Not for the State’s but for Democracy’s Sake

Jürgen Kaube: Presently many people are experiencing society as being in a particularly critical phase. How does a specialist in public law view the situation? The law is ultimately something where a certain continuity inheres. The state entity, political regimes and reforms come and go but the law remains a constant.

Dieter Grimm: Well, the French Revolution saw the replacement of an entire legal order in a manner that couldn’t have been more drastic. And yet here too we can observe certain continuities. The content of the Code civil as climax of this legal regeneration was largely an outgrowth of that more than thousand-year-old Roman law which had a subsidiary application as ius commune throughout Europe. Moreover the old law only gradually lost its validity with the implementation of the new law. So there was no vacuum to be filled. By contrast the Russian Revolution of 1917 entirely eliminated czarist law without immediately replacing it with a new set of laws – the gaps that resulted were to be filled by judges along ideological lines, namely according to communist convictions. This led to total chaos, so that some of what had just been abolished was temporarily reenacted until socialist civil and criminal law could be codified some years later. Law cannot be brought into line with the course of political events. As Niklas Luhmann once put it: “One can change everything but not everything at once.”

JK: When we look around we see many countries where a state based on the rule of law is currently experiencing vigorous attacks against it – in Turkey, Poland, Hungary and the United States. Can we see here a steering toward authoritarian regimes?

DG: A state based on the rule of law is one that not only rules by means of law but in accordance with the law – it is a state that itself abides by the law. So as to ensure fulfillment of this obligation, constitutional adjudication has been established. But throughout the world one can now observe that governments and parliaments are seeking to loosen or shake off their commitments to constitutional law and are attempting to disempower constitutional courts or bring them into line. These efforts are not restricted to those states already prone to authoritarianism; they can also be seen in states that are pluralistic democracies according to their constitutions. Even EU member states do not shy away from such measures. There were of course also such instances in the past, but their frequency today makes it difficult to speak of isolated incidents. A withdrawal from 1989 is taking place.

JK: And in so doing, these states make use of democratic rhetoric as their rationale for transition to an authoritarian system.

DG: That was conspicuously the case in Poland, though Poland is hardly the sole example. The governmental majority asserts that they are executing the people’s will, this constituting a warrant to flout legal norms and judicial decisions. By equating the majority with “the people” the minority is necessarilyexcluded. They become enemies of the people. It stands to reason that this should then be extended to attacks on freedom of the media. Such is achieved by sowing confusion as to what one understands by the notion of the people. The “people” one invokes in such circumstances are not comprised of those organized individuals which the constitution endows with a decision-making power that is expressed in elections and referendums – the absolute majority enjoyed by the Law and Justice Party [Prawo i Sprawiedliwosc (PiS)] in the Polish parliament is based on only about one-third of all electoral votes – but instead they consist of an unformed populace which is utterly incapable of hard and fast decisions, i.e. ascertainable expressions of its will and so anyone can contend that he or she represents that people’s true will.

JK: That’s the sticking point – when those who always affirm the rightness of the majority and regard themselves as spokespersons for the true people then finally gain the majority.

DG: Indeed. And the problem becomes even greater when the governing party emerges from elections with a two-thirds majority as in Hungary, for as a democrat it is difficult to reproach the people for simply not having voted the way you might have wished them to.

JK: One notices the embarrassment in people’s reactions. It is said that Donald Trump had the majority of electors but not the majority of votes – and then it is also said that a great many didn’t vote for him by dint of not having voted at all.

DG: This is not a very fruitful line of argument. The proportion of votes shows that the upheaval in the populace is not as great as that in the government, but neither does this nor the antiquated electoral system do anything to change the fact that Trump entered office as a legally elected president. One can merely be adamant about the limits imposed by the constitution on the majority – even those majorities sufficient for changing the constitution. After all, the constitution is also a product of the people, but in its capacity as a sovereign entity.

JK: We have been powerfully impacted by these events without quite grasping what it all means. Of course we can distinguish between events in Budapest and Washington, between the dictatorship on the Bosporus and the popularity of rightist parties in Holland or France or Germany. But we are still somehow compelled to find connections between these developments.

DG: One can no longer continue to assert that these are isolated phenomena. There is a transvaluation of the democratic concept afoot. My first time in the United States was as a student during the presidential campaign between Barry Goldwater and Lyndon B. Johnson. Though Goldwater was very right-wing, he never employed the language we hear from Trump. The Republicans and Democrats still saw each other as mere rivals – not as enemies. This all changed under the government of George W. Bush. Yet one of the achievements of modern constitutionalism is to transform enemies into rivals and thereby civilize the political contest. There exist differing notions of the common good but these are based on the two sides’ fundamental consensus that both seek to promote the general welfare. Here is where the transvaluation of democracy and the accompanying erosion of the constitutional state sets in. With an enemy of the people you can presume to undertake all kinds of measures that would be impermissible with a simple rival, and the institutions that function to preserve the fundamental consensus will then come under pressure.

