C26 Fossum Menendez Cosmopolitanism Pie in The Sky

Deliberative Kritik –
Kritik der Deliberation

Oliver Flügel-Martinsen • Daniel Gaus
Tanja Hitzel-Cassagnes • Franziska
Martinsen (Hrsg.)
Deliberative Kritik –
Kritik der Deliberation
Festschrift für Rainer Schmalz-Bruns
Herausgeber
Oliver Flügel-Martinsen Tanja Hitzel-Cassagnes
Universität Bielefeld Leibniz Universität Hannover
Deutschland Deutschland
Daniel Gaus Franziska Martinsen

Goethe-Universität Frankfurt a. M. Leibniz Universität Hannover
Deutschland Deutschland
ISBN 978-3-658-02859-6 ISBN 978-3-658-02860-2 (eBook)

DOI 10.1007/978-3-658-02860-2
Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Natio-

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Inhaltsverzeichnis
Vorwort ................................................................................................................. 7
Oliver Flügel-Martinsen / Daniel Gaus /
Tanja Hitzel-Cassagnes / Franziska Martinsen
Deliberative Kritik – Kritik der Deliberation. Einleitung in die Festschrift ......... 9

Mark P. Zdarsky
Teil 1: Kritik der Deliberation

I. Grundlagen
Deliberative Politik und demokratische Legitimität: Perspektiven der Kritik

zwischen empirischer Deliberationsforschung und reflexiver Demokratie ........ 24
Thomas Saretzki
Was heißt Deliberation? Eine theoriegeschichtliche Betrachtung ...................... 49

Peter Niesen
Intersubjektivität und Interindividualität. Anmerkungen zu den

sozialtheoretischen Grundlagen der Demokratietheorie ..................................... 73
Frank Nullmeier
Liberaler Agnostizismus, oder: Der Vorrang der Freiheit vor der Wahrheit.
Eine politische Sinngeschichte ......................................................................... 103
Karsten Fischer
II. Verhältnisse
Legitimität, Demokratie und Gerechtigkeit: Zur Reflexivität normativer

Ordnungen ........................................................................................................ 137
Rainer Forst
Deliberative und aleatorische Demokratietheorie ............................................. 149

Hubertus Buchstein
6 Inhaltsverzeichnis
Die Macht der Deliberation im Kontext verschiedener „governing orders“ ..... 175
Hubert Heinelt
Teil 2: Deliberative Kritik

III. Herausforderungen
Die deliberative Demokratie im Lichte der gesellschaftlichen

Denationalisierung ............................................................................................ 187
Michael Zürn
Reflexive Constitutionalism in Crisis ............................................................... 201

Erik O. Eriksen
Parlamentarismus und egalitäre Massendemokratie ......................................... 223

Hauke Brunkhorst
Deliberativer Supranationalismus in der postdemokratischen

Konstellation ..................................................................................................... 245
Oliver Eberl
IV. Perspektiven
Die verdrängte Demokratie. Zum Verhältnis von Demokratietheorie

und Gesellschaftstheorie ................................................................................... 267
Regina Kreide
Demoi-kratie ohne Demos-kratie – welche Polity braucht eine

demokratische EU? ........................................................................................... 297
Daniel Gaus
Cosmopolitan Constitutionalism: Pie-in-the-sky or Path to the Future? ........... 323

John E. Fossum /Agustín J. Menéndez
Deliberativer Supranationalismus in der Krise ................................................. 353

Christian Joerges /Jürgen Neyer
Autorinnen- und Autorenverzeichnis ................................................................ 373

