In this conversation with RevDem editor Kasia Krzyżanowska, Massimo Fichera talks about the need to include the future when designing EU constitutional architecture, criticises the economic components’ dominance over the European integration process, and explains his idea of communal constitutionalism as a remedy to presentism of constitutional theories.
Massimo Fichera is Associate Professor in Philosophy of Law at the Department of Foundations of Law. His research and teaching interests lie in the area of constitutional and legal theory. He has published extensively on European constitutionalism and the interplay between legal systems.
Kasia Krzyżanowska: The premise of your book is that we are witnessing the growing interconnectedness of domestic legal orders with constitutionalism beyond the state. It would also seem that European integration would go really smoothly— as you write, we are now experiencing the most advanced state of the EU’s integration. But at the same time there is a huge, sometimes named as populist backlash against international institutions and organisations — how do you explain this paradox?
Massimo Fichera: Essentially, the starting point of my analysis is that nowadays we cannot talk about constitutionalism without having to deal with legal developments beyond the State. We have to somehow look at them in a new context, which means that we are also pushed in the direction of re-elaborating or challenging elements of constitutionalism, which we were familiar with before. I think that European integration has been characterized by a steadfast growth in recent decades, more or less in correspondence with the turn of the century.
Also, at the same time, undeniably, we are also witnessing a powerful dynamic against this trend — a dynamic that is present not only in Europe but also in other areas of the world. It’s not just something we find in Europe. This should not surprise us. In my view, the emergence of conflicts and contradictions is an inherent feature of constitutionalism. In a sense, it could also be considered a positive development: it is precisely because the EU has reached an advanced stage of integration, as you said, ever more complex and multilayered, that such state of affairs becomes more pronounced.
The problem derives therefore not from the presence of conflicts and contradictions, but from the fact that they have been ignored or belittled for too long. And so, I think that the moment has come for the EU to address the conflicts openly.
The EU’s effort to appear as a neutral machinery, as something that is detached from conflicts, has undermined the true strength of the European project – namely its configuration, primarily, as a political project, not just as a legal project.
It is therefore necessary for the European liberal project to shed its veneer of neutrality and adopt a clear political morality, i.e. bring its aims out in the open, so that debate is possible. In other words, the EU’s strength lies in realizing autonomy in a socially integrated space. Relatedly, the claims and needs expressed by so-called populist movements should not be dismissed too easily as stubborn obstacles to the integration agenda. They should rather be taken seriously for the process of constitutionalisation of the EU by understanding in the first place the deeper reasons behind them.
As one of the reasons behind the populist backlash you mention that the liberal European overview doesn’t take the “problem of the future” seriously, it focuses too narrowly on the present times. The counter argument could be that the liberal EU leaders take into account the future by coming up with the policies regarding the climate change, first and foremost. What would be your take on that?
I think that contemporary liberalism has become too “presentist” because it is exceedingly focused on the demands of the present. It takes economic growth for granted, without considering either its broader implications, which are not strictly economic, but also cultural, social and so on, or the possibility that growth itself comes to a halt. I try to propose an alternative scenario, in which what I call “communal constitutionalism” goes beyond the classical liberal mind frame. In this scenario, first of all, the idea is that all actors of the process of integration do not merely cooperate – because this means simply getting together to pursue one’s own enlightened interest — but they come together to constitute something new (to go back to the root of the word constitution, i.e. constituere, to set up together), which is done in the common interest.
The notion of communal constitutionalism relies on the shift from reciprocity, which is based on tit-for-that, to mutuality, which requires something more than the mere sum of individual interests.
Secondly, not only classic institutions, such as courts, executives, legislatures, but also sub-State components, for example regions and cities, as well as other non-State bodies, such as grass-root movements, NGOs, political parties and other forms of collective participation in public matters, including private actors acting in the public interest — all of these play a significant role. In other words, communal constitutionalism implies the co-existence of a plurality of normative orders and sites of decision-making. It attempts to reconcile constitutionalism and democracy in the transnational domain by envisioning forms of deliberation that take place at all levels of society. This approach thus seeks to integrate unity and plurality by devising a bridge between some versions of deliberative constitutionalism and some versions of constitutional pluralism (in particular, those which place special emphasis on epistemic pluralism). Local levels of decision-making are supposed to be enhanced.
