—In Memory of Ralf Dahrendorf—

The people must be given a new ideology. It can only be a European one.

(Konrad Adenauer, 1952)

What forms the common core of a European identity is the character of the painful learning process it has gone through, as much as its results. It is the lasting memory of nationalist excess and moral abyss that lends to our present commitments the quality of a peculiar achievement.

(Jürgen Habermas, 2001)

How do German intellectuals debate European integration? A short answer might be: they don’t. Of course, especially after the Maastricht Treaty and the famous (some would say infamous) Maastricht decision of the German Constitutional Court, there have been wide‐ranging discussions about the nature of the EU as a polity, as well as its practical and normative perils and promises – and the 2009 Lisbon decision of the Court has given such debates a new impetus. Moreover, some of the protagonists of these discussions – Jürgen Habermas and the late Ralf Dahrendorf for instance – are among the very few thinkers on the continent who have a claim actually to be both ‘national’ and genuinely European intellectuals. Nevertheless, what has to be stressed is that compared with other major controversies in the German public sphere ‘Europe’ (p.88) has elicited few real passions. Different debates – about the Nazi past and national identity in particular – truly came to shape parts of German political culture. While they arguably rendered Germany a more liberal country in the long run, the details were not always pretty: many of these debates created clearly separated ‘intellectual camps’, fostered a climate of mutual suspicion and personal recriminations, and often enough centred on false normative or practical choices.

None of this can easily be said about the German debates on European integration. The main reason is that most politicians and intellectuals have long been favourably disposed towards the idea of European unity – to the extent that Euroscepticism as a principled suspicion of integration (and as a set of nationalist feelings) remains almost a political taboo. If anything, Germany has sometimes witnessed what Ralf Dahrendorf (2004: 195) once called Euro‐fundamentalism (Europa‐Fundamentalismus), where further European integration is presented as an unquestioned, or even unquestionable, good. Perhaps only Italy among the larger states (another de facto semi‐sovereign polity until the early 1990s) is comparable in having such a broad intellectual consensus on European integration.

At the same time, I would argue, the relatively un‐polemical nature of German debates on Europe – in comparison both with other German debates and with debates in France and Britain – have also led to a rather sophisticated level of discussion, both in terms of how the EU is described and in terms of what is politically prescribed. One reason is simply that, given the large political consensus, debates about the basics of European integration have, so to speak, ‘migrated’ into legal discourse (which has drawbacks, of course, but also almost by itself ensures that these debates – unlike polemical debates elsewhere – have at least some connection with what the EU actually is as a legal entity, in contrast to imaginary Brussels superstates).¹ To be sure, German ideals of European unification have often been projections of the country’s own supposedly post‐national trajectory after 1945: this is especially true of conceptions of constitutional patriotism and a welfare state at the European level. But there is nothing wrong per se with drawing lessons from one’s national history for Europe, as long as it is done in a suitably modest and transparent way. Hence the emphasis in this essay will not be on trying to ‘unmask’ just how German some of the main arguments in the debates really are; or how intellectuals might be pursuing their very particular agendas ‘in Europe’s name’. Rather, the question is whether some of the conceptual languages shared by different factions (or sometimes, everyone) in the German Europe debates might be more of a help or a hindrance to comprehending the nature of the EU as a polity, and to what extent they might usefully go beyond some of the categories and (p.89) positions outlined in the introduction to this volume. I will also ask whether the normative and practical prescriptions formulated in these languages can ultimately transcend a German environment and meaningfully spill over into other contexts (or even that ever elusive thing: a genuinely pan‐European intellectual debate).

Statist legacies

Germany emerged late as a nation‐state, compared to France, Britain, or Spain – and even then it actually called itself a Reich. Ideals of continental (as opposed to colonial) empire – often based on the memory of the glory days of the Holy Roman Empire – loomed large in the political imagination, even after German unification in 1871 (not least because so many German‐speakers appeared to have been left outside the state).² In fact, Bismarck’s Reich strangely oscillated between a self‐conception as nation‐state and empire; arguably one of the ways its leaders sought to achieve a proper national identity was to pursue policies often associated with imperialism (this happened primarily within the state, as opposed to traditional colonialism). The theorists of the Third Reich would eventually draw on this legacy; and arguably the Nazis themselves attempted to create a European (and eventually global) empire in the form of a nation‐state.³ In short, Germany’s identity as either state or empire has remained uncertain for a very long time – in fact right up to 1990. ‘Europe’ has thus also played an ambiguous role in the political imagination – especially as potentially always a necessary part of a German empire or, after the German division, as an indispensable element for overcoming Germany’s deeply problematic statehood.