Vorwort
Oliver Flügel-Martinsen / Daniel Gaus /
Tanja Hitzel-Cassagnes / Franziska Martinsen
Der vorliegende Sammelband versteht sich als systematischer Beitrag zur theore-
tischen Diskussion über das Konzept der deliberativen Demokratie. In erster
Linie aber ist das Buch Rainer Schmalz-Bruns, dessen politiktheoretisches Den-
ken sich in erheblichem Maße der Untersuchung von Chancen, Herausforderun-
gen und Problemen deliberativer Demokratie diesseits und jenseits des National-
staates widmet, zum 60. Geburtstag als kollektiver Glückwunsch und gemeinsa-
mes Geschenk zugeeignet.
Mit diesem Vorwort möchten wir, die Herausgeberinnen und Herausgeber,
die Gelegenheit ergreifen, der fachlichen Dimension des Bandes einige persönli-
che Gesichtspunkte hinzuzufügen. Wer in den Genuss kommt, mit Rainer-
Schmalz-Bruns zusammenzuarbeiten, weiß, dass sich in seiner Person einige an
heutigen Universitäten leider alles andere als selbstverständliche Eigenschaften
verbinden, die wesentlich dazu beitragen, aus einer Hochschule einen Ort des
gemeinsamen Nachdenkens und Anregens, des geistigen Austauschs und der
intellektuellen Förderung zu machen. Gerade in Zeiten einer zunehmend ökono-
misierten und zeitlich getakteten Universität ist hier zuerst an seine erstaunliche
Fähigkeit zu erinnern, aus einem wissenschaftlichen Betrieb einen Ort der freien
und gründlichen Reflexion zu machen: Wer mit Rainer Schmalz-Bruns vormit-
tags im Büro von der Klärung dienstlicher Aufgaben unscheinbar und faszinie-
rend zugleich zur Erörterung von Grundfragen politischer Theorie übergeht, wer
mit ihm das Glück hat, in Kolloquien zu diskutieren, die zu angeregten Symposi-
en werden und die Teilnehmerinnen und Teilnehmer im Ringen um die ange-
messene theoretische Fassung eines Problems die Zeit vergessen lassen, der
erfährt das Glück, zu wissen, inwiefern Universitäten bei allen Schwierigkeiten,
die sich den in ihnen Arbeitenden und vor allem dem in ihnen heranwachsenden
wissenschaftlichen Nachwuchs stellen, intellektuelle Refugien sein können.
Hinzu kommt, dass Rainer Schmalz-Bruns, wiewohl selbst konzeptionell
und systematisch klar verortet, wovon auch die Thematik des vorliegenden Bu-
ches zeugt, als akademischer Lehrer zu jenem seltenen Typus gehört, der bei
denen, deren Qualifikationsweg er begleitet, die Aktivierung ihres eigenen Den-
kens rückhaltlos fördert und ihnen eine Gestaltungsfreiheit, ja eine Freiheit zur
8 Vorwort
Entfaltung der eigenen Denkbahnen bietet, die an keiner Stelle von schulpoliti-
schen Erwägungen eingeengt wird. Das ist eine seltene akademische Tugend, die
gar nicht hoch genug veranschlagt werden kann.
Hierfür und für vieles andere möchten wir Rainer Schmalz-Bruns danken
und ihm von ganzem Herzen alles Gute zum 60. Geburtstag wünschen!
Die Herausgeberinnen und Herausgeber

Cosmopolitan Constitutionalism: Pie-in-the sky or
Path to the Future?
John Erik Fossum / Agustín José Menéndez
1 Introduction
Cosmopolitanism has had a long career as a political theory, and as a programme

of political action, from the early accounts of the Sophists1 and the most articu-
lated Roman political thinkers,2 to Immanuel Kant’s perpetual peace project3 and
the European Resistance’s drive to European and world federalism.4 Diogenes’
claim that he was a “citizen of the world”5 still resonates loud and clear, both as
a practical and as a theoretical claim. Cosmopolitanism’s normative urge is in-
deed to transcend the artificial bounds of narrow political communities; or what
is the same, to challenge and unmask the fake distinction between us (the Athe-
nians, the Greeks, the Romans, the civilised) and them (always the barbarians).
Cosmopolitanism requires us to challenge all forms of exclusion that are based
on power, not reason. And whereas cosmopolitans have faced oppression – in
many forms and stripes – cosmopolitanism’s very history underlines that how-
ever well-built, however fortified, no wall, no iron chains, no matter how well
clothed in roses, can keep people locked-in. Openness and transcendence –
across time and space – are intrinsic to cosmopolitanism; there is a natural onus
on inclusion. The true realisation of the principle of equality calls for an open-
1 Plato, Protagoras (337c-e; 1976, p. 30) refers the famous claim by the elitist and conservative
Hippias: Gentlemen present … I regard you all as kinsmen, familiars, and fellow-citizens — by
nature and not by convention; for like is by nature akin to like, while convention, which is a ty-
rant over human beings, forces many things contrary to nature. In the wake of the sophists, the
cynic Diogenes coined the term citizen of the world. Or so says Diogenes Laertius (1925, p. 65,
corresponding to chapter VI, paragraph 63 of the second volume): “Asked where he came
from, he answered: ‘I am a citizen of the world’”. See among others, Coulmas (1995, pp. 49-
50).
2 Especially in the last days of the Republic and the early days of the Roman Empire. See
Cicero (1913); Heater (2002, pp. 47-51); for a critical approach, see Wood (1992).
3 Towards Perpetual Peace is now chapter 5 of Kant (1991). See also Bohman and Lutz-
Bachmann (1997), very especially Habermas’ contribution.
4 See Il Manifesto di Ventotene and other writings by Altiero Spinelli, in Spinelli (2007). See
also the revealing insights of Hannah Arendt in Arendt (1961) and (1968).
5 For Diogenes’s famous claim, see references in fn 1.
O. Flügel-Martinsen et al. (Hrsg.), Deliberative Kritik – Kritik der Deliberation,

