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

This is the third piece in a book symposium. The first piece by Peter J. Verovšek you can read here, the second one by Gábor Halmai here. A rejoinder by Stefan Auer will be published in the course of the coming weeks.

Petr Agha’s research and teaching focuses on some foundational issues and challenges in contemporary law and politics. Petr holds a PhD in Law and Criminology from the University of Antwerp. He also obtained degrees in law, philosophy and political sciences from the Queens University Belfast, Glasgow University and Masaryk University Brno. He is the editor of Human Rights between Law and Politics (Hart Publishing), Law, Politics and the Gender Binary (Routledge) and Velvet Capitalism (Routledge). 

Introduction

The existing theories of European integration often fall short in providing a comprehensive explanation for the fragmentation of the European project. “European Disunion: Democracy, Sovereignty, and the Politics of Emergency” by Stefan Auer provides a fresh viewpoint, which is in contrast to the repetitive ideas often found in mainstream academic production. Unlike numerous recently published books that discuss the “end” or the “death” of democracy, leading to widespread political pessimism, Auer offers a powerful analysis of the EU’s current state of affairs. The book highlights the importance of traditional categories like national sovereignty, which were, for a time, considered obsolete. Auer argues that the European Union faces challenges that cannot be resolved by pursuing an apolitical approach or by constructing a post-national, post-sovereign paradise, governed by non-majoritarian institutions, such as the European Commission, the European Central Bank and the European Court of Justice, who have been centralizing power at the expense of nation states. 

Between Supranational Aspirations and National Contestations

Auer identifies two parallel and complementary vectors which shape the space of European politics today. On the one hand, it is the EU’s aspiration to replace the nation-state as the ultimate political authority, and on the other there is the shift towards technocracy and legalism. According to Auer, the EU faces a “sovereignty paradox” where nation states have lost control to the supranational level but still retain enough power to obstruct European solutions. 

This paradox has hindered the EU’s ability to address crises and has contributed to the erosion of democracy and the rule of law. Auer criticizes the idea of a post-sovereign Europe and calls for a partial return to the nation-state. Despite the decades of European integration accompanied by the beyond-the-nation-state mainstream academic discourse, sovereignty continues to play a significant role in comprehending European integration, as Auer’s book reminds us. However,

are the questions of (state) sovereignty really the key to understanding the disunion of the European Union? And if they are, to what extent does the contestation surrounding state sovereignty intersect with the challenges faced by the European project?

Auer’s arguments are embedded in a broader discussion of the democratic deficit of the EU. I am going to focus on some of these building blocks of his argument that I find interesting and noteworthy. First of all, decision-making power has gradually shifted away from national parliaments and towards supranational institutions, leading to concerns about accountability, transparency, and citizen participation. The complex network of supranational institutions and non-elected bodies, as described by Vivien Schmidt, allows unelected elites to make crucial decisions without sufficient input or scrutiny from national parliaments or the public. Secondly, this lack of democratic accountability raises questions about the legitimacy of the EU’s decision-making processes. The EU’s pursuit of an “ever closer union” and the dominance of technocracy in the processes of governance neglects the established democratic theories. The third pillar of Auer’s argument identifies a bias towards integration on the side of the technocratic apparatus of the EU and also a tendency to dismiss legitimate concerns raised by member states in favor of the idea of a European superstate. This can be observed in cases where key policy decisions are imposed on member states without considering their national contexts and interests. Auer takes from this tradition the conclusion that the problems the EU is experiencing are not random glitches but inherent features of the design itself. This conclusion is no small a thing and as such allows Auer to develop a number of important insights. 

Struggle with Technocratic Institutions and Democratic Legitimacy

Auer does well to demonstrate the practical outcomes of the scholarly concerns discussed here so far, such as the inability of the EU to deal with the Covid 19 pandemic or the migration crisis. He identifies a “sovereignty paradox” whereby the EU’s ambition to transcend sovereign states has led to a compromise in its effectiveness during crises — member states have ceded significant control to the supranational level, making it difficult for those states to set effective policies independently. However, they still retain enough autonomy to resist compromises and hinder common solutions. This leads to disagreements on binding common policies. Auer argues that this is why we need to recalibrate sovereignty. What he means by that is to cautiously navigate through the post-sovereign order to find a workable solution for the European project.

This challenge of balancing economic integration, national sovereignty and democracy is not unique to Europe but affects all states in a highly globalized world. The implementation of measures and policies through intergovernmental agreements that bypass traditional democratic mechanisms and reduce the influence of national parliaments and citizens, raises justified concerns. However, the EU’s high level of integration, through initiatives like the Maastricht Treaty and the Schengen Agreement, and ongoing struggles for legitimacy magnifies these challenges. This problem is exacerbated in a state of emergency, where the existing legal and political rules are further suspended in response to a crisis or emergency, giving the governing entities exceptional powers. 

