “War criminal” takes the position of judgement and conviction, whereas “Final Solution” (as opposed to genocide of Jewish persons or mass killings) is dramatic (but also less violent) and plays off the aspect of the attempted genocide that makes it so unimaginable—that the solution to the economic and social problems identified by National Socialism was to eradicate an entire group of human beings.
In this way, the process of becoming “European” is also a process of creating “Europe,” the cultural whole. Certainly, this is an effort of people-shaping—not to control or subdue, but to promote the commonality that was lacking for so many centuries and was the cause of so many wars, and so many terrible moments building the competitive state. Instead, modern Europe seeks to build a cooperative future founded in an ethic of rights protection. Moreover, the protection of rights intends not to limit the range of rights to a particular set, but to embrace rights as expansive and universal, and thus inclusive. Should the founders of the EU succeed in their vision, Europe will not merely possess a legal foundation for inclusive policies, but a culture that seeks the same. It is the culture of cooperation that may lead to this, and as such, will be the deciding factor in the post-national formation of European identity as citizens of the European Union.
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Schuman, Robert. 1950. “The Declaration of 9 May 1950.” Accessible via the European Commission at http://europa.eu/abc/symbols/9-may/decl_en.htm. For footage, see the European Navigator website at http://www.ena.lu/
Sunstein, Cass R. 1990. “The Functions of Regulatory Statutes,” from After the Rights Revolution: Reconceiving the Regulatory State. Cambridge: Harvard University Press, 61-64.
Traverso, Enzo. 2003. The Origins of Nazi Violence. New York: New Press.
Weber, Eugen. 1976. Peasants into Frenchmen: The modernization of Rural France, 1870- 1914. Stanford: Stanford University Press.
[1] Robert Schuman, 1950,
The Declaration of 9 May 1950, accessible via the European Commission at http://europa.eu/abc/symbols/9-may/decl_en.htm.
[2] For footage, see the European Navigator website at http://www.ena.lu/
[3] Available on European Navigator at http://www.ena.lu/. Most EU documents are found at europa.eu, the website of the European Commission. However, as the ECSC Treaty expired in 2002, it has been removed from the archive of accessible documents on the website. These documents are however all accessible online, despite expiration, at European Navigator.
[4] Though the title “European Union” was not made official until 1992, the span of time from the formation of the European Council in 1949 until the end of the Cold War is considered the early historical manifestation of the Union, which served the necessities of the time. The era of “cooperation,” however, is marked by the 1950 Schuman plan for the joint economic interests of France and Germany under the ECSC Treaty. Hence, May 9th is celebrated annually across the Union as Europe Day.
[5] See Part 1: Of World War II
[6] For important discussions of this, see: Hannah Arendt, 1994, especially “The Decline of the National-State and the End of the Rights of Man,” The Origins of Totalitarianism [1951] (New York: Harcourt), 267-302, specifically passages on statelessness and the ability and practice of early 20th century states to disown or denationalize former citizens: see footnotes on pages 277-285 in particular; also by Arendt, see 1963, “Foundation I: Consitutio Libertatis,” from On Revolution (New York: Viking Press), 146-147; Brunkhorst, “Dialectical Snares…,” the whole fascinating paper deals with this topic; also by Brunkhorst, see (as of) 2009, “Reluctant Democratic Egalitarianism: Global Constitutionalism, democratic inclusion, and Arendt’s Idea of the Revolutionary Foundation of the Modern Nation State,” (Forthcoming), 16, in which the author contends that the power of a constitution to found and legitimate rights is “up to the individual and collective self determination of the people;” Cass R. Sunstein, 1990, “The Functions of Regulatory Statutes,” from After the Rights Revolution: Reconceiving the Regulatory State (Cambridge: Harvard University Press), 61-64, on the subordination of groups.
[7] Hauke Brunkhorst, 2009, From a lecture on December 1, 2009 on the paper “Dialectical Snares…,” for graduate seminar Law and Revolution at the New School for Social Research. To a great degree, the scope and concentration of this paper derives from this concept of “people-shaping,” and thus, it is the overriding concept of everything discussed here, which is evaluated as somehow contributing to this process.
[8] Donald G. Phillips, 2000, “The Extraordinary End of the Cold War,” from Germany and the Transnational Building Blocks for Post-national Community (Connecticut: Praeger), 2.
[9] By progress I mean joint benefits from political and economic choices, and not “progress” in the sense of a normative evolution of society. My analysis only professes to apply to Europe, and does not suggest that the “progress” of Europe is a model for all modern societies, or society in the more general sense of the concept of society.
[10] See for example the recent amendments to nearly all European national constitutions, which pledge allegiance to and admit the supremacy of international law regarding ratified universal human rights.