DOI 10.1007/978-3-658-02860-2_15, © Springer Fachmedien Wiesbaden 2014
324 John Erik Fossum / Agustín José Menéndez
ness to make the polis as inclusive as is the circle of those affected by the deci-
sions that the community takes.6 The cosmopolitan horizon is thus the ultimate
horizon of the democratic polity.
Social science and legal scholarship have played a vital role in rendering
explicit what cosmopolitanism entails in critical terms. In particular, there are
compelling accounts of cosmopolitanism as the best antidote to the “national
polity bias” in social, political, and legal scholarship. Or what is the same, of the
crafting of the analytical and theoretical tools that uncover the many implicit
choices and biases inherent in the uncritical embrace of the nation-state as the
obvious point of departure for research. ‘Methodological nationalism’, or the
nation-state bias, is one of the most obvious and widespread biases today.7 By
challenging the dominium of the nation-state, and the attendant taking for
granted of the nation-state frame, cosmopolitanism can help us to devise analyti-
cal tools that make sense of the social and the political without pre-supposing a
pre-ordained answer on how to organise the polity, and how different polities
should relate to each other.
While the critical, negative contribution of cosmopolitanism is outstanding,
it is less obvious what it has on offer in more constructive, positive terms.8 What
concrete positive difference does cosmopolitanism make to organised political
life? Or to put it in very concrete terms, when addressing fundamental constitu-
tional questions, and seeking to resolve fundamental constitutional conflicts,
what constitutional theory, i.e. what robust and empirically-grounded public
philosophy capable of solving fundamental constitutional problems comes out of
the normative ideal of cosmopolitanism? Is there any such theory that cosmopol-
itanism can credibly and readily resort to? We would posit that only an affirma-
tive answer to that question will enable us to defend cosmopolitanism as more
than a normative horizon, a utopian regulatory ideal (the pie in the sky of the title
6 Kant (1991, chapter 5), Rousseau (2008). The latter contains a critically reconstructed version
of Rousseau’s fragmentary writings on the law of war, which were known and published be-
fore, but in a fashion that rendered them rather incomprehensible. For a partial English transla-
tion, see Rousseau (2012).
7 The problem has been cogently stated as follows: “the social-scientific stance is rooted in the
concept of nation state. A nation state outlook on society and politics, law and justice and his-
tory governs the sociological imagination. To some extent, much of social science is a prisoner
of the nation state.”(Beck 2003, p. 454; see also Wimmer and Glick-Schiller 2002). Cosmopol-
itanism is posited as the best way of escaping from this confining epistemological bias (for in-
stance, through methodological cosmopolitanism, cf. Beck 2006; Beck and Sznaider 2006),
and as the best way of conceptualizing the nature and effects of the changes wrought by global-
ization.
8 There are also quite different readings of what precisely cosmopolitanism is. For a brief selec-
tion of recent sources, consider Delanty (2009); Holton (2009); Kendall, Woodward and Skrbis
(2009); Turner (2008).
Cosmopolitan Constitutionalism 325
of this chapter). A viable cosmopolitan constitutional theory is important in mak-

