• Constitutional Democracy Without State

  • By Francesco Russo | 05 Dec 12
  • Article 4, one of the most important articles of the 1957 Treaty of Rome, obliges the member states to create a common market, and strongly commits the state to the mechanism of the market.

    ”For the purposes set out in Article 2, the activities of the member sates and the Community shall include … the adoption of an economic policy which is based on the close coordination of member-states economic policies, on the internal market and on the definition of common objectives, and conducted in accordance with the principle of an open market economy with free competition”.

    So the market, and then the monetary union, set the framework within which state intervention was limited and shaped by the needs of a competitive economy. As a result, the corporation and the market system were elevated as the dominant force in and over society. As Polanyi said in the 1940s, the economy exercises a supremacy over all social relations. It is a utopia of commercial society dreamt of by Adam Smith and Abbé Sieyès.

    The root of oligarchy, of elitism, is in this supremacy of the market; to be more concrete, in the supremacy of the entrepreneurial forces, of industry, services and financial institutions.

    The political representative institutions of society have been deprived of all power to decide public policies: the “res publica”, the public thing, to use the ancient expression, is entrusted to private organizations. Moreover, the decisions taken by the European Community bodies are made on the basis of the method called governance. What does “governance” mean?

    It means that the problems are not social ones but technical ones, and, of course, knowledge of the dynamics, needs, and perspectives of the market economy is the competence of the entrepreneurs, investors, and banks. It is these groups which provide information and shape decisions. However, the other characteristic is that these forces – merged with the technocracy – prepare the draft of regulations, directives, and decisions taken by the Commission and the Council of Ministers (under the influence of a myriad of Committees).

    Actually this system constitutes a social and political elite because it is made up of different components of a European oligarchy in which governments, market forces, and the technocracy are working together in order to smooth the way to a competitive economy. So achieving a competitive economy became the categorical imperative of the EU.

    The political sphere is subordinated to the market economy. By “political sphere” I mean the public space in which different social actors speak in order to defend their interests, points of view and ideas and to structure representative institutions in order to affirm all of this through public policies. In fact, until the 1960s, we were experiencing a permanent mediation between the state, in the broad sense, and the market. The welfare state was the product of this dynamic in which the subaltern classes – to use Gramsci’s words – played a major role in ensuring that the most important vital interests – health education, pensions, unemployment etc. – were taken out of the market and made available to everyone by public institutions.

    Now the state, that is the political sphere in which people act, is undermined, and, as G. Guarino, an Italian jurist and economist, says, the state is deprived of its authority and reduced to a common private subject, at the level of the enterprise. The market, Guarino continues in his analysis, is the absolute god. In fact also in the residual competence of the public institutions, the market economy imposes its needs. To sum up, the oligarchy is a fusion of political, economic, and technocratic forces which govern in the name of technical imperatives.

    Andrew Moravsick says: ”At its core European integration has been dictated by the need to adapt, by means of policy coordination, to the trends in technology and in economic policy ... European integration exemplifies a distinctly modern form of power politics, peacefully pursued by democratic states for largely economic reasons through the exploitation of asymmetrical interdependence and the manipulation of institutional commitments”. He concludes: ”The economic interest remains primary” (The Choice for Europe, 1998).

    I would add some points made by David Mitrany, who, in a “Working Peace System” (1943), maintained that ”sovereignty cannot in fact be transferred effectively through a formula, only through a function”. He differentiated between ”working democracy’ and ”voting democracy’ because ”now the masses demand social action without regard to established “rights”, and the totalitarian leaders have been playing the strong card of pragmatic socialism against constitutional democracy”.

    For this reason Mitrany proposed specific functional arrangements through functional organs in order to pool resources at the supranational level in the most important fields such as railway, shipping, coal, steel industries, aviation, and broadcasting.

    Mitrany proposed to go from power politics to a functional order, so as to build an authority which derives its legitimacy from the performance of common tasks.

    In these lines you can find the entire development of the European Community, of the European Union, which has grown branch by branch, so that each function generated another. Mitrany was against a constitutional approach and advised proceeding through ad-hoc functional arrangements. Today this sort of arrangement is called out-put legitimacy.

    By out-put legitimacy, I mean, a legitimacy that the government – better to say governance – demands in the name of the results it obtains. This cancels the democratic procedure because the citizens are not asked to express, in different ways and at different levels, their wishes. The citizens could only evaluate ex-post the services supplied by the public agencies. The citizen is reduced to a consumer, and also from this point of view we can see that the market is the driving force.

