The ‘Political and the ‘Legal’ Approach of the EU?

Gábor Halmai reviews Stefan Auer’s European Disunion. Democracy, Sovereignty and the Politics of Emergency.

This is the second piece in a book symposium. The first piece by Peter J. Verovšek you can read here. One more review (by Petr Agha) and a rejoinder by Stefan Auer will be published in the course of the coming weeks.

Gábor Halmai is professor at the European University Institute, Robert Schuman Center of Advanced Studies, Florence, Italy.

National sovereignty contested

In an interview with RevDem discussing his new book, European Disunion, Stefan Auer referred to Thomas Mann’s Reflection of a Nonpolitical Man as a very potent danger to democracy in Europe: the danger of depoliticization. As he states in the Preface of the book, his key argument is that the multiple crises of the European project – I assume including the current rule of law crisis – are caused by one underlying factor: its bold attempt to overcome the age of the nation state. To establish his argument, Auer engages many thinkers to demonstrate the weaknesses of the EU’s underlying ideology. Of course, the starting point is how to achieve Kant’s ‘perpetual peace’ without totally giving up national sovereignty, but going beyond the Westphalian nation state idea. As Auer points out, for the liberal nationalist Kant the aspiration was a universal federal state (Völkerstaat), but in practice he wanted to achieve a federation of free states (Völkerbund) without compromising the sovereignty of the members. All the thinkers Auer discusses — from Carl Schmitt, throught Hans Kelsen, Alexandre Kojéve till Hannah Arendt — had to confront with the constitutional breakdown of the Weimar Republic, with the crisis of representative democracy and, as Auer emphasizes, the return of the Political. For Schmitt, this goes together with the rejection of liberal democracy altogether. 

The same applies to the most contemporary thinker Auer quotes, the Israeli political theorist Yoram Hazony. In his 2018 book, The Virtue of Nationalism, similarly to Auer, Hazony bases his concept on the distinction between nationalist and imperialist projects, referring to the European integration as an imperialist one. Although Auer rightly claims that his defence of sovereignty is not necessarily an argument in favour of ethnocentric nationalism, in reality some EU Member State’s governments, such as the Hungarian one lead by Viktor Orbán (nota bene admired by Hazony), practice ethnocentric nationalism, while using national sovereignty and identity against the imperialist EU. Ethnocentric nationalism advanced by Schmitt, not opposed by Hazony and practiced by Orbán, aims at replacing the EU’s liberal order with an illiberal one. On the other hand,

those disappointed with the national sovereignty after Weimar and WWII, like Kelsen and Walter Hallstein (the first President of the Commission of the that time European Economic Community) argued that instead of relying on the Political, true federal ‘integration through law’ is needed – but this concept has been rejected with the failure of the European Constitution.

The political will makes come back?

The many recent crises — from the crisis of the Eurozone, through the refugee crisis, Brexit, Covid-19, the war in Ukraine, till the value crisis of the backsliding Member States — all tested the European project. According to Auer, the EU with its preference for depoliticisation of the conflicts, supported by EU scholarship, has failed these tests. Due to this failure, democracy has weakened at the national level without any compensation at the European level. Indeed, the democratic deficit of the European institutions hasn’t improved and some Member States became ’illiberal democracies’ at best, or ‘hybrid regimes’ (Poland), or even ‘electoral autocracies’ (Hungary). I am not sure that this latter development has been caused by the depoliticisation, but

the EU certainly has proved to be unable to intercept the autocratisation process. It happened not so much because the EU has no sufficient power to enforce the rule of law values, as Auer claims, but because of the lack of political willingness both from the side of the European institutions, and the other Member States, to do so.

And this, I agree with the author, is nothing less than complicity. 

Chapter 1 of the book unfolds the theoretical background of the return of sovereignty and the failure of the EU as a ’post-sovereign polity’. Among the contemporary thinkers representing the post-sovereign approach Auer mentions Jan-Werner Müller. Before all the major crises, in 2000 Jan-Werner Müller asked the question whether the success of the European project invalidates Schmitt’s sovereigntist arguments, and answered it in the affirmative. After some and amidst other crises Auer now reverses the premise and asks instead whether the failures of the integration through the rule of law and the rejection of a European Constitution prove Schmitt’s truth, especially his critique of the depoliticisation elaborated in his work ’The Concept of the Political’, written in 1932. 