ing the transition from utopian dream to actionable reality: such a theory is nec-
essary to ensure that developments that conduce to cosmopolitanism are actually
picked up and understood as cosmopolitan. 9
Today, the most obvious case for the attempt to flesh out a more concrete
empirically grounded theory of constitutional cosmopolitanism is the European
Union. Many of the actual attempts at developing a cosmopolitan vision of de-
mocratic government, and a companion cosmopolitan constitutional theory have
then also set their sights on the European Union. For obvious reasons. The Euro-
pean Union has a self-proclaimed democratic vocation: It claims to be the
world’s first attempt at establishing a supranational democracy, to the extent that
it wants to be a constitutional democracy, but following a path and leading to a
destination that is clearly different from that of the nation-state.10 It holds the
promise of escaping the trappings of nationalism, and with it establishing the
foundations for a new rooted cosmopolitanism.11 But did it? And does it keep on
doing it?
In this chapter, we proceed by considering the two main directions of Euro-
pean “cosmopolitan” constitutional theorizing: radical cosmopolitanism and
cosmopolitanised democratic constitutionalism.12 We spell out their key theoreti-
cal assumptions, core concepts, and depictions of the European Union, including
how they understand the foundations of the legitimacy of the European Union
and the foundations of European Union law, as well as the relationship between
supranational and national law. We also subject them to a double test: the test of
empirical fit (the extent to which each offers a plausible reconstruction of the
historical constitutional path and present constitutional configuration of the
9 Theory has action-generating implications in that it not only improves understanding but also
helps to channel and propel action in the desired direction.
10 At the same time, as Rainer Schmalz-Bruns has so well reminded us, we need to exercise due
caution when taking the EU as the source of inspiration for the development of a viable cos-
mopolitan constitutionalism. On the one hand there is the democratic problem of ensuring that
“democratic procedures … allow for the determination of the self of self-legislation, and …
generate the means by which a decentered and pluralised democratic self can nonetheless re-
flexively act upon itself and its future shape.” (Schmalz-Bruns 2010, p. 88) On the other hand
is how this may be institutionalised, which also brings up the question of what normative sali-
ence can be attributed to institutional arrangements. This issue is addressed in Schmalz-Bruns
(2005, 2010).
11 Kymlicka and Walker define rooted cosmopolitanism as an attempt “to maintain the commit-
ment to moral cosmopolitanism, while revising earlier commitments to a world state or a
common global culture, and affirming instead the enduring reality and value of cultural diversi-
ty and local and national self-government.”(2012, p.3)
12 There are many other proposals and theories but these two typify the two main directions in
constitutional cosmopolitan thought on the EU. For other proposals consider Archibugi (2008);
for an account that draws on but modifies that of Habermas see Eriksen (2009).
European Union) and the test of normative soundness (the extent to which the
theory resonates with the normative ideal of equality and inclusion at the core of
the cosmopolitan ideal).
The first direction takes as its point of departure that the EU is an entity sui
generis that aims at becoming a regional-cosmopolitan order. The basic theoreti-
cal assumption that propels the theory is state transformation or withering. The
sheer magnitude of change compels us either to abandon, or at least to reconsider
systematically, all three key categories of political order: sovereignty, state and
constitution, in order to understand the European experience. The theoretical
undertaking – the attendant cosmopolitan constitutional theory – must incorpo-
rate this momentous change. Consequently, the EU’s public law must be con-
structed by means of new and original concepts and categories, ones that have
not been entrapped in the nationalistically tinged categories of traditional consti-
tutional law. That paves the way for new and different forms of political order
and governing, notably those of multilevel governance.
The second direction seeks to steer a middle course by adopting new and
adapting established political and constitutional conceptions and is closely linked
to the impressive contributions of Jürgen Habermas. He rightly sees in the post-
war a cosmopolitan opening and argues that the best way of entrenching that is
to reformulate the Kantian position on cosmopolitanism to fit with today’s reality.
The European Union is an obvious cosmopolitanising vehicle and has an impor-
tant role in promoting and underpinning cosmopolitanism at the global level.
We claim that both are inadequate. They are either highly incomplete con-
stitutional theories that subvert the egalitarian drive of cosmopolitanism, and turn
the shift from polis to cosmopolis into an exercise in de-politicisation (from polis
to cosmos without politics), which cannot but benefit the elites, and may inad-
vertently turn cosmopolitanism into a regressive political theory (to quote Rous-
seau again, the roses that clothe the iron chains). Or they resort to as-if retrospec-
tive historicising when depicting the EU’s constitutional founding.
In response, we argue that a proper cosmopolitan constitutional theory of
European integration has to take more seriously the actual contours of the Euro-
pean experience. It posits that the European Union can be construed as an at-
tempt at establishing a democratic constitutional framework for integration
through constitutional law (what we refer to here as the constitutional synthesis
alternative). The European experience at least had the potential to give rise to a
distinct form of democratic constitutionalism that does not require us to rethink
our basic constitutional vocabulary or standards, but rather the manner in which
these can be embedded in political-legal form. Present developments may well
have undermined that potential; but the very history of European integration
proves that cosmopolitanism does not need to be a pie in the sky. A key tenet
here is that a measure of stateness is required for a viable democratic constitu-

tionalism; that applies throughout the different levels of any complex cosmopoli-
tan construct (global level, regional level, state level).
2 Unpacking cosmopolitanism
2.1 Radical European cosmopolitanism
By “radical European cosmopolitanism” we refer to the constitutional theories of

European Union law that claim that the post-national character of the European
Union and its law require its constitutional theory to be radically different from
that of nation-states, even of democratic nation-states. The argument is that the
world is changing and that democratic constitutional theory has been devised in a
nation-state-based context and is so imbued with nation-state organisational and
communal presuppositions that it is ill-suited to caption present reality. Thus,
adapting existing democratic constitutional theory to the European Union will
not do; doing so would unavoidably result in forcing upon the European Union
institutional, procedural and decision-making structures and procedures that are
not only ill-suited for a post-national political community but that also fail to tap
its normative potentials. That is why it is absolutely necessary to develop a new
and a more appropriate conceptual framework and theory to assess, reconstruct
and develop European Union law. Only then will we transcend the national bias
that underlies actually existing democratic constitutional theory.
The post-national character of the European Union is thus a spur (and a
licence) to innovate. This is so because the basic insight at work is that the Euro-
pean Union is a thoroughly new breed of political community. The European
Union is not only different from existing Member States; it is unique because
entirely unprecedented; entirely different from all Member States. The main
point is not only that the EU is unique, but rather that it is one of its kind (Fos-
sum 2006). It is this radical novelty, this radical transcendence of the nation-state
as a political form, the complete post-national character of the European Union
that makes it a promising project for the realisation of the normative ideal of
cosmopolitanism.
The core set of radical cosmopolitan theories of European integration are
those developed in the last twenty to twenty five years under the heading of
“governance”.
“Governance” is however a highly ambivalent and clearly ‘overstretched’13

