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Habermas argues in a core philosophical chapter of The Crisis of the European Union that all basic rights, dating back to the seventeenth century, are predicated on the notion of human dignity. Though human dignity was not explicitly part of the vocabulary of human rights until after World War II, the principle remains “the explosive force behind concrete utopia,” he writes, following Kant. Human rights specify only the legal components of a broader concept of human dignity. Human rights are therefore the product of a synthesis of rational morality and positive law, and it is this fusion that “makes the citizens of our own, halfway liberal societies open to an ever more exhaustive realization of existing rights and to the ever-present acute danger of their erosion.” After World War II, he explains, a process of international law was designed to prevent, limit and resolve armed conflict—in short, to “domesticate” relations between states by removing the threat of violence and promoting the supranational capacity for action. The novelty of this innovation was to allow the monopoly of force to remain with member states while requiring them to submit to a new supranational and constitutional legal order.
The danger posed by the current crisis, Habermas writes, is that the narrow focus on the banking and debt emergency obscures the larger political dimension of the EU envisioned by its founders. Consequently, governments caught between the imperatives of banks and ratings agencies on the one hand and increasingly frustrated populaces on the other have opted for extralegal, nonbinding, undemocratic agreements. Because the EU has been planned and monopolized by political elites since its incarnation, it’s plausible that right-wing populism, with its pretense that “the state” is one big family rooted in blood and land, could control the definition of the democratic sphere—a development that would block the formation of any political will beyond national borders, even as immigration, the Internet and mass tourism have all made those borders more porous. Because the difficult political questions lie outside the scope of a handful of leaders and experts, Habermas argues, the central problem facing the EU is how to enliven an expanded context for civil society.
For this reason, Habermas sees the current crisis as an opportunity to reassess the European project, which, he insists, is “not merely an institutional fantasy.” Times of crisis, he writes, require more than conventional wisdom or muddling through. What makes the cosmopolitan idea plausible in Habermas’s view is that it doesn’t rely on an illusory notion of the perfect society, but instead grounds the ideal of a just society in existing institutions and in constitutionally sanctioned democratic principles. The European Constitution, enshrined in the 2009 Treaty of Lisbon, is “not so far from the form of a transnational democracy as many of its critics assume,” Habermas writes, despite regarding the agreement as insufficient because it does not draw what he calls the “correct conclusions from the unprecedented development of European law over the past half-century.”
The 2010 crisis shattered the illusion, born of “ordoliberalism,” that Europe could avail itself of a depoliticized political and economic mechanism that could stabilize the eurozone without recourse to a fully democratic union. The achievement of the European Union was to secure supranational rights over the national right to a monopoly of force, making the multidimensional commonwealth a legal order lacking both a monopoly of force and final decision-making power over its sovereign states, all of which must unanimously agree to any change in the basic treaty. Habermas sees this weak structure not as a deficit but as a potential advantage, one that takes “important steps towards the legal domestication of the violence at the core of the state,” even as “the constitution of the supranational political community sets itself apart from the national organizational institutions of its members.” In short, the EU is a polity without a state.