In the same year, right before the collapse of the Weimar Republic, in Legality and Legitimacy Schmitt raises the possibility of an anti-liberal democracy, in which the President, the dictator or the Führer, may legitimate breaches of legality. In August 1934, one and a half year after Hitler came to power, Schmitt published his infamous article ’Der Führer schützt das Recht’ retroactively legalizing the murders of Hitler’s rivals, the Nazi Storm Troopers (SA), during the Night of the Long Knives on 30 June 1934. One of the most important sentences says that „in a Führerstate others than in a liberal state governed by the rule of law, the legislator, the executive and the judiciary cannot distrustfully control each other.” 

The ideas of Schmit about the homogeneity of the people and his friend-enemy distinction do not prove that he was ’incisive as an analyst’ even though ’awful as an actor’, as Auer claims.

Schmitt’s ideas were instrumental to horrible thoughts and deeds, and cannot serve as inventions to the renewal of the European integration, even though part of his concept of democracy based on a homogenous German people (das Volk) can also be found in the jurisprudence of the Federal Constitutional Court of Germany on the European integration.1

For instance, the famous Maastricht judgment from 1993 refers to the „people on a relatively homogenous basis spiritually, socially, and politically.”2

Liberalism rejected 

According to Auer there is a more positive aspect of Schmitt’s constitutional theory relevant for the contemporary democracy in Europe — the unamendability of constitutions’ core principles, devised as a reaction to the failure of the Weimar Republic. Many democratic constitutional theories oppose the concept of unamendability on the grounds that it prevents future generations to have a say in designing their own constitutional system. However, mostly due to the Nazi past, Article 79(3) of the post-WWII German Basic Law implemented this idea by introducing ’eternity clauses’ entrenching liberal democracy with the protection of human dignity as its main value. These were not necessarily the guiding principles of Schmitt’s constitutional theory, which denounces liberal democracy as the main reason for depoliticization tendencies.3 

This critique of liberalism goes back to the concept of Volksgemeinschaft (national community), or völkisches Recht, one of the core principles of National Socialist law, which can be characterized negatively by rejection of the individualistic, normative concept of the people (Volk) as the sum of nationals of the State, as was presented in the 1918 Weimar Constitution.4 Volksgemeinschaft together with the Führerprinzip, the other main principle of National Socialist Weltanschauung, aim to overcome individualism, hence it means strong anti-liberalism. 

Due the Carl Schmitt’s well-known flirts with National Socialism, it isn’t surprising that the critical stance of the new illiberals towards liberal constitutionalism is also related to a Schmittian understanding of the constitution, and to his critique of liberal constitutionalism and its conception of the rule of law.5

The constitution in Schmitt’s view is an expression of “the substantial homogeneity of the identity and the will of the people”, and guarantee of the state’s existence, and ultimately any constitutional arrangement is grounded in or originates from an arbitrary act of political power. The absolute authority of the political will of the people is legally unbound and overrides all constitutional requirements. But even despite Schmitt’s very different expectations (certainly not human dignity being the core of an eternity clause), it isn’t clear how any approach of unamendability could help to solve the problem of over-constitutionalisation in Europe.

The illiberals against EU values

In chapters 2-5 of the book Auer investigates how the ’sovereign Europe’ can solve crisis situations within and outside the EU. Here I’ll concentrate on the treatment of the ’illiberal’ threat to joint European values, such as the rule of law, democracy and fundamental rights by new Member States, such as Hungary and Poland (chapter 5). Auer argues that the technocratic (legal) rationality, the use of militant democratic tools, disciplining and sanctioning two non-compliant states unwittingly exacerbated the crisis of democratic representation by excluding element of the people’s rule from the polity in order to defend democracy. 

When discussing populists’ and their supporters’ partly legitimate grievances in the case of Hungary, the country I know the best, Auer seems to forget that Viktor Orbán is a ’false populist,’6 who uses populist rhetoric to hide his autocratic intentions. Hungary is an ‘electoral autocracy,’7 whose government willingly violates all the main values of the EU, complaining that the EU institutions are more and more reluctant to tolerate an autocracy among the Member States. In other words, it wasn’t the EU that has undermined the democratic self-government with its attempt to depoliticize conflicts through a federal-like, supranational rule of law state, but it was the deed of the autocratic national government with the help of unfair elections, non-free media, captured state apparatus, and about one-third of the uninformed eligible voters as supporters. In this situation, the solution to the rule of law crisis cannot only come from the national level, as there is no democracy there anymore. Therefore, in the case of Hungary the problem outlined by Auer wasn’t so much that the EU sought to apply technocratic, legal solutions to problems that were distinctly political, but rather the political will was lacking to solve the political problems either by legal or by political means.