term.14 Nevertheless, governance comes with certain presuppositions pertaining
to polity form, patterns of authority and social organising that form building-
blocks in every effort to turn it into a constitutional theory. Governance refers to
a distinct pattern of social organising (horizontal rather than vertical), a means of
social integration (soft-law, guidelines, codes of conduct in lieu of hard law) and
an approach to conflict-handling (deliberation instead of hierarchical adjudica-
tion).
Governance’s basic transnational premise comes with a clear cosmopolitan
tenet: Macro-political structures of governing normally associated with states
have undergone such profound changes that new political-legal configurations
have arisen. With these new configurations novel and alternative ways of han-
dling problems and of resolving political conflicts have emerged. 15 In many
cases that is due to political or social accidents, deadlocks and non-decisions,
further spurred by constitutional and institutional evolution (of which, quite
obviously, so many have occurred in the process of European integration). Today,
these structures span across boundaries; the boundaries are far more porous; and
the actors are less tied to, as well as less dependent on, territory. Indeed govern-
ance is above all transnational, marked by a proliferation of organisations (other
than states or quasi-states) where no single organising principle dominates.
Governance is a mode of steering or action coordination that highlights
coordination over control; it is a means of dealing with political controversies in
which actors, political and non-political, arrive at mutually acceptable decisions
by deliberating and negotiating with each other. Intrinsic to this in the policy
process is a strong reliance on – and faith in – experimentalism.16 Coordination
13 For the notion of concept-stretching, see Sartori (1970).

14 The term is far from new, at least in a good deal of European languages; but not much can be
learnt from its etymology and historical uses, as these essentially differ in different languages,
and at any rate, it is relatively safe to say that what really matters is how the use started to be
picked up in the 1960s and 1970s, with a view to either find a term that was not widely used
and that could be wider and less “state” laden than “government”, so as to refer to institutional
structures and decision-making processes that ensured the actual integration of human socie-
ties, or to actively find a means of social integration as a radical alternative to government,
whether the normative motivation was a communitarian critique of “liberal societies” or a ne-
oliberal rejection of the “heteronomous” character of any form of government, especially the
kind of government associated with the Social and Democratic Rechtsstaat.
15 In the sociological language, it could be said that new means of integration of society have
emerged. In more legalistic speak, it could be said that a whole new understanding of how to
forge the general will of a community has been discovered.
16 Consider in particular Sabel and Zeitlin (2008, 2010, 2012). Their notion of experimental
governance (EG) is a “recursive process of provisional goal-setting and revision based on
learning from the comparison of alternative approaches to advancing them in different con-
texts.”(2012, p. 169)
of economic policies among Eurozone states is, if one leaves aside the purely
symbolic sanctions foreseen in the Treaties (their symbolic character proven by
the German-French “cause celebre” of the early 2000s), the result of actual coor-
dination. Member States were expected to engage in a peculiar kind of mutual
peer review, subject to a set of fiscal targets that are rather flexible.17
The trump card in the defence of governance is that governance is based on
a variety of different processes with different authority bases, and increases the
chances of civil society influencing joint decision-making and implementation.
Governance constitutional theory became a clearly differentiated alternative
to classical democratic constitutional theory in the late 1990s and early 2000s. At
the same time that it became theoretically more defined, a large body of literature
proposed its application to new policy fields, echoing and at the same time rein-
forcing institutional initiatives of that same kind (the Lisbon Strategy, the Open
Method of Coordination). By the time of the Laeken Convention, there was seri-
ous debate about the need for constitutionalising both governance and some of
its specific manifestations (a proposal that could be seen as a contradiction in
terms, or further proof of the hegemony that governance had achieved by then).
Even if the crisis has revealed the limits of integration through governance, the
fact of the matter is that the main thrust in the actually implemented reforms is to
reconfigure, not abandon governance.18
Perhaps the most articulated attempt at building up a constitutional theory
of governance that explicitly departs from the statist paradigm is to be found in
the work of Oliver Gerstenberg (2001; 2002; 2004) who seeks to develop a new
constitutional theory that is capable of harnessing the democratic and constitu-
tional potentials in the post-national constellation which is marked by a decline
in state sovereignty and a shift of governance from the public to the private sec-
tor. It is a world increasingly marked by functionally differentiated private gov-
ernance regimes. To Gerstenberg, “(f)rom a constitutional perspective … the
crucial question is, whether the shift towards private governance ipso facto
amounts to a de-politicisation of problems … or whether the emerging private
governance regimes can be, through innovative forms of legal regulation, made
democratically accountable and thus be tied back to the practice of the public use
of reason. This is, in legal terms, the question of how private governance regimes
can be both – and co-originally – constitutionalized and democratized.”
17 There was no immediate precedent or template for how to do it, even if the IMF guidelines
were not without influence, and similarly the cumulated know-how of the Bank of International
Settlements played a key role in piloting the creation and launch of the European Central Bank
and in providing default substantive solutions to quite a number of issues and problems.
18 So much so that it could be said that the changes in the Stability and Growth Pact, which are
profound and numerous, amount to a shift not from governance to law, but from soft govern-
ance to hard governance.
(2002:313) Gerstenberg argues that this can be achieved through a horizontaliza-