Thirdly, I would add that an important element of communal constitutionalism is the emphasis on what I call the ‘temporal dimension of security’. As I have argued in my previous book, ‘The Foundations of the European Union as a Polity’, by ‘security’ I do not mean the traditional definition of security as a good provided by a political community to its citizens, nor do I refer to specific instantiations of it, such as military security or criminal security or even a phenomena such as securitisation. My intention is to focus on the security of a constitutional settlement. In some respects, this notion recalls the idea of “stability”, which can be more easily associated with ancient constitutional thought (e. g. Aristotle or Plato), as in the past, ancient thinkers considered the conditions ensuring the endurance or persistence of a regime over time.
However, in my understanding, “security” has a more existential connotation and can be viewed as a sort of meta-constitutional rationale, as a political morality that underpins a constitutional settlement. Again, going to the etymology of the term “constitution”, this can be reconnected to the medieval metaphor of the health of the body politic, and it is not by chance that the word “constitution” in the past was very often used also to indicate the general health of a person.
Through this concept of security therefore I claim that the importance of Europe is expressed not merely by the need to develop shared values and establish legal procedures to enforce them (which some would associate with ‘integration through law’), but also by the urge to ensure that these values are protected over an extended period of time.
In my previous book I also distinguish between six dimensions of security, which I call spatial, temporal, popular, ontological, epistemic, and reflexive. In this book, I focus particularly on the temporal dimension of security. I continue that line of argument and I therefore clarify that an additional feature of communal constitutionalism is the incorporation of the future in processes of constitution making and amending, with a view to promoting also the role of future generations. That is why an issue like climate change is very important in this respect. Not only that, but also
the economic components of European integration should no longer be viewed as prevailing at the expense of the social components.
What I set up is a partial critique of the current liberal model of integration.
In this sense, of course, what I propose could be somehow considered similar to other critiques of the liberal model, which have been presented recently: for example, I would mention Adrian Vermeule’s common good constitutionalism and Martin Loughlin’s book Against Constitutionalism. They certainly offer interesting examples of reflections on what is currently going on. Both of them can be looked at through the prism of constitutional time. On the one hand, common good constitutionalism advocates a return to a legitimating binding source situated far back in the past – essentially, the classical principles of natural law. This also means that that type of constitutionalism is marked by the inability to allow a negotiation and reinterpretation of the founding values of a polity by the collectivity over time. Actually, the ideas of ‘reason’ and ‘reasoned ordination’, which are at the basis of natural law in a sense, are placed outside any possible contestation and debate, and more general deliberation.
On the other hand, the notion and approach followed by Loughlin – while it is definitely very interesting and a source of inspiration – remains encapsulated within a statist framework and reproduces a paradigm which, while useful in many respects to unmask certain destabilising processes of constitution un-making, is also conditioned by that very paradigm that it relies on. It over-emphasises the role of the elections, thus something that happens at a given moment in time, without looking at other moments of deliberation, in which constituent power can still emerge after the original act of generation of a constitutional community.
I think that majority rule, while definitely important, should not be seen as the main legitimising factor of constitutional democracies.
There are all these other factors. Electoral moments are fleeting events, which simply provide a snapshot of the lifetime of a liberal democracy at some moment in time. That means also that they reveal partial truths, not the whole truth about liberal democracy. But there are also other moments of social confrontation, which we need to rely on, to have a bigger picture of a polity’s constitutional time. Such picture is not static, but always in movement.
In other words, ultimately what I believe is that democracy offers a promise in the present, whereas constitutionalism ought to project us towards the future. Moreover, I think that democracies function better when there is also somehow a way of managing conflictuality.
Kelsen in his works on democracy claims that conflictuality itself preserves democracy when it is manifested explicitly and regulated through a process that leaves the outcome open and leaves the possibility for every majority to prevail every time, and for minorities not to be somehow overcome. So I definitely look at these aspects of Kelsen’s thought and I also look at the idea of “mixed constitution”, which was elaborated again by ancient philosophy, according to which it is possible to combine democratic and monarchic elements in the same polity and to avoid the degeneration of the polity itself. For example, Plato and Aristotle were convinced that some form of economic and status equality would enhance solidarity among classes, and Aristotle – of course, related to his own time – even proposed some mechanisms of income redistribution. His ideas were actually reproduced by the Founding Fathers of the US Constitution to elaborate a constitutionally limited democracy, in which aristocratic and democratic elements would somehow coexist.
