Hermann Heller <scp>NOW</scp>

Most of the articles in this issue explore the continuous relevance of Hermann Heller's legal and constitutional theory. There are at least two reasons why this is a compelling topic for the European Law Journal. First, Heller can be fairly regarded as one of the founding fathers of law in context, the approach to law that defines the identity of this journal. To paraphrase one of his disciples, Heller kept the windows of his office always open to social and economic reality.1 This prompted him to combine legal-dogmatic, sociological and normative perspectives in his writings.2 If you allow me the metaphor, the European Law Journal cannot but regard itself as the house that Heller started building. Second, Heller played a key role in the recasting of modern democratic constitutional theory so as to adjust it to the social transformations and the normative aspirations of inclusive democracy (as paradigmatically reflected in the constitution of the Weimar Republic).3 This implied reconciling normative intuitions, sociological assumptions and legal theories that were far from obviously compatible. In particular, Heller struggled constantly to square his simultaneous commitment to a rather Hegelian conception of political community, a quasi-Hobbesian understanding of public power and a (strong) cognitivist normative theory,4 while keeping a vigilant eye on the evolving social, economic, cultural and political context. As a result, we can learn immensely not only from what Heller got right (as the need of transcending the ‘pure’ Rechtsstaat in favour of the Sozialer Rechtsstaat and the characterisation of the constitution as a legally binding normative framework5 ) but also from what he got wrong (as his early nationalism, which flirted with a pre-political understanding of the nation).6 However, it was Heller's constant willingness to remain in dialogue with social reality that made him capable of challenging his own theory. His 1928 visit to Fascist Italy,7 and, even more so, the 1932 German constitutional crisis unleashed by the coup against the Prussian state (the Preußenschlag) prompted major revisions in Heller's constitutional and legal theory. To illustrate the point: So late as 1931, Heller had written that the ‘authoritarian primacy of the state over society’ was necessary to ensure the primacy of political authority over private economic power.8 By late 1932, no terminological ambiguity was left. Liberal authoritarianism was to be repudiated not only because it was (falsely) liberal, but also because it was authoritarian.9 Similarly, the assessment of Italian Fascism and emerging German Nazism as dangerous but empty political ideologies was replaced in 1933 by a much darker, tragic and prescient prognosis about the potential for radical evil of fascist regimes.10 The unfinished Staatslehre11 is full of unequivocal signals that Heller kept his willingness to draw lessons from the rather tragic history of Weimar until his death.12 To summarise, we can say with Oliver Jouanjan that learning from Heller does not mean going back to Heller, but understanding Heller, because his aim of rethinking democratic constitutional theory while remaining steadfast to its emancipatory potential cannot but be our aim too.13 The issue opens with the translation of the very last piece Heller wrote before leaving for what would prove a tragically short exile, first in London and then in Madrid.14 As Scheuerman, Streeck and Wilkinson stress, Authoritarian Liberalism is deeply enmeshed in the key constitutional debates of the fateful final years of the Weimar Republic, from the polemics about the socio-economic policies implemented by the Brüning and Von Papen cabinets to ‘manage’ an epochal economic crisis (a mix of wage repression aimed at increasing the competitiveness of German exports, cuts to public expenditure—outstandingly to unemployment benefits—and tax increases),15 to the controversies regarding the thinly veiled plans of the political and legal Von Schleicher's entourage to ‘transcend’ Weimar's constitutional order.16 The echo of the constitutional explosion caused by the dissolution of the Prussian government and the assumption of its functions by the Federal government (the already mentioned Preußenschlag) can be heard, so to say, between the lines of the essay. Indeed, Heller put pen to paper to write Authoritarian Liberalism merely weeks after his appearance as leading counsel for the Prussian state before the Leipzig Reich State Court (for these purposes, a constitutional court avant la lettre), which was competent to decide Prussia's appeal against the Preußenschlag. The opposite of Heller, and the real victor in the proceedings, was no other than Carl Schmitt (the very author of the turn of phrase ‘strong state, sound economy’, which aimed at giving conceptual respectability to Von Papen's and Von Schleicher's authoritarian plans).17 But the key purpose of the special section around Heller is to prove that Authoritarian Liberalism has not only historical, but also contemporary relevance. In Hellerian fashion, we publish a collection of cross-disciplinary articles written by