tion of the constitution that on the one hand has democracy built into it as an
emergent property drawing on deliberative experimentalism and on the other
hand is based on monitoring through private law, i.e. with private actors operat-
ing as “practical lawmakers who respond directly to the constitution.”(2001:317)
2.1.1 Assessment
Radical European cosmopolitanism seems to us incapable of delivering a viable

cosmopolitan constitutional theory, for three main reasons:
The first is empirical and pertains to the nature, direction and magnitude of
changes. There is little doubt that prevailing hierarchies associated with states are
changing but the networks that governance scholars are highlighting remain
anchored in and draw on hierarchies rather than replacing them. That is im-
portant because it means that there is greater scope for coercion in the system
than governance proponents generally will concede. Just consider European
economic governance, the darling example of the governance literature. The
crises that have hit the European Union since 2007 have revealed not only the
fragility of governance, but have also spurred a mutation from soft governance to
hard governance. While a full shift to the framework of democratic constitutional
law seems to be off the agenda, and while fiscal targets have been formalised and
rendered more precise in appearance than in reality (what is indeed a structural
deficit? And how can it be calculated in an objective or intersubjective manner?),
the fundamental change has been a hardening of sanctions, and the transfor-
mation of their symbolic nature into operational sanctions, which could easily be
imposed if the Commission and the creditor states agree (thanks to the shift from
qualified majority to qualified minority, cloaked by reference to the Orwellian
term of reverse majority). Hard governance, even more than hard law, is difficult
to fit into the theoretical framework of governance as a constitutional theory.
Sanctions are power in action, and there are some actors that do have the power
to impose sanctions, so voluntary and experimental governance may give way to
a rather hierarchical and rather predictable form of (authoritarian) minority rule.
The second is that governance lacks a clear concept of political community,
collective action, and collective goods. The onus on flexibility grounds the rejec-
tion of the form of law (which is geared towards reflexivity, not flexibility, and
presupposes a clear distinction between the fixing of common action norms and
their change, which disappears if norms become fully flexibile) and of the use of
coercion as the means of increasing the propensity to comply with the law. When
and if the form of the law and the reliance on legally disciplined coercion are
rejected, the very possibility of collective action and the stabilization of schemes
of cooperation based on formal and material equality are seriously threatened.
There is thus a very natural proclivity of governance to come hand in hand with
an individualistic understanding of politics, which leads to a denial of politics in
the grammar of the Social and Democratic Rechtsstaat. Indeed, we have by now
a rather substantive empirical basis on which to claim that while hard law can be
placed at the service of the realization of the ideal of material equality through
progressive taxation, provision of welfare benefits and the correction of the bias-
es and structural imbalances against workers in labour relationships, governance
has mainly proven apt to support the process of unleashing of the structural
violence of capital that has undermined the Social and Democratic Rechtsstaat in
the last twenty years. Posing as a post-modern contribution to political theory,
radical cosmopolitanism runs the risk of supporting a rather pre-modern under-
standing of socio-economic structure (Wolin 1989, 2008).
The third is that it is questionable whether governance can give rise to a
proper theory of democratic constitutionalism, let alone one with an explicit
cosmopolitan vocation. Even a benign interpretation of governance (which is
already out of step with the crisis-induced hard governance we see in today’s
Europe, cf. Menéndez 2013), could not adequately address the following critical
remarks: “While it seems perfectly reasonable to emphasize the problem-solving
dimension of democracy, it seems less plausible to invest all principled expecta-
tions and legal safeguards of democratic legitimacy into the (more or less) spon-
taneous features of cooperation between dispersed sites of problem-solving.”
(Schmalz-Bruns 2005, p. 71). Indeed, what radical European cosmopolitanism
gets wrong, in our view, is the direct association of democratic constitutional
theory with the specific organisational-communal configuration of the nation-
state. Drawing on such an association to justify an entirely new constitutional
theory is to overstretch the experimentalist mandate and risks throwing the baby
out with the bath-water. It is entirely appropriate to reject methodological na-
tionalism, but not if that ends up undercutting the normative ethos of constitu-
tional theory, and in the process, reducing cosmopolitanism to a mere negative
theory, depoliticising constitutional theory and opening up the terrain for a pure-
ly individualistic understanding of politics and law.
The limitations are starkly revealed if we consider how the theory of radical
cosmopolitanism operates as a constitutional theory. How does it conceive of the
EU’s basis of legitimacy and that of European Union law? The answer is essen-
tially negative: cosmopolitanism allows us to transcend the shortcomings of the
national constitutional order. The narrative is one of unleashing individual rights
and capacities, coupled with unlimited trust in the capacity of almost self-
generated and spontaneous order once these capacities have been unleashed. But
while the rhetoric is one of transcendence, it might not be outlandish to wonder