After 1945, as a semi‐sovereign polity, West Germany had an eminent interest in constructing a united Europe: it could hope to gain some measure of moral rehabilitation and practically try to enlarge its room for manoeuvre by advancing its interests ‘in Europe’s name’ (Garton Ash 1993). West German intellectuals also explicitly propounded ideals of a European federation as a response to the Second World War and the atrocities of Nazism. For instance, the founders of the Gruppe 47, the most influential grouping of politically engaged writers in the first two decades after 1945, very much subscribed to the federalist idealism which had emerged from the various European Resistance movements. National traditions had been thoroughly put in question by Nazism, to the extent that many intellectuals on the left actually equated National Socialism, nationalism, and nation‐statehood. Thus transcending the nation‐state became a prime moral imperative. It was largely forgotten that Hitler had also invoked an (p.90) emphatic, normatively loaded notion of ‘Europe’ (in contrast to Bolshevism and ‘Americanism’) in order to justify his empire‐building.⁴

As is well known, most of the conceptions of European unity that had emerged during the war were already defeated by the end of the 1940s (Niess 2001). Subsequently, left‐wing intellectuals concentrated their energies on criticizing what they perceived as the ‘restoration’ of the German state (even if in a divided form) as well as deeply compromised political and intellectual traditions. They were not hostile to European integration as it actually unfolded in the 1950s (though some saw the Common Market as the exact opposite of the democratic socialist Europe they had hoped for) – but they also did not perceive it as a real counterweight to what they felt was going morally and politically wrong in the Federal Republic. Often European unity was criticized as a specifically Christian Democratic project and hence included in the charge of a post‐war conservative ‘restoration’ which had crushed progressive aspirations.

Literary intellectuals and philosophers were not the only ones to debate and contest the meaning of the post‐war political constellation. In Germany public jurists (Staatsrechtslehrer) have long played an important and prestigious role in proposing concepts for comprehending (and normatively justifying) essentially political arrangements. As individuals, a significant number of them have had ready access to high‐quality newspapers and magazines.⁵ In a sense, they were the most likely group of intellectuals to argue about European integration in the 1950s and 1960s.

Yet by and large they did not. They were deeply split about the nature of semi‐sovereign West German democracy itself, essentially dividing into a ‘Schmitt school’ – that is, followers of Carl Schmitt – and a ‘Smend School’: students of Rudolf Smend, who unlike Schmitt was still teaching after 1945. The basic line of separation ran between an ideal of a unitary state with a unified, hierarchical administration, on the one hand, and, on the other, the vision of ‘social integration’ through a mutual penetration of state and society, and a daily effort by all citizens to make constitutional democracy a lived reality – similar to Renan’s famous idea of a plébiscite de tous les jours (Günther 2004; Müller 2003, part II). Schmitt’s followers were highly sceptical vis‐à‐vis the newly established Constitutional Court (to which none of them would be elected until the early 1980s); they insisted on formalism and textualism, as opposed to the Court’s ‘approach of “balancing values” ’; and they often effectively deployed the language of democracy to contest its legitimacy. They also diagnosed (p.91) a general weakening, or even death of the state – properly understood – as a result of ever more interest‐group pluralism. In short, in their eyes, sovereign statehood was threatened more from the inside, from society, than by international or supranational law from the outside.

Yet the very deep disagreements about statehood and democracy which characterized the conflicts between members of the Schmitt and Smend schools did not really translate into a major split about the nature and meaning of European integration. Rather, public jurists were relatively open to the possibility of transferring elements of democracy and constitutionalism to a supranational level and to a European Rechtsgemeinschaft in particular. The leading interpreter of European integration was undoubtedly Hans Peter Ipsen, who coined the concept of Zweckverband funktionaler Integration (purposive association of functional integration – no more elegant translation seems available or possible) to describe European integration (see in particular Ipsen 1972and 1973). The term suggested a thoroughly technocratic understanding of the process: European nation‐states had come together to create public authorities for highly specific economic and technological purposes which could be accomplished more efficiently at the supranational level.⁶ Most public jurists – including those of the Schmitt school – agreed with this characterization and had no normative problem with the phenomenon as such – except Schmitt himself, who wrote in 1978 that ‘whoever immerses himself in the more than thousand pages of the standard work of H. P. Ipsen…will be overcome by deep sadness. The global political forces and powers, which are struggling for world unity, are stronger than a European interest in the political unification of Europe’ (Schmitt 2005 [1978]: 932).

Still, while what appeared to be a kind of technocratic consensus seemed to reign at least until the 1980s, one should not underestimate the lasting legacy of a number of axioms and conceptual commitments which had characterized Staatsrechtslehre since the late nineteenth century – what Christoph Möllers (2008: 16) has called the ‘deep grammar’ of the discipline. These surfaced in the debates on West German statehood in the 1950s, but, arguably, they were also to structure some of the debates about European integration in the 1990s and in the early twenty‐first century. I shall briefly outline these, before moving on to an analysis of contemporary debates.