What comes out of these reflections is ultimately that
it is only possible for a constitution to survive for a long time if there are some constraints on the will of the people for their own good through some version of the rule of law.
Precious ideas can be taken from both sides. Constitutionalism can also be seen not only from a liberal perspective, but also from another perspective, which claims that it is not just about restraining public power but also about enabling social and economic conditions to be set up by power.
So why is constitutional time then so relevant in this constellation? Here I propose to oppose the concept of perpetuity to the concept of eternity: eternity is associated with fixed and immutable concepts, but perpetuity is the result of a reflexive and self-amending process.
What you said was a tour through the whole legal philosophy. Let me ask – and this is a very classic constitutional question – how can the tension between the need to actualize the constitutional content according to the needs of the contemporary people be reconciled with preserving an epistemic core of the constitution? What actually is this epistemic core in the EU context and how can we methodologically determine what values and principles are amendable and which are not?
Precisely, this actually ties up my argument with my previous observations. Because I think that a collective commitment by a polity can only truly be verified across a timeline. A constitutional community needs to somehow differentiate itself from other non-constitutional communities by developing a narrative – and narratives, by definition, can only develop over time. So, in order to legitimize itself over time, a community must create a distinction between past, present and future.
So how does this happen, how to actualize this? I believe that what emerges here is what I call the “paradox of large time” – this is a neologism I use in German, I use the term ‘Grosszeit’, which is the temporal equivalent of the concept of ‘Grossraum’ used by Carl Schmitt. Of course, I don’t follow Carl Schmitt’s theory. What I claim is that a part of this emerges from the effort of every constitutional community to extend its duration as much as possible – ideally, to the point of reaching unlimited duration. This can be seen for example in the European Union, in the Preamble of the Treaties and some of the case law, when the notion of “community of unlimited duration” is employed. This means that the EU has this ambition to preserve itself, unlimited, over time and generates precisely the paradox, which comes from the fact that
the ambition of a constitutional project to stretch indefinitely into the future takes place either in the name of a set of values defined once and for all at a fixed moment in time (hence binding all future generations belonging to the coming communities, but at the same time compromising the democratic credentials of a constitutional project) or by changing the constitution frequently, every couple of decades or 10 or 19 years, to adapt it to the changing circumstances.
Thomas Jefferson, one of the founding fathers of the United States Constitution, actually proposed something similar. But if we do so, we also somehow relinquish the idea of having a commitment that stands over time.
So how to solve this paradox?
I claim that constitutionalism can only be reconciled with democracy if the past is not fixed once and for all but re-presented over and over again: never identical with itself, but always projected into the future.
When this happens, we have – precisely as I said before – perpetuity, not eternity, we emphasize a constant process of will-formation and re-negotiation of values, which keeps the constituent process epistemically open-ended. That is why I talk about different forms of time, not only linear time, but also cyclical time – cyclical time is precisely of something that recurs over time and enables reflexivity over time.
This is the moment to ask about discursive constituent power, to which you devote some space in your book — how does it operate within the European Union? You state that this power does not reside in any specific actor — not in the CJEU, some elitist people or the EU officials — but rather is present in the discourses on the EU. In this meaning, constituent power operates within the polity, and not outside of it or above it. Could you concretize it a bit what do you mean by discursive constituent power and how do you deal with the lack of the European demos?
Thank you for this question. Actually, this is one of my central arguments. The role of discursive constituent power is allowing this re-negotiation of values. In a sense, I claim that we find two discourses of power within the EU: security and rights. What are these discourses? I claim that the EU legal order, on the one hand, empowers individuals. This is the rights discourse, and we find it starting from the famous Van Gend en Loos case, empowering individuals, preferring the rights of individuals. On the other hand, I claim that the EU legal order empowers itself – that is the security discourse, security as self-empowerment. We see that for example in the Costa v. ENEL case, the idea of supremacy or primacy, depending on how we want to interpret this notion.
In other words, the EU puts forward its triple claim of autonomy, authority, and legitimacy through self-empowerment (that is the security discourse), and at the same time the EU vows to protect, emancipate, and empower individuals (that is the rights discourse). These discourses have been constitutive of the European project at a foundational level, although they are characterized by ambiguities and contradictions again, by legal-political conflict. Moreover, these discourses can be traced back not only to the early days of EU integration – I just mentioned some examples – and not just to the case law, but also they are present in official documents. For example, in his famous speech in 2012 at the Global Investment Conference in London, Mario Draghi said that the European Central Bank would do “whatever it takes” to preserve the Euro. That is, for me, a security discourse: self-empowerment and self-preservation. But we can also find it in scholarly works.