[11] Foucault’s prison metaphor is important to this paper, deriving from 1977, Discipline and Punish, Alan Sheridan, trans. (New York: Vintage), as is the concept of the colonization of consciousness developed by Jean and Jean Comaroff, 1991, Of Revelation and Revolution: Christianity, Colonialism, and Consciousness in South Africa (Chicago: University of Chicago Press), which the Comaroffs derived in part from Franz Fanon’s 1967, Black Skins, White Masks (1952), transl. Charles Lam Markmann (New York: Grove Press).
[12] See Arendt, Origins…, footnote on page 288 for excerpt on the revoking of German nationality.
[13] Rainer Arnold, 2004, “The European Constitution And The Transformation Of National Constitutional Law,” in Ingolf Pernice and Jirí Zemánek, eds., A Constitution for Europe: The IGC, the Ratification Process and Beyond (Baden-Baden: Nomos, 2005 [pp.1-11]), 1.
[14] Möllers, Christoph, 2007, “Pouvoir Constituant—Constitution—Constitutionalisation,” in E. O. Eriksen, et. al., eds., Developing a Constitution for Europe (London: Routledge, 2nd Edition), 204.
[15] Arendt, Hannah, 1963, “Constitutio Libertatis,” from On Revolution (New York: Viking), 139-178.
[16] Accessible at europa.eu.
[17] 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.
[18] Möllers, 188.
[19] Ibid., 185.
[20] Ibid., 186.
[21] Specifically: Treaty of the ECSC, The Treaty of Rome (1957), The Single European Act (1986), The Treaty on the European Union (Maastricht, 1992), The Treaty Of Amsterdam (1997), The Treaty of Nice (2001), The Treaty Establishing a Constitution for Europe (2004), The Treaty of Lisbon (2007).
[22] 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.
[23] Berman, 47.
[24] Norbert Frei, 2002, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration (1997), Joel Gelb, trans. (New York: Columbia University Press).
[25] Ibid., 311.
[26] Maurice Halbwachs, “Conclusion of ‘The Social Frameworks of Memory’” from On Collective Memory, Lewis A. Cos, ed. & trans. (Chicago: University of Chicago Press), 169.
[27] Norbert Frei, “Farewell to the Era of Contemporaries,” History & Memory; Spring/Summer97, Vol. 9 Issue 1, 59-79.
[28] Formed in 1962.
[29] Frantz Fanon, 2004, The Wretched of the Earth (1963), Richard Wilcox, trans. (New York: Grove Press). Notably referring to French imperialism, though there is, of course, conceptual cross-applicability of the text.
[30] Michel Foucault, 1978, The History of Sexuality: Vol. 1, Robert Hurley, trans., (New York: Vintage), (especially) 140.
[31] Arendt, Origins…, 155.
[32] Brunkhorst, 2009, “Dialectical snares: human rights and democracy in the world society,” Ethics & Global Politics. DOI: 10.3402/egp.v2i3.2068, uncorrected proof available at http://creativecommons.org/licenses/by-nc/3.0/, Part IV, Line 421.
**Traverso, Enzo, 2003, The Origins of Nazi Violence (New York: Free Press), 153.
[33] Romano Prodi, 2000, “Speech to European Parliament on Shaping the New European Parliament, Strasbourg, 15 February 2000.” Accessible at http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/00/41&format=HTML&aged=1&language=EN&guilLanguage=en. Former Italian Prime Minister Romano Prodi was President of the European Commission from 2000-2005. Also known as the “Everyone’s Europe” speech.
[34] See Eugen Weber, 1976, Peasants into Frenchmen: The modernization of Rural France, 1870-1914 (Stanford: Stanford University Press).
[35] Goldberg refers to the term “deep categories” used by Aaron J. Gurjewitsch, cultural historian of the Middle Ages, from Das Weltbild des mittelalterlichen Menschen [The World Image of Medieval Men] (Munich: C.H. Beck Verlag, 1996).
[36] Amos Goldberg, 2009, “Forum: On Saul Friedlander’s The Years of Extermination, (2) The Victim’s Voice and Melodramatic Aesthetics in History,” History and Theory 48 (October), 236-237.
[37] Gregory Lakoff and Mark Johnson, 1980, Metaphors We Live By (Chicago: University of Chicago Press).
[38] Brunkhorst, Lines 382-383
[39] Ibid., Part I – Lines 83-131, Part III – Lines 281, 396
[40] Talcott Parsons, 1969, “Order and Community in the International Social System,” in Politics and Social Structure (New York: Free Press), 121.
[41] Parsons, 1971, “Counterpoint and Further Development: The Age of Revolutions,” from The System of Modern Societies (New Jersey: Prentice-Hall), 80.
[42] http://www.europa.eu
[43] Lakoff and Johnson, Metaphors We Live By, 3.
[44] Frei, Adenauer’s Germany…, 178.