JK: And where do citizens derive the willingness to empower such hostility through majorities?

DG: I surmise that there is always a certain latent willingness to resort to friend/enemy categories. Much then depends on whether there are forces in the political spectrum that help to facilitate the expression of such categories without their being labeled pariahs. This has happened in the United States with the Republicans. For a long time in Germany there wasn’t any comparable force. But the Alternative for Germany [Alternative für Deutschland (AfD)] might well develop into such. At first they served as mouthpiece for EU/Euro scepticts who found no representative voice in the public discourse among the traditional parties. But they also attracted people whose EU skepticism was informed by nationalistic attitudes. These gained the upper hand with the refugee crisis, and the AfD’s founders – respectable economists – were driven from the party. But the AfD is still considered respectable enough to attract voters to whom one can neither attribute anti-democratic nor nationalistic motives.
If I might enlist a certain experience I had when still on the Constitutional Court. There were a number of verdicts in the mid 1990s that were greeted by the public with incomprehension and even indignation – above all those concerning the crucifix and the phrase “Soldiers are murderers” – and there were also a number of politicians leading the protests. Certain of them even went so far as to encourage people to defy the verdicts. That signaled a bursting of the public dam. As soon as politics had abandoned respectability then everyone felt justified in perpetrating all manner of ignominy. And it seems to me that we’re seeing something parallel to this right now. One shouldn’t place too much confidence in the populace’s internalization of democracy and civility. The Internet is very instructive in this respect.

JK: A popular explanation is that our globalized world – a peculiar expression – places too many demands on people. But leaving aside the world for a moment, let’s stick with your example of “Soldiers are murderers.” Is it asking too much of people that such a thing might even be said – that it doesn’t constitute some kind of insult? In other words, in a highly differentiated society, has there been an increase in generally incomprehensible issues?

DG: The decision was not about whether soldiers are murderers and not even about whether they can be unrestrainedly called such. It was solely about the criminal courts painstakingly determining the purport of the phrase before convicting someone of using it. This doesn’t quite work if removed from its context. Is the utterance a (perhaps exaggerated) criticism of militarism and warcraft or is it an insult directed at certain persons? The one must be allowed while the other can be prevented. This however assumes a certain ability to discriminate on the part of readers and listeners; and because the public doesn’t read court opinions but is merely informed of them by the media, much depends on whether those do indeed possess the requisite powers of discrimination. But that again is hardly divorced from whether the judges know how to make these distinctions plausible. The same applies to politicians.

JK: That’s easier to do when one isn’t constantly changing their mind, which is to say that something objectively necessary becomes inoperative as a framework of argumentation if the citizenry is first sold the one thing – “extension of the time alotted to nuclear power” – and then its opposite – “phasing out nuclear power” – with the same rhetoric of necessity.

DG: In point of fact the argument that something is “without alternative” no longer holds water when within a short period of time one has already changed one’s opinion three times. “No other alternative” is also no kind of argument but rather a refusal of the argument. There are always alternatives, and the only question is for which alternative there exist the better reasons.

JK: Despite that and notwithstanding the Greek crisis, populism in Germany was down for the count. But then came the refugees and an asylum policy that ensued as it ensued – without rhyme or reason. For instance it was said that the national frontiers could not be defended or only at an unbearably high humanitarian price. Now the concept of national borders is not just any old concept. In school many of us learn that national borders are an important factor in the very definition of a state. Is it not therefore an excessive demand to withdraw it from circulation?

DG: It’s not only an excessive demand but would be disregarding the facts if it were withdrawn from circulation. Georg Jellinek’s three-element doctrine – wherein the state is defined through its territory, people and public power – has proven to be astonishingly persistent. There is no state without borders. And the epoch of nation-states isn’t over by a longshot. But the position of the state has changed. Seventy years ago the nation-state was still the sole possessor of public power and authority within the precinct of its own territory. Today the nation-state shares this authority with international organizations and, accordingly, state borders have become permeable when it comes to sovereign actions undertaken by international organizations – permeable in a vertical sense and not horizontally, as it were, through sovereign acts by other states. The state itself decides for whom or what it will open its borders insofar as it is not impeded by obligations constituted by international law. I also see no reason to write off the nation-state – and not because I’m in favor of nation-states but because I’m in favor of democracy. But the long-term prerequisites for democracy are much more favorable within the state context than in any conceivable post-national entity. There is no supranational institution, not even the EU, that is so beneficial to democracy as a state.

JK: And now we come to the next stumbling block. Europe in the form of the EU is perceived by many as the epitome of political failure. Instructive in this respect is the spectacular case of Boris Johnson who for years as a journalist in Brussels had fun concocting disparaging tales about the EU. And then he conjured the Brexit. And as a reward he is now the foreign minister of Great Britain. Is the alienation which many citizens feel toward the political system in which they live not also due to the fact that the nature of this entity is completely unclear to them?