Many of the theories of constitutions, which we have found over the decades, are inspired by this idea of ensuring the survival of the polity.
If you look at some of the works by, for example, Kelemen or Lenaerts or even some constitutional pluralists, and if you really look and read between the lines, you see the concern for the survival of the European project.
Now, what is the role of discursive constituent power? I think in this sense, courts definitely play an important role. I just gave examples of some of the discourses that have actually been constitutive of the European project. In fact, not just courts, but also other actors are important. So, these discourses run through the whole polity. We find them also in the Commission, and in other layers of the society – as I mentioned before, there are different layers of society in which the European integration takes place.
What I think is important, however, is that we keep these discourses open, not self-referential, but able to open up a debate between these different actors. The recent experience of the Conference for the Future of Europe should at least potentially be considered as an example of this. The European Citizens’ Panel can be seen as constituting a form of “mini-publics” which allow deliberation between institutions, civil society and academics to intervene in the debate on the future of Europe. I think this is a central concept to be taken into account.
On the one hand, the EU is blamed for being too socialist and morally progressive, but on the other it is blamed equally for imposing its neoliberal austerity measures – you already mentioned Mario Draghi and his discourse. What kind of a lesson do you draw from the criticism of the EU? How do you conceive the future of the European project in constitutionalist terms? What kind of tensions will mark this future and why would these disharmonies surely appear?
It seems that the EU has become an easy target for domestic political parties. It is depicted either as a tool of the liberal socialist élites to force – to use a contemporary term — a “woke” agenda on issues such as gender, immigration and environment etc., or is depicted as a capitalist Leviathan, planning to erase welfare policies across the continent. It is quite ironic that we have these two representations. I think this is too often the outcome of a shallow debate that takes place, and the media have their part in promoting this shallow debate. This is one more reason why a more developed European public sphere would be beneficial in the long term.
Again, as I said before, Europe needs a narrative, and a narrative implies a continuum between past, present and future. In this sense, I think it is quite emblematic to focus on one example that I mentioned briefly in the book that is the famous case Grzelczyk v Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve. We have a famous statement by CJEU: “Union citizenship is destined to be the fundamental status of nationals of the Member States”. Now here again, we have an element of the future – I was talking about the future before. There is a strong ambition in this statement, a promise that is made. Yet at the same time – as we all know — citizenship law is marked by contradictions and ambiguities, which risk turning the statement itself into empty rhetoric.
In order for the EU to retain its projectuality, a direction to be followed must be indicated. It does not necessarily need to be a crystal clear plan, because as I said before tensions and disharmonies are inevitable in any constitutional project. But at least some common guidelines must be part of the conversation. And not just that, because if we are actually honest about encouraging deliberation, we must take into account the question whether or not future generations ought to be included in our deliberation. In such issues as environment, digital governance, global health and so on, we need to incorporate the future generations in one way or another in our discussions. Because we somehow need to act on their behalf — they have an interest in what we are deciding right now. But at the same time, I would say even more, as I clarify in the book, that we have a stake in whatever is done by them in the future because we have also some concern for our own children and children’s children – hence, the notion of mutuality which I mentioned before.
You mentioned these ambiguities and tensions, which are obviously inherent to the European project. We can now talk about another point of tension in the EU, the rule of law. How do you envisage the observance of the rule of law on the EU level? In this transnational sphere, what kind of rule of law should be there? We deal with the claims that there are so many different national approaches to the rule of law that you cannot actually go with one definition that should be observed by every country. What kind of a response should the EU give in such a situation: tolerance or rather sanction?
And a related question: the Court of Justice has just recently come up with the concept of non-regression, which tries also to preserve the state of the rule of law in member states. What do you think about all this idea?
One of the arguments developed in the book is that neither full negotiability of constitutional values, nor fixity, i.e. absolute unamendability of constitutional provisions or institutions, are conducive to effective security.
Security is also characterized by two dichotomies: one is between self-preservation and self-empowerment, and the other one between change and permanence.