First, much of German political thought has long been characterized by the central place it holds for an emphatic, normatively heavily loaded concept of the state (Hennis 1959; Möllers 2000). This concept was essentially imprinted with an image of the nineteenth‐century monarchical executive as the essence (p.92) of statehood (Möllers 2008: 16).⁷ Often a strict dividing line was drawn between state and society, with the state as an institution pursuing the general interest being located above and beyond society. In the nineteenth century parliament was viewed as an agent of society, representing the particular interests of individual citizens and of groups vis‐à‐vis the state – understood, again, as essentially a monarchical executive. In many cases – though not always – the conceptual state–society division thus had deep anti‐democratic implications (Schönberger1997).

A second long‐lasting conceptual legacy was the opposition of Staatenbund (a federation of states) andBundesstaat (a federal state) – which originated with the founding of the Second Reich (Möllers 2008: 19).⁸Many conceptual innovations (such as Staatenverbund) have been designed to overcome this dichotomy – and yet it has haunted German legal and political thought now for more than a century.

Finally, there is the conceptual division between state and constitution, and, more particularly, the recurrent argument that statehood is a precondition of constitutionalism of any sort (as well as democracy).⁹ Related was the assumption that while statehood persists (in the form of a functioning administration), constitutions tend to come and go. The classical formulation of this thought was provided in 1924 by Otto Mayer, the founder of administrative law during the empire: Verfassungsrecht vergeht, Verwaltungsrecht besteht (‘constitutional law fades, administrative law stays’).¹⁰ To be sure, legal languages that took constitutionalism – and not statehood – as their conceptual linchpin became more influential in the 1970s and 1980s (thus creating a clear conceptual opposition between Staatsrechtslehre and Verfassungsrechtslehre). There was also a sense, however, that debates in ‘state theory’ – long privileged in German political thought – were de facto being sidelined by the authoritative interpretations of the Basic Law which were emanating from Karlsruhe, the seat of the Constitutional Court, along with the Bundesbank the most respected institution of the old West Germany (Schlink 1989).¹¹

(p.93) Still, the monumental handbook of German Staatsrecht, which began to be published in the mid‐1980s and whose register (and tenth volume) was completed in 2000, appeared as a clear sign that statist thinkers were not going down without a fight. The eve of the Constitutional Court’s Maastricht decision thus saw a kind of stalemate between what one might call the statist and constitutionalist schools of thought (which, at this point, could no longer really be identified as following in the respective traditions of Schmitt and Smend).

Maastricht and after: Contours of a debate

There are two long‐term trends in contemporary German intellectual life which arguably began with unification and which have at least indirectly touched on European integration.¹² First, the left had long rejected not just nationalism, but even a German nation‐state as such as inherently dangerous for its neighbours and the world at large. Günter Grass famously opposed German unification in 1990 with precisely this argument, warning of a ‘monster’ that might be created by bringing West and East Germany together. For similar reasons the left had long been favourably disposed to European integration – even if this position remained, for the most part, theoretically very underdeveloped and often had little to do with the actually existing European Community (and other actually existing European countries, for that matter).

These deep‐seated fears of Germany – and the moral–political imperative of self‐containment which followed from them – slowly disappeared during the 1990s.¹³ When a Red‐Green government came to power in 1998, Chancellor Gerhard Schröder could afford to take a much more assertive stance vis‐à‐vis Brussels – without worrying that this would exact large political costs among pacifists and anti‐nationalists (groups whose numbers dwindled further with the interventions in Kosovo and Afghanistan and who today are for the most part integrated into the Linkspartei).

At the other end of the political spectrum, a newly assertive right – who in fact called themselves the ‘New Right’ – briefly flourished in the mid‐1990s. Its intellectual protagonists called for a ‘more self‐confident nation’, willing to question old ties to Western Europe (and the West more broadly) and prepared (p.94) to pursue its national interest much more vigorously. This movement faded almost as quickly as it had arisen, not least because its members seemed unable actually to formulate ‘national interests’ – and the means of pursuing them – that were significantly different from what was happening in the waning years of Helmut Kohl’s Chancellorship anyway.

Thus simultaneously a strong current of anti‐nationalism was coming to an end and a new form of assertive nationalism had been successfully resisted by most intellectuals at the time when Maastricht and the subsequent European Treaties were negotiated. At the same time, a less idealist view of Europe – one also less informed by memories of war and atrocity – was gaining ground, culminating in Schröder’s more assertive stance described above (see also Lübbe 1994). When in 2000 the influential literature professor Karl Heinz Bohrer – one of contemporary Germany’s most brilliant thinkers and an acerbic critic of the bien‐pensant left – attacked left‐liberal German politicians’ enthusiasm for a post‐national Europe as rooted in an attempt to escape a nation‐state which no longer had an idea of itself, he seemed already to be tilting at windmills.¹⁴ The flight forward from a non‐existent national identity into ‘Europe’ might still have been the fancy of some disintegrating intellectual milieux; but it was hardly government policy.

This is not the place to review the well‐known arguments of the German Constitutional Court’s Maastricht decision in any great detail (see Alter 2003: 104–8 on the decision). Its chief architect, Paul Kirchhof (who also coined the term Staatenverbund