Legitimacy,sovereignty,solidarity and cosmopolitanism

Legitimation crisis

The crisis of legitimacy relevant to the constitutionalization of international law has two focuses. On the one hand, the uncoupling of money from politics as economic forces outstrip the capacity of the nation-state to provide sufficient support for the prevailing needs of contemporary democracies is experienced almost universally On the other hand, the legitimation crisis specific to the EU is precisely because the EU is directly constituted by a form of international law. However, instead of democratization the political process has the potential to be defined as ‘post-democratic federalism’. Significantly, these two focuses of the modern legitimation crisis work hand in hand. While the general democratic deficit is shared by all modern democracies, members of the EU experience it in a distinctive manner inasmuch as they are the subjects of a supranational political formation which has the potential to deal with traditional popular sovereignty in a unique way by dividing sovereignty between nation and the new transnational order. ²

At least that is the way he puts it in the Verfassung text as well as in the lecture on solidarity. In this paper what looks like a legitimation crisis ‘dissolution of the decisionistic substance of power involved in the exercise of political authority’ from the point of view of political science is the ‘transformation in the composition of the medium of law’ from the point of view of legal theory. And that means that ‘a democratic deficit … could be counterbalanced’ through a ‘transnationalization of democracy’.

Divided sovereignty

As is well known, since the 1990s Habermas has posed the question of how do we get beyond the nation-state. The question arose due to a constellation of forces that combined to further the development of democracy had begun to erode in the face of neo-liberal policies essentially global in character which would override the distributive necessities of national democracies. In the Verfassung text Habermas provides an historical reconstruction of constitutional development from pre-modern origins to the present. This reconstruction seeks to put the project of the European Union within this context of constitutional history. Potentially the EU project could represent a new stage in the historico-evolutionary development that will provide the precedent for a cosmopolitan order beyond but also inclusive of the nation-state. The framework presupposed but not necessarily made explicit in this paper is the prospect of a new cosmopolitan order in which the EU is destined to play a leading role. ³

Habermas thinks the transnationalization of popular sovereignty is possible because of two innovations that characterize the EU. First, states retain a monopoly on force while at the same time subordinating themselves to transnational European law. Second, ‘constitution founding powers’ (Crisis, p. 34) are shared by ‘legitimating subjects’ whose role is simultaneously national and transnational. ‘Citizens are involved in a twofold manner in constructing the higher level political community – directly in their role as future EU citizens and indirectly as members of one national community’ (ibid., p. 36). In order to overcome the potential ambiguity of the idea of shared sovereignty we are encouraged to look at the European legitimating subject as being split into ‘two persona’ both as a ‘constitution founding subject’, and as a citizen of ‘an already constituted national people’. (ibid., p. 38). Simply put, the new political subject is one who subordinates herself or himself to a higher transnational law while at the same time functioning as a national subject of a state, which has a monopoly on force. In order to do that it is necessary to construct or reconstruct a subject with two persone, one supranational, one national. Finally, as we shall see, this interpretative argument has implications for both solidarity and cosmopolitanism.

Solidarity

The question arises, given the nature of the legitimation crisis and the distinctive notion of divided sovereignty necessary to overcome it, how might citizens adapt to this new political situation in a proactive manner? As a general thesis legitimation crises lead to and make necessary new forms of political integration, and solidarity is required for that new form of political integration to succeed. Habermas defines solidarity as one of the ‘building blocks’ embodied in ‘every democratic community’. Civil solidarity has to be expressed ‘within and across national borders’ as ‘necessary for joint political will formation’ which generates ‘communicative power’ and legitimates the ‘exercise of political authority’ (Crisis, p. 21). Solidarity makes democracy possible because it presupposes the universal norm of political association not only allowing citizens to identify with one another but also requiring citizens to assume mutual obligations towards one another. Looked at from an evolutionary point of view solidarity combines the classical ethical idea (Aristotle) of civic friendship and religious conceptions of the relationship of the universal in relationship to the self and transformed politically through the notion of fraternité (universal brotherhood) in the French Revolution. I think Habermas is right to suggest that when solidarity finds its expression in fraternité it no longer relies on its ethical background but takes a distinctive political form that can be traced through its various phases. Whereas solidarity found its first form of expression in the revolutions of the 18^th century, in the 19^th century ‘economic constraints outstripped the old relations of solidarity’ (‘Democracy, Solidarity, and the European Crisis’, p. 16). The resulting transformation of society led to what we may call the new ‘framework of the democratically constructed nation states’ (ibid.). Now, in this view, solidarity confronts a new legitimation crisis in which ‘the uncontrolled systematic contingencies of a form of capitalism driven by unrestrained financial markets are transformed into tensions between the member states of the European monetary union’ (ibid.).

To summarize: solidarity, the force underlying classical ethical notions of civic friendship and religious conceptions of universality in relationship to the self, made political by the revolutions of the 18^th century and the formation of the nation-state in the 19^th century, is on the threshold of a new transformation through the constitutionalization of international law particularly in the European Union and as we shall see on the world stage as well. ⁴

Cosmopolitanism: From the international to the cosmopolitan community

Although the paper begins by eschewing cosmopolitanism for its lack of concreteness, when international law is constitutionalized it is moving towards cosmopolitanism. What distinguishes Habermas’ brand of cosmopolitanism, opposed to other forms, is its departure from ideal theory. Kant in contrast to those who came before him did not link the idea of the people solely to the nation-state and thereby separated the notion of internal self-determination from external aggression. The cosmopolitan point of departure may be said to be launched from two perspectives: the first being the legitimation crisis and its resolution as experienced by the European Union and thesecond the post-Second World War development of institutions beyond the nation-state, the primary example being the founding and development of the United Nations and associated world institutions. As we shall see, the two narratives fit together ‘seamlessly’ (Crisis, p. 57). From the perspective of the European Union the two innovations that were necessary for divided sovereignty were the subordination under EU law of the member states, which enjoy a monopoly on the legitimate use of force and the sharing of sovereignty between citizens and peoples ‘as constitution founding subjects’ (ibid., p. 54). From a realistic point of view we already see traces of the first innovation presumably in the UN organization of peace-keeping forces and as for the second a reformed general assembly could be the basis for a world parliament. And it is argued that there is an undeniable shift from an international legal orientation to that of a politically constructed world society with a corresponding need for democratically grounded regulation whether it be from the 2008 financial crisis, environmental issues, world poverty, or large-scale technology. This moves to one fundamental conclusion: ‘Today it is not individual states or coalitions of states which are confronted with such problems of world society but politics in the singular’ (ibid., p. 55).

Questions

In section three of this paper you state that ‘the price for effective governance beyond the nation state is the erosion of legitimation processes at the level of the nation state’. Elsewhere you use the term ‘post-democratic federalism’. Could we not conceive of a federalism that over time could become democratic and hence provide a new form of democratic political integration? Allow me to present an example of what I mean by turning to the American Civil War and the 13^th and 14^th amendments to the American Constitution that resulted from it. Generally, it is thought that the transformation from Americans thinking of themselves solely as members of their respective states to thinking of themselves as American citizens can be dated from this point on. Is it not the case something similar might happen in the European Union? In other words, is it necessary that the term ‘post-democratic’ be applied to the federation that the European Union represents?