    To stress this point, in order to elucidate the difference between in-put  and out-put legitimacy, let me quote Hanna Pitkin who defines the democratic responsive institutions is this way: ”… in a representative government this representation has substantive content: the people really do act through their government, and are not merely passive recipients of its actions. A representative government must not merely be in control, not merely promote the public interest, but must also be responsive to the people ... We require functioning institutions that are designed to, and really do, secure a government responsive to public interest and opinion. John Plamenatz points out that a dictator might choose to do what his subjects want and nevertheless will not be a representative. Our concern with elections and electoral machinery results from our conviction that such machinery is necessary to ensure systematic responsiveness (Hanna Pitkin, The Concept of Representation, 1967, pp. 232–34).

    Out-put legitimacy completely changes the conception of legitimacy which has become a functional, technical legitimacy rather than a democratic one.

    As the market has limited and emptied out the substance of political democracy, so the building of a democratic society in Europe should limit and overcome the market. In this way we can challenge the supremacy of the enterprise and the market, starting from the commons, by which I mean public services and fundamental natural resources. Those fields – public services and natural commons – can be the starting point for another economic model, which overcomes the market.

    To sum up, we have to go from the Treaties to the Constitution, as M. Fioravanti has said.

    The last point I would like to make is that the history of the European Communities, and of the EU, is the building of the single market, the building of a commercial society. 

    The steps in constructing the European commercial society have been: integration through economic sectors, established by the Treaty of Rome, agricultural policies, a monetary mechanism for stabilizing exchange rates, monetary union and the control of public expenditures accompanied by the privatization of public services, of the called natural monopolies, and the liberalization of the labour market. In a nutshell, this common single market imposes – I quote the Maastricht Treaty – ”stable prices, public finances and healthy monetary conditions and the suitable balance of payments”. The Maastricht Treaty has cleared the way to a true economic constitution, which has been accepted in the Constitutional Treaty (in its 3rd part), and which has gotten the upper hand over the constitutions emerging in the immediate post-war period. This economic constitution, affirmed in and through the treaties, has canceled the vision even of the so called Ordoliberalismus elaborated by the Freiburg school, which aimed at building a “social market economy”. Rhenish capitalism no longer exists.

    The governments have appropriated the legislative functions, removing them from the representative institutions, have freed themselves from parliamentary control, and in this way they act in a political vacuum stripped of any responsibility: they can do what they decide through the Council of Ministers, the European Council, the Commission. The European Parliament does not have the power of legislative initiative, and there are only certain fields in which the Parliament can intervene with a power of veto. Legislative initiative is a monopoly of the Commission. This amounts altogether to the negation of parliamentary democracy as we have known it.

    From this I would like to suggest some strategic conclusions: Multilevel constitutionalism may offer a basis for activating political movements in order to depart from the intergovernmental method. It has opened up the possibility of separating state and constitution – this separation was the dream of the early Kelsen. I believe we can now build from below a constitutional democracy without state. State and constitution far from being synonyms, complementary terms, are contradictory terms, as market and democracy are contradictory terms.

    Constitutional democracy without state opens up the channels between society and institutions at different levels – local, regional, national, and European. These channels are constituted by representative institutions and direct participation, which should be established by a European constitution, whose centre is the fundamental rights of every person, whether born in Europe or not.

    For me a Constitution has a normative character – in the sense established, for example, by the first article of the German Grundgesetz, which imposes on all public institutions the respect of human dignity in all their activities.

    European constitutional traditions, which are centred on the universal rights of the person, are the base of the future European Constitution. They are the basis of the ”natural right’ which has been translated into the constitutional charters and constitutional practices.

    This foundation can not be swept away even by a constituent assembly, which should guarantee this patrimony of rights, which we called, not by chance, inalienable. For this reason, the entry into the constitutional arena of social movements – made possible by France’s and Holland’s No Vote in the referenda – offers an opportunity to establish a relationship between the population and the European Parliament, and also the national parliaments, on the constitutional issues. In this way we can create a multilevel system in order to elaborate the European Constitution. I do not want a new Convention, I believe in a democratic collaboration between people and their representative institutions.

    The constituent process should be grounded in this collaboration, and its result – the project of the constitution – should be entrusted to a European referendum for approval.

    Through this “constituent participation”, as I call it, the people can legitimate the self-empowerment of the European Parliament, which is asked to substitute for the Intergovernmental Conference during the elaboration of the constitutional text, which, I repeat, should be voted in a Europe-wide referendum.

    This, I think, is a realistic approach to guaranteeing the participation of all European citizens in the constitution-making process.