whether this might have some structural affinity to the constitutional theory of
XIXth century liberalism. Indeed, it seems to us that what is presented as a kind
of anarchistic horizon (overcoming the rudimentary and inept coercive character
of law, ensuring experimentation) is nothing but an updated version of rather old
liberalism. What about constitutional conflicts? The answer oscillates between
hyper-pluralism (with all possible solutions being ecumenically embraced, as
with radical constitutional pluralism) and an unintended but perhaps inescapable
authoritarian monism. If the European example is anything to go on, such a de-
velopment is appearing in the last five years, associated with the economic crisis.
The upshot is that any attempt at conceptualising the EU must rely on estab-
lished concepts, but supplemented with terms that spell out what is novel and
innovative. States have not disappeared, neither have they ceased to condition
behaviour. Experimentalism is an important and insightful theory of policy-
making, at the meso-level; aggregating it to the level of constitutional theory
represents a fallacy of composition. So while governance scholars are correct in
prompting us to pay due attention to novel features of European integration, they
take us too far in a direction where ad hoc and perhaps merely temporary fea-
tures are turned into a theory, and in the process, parallels and analogies to other
political-legal systems are lost or overlooked. Further, the EU is a complex con-
figuration of experimentation and emulation; as we will argue in extenso below,
the institutional, procedural and substantive development of European Constitu-
tional law has resulted not only and not mainly from experimentation, but from
emulation. It is the mixture of old and new that needs to be properly captioned
when devising a constitutional theory for the European Union. With the Europe-
an Union experience in mind, it is quite clear that radical European cosmopoli-
tanism that highlights decentralised problem-solving and coordination is not
sufficiently well situated in contemporary developments and lacks an adequate
normative core to offer any prospects for a viable theory of cosmopolitan democ-
racy.
2.2 Cosmopolitanised democratic constitutionalism
If radical cosmopolitanism breaks away from the democratic constitutional tradi-

tion, and very much so from the postwar democratic constitutional tradition,
cosmopolitanised democratic constitutionalism starts from the other end of the
problem, and makes of the cosmopolitanisation of the democratic constitutional
state its normative horizon. When taken as a constitutional theory of the Euro-
pean Union, cosmopolitanised democratic constitutionalism regards the Euro-
pean Union as the projection of the national democratic constitution to the su-
pranational level. The most prominent advocate of a cosmopolitanised democ-
ratic constitutional theory of European integration is Jürgen Habermas. In the
following, we indeed reconstruct the key tenets of this constitutional theory by
reference to the work of the German philosopher. In an impressive number of
books and articles 19 , Jürgen Habermas has addressed the vital question of
whether deliberative democracy can be entrenched in global and global-regional
entities (beyond the nation-states). Habermas resuscitates the Kantian cosmopoli-
tan project and through that provides us with an elaborate and very sophisticated
attempt at formulating a viable cosmopolitan constitutionalism.20
2.2.1 The overall design of cosmopolitanised democratic constitutionalism:

world, regional and national political levels
Habermas both builds on Kant’s reasoning (juridification – taming power

