Connecting Habermas with International Law

Guest blog by Jaap Hoeksma, Philosopher of Law, Director of Euroknow and Creator of the Boardgame Eurocracy.

The financial crisis, which was triggered by the fall of the American bank Lehman Brothers in 2008, has intensified the debate about the feasibility of the European Union as a new phenomenon in international law. The theoretical presumption that the euro had to be regarded as a 'currency without a state' encouraged speculations on the financial markets about the end game of the common currency.(1) The question was not if the euro would fall, but rather on which day this event was to occur. The Chancellor of the Federal Republic of Germany publicly expressed the view that, if the euro could not be saved, the EU would collapse too. Dr Merkel's axiom 'Scheitert der Euro, dann scheitert Europa', came to symbolise the struggle for the rescue of the fragile results of the process of European integration.

As an engaged philosopher, Jürgen Habermas has contributed to the debate about the future of the EU ever since its foundation in 1992. In his essay 'On Europe's Constitution' Habermas underlines that he regards the EU as a step in the direction of a politically constituted world order.(2) He suggests that the Kantian notion of world citizenship may particularly benefit from the European experiment. Fortunately, this vision has not prevented Habermas from expressing his views on the current day-to-day problems of the EU in its struggle for survival. In an interview with the Austrian weekly Die Furche of May 2012 he focuses on the conceptual challenges of the EU by asking the quintessential question: How should we imagine a for closer co-operation necessary, supranational association which complies with stringent demands of democratic legitimacy without assuming the shape of a state?

As the readers of the previous Peace Palace Library Blogs on the Westphalian System of International Relations have come to realise, it is within the limits of this paradigm impossible to answer this question in a conclusive manner. The reason for this negative conclusion is that the Westphalian system does not allow for the concepts of democracy and the rule of law to be applied to an international organisation. In the Westphalian approach, democracy and the rule of law can only thrive within the boundaries of a sovereign state. Similarly, currencies are only trustworthy, if they are backed by sovereign states. These findings are the more important since the organisation of the United Nations is based upon the Westphalian principles.(3)

So far, Habermas has not yet found the answer he is looking for. In the interview with Die Furche he states that he has familiarised himself with European law in order to deal with this subject and in his writings he mentions the book European Constitutional Law as the main source of his legal knowledge.(4) Notwithstanding its impressive qualities, however, this volume does not investigate the compatibility of the EU with the Westphalian system of International Relations. Although it is acknowledged that the EU has developed a distinct legal order, the differences between the prevailing Westphalian system and the EU model of governance are not explored. In view of this apparent lacuna, an effort should be made to connect Habermas with international law by comparing the innovations brought about by the EU to the principles of the Westphalian system..

The first difference between the EU model and the prevailing system lies in the citizenship of the Union. Obviously, citizenship of an international organisation is incompatible with the Westphalian paradigm, wherein citizenship is related to states only. In a similar vein, a common democracy can't exist in the traditional model. The concept of democracy can only be applied within a state. Thirdly, it is impossible for a currency to have a joint sovereign. These and similar differences between the traditional and the emerging model of governance find their origin in the fact that the EU practices a flexible approach to sovereignty, whereas the Westphalian paradigm prescribes that state sovereignty must be absolute, one and indivisible.

This evidence leads to the conclusion that one must move beyond the Westphalian system of international relations in order to find a meaningful answer to question posed by Habermas. The author of these blogs has done so by drafting a Citizens' Definition of the European Union. This definition has been discussed with students during the EU Democracy Tour and presented to the European Parliament on May 21st 2014. It describes the EU as 'a polity of states, wherein the citizens can participate both in the national democracies of their countries and in the common democracy of the Union'. The rationale behind this post-Westphalian approach is that, if 28 or more sovereign states decide to share the exercise of sovereignty in order to achieve common objectives, the union they establish for this purpose should be democratic too.

Critics will argue that this analysis doesn't change reality and that the democratic deficit remains as huge as ever. The present construction of the EU proves them right. The democratisation of the Union has only recently started and the structure of the polity still contains many elements of an international organisation. However, the circumstances that the EU has overcome the financial crisis and that the euro has been saved as the common currency of the Union, may serve as evidence for the conclusion that the EU has succeeded in developing a distinct model of governance. In its daily functioning, the EU demonstrates that it is possible for states to share the exercise of sovereignty without losing statehood. Moreover, the Union shows that states can enjoy the benefits of a common currency without having to merge into a federal state. In the midst of the crisis, the EU could still have returned to Westphalia as suggested by the Financial Times in 2011 (5); after the crisis, however, the EU has established itself as a polity of states and citizens beyond the Westphalian paradigm.

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Librarian's choice

A selection of relevant publications from the Peace Palace Library collection

1 Padoa-Schioppa, T., Markets and Governments Before, During and After the 2007-20xx Crisis, Per Jacobsson Lecture, Bank for International Settlements, Basel 2010

2 Habermas, J., Zur Verfassung Europas, Berlin 2011

3 As convincingly demonstrated by: Gerven, W. van, The European Union: a polity of states and peoples, Stanford 2005

4 Bogdandy, A.von and Bast, J. (eds), Principles of European Constitutional Law, Oxford 2009

5 Stevens, Ph., Europe's Return to Westphalia, Financial Times 23 June 2011

Relevant PPL-keywords for further research

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