cross-disciplinary authors. It seems to me that three themes clearly emerge from them. The first issue concerns the relevance of history and of constitutional memory. All contributors to the special section are of the view that reading Heller, and very especially his Authoritarian Liberalism, is a good reminder of the fact that history is not unfrequently tragic. It goes without saying that Germany circa 1932 is not Europe circa 2015, Brüning's austerity is not today's austerity, and by the same token the socio-economic context in 1932 is not the same as the socio-economic economic context in 2015 (as Streeck stresses, largely thanks to the policies implemented during the postwar years).18 And still it would be simply frivolous to picture the last years of Weimar as a remote and entirely eclipsed past. Even more so when we are confronting a serious, deep and by now prolonged manifold crisis. And still, European institutional discourse has become in the last decades rather oblivious to European history, and perhaps even more so since the beginning of the Eurozone crises. European institutional actors have said once and again that crisis management required radically innovative measures. From the ‘non-conventional’ monetary policies of the European Central Bank (ECB)19 to the ‘unprecedented’ mechanisms of financial assistance to Eurozone countries20 and the ‘innovative’ interpretation of treaty provisions, such as the no-bailout clause of Article 125 of the Treaty on the Functioning of the European Union, one can observe a tendency to assume that the present European crises are unprecedented. This time is said to be different, to paraphrase the title of an economic bestseller,21 largely because of the radical sui generis character of asymmetric economic and monetary union. Interestingly, total novelty has not so much prompted a reflection about the causal role of what was genuinely unprecedented in the socio-economic constitution of the EU in the gathering of the crises,22 as justified decisions that are not easy to reconcile neither with the existing legal framework nor with previous economic, social and political experiences. So unprecedented seems everything to be, that not even the experience cumulated by the European Communities during the economic and monetary crises of the 1970s tends to be regarded as relevant. One is left with the powerful impression that there may well be an unhappy correlation between this peculiar form of disregard for history and what Giandomenico Majone has aptly labelled the political culture of total optimism.23 And that such total optimism results not only in biased, but also ineffective policies. Unfortunately, Europe may still learn the hard way that good constitutional history tends not to be Whig but rather Tory history.24 The second theme that Authoritarian Liberalism forces us to reconsider is the relation between political stability and political and economic equality. As Wilkinson reminds us, Heller reiterates in Authoritarian Liberalism a fundamental claim he had already made in previous writings.25 To viz: The Social State is not a mere ideological preference or a luxury; rather, it is the price of civilisation and the very sinews of democratic politics. The Sozialer Rechtsstaat is about socio-economic rights, about taxation and public spending, but above all about the primacy of politics, as Scharpf and Streeck stress, which requires the overlap of democratic decision-making procedures and the actual capacity to shape the socio-economic order through collective decisions. This is why the Heller who wrote Authoritarian Liberalism was fearing the collapse of Weimar following Brüning's and Von Papen's policies that sought an exit from the crises through an increase in inequalities. Heller was soon proved tragically right. But Europe seemed to be willing to learn from the interwar disaster. The postwar European constitutional season resulted in constitutions written in the grammar of the Social and Democratic Rechtsstaat.26 This entailed, as Mark Mazower has recently reminded us27 , the state acting as a planner and provider of welfare, prioritising domestic employment over free movement of capital, and sovereign states cooperating, not competing so as to confront larger economic forces. It is very important to stress that not only Social-Democrats (as Heller himself had been) but also conservatives (Christian Democrats at large, British conservatives and French Gaullists) came to regard the Sozialer Rechtsstaat as an absolutely necessary counterpart to the Rechtsstaat and to the Democratic State.28 Again, Weimar's austerity and today's austerity are far from similar, and apply in very different socio-economic contexts. Still, Heller's observation remains pertinent. Internal devaluation cannot be implemented but by means of policies that have distributive effects opposite to those mandated by the constitutional imperatives of the Social and Democratic Rechtsstaat. It is not by coincidence that inequality has gone up, and markedly, in the Eurozone countries were austerity policies have gone further.29 Under such circumstances, can we simply close legal and constitutional discussions