One question is whether the European project can hold onto its existing technocratic institutions which lack democratic legitimacy. The other question would be whether the survival of the European project really depends on the current institutional design, which is so fiercely protected by the mainstream academia and EU institutions, or whether we can and should imagine alternatives.  

State-Centric Governance in the Age of Supranational Entities

The calibrated return to state sovereignty, which Auer advocates, rests on the idea that the nation states are better equipped to address (some) emergencies for the reasons Auer offers. In doing this he builds upon the standard modern Western conception of the polis — namely, liberal democracy embedded in a sovereign territorial state. However, I think we need to exercise great caution when regarding nation states as the main center of legitimate political authority which are able to counterbalance the shortcomings of the European project. 

First of all, some argue that the traditional left-right ideological debates and meaningful political contestation have been replaced by a technocratic, consensus-driven approach to governance, even at the level of nation state politics. Two decades ago, Colin Crouch had already argued that while the trappings of democracy — such as elections and formal political institutions — remain intact, they have been hollowed out and are becoming increasingly ineffective. Simply put, traditionally understood democratic politics delivers with increasing difficulties in contemporary nation states. 

Secondly, and more importantly for Auer’s argument, state autonomy is either eroded or transformed by increasing integration into international regimes, sub-state regionalization and capital mobility, among other things.

Therefore, when we discuss the sovereignty paradox, we need to think not along the lines of member state/ the EU, but rather about new sets of sovereignty conflicts.

As I have suggested above, the decision-making authority is dispersed among various governing entities — supranational, state, and non-state actors. A more accurate approach to understanding the sovereignty paradox that Auer identifies requires considering both horizontal and vertical relationships.

Auer’s book raises significant normative, political and legal issues about the EU’s political system and its role in safeguarding common values and preventing member states from jeopardizing those values. However, can this debate, despite its complexity, be reduced to a relatively small number of dimensions, such as rule of law, democratic deficit or sovereignty? 

Schmittian Insights and the EU’s Governance

Auer argues that a Schmittian perspective offers valuable insights into the EU’s current challenges, but it seems to me that he meets Schmitt’s ideas only halfway. Yes, Schmitt emphasized the inclination of liberal political systems to disregard essential conflicts and the tendency to handle them through legal and institutional methods. This approach, as Auer demonstrates, hampers substantial political discussions and hinders the resolution of underlying conflicts and diverse interests among member states. Yes, drawing on Carl Schmitt’s insights, Auer emphasizes the significance of sovereign decision-making during emergencies, while also acknowledging the difficulties in determining the appropriate authority. 

However, for Schmitt, any democratic order does not constitute a stable entity, and as such is inherently unstable and will always represent only one interpretation of what we have at hand.

Political order is constantly open to redefinition through a process in which existing categories and institutions are placed into question by new political representations. But when does this continuous process become a crisis? 

In order to answer this question, I would suggest shifting our focus from Auer’s perspective on governance methods and sovereignty as the ultimate authority, and instead explore the Schmittian question of “who decides on the exception?” within the institutional structures of European project. According to Schmitt, the essence of sovereignty lies in the ability to suspend the normal legal order and declare a state of exception during times of crisis or emergency. 

It is here, that another Schmittian concept may help us in exploring the dominant discourse prevalent within the mainstream academia and EU institutions – the concept of the katechon. According to Schmitt the katechon refers to any established governing body whose purpose is to prevent or delay a societal catastrophe. Therefore, the declaration of a crisis becomes the justification for the exercise of exceptional powers, and the decision-makers become the ultimate arbiters of what is necessary to maintain stability, security and order. When an event inherent in everyday practice is pronounced a crisis, the katechon, the governing institutions, not only separate themselves from the difficulties the European project faces, but they declare these events as external threats. Simultaneously, by way of avoiding the transformation of the society facing the catastrophe, they block any possible significant change of the European project. By their very nature, these emergency narratives provide no room for considering alternatives beyond what they dictate.

Consequently, the political landscape is depoliticized as the state of exception becomes ever more acceptable, until it becomes the norm and exceptional measures become entrenched in the political system, and are not rolled back even after the crisis subsides.

Conclusion

Auer’s brilliant book sparks important normative, political, and legal discussions about the EU’s political system and its future. It encourages readers to contemplate the complexities and dimensions of the European Union. However, it seems to me, that instead of recalibrating member states’ sovereignty, a viable way forward may lie in recognizing how the dominant discourse shapes the options available to the European project. To find a more effective path, it is crucial to delve deeper into the purpose and ideology of the European project and examine how the “sovereignty paradox” is connected to prevailing modes of thinking and behavior within EU institutions as well as the member states. By doing so, alternative approaches to governance and decision-making may be uncovered, allowing for a more nuanced and sustainable way forward.