The non-regression clause, which we find in interpretation of the Court under Article 2 TEU is an example of such strains. Actually, this provision can be interpreted as a commitment to the shared values of the EU that is supposed to persist throughout the whole EU membership. At the same time, the extent to which this clause has effectively been violated, the degree of democratic backsliding, as we know it, is subject to contestation. What I mean is that the scope of what can be subject to change and what should remain unmodified fluctuates, depending on the interpretation of such scope by the interested actors. Analogously,
the need for the EU to protect the values enshrined in Article 2 risks impairing or unduly constraining processes of constitutional amendment at the domestic level if it does not go hand in hand with a process leading to the gradual incorporation of those values in the society.
These two things have to go together. According to what I call the ‘heterarchical paradigm’, we find different legal orders co-existing with each other and trying to find some way of reconciling the different claims. The problem of this paradigm – which essentially corresponds more or less with the theories of constitutional pluralism – is: how to address the issue of the rule of law? Can we have rule of law in a legally pluralist environment? Of course, it is problematic. The discussion is marked by a mostly positivistic understanding of the EU legal order, which views the law as having a self-referential character, meaning that EU law sets the conditions for its own existence and validity.
Instead, I would advocate a shift from an analysis on the nature of the EU, which has been so popular in recent decades, to the question of what for we have the EU, or why we have the EU. By answering that question, we realise that the normative dimension of transnational integration needs to be emphasized. This requires thickening the idea of the rule of law.
We should move away from a thin idea to something that promotes the rule of law more forcefully and therefore ensures enforcement and sanctions.
Actually, I think some of the versions of legal pluralism, that departs from the Kelsenian approach but adapts for example MacCormick’s ideas (I think he defined himself as a post-positivist) might be useful. Or, for example, Kumm’s model of constitutionalism also somehow proposes a different idea, which is not strictly positivist, but goes more in the direction of Dworkin. Now, what is here to be emphasized, is the notion of allowing mutual deliberative engagement between the different actors. And so again, not just courts but also other actors of the process of integration. I think that the EU as a polity can only survive if we start from an idea of commonality and the idea of having a set of values, which we all share, which we all need to preserve and at the same time, which we are all ready to negotiate.
Definitely, I agree that we should expand the pool of actors that are engaging in a dialogue about the EU, and go beyond courts. You mentioned also that we should ask questions not about the nature of the EU but rather about its goals. As you state in the book, the Maastricht Treaty clearly separated monetary policies from economic and social ones — the monetary policies were confined to the supranational institutions, whereas the social, economic and salary policies were to be governed on the national level. You observe that the Treaty provisions oblige member states to discipline their finances. We have seen in the Euro crisis not much focus on solidarity among the states and citizens. What kind of practical consequences for the EU do you derive from such an imbalance of values or the division of competences? How do you envision the establishment of the supranational solidarity mechanisms in the social or health sector?
I think it is important to bear in mind the lesson that the social has a crucial role in integrating communities. I briefly mentioned this also before. So I advocate a shift from reciprocity to mutuality through the concept of solidarity. I think that
both the Eurozone crisis and the coronavirus crisis have showed how the high degree of socio-economic interdependence achieved by the EU makes it inevitable to ensure some form of fiscal burden-sharing and mutualization of debts in order to address critical situations that threaten the existence of the European project.
Here I go back to Aristotle’s ethics of reciprocity. Now, the idea of sharing something together is very important, definitely, but I also think that this ethics is limited to what is good in and of itself. Instead we should move away from this ethics of reciprocity to the ethics of mutuality, which has been proposed by some of the more recent thinkers, for example Ricœur. He talks about mutuality as not simply a dual relationship between action and response, tit-for-tat, but more as something that is a plural relationship among several agents coming together, something that transcends the agents. And this means that inevitably we need to include different points of view in whatever we do.
In order for the commitment that makes the constitution possible, to become a collective enduring commitment, mutuality must already be present underneath, as an implicit pre-supposition of the common project and therefore an element that triggers a motivation to come together. The movement from reciprocity to mutuality is not a movement onwards, from a less developed to a more developed form of integration, but rather a cyclical movement back to the origins, where the feature of mutuality is renewed time and again through deliberation. However, I also think that being concerned for the survival of the European project in the long term means that concern for the material constitution should be placed at the center of the project. In other words, concern for health and social security schemes (for example minimum mobility schemes) has to be present already at the European level, not simply left to the state to decide. That is not something just to be sidelined, something additional, but central for integration.
In collaboration with Flora Hevesi.