DG: It seems to me that the main problem with the EU is that a considerable portion of European integration has not been accomplished in an open-handed fashion but by stealth – namely by way of verdicts handed down by that organ from which there was least to be expected in this regard, the European Court of Justice (ECJ). The latter created the very possibility of this by lending the European treaties the force and effect of constitutions. They thus lay claim to a direct and overriding application that takes priority over not only European legislative acts but national law and even that at the highest level – the constitutions of the member states. On the basis of this interpretation the ECJ was able to take European economic integration into its own hands by invalidating all those national laws which it regarded as obstructive to the common market – and the court availed itself of this self-created possibility with a missionary zeal. Great breaches were opened in national law, trusted institutions vanished, public organizations had to be privatized. But the ECJ couldn’t close those gaps which it had ripped wide open – for that there had to be European legislation. This is naturally a much more difficult enterprise than the destruction of national law, which takes places with a stroke of the court’s pen. One result of this asymmetry is economic liberalization on a scale that no member state wished apart from perhaps Great Britain. The repercussions of this so-called constitutionalization of the treaties went long unheeded. When finally noted by the EU citizenry they saw themselves confronted with a Europe that no one had asked them to sanction but which they were simultaneously unable to change. This recognition ushered in a revocation of the EU’s legitimacy on the part of the populace.

JK: So this constitutionalization divests the democratic political process of the central role of the opposition. For all intents and purposes there is nothing at the constitutional level which can be changed without having all 28 countries approve the change in the form of a new treaty?

DG: That’s right, but only if, in addition, one takes the unique character of the European treaties into account. The documents that were constitutionalized in 1963 and 1964 have little in common with a constitution. Constitutions regulate political decision-making while ceding political decisions themselves to the democratic process. That’s why they limit themselves to a few basic principles and rules governing organization, competence and procedure as well as restricting themselves to a catalogue of fundamental rights. The treaties, on the other hand, are full of that which in the member states would be regulated below the constitutional level, namely on the statutory plane. But all of this partakes of the constitution’s primacy and thus evades the grasp of politics. Insofar as the treaties are interpreted by the ECJ, elections remain without any consequences.

JK: Can that be changed?

DG: Yes, one must merely delimit the constitutionalization to those provisions that are constitutional law in their basic character, while downgrading everything else to the level of statutory law. No single paragraph would be lost, but the democratically legitimized and responsible organs would again come into play and elections could have an effect.

JK: Whenever people speak of Europe you can always count on two sentences being uttered: “Europe is more than an economic union” and “Europe is necessary so as to secure the prosperity of its citizenry in a globalized economy.” Now I won’t even go into the irony here of people emphasizing that Europe is more than economy and then nothing more occurs to them apart from economics – but I have the feeling that the catchphrase “securing prosperity” begets economic issues in all possible areas. One must only say the word “local” and then scientific, educational and cultural questions suddenly become issues for which the EU may claim responsibility. Is that not odd and somehow dishonest?

DG: In the first place this has to do with the fact that the ECJ declared the four fundamental economic freedoms – the free movement of goods, services, capital and the workforce – to be in the nature of superior fundamental rights, whereas in the member states personal fundamental rights override economic ones. Secondly it is connected with the fact that the EU and its member states do not apportion powers and responsibilities according to subject matter (as is the case in every federated state) but rather authority is distributed along lines of one ultimate criterion: that which is necessary for creating and maintaining the Common Market can be regulated at the European level. And in such a way the normative boundaries are dissolved. Under certain circumstances all manner of things can be obstructive to the market – such as family law and school laws.

JK: Or one defines the school itself as an education provider and subordinates it to competition law.

DG: Based on the logic of integration as it has thus far developed – and this development was hardly inevitable – this is not to be discounted and there are serious observers who in fact fear just such a thing. Education in the final analysis is also a service. Ever since the prohibition of market-distorting state subsidies to enterprises was extended by the ECJ so as to include institutions of public service, member states can no longer decide for themselves what they will relinquish to the market and what matters they will assume on their own initiative.

JK: What is the present status of the treaties’ contents? We recall those famous Maastricht criteria for indebtedness, which were no sooner enacted then it was discovered that they could not be enforced because those countries that were violating them turned out to be the larger nations.

DG: The treaties are binding law – for both those organs of the EU and the member states. If they are not observed then it is a breach of law; this likewise the case if they are not enforced. But ultimately the ECJ decides these things, and when for the first time the Federal Constitutional Court feared an explicit transgression of competences by the European Central Bank, namely in rescuing the euro, the ECJ showed itself to be very complaisant.
When things get a bit dicey the EU tends to muddle through. Politics avoids discussions as to what the European interpretation should eventually result in and simply postpones this question to the future. But that doesn’t prevent politicians form even now taking decisions that predjudice the question of Europe’s finality, so that when this conclusive form is actually pending there will be no more decisions to be arrived at. In my view we have reached a point where pragmatism alone cannot help us any further along because the European institutions are being fundamentally rejected. It is under just such circumstances that their defense must be an equally fundamental imperative.