This is not to say that the federalist, technocratic, legal approach to solve political issues by the EU in Member States is unproblematic. The EU is not yet a post-national federal state once envisaged by Kelsen and Hallstein, (and maybe never will be one). Therefore, I agree with Auer that

the EU is not (and maybe will never become) a full-fledged rule of law state, but merely a community of law (Rechtsgemeninschaft), and that the quasi-federal “integration though law” pursued mostly by the Court of Justice of the European Union (CJEU) is a reaction to the disintegrating confederal political development.

It is also true that the principle of primacy of EU law and the doctrine of direct effect elaborated by the CJEU are not entrenched in the EU Treaty. This is the reason that it isn’t that easy to simply deny the existence of constitutional pluralism and national constitutional identity as dangerous concepts,8 despite the fact that some national constitutional courts, such as the Hungarian9 or the Polish,10 clearly abuse them. 

Considering this characteristics of the EU, I tend to agree with Joseph Weiler (also quoted by Auer) that law and politics acting in tandem can result in an equilibrium that can be considered as the de facto constitution for Europe.. But if the autocratic states do not accept this, and do not want to leave the EU (and as long as they enjoy the benefits of the EU as a cashing machine, they won’t exit), then remains the punishing and sanctioning approach to enforce the joint values, even by suspending the rebellious states’ rights as foreseen by Article 7 TEU, or considering the possibility of exclusion, provided that they harm only the rogue governments and their oligarchs, and may deter their supporters to vote for them.


  1. Maximilian Steinbeis, Dezision oder Integration: Carl Schmitt vs. Rudolf Smend, Deutschlandfunk, 21.05.2009. ↩︎
  2. See Decision of the German Federal Constitutional Court of October 12, 1993 In Re Maastricht Treaty. Most probably the judges did not want to refer to Schmitt, hence after the sentence, which is not a direct quote, they referred to the similar ideas of Hermann Heller (Politische Demokratie und soziale Homogenitat, Gesammelte Schriften, Vol. 2, 1971, p. 421 ). ↩︎
  3. See Heiner Bielefeld, ‘Carl Schmitt’s Critique of Liberalism: Systematic Reconstitruction and Countercriticism’, Canadian Journal of Law and Jurisprudence, Vol. X, No. 1. (January 1997). 67. ↩︎
  4. About the role of Volksgemeinschaft in National Socialist law see Oliver Lepsius ‘The Problem of Perceptions of National Socialist Law or: Was There A Constitutional Theory of National Socialism?’, in Christian Joerges and Navraj Singh Ghaleigh (eds.), Darker Legacies of Law in Europe. The Shadow of National Socialism and Fascism over Europe and its Legal Traditions, Hart Publishing, 2003. 19-41.  ↩︎
  5. As Heiner Bielefeld demonstrates Carl Schmitt systematically undermines the liberal principle of the rule of law. See Heiner Bielefeld, ’Deconstruction of the Rule of Law. Carl Schmitt’s Philosophy of the Policial’, 82 Archiv für Rechts- und Sozialphilosophy, 1996. 379-396. ↩︎
  6. The term ‘false’ populism was used by Isaiah Berlin defining ‘the employment of populist ideas for undemocratic ends’. See To Define Populism (The Isaiah Berlin Virtual Library, Isaiah Berlin 1968, The Isaiah Berlin Literary Trust 2013) ↩︎
  7. Ever since 2018 V-Dem categorizes Hungary as electoral autocracy, in its 2022 report listing the country among those six ’autoratizers’ (Brazil, Hungary, India, Poland, Serbia, and Turkey), where anti-pluralist parties drive autocratization. DEMOCRACY REPORT 2022 Autocratization Changing Nature? ↩︎
  8. R. Daniel Kelemen and Laurent Pech, The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland, Cambridge Yearbook of European Legal Studies, 2019. ↩︎
  9. Decision 22/2016 AB of the Constitutional Court of Hungarypara [68]. For a detailed analysis of the decision, see Gábor Halmai, Abuse of Constitutional Identity. The Hungarian Constitutional Court on Interpretation of Article E) (2) of the Fundamental Law, 43 Review of Central and East European Law 23-42 (2018). ↩︎
  10. Decision of the Polish Constitutional Tribunal, 7 Oct. 2021, case K 3/21. Analyzed in Wojciech Sadurski & Aleksandra Gliszczynska-Grabias, Is It Polexit Yet? Comment on Case 3/21 of 7 October 2021 by the Constitutional Tribunal of Poland, 19(1) European Constitutional Law Review (2023). ↩︎

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