by stating that when the Commission and the ECB review the execution of national economic programmes (as part of the ‘troika’) they are not acting within the framework of the treaties? That is not a very ingenuous legal argument, not even in classical black-letter, legal-dogmatic terms. But it is certainly a non-starter in constitutional terms. Contrary to what is implicit in both the Pringle ruling of the European Court of Justice (ECJ)30 and the Open Market Transactions (OMT) judgement of the German Constitutional Court,31 the constitutionality of European economic governance cannot be determined by exclusive reference to monetary and economic stability, but has to be measured against the wider constitutional yardstick proper of the Social and Democratic Rechtsstaat. What is left of the legally binding character of the Charter of Fundamental Rights of the European Union if European states are obliged to abide by it when implementing European law, but not when implementing the Memoranda of Understanding negotiated with European institutions?32 To summarise, what conclusions can we expect Europeans to draw regarding the significance of European citizenship when some of them are denied access to public health and basic social services in compliance with ceilings on public expenditure imposed by European institutions acting as guardians of Memoranda of Understanding? The third issue concerns the extent to which economic and political crises serve as magnifying glasses of the structural weaknesses of the socio-economic order. The Hellerian dissection of authoritarian liberalism reveals a strong tension not only between capitalism and democracy but also between capitalism and markets. Heller points that Brüning's and Von Papen's policy mix of internal devaluation through wage repression and financial austerity could only be implemented in an authoritarian fashion (through presidential decrees that bypassed parliament in full). Moreover, Heller notices that authoritarian liberalism was not (and could not be) a coherent laissez faire policy, but was (and could not but be) a very odd mixture of laissez faire and dirigisme. The wages of workers went down in the late years of Weimar not because the labour market cleared at a lower wage level but because governments actively intervened to push wages down. Similarly, more profits accrued to some companies and to some entrepreneurs not because productivity increased, but because wages were pushed down and taxes were cut. The unleashing of capitalism could not but be planned, as Wilkinson and Streeck suggest us to say in Polanyian fashion. As Scharpf, Scheuerman, Somek and Streeck show at length, this dual tension between capitalism and democracy and capitalism and markets is far from being a dated historical phenomenon. Scharpf stresses that most of the measures taken in the name of saving the euro have been taken setting aside not only democratic procedures, but also constitutional requirements; moreover, financially assisted states have ended up being subject to a peculiar form of micromanagement of their economies by European institutions. The implementation of Memoranda of Understanding, it seems, cannot but be planned. Indeed, we could ask ourselves what these tensions and contradictions reveal about the relation between the European political and socio-economic orders. Consider the series of measures taken to save the European financial system, which have been justified, once and again, as absolutely necessary to save the euro: (1) European governments have granted massive state aid to financial institutions, by means of capital injections, acquisition of ‘toxic assets’ and provision of financial guarantees;33 (2) banks have been supported by the ‘non-conventional’ monetary policies of the ECB since 2007; even if the ECB has repeatedly made the claim that its decisions were taken with the exclusive aim of fulfilling its mandate (in the quasi-medical monetary jargon, to ensure that monetary policy transmission channels remained unclogged), it is a matter of fact that ECB decisions have had massive distributive implications that have benefited the shareholders of financial institutions;34 (3) the provision of financial assistance to several Eurozone Member States was to a rather large extent a means of providing assistance to the financial institutions of the states receiving aid, and even more so to the financial institutions of other Eurozone states that had (recklessly) lent to sovereigns and (above all) private financial and non-financial institutions established in the ‘rescued’ states; if we emulate the ECJ at its finest, and go beyond the legal form of the programmes of financial assistance, we are bound to reach the conclusion that what formally is a matter of financial assistance to say Greece and Ireland was in economic terms a form of financial assistance to German, French and Dutch banks.35 All these three sets of measures implied the commitment of fabulous amounts of public money. And still, it would be a very tall order to show that national parliaments (or for that matter, the European Parliament) have played any significant role in the process of deciding and implementing these measures. When parliaments have intervened, they have been frequently presented with a fait accompli.36 It tends to be less noticed that the size, scope and breadth of these interventions render it difficult to conclude that we can characterise the present European socio-economic order as one in which ‘capital allocation’ takes place ‘in an open market economy with free competition’, so that the ‘efficient allocation of resources?’ is fostered (as Article 127.1 of the Treaty on the Functioning of the European Union mandates). It seems simply disingenuous to persist in pretending that the European institutions intervene massively, but do so in such a way that they respect in full the process of formation of ‘market prices’.37 Denying this leads to a confusion between saving capitalism, saving a group of capitalists and saving markets.38 Several European institutions, from the Advocate General of the European Court of Justice in the OMT case,39 to the ECB itself à propos quantitative easing,40 have engaged in complex arguments to prove what could perhaps be labelled the dogma of the immaculate financial intervention. But how can one make massive interventions with massive distributive implications and still pretend that market actors have fixed prices in fully autonomous ways? The very fact that there is a persistent attempt at reconciling intervention and market ‘purity’ reveals the depth of the belief in a concept of market that is radically at odds not only with the understanding of markets in the Social and Democratic Rechtsstaat tradition but also, and perhaps even more tragically, with empirical reality. Clinging to the dogma of the immaculate intervention is also perhaps evidence of a growing institutional anxiety, which is bound to increase as time passes, and any illusion of a temporary and exceptional ‘deviation’ is shattered for good. So institutions are increasingly pressed to engage with the question of what exactly is being saved in the name of saving the EU and saving the euro.41 It is time indeed that we do as Heller and open up all the windows of our offices to social and economic developments. This is the spirit of the different, and far from unanimous, contributions to the issue. Somek and Streeck argue that the many contradictions that have become impossible to miss since the beginning of the Eurozone crises reveal the intrinsic authoritarian component of European integration. The very fact that there are no effective instruments or procedures to engage in meaningful political resistance at the European level results, according to Somek, in a trust trap, or what is the same, in Europeans being forced into the melancholic acceptance of the decisions that ‘fall’ from Europe. The delegation of power to the EU is not a relationship based on political trust, but rather on a paternalistic/self-deprecating (depending on the perspective from which this is considered) blind faith on the reasonableness of what decision-makers decide for us. Streeck argues that supranational integration has become a means of democratic escamotage. The very possibility of democratic decisions on the shape of the socio-economic order is structurally prevented by delegating economic competences to levels of government where meaningful democratic decisions cannot be taken and by means of empowering institutions that are by design fully impervious to democratic pressures. Scharpf argues in detail for the recreation of political and constitutional space for democratic decision-making by means of a thorough deconstitutionalisation of European socio-economic. Dawson/De Witte favour a paradigmatic shift that opens up European decision-making so as to make possible the contestation of the very point and purpose of European integration itself. Scheuerman invites us to rethink what kind of EU will result from Heller's strong dual commitment to robust national Social and Democratic Rechtsstaat and European integration. Kukovec's Law and the Periphery serves as a very apt counterpoint to the special section on Heller. Kukovec emphasises in his article the structural role that power dynamics play in the daily making of European law. He claims that the core/periphery divide is not a legacy of the Eurozone crises but indeed a defining cleavage not only of the European socio-economic structure but of the very categories through which European law is practised daily. One finds very strong echoes of American legal realism in the claim that European lawyers reproduce hierarchies and entrench the centre's domination over the periphery. Both the agenda of legal research and the way in which problems are conceptualised are determined by a ‘progressive politics’ that actually is a ‘progressive politics’ for the centre, not the periphery. Quite interestingly, this leads Kukovec to a rather strong defence of some of the most controversial rulings of the European Court of Justice, including the Viking/Laval/Ruffert trio. I am completely sure that this article will open up a much-needed debate about the implicit biases in the EU law and in the EU legal scholarship.

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