through law – is understood as a rationalising and civilising process that opens
up space for a cosmopolitan global order), whilst at the same time altering and
updating it, so as to make it work in a global context that is dramatically differ-
ent from the one of Kant when he established his position on cosmopolitanism.
An important issue that keeps preoccupying scholars is how to entrench peace
and make the world safe for democracy. Kant was ambivalent on how to en-
trench cosmopolitanism at the global level and opted for a voluntaristic confed-
eral structure because he thought that a world republic would be inherently re-
pressive. Habermas argues that Kant based this on a mistaken analogy with the
centralistic French republic. He further claims that it is possible to entrench cos-
mopolitanism today through a novel configuration, which he terms world gov-
ernance without government. World governance without government is premised
on a clear distinction between ‘state’ and ‘constitution’ along the lines that
Hauke Brunkhorst (2004) has drawn this. A key premise is that: “(t)he state in its
modern form is not a necessary precondition of a constitutional order.” (Haber-
mas 2006, p. 137) Such a structure is, according to Habermas, situated in three
key levels and institutional arrangements: the first, global, or world-
encompassing level contains a set of supranational arrangements; the second is
19 With regard to books see Habermas (1998a, 2001, 2006, 2009, 2012); with regard to articles
see in particular Habermas (1998 b, 1998c, 2004). See also Grewal (2012),whose first chapter
offers a useful periodisation of Habermas’ approach to European integration, from Euro-
scepticism to Europhilia.
20 Other important proposals include Held (1995) and Archibugi (2008). In a different spirit, see
Scheuerman (2011).
labelled transnational and pertains to regional arrangements; and the third refers
to the nation-state level.
This structure is in turn based on a distinct division of functions. The supra-
national level –institutionally embedded in a reformed UN system – would be
confined to issues of securing peace and protecting human rights. This system is
based on the precept of the supranational hierarchical structure being confined to
a clearly delimited number of issue-specific, negative, constitutional protections
in order to serve as a safe-guard against the domination that Kant feared from a
world republic. Precisely because it is such confined it does not require a com-
prehensive system of democratic legitimation (Habermas 2006, p. 174).
The second, transnational, level is preoccupied with global domestic politics
(such as issues pertaining to energy, environment, financial and economic policy)
and is composed of regional entities. It is not based on a hierarchical but rather
on a heterarchical structure with entities that negotiate agreements among them-
selves. These issues may also be global but are assumed to be more conflict-
prone and are more suitably handled at the transnational level, in more densely
integrated contexts, through bargains, compromises and various types of settle-
ments.21
The third, nation-state, level remains the key repository of democratic le-
gitimacy. In this structure nation-states have nevertheless gone through learning
processes so as to make their citizens understand themselves as both global citi-
zens and as citizens of their respective states. From a democratic perspective it is
important to underline that “(b)oth at the level of the UN and of transnational
negotiation systems, it must receive indirect “backing” from the kinds of democ-
ratic processes of opinion- and will-formation that can only be fully institutional-
ised within constitutional states, regardless of how complex federal states on a
continental scale may become.” (Habermas 2006, p. 141)
Democratically speaking, the structure is based in two sources: world citi-
zens and citizens of states. The main democratic legitimation processes are still
anchored in the nation-states, but, as noted, subject to the proviso that these
states have gone through important learning processes so that citizens understand
themselves to have responsibilities to non-nationals which backs up their role as
world citizens.
It is important to notice that this three-fold distinction is based both on nor-
mative and prudential reasons. Indeed, the prudential reasons are the ones that
render advisable not only to distinguish three levels, but to insist on a specific
“tempo” in the building up of the global cosmopolitan order.
21 Brunkhorst (2009, p. 66) usefully refers to this as a “global system of segmented continental
regimes.”
The overall drive to integrate is indeed not a normative purpose by itself, but the
“unregulated growth in the complexity of world society”, that increasingly un-
dermines the capacity to act of member states by placing “systemic restrictions
on the scope for action of nation states” (Habermas 2012, p. 15; see also p. 12);
that complexity is actually shifting power from the national to the supranational
and international levels; the shift by itself “undermines the democratic proce-
dures in nation states to the extent that national functions shift to the level of
transnational governance.” (Habermas 2012, p. 15)
Habermas sees in internationalisation per se a problem. And indeed, if
internationalisation will only proceed through intergovernmentalisation, the
game will be over for democracy. Here comes the clear and neat distinction
between the regional level (in particular the European level) and the
global/international level. At European level we find not only an existing and
well-established process of integration framed by national and supranational
constitutional law, but also the political and symbolic resources and capacities to
render both possible and desirable “extending democratic procedures beyond
national borders” (Habermas 2012, p. 16).
The European level is expected to be a cosmopolitanised version of the
national level. Harbouring similar expectations pertaining to democracy at the
global level would only (certainly in the short run but perhaps also in the mid
and long run) give rise to political frustrations. European integration has come a
long way towards the normative ideal, and has served as a linchpin for pushing
the cosmopolitan turn forward.
2.2.2 The European Union
The EU is a transnational system that has come about through two major innova-
tions of relevance to cosmopolitan constitutionalism. The first refers to the pri-
macy of supranational law amidst member state monopoly of violence, whereas
the second is a system of shared sovereignty. With regard to the former, Haber-
mas notes that “(i)n exercising its legislative and judicial competences, the Euro-
pean Union binds the member states as the bodies which must implement its
decisions even though it does not dispose over their sanctioning powers. And the
national monopolists over the legitimate use of force allow themselves to be
enlisted for the application of European law which has to be ‘implemented’ at
the national level.” (Habermas 2012: 25) The EU level is cast as an independent
level of law. That brings up the tricky issue of primacy of application which
Habermas resolves by drawing on such notions as functional justification (Fran-
zius 2010) or efficacy (von Bogdandy 2009). The justification for this arrange-
ment Habermas traces back to the EU’s inception.
That relates to the second innovation, which Habermas derives from a teleo-
logical reconstruction of the EU’s emergence. The EU is founded on the basis of
two sources, EU citizens and citizens of the member states (peoples of Europe);
hence the ambiguous notion of ‘shared sovereignty’.
2.2.3 Assessment
In a world marked by a deeply embedded dialectic of Schmittian and Kantian

components, Habermas is concerned with providing us with an empirically
grounded proposal for how to transform the fragmentary cosmopolitan legal and
political structures we face today into a more coherent and viable system capable
of ensuring cosmopolitan peace. Whether this amounts to a theory of cosmopoli-
tan constitutionalism that properly captures the distinctive features of the EU is,
as we will show, less clear. One issue pertains to the status of democratic au-
thorisation. Habermas underlines, as noted, that the multi-level cosmopolitan
construct is one where the nation-states remain the key repositories of democ-
ratic legitimacy. The justification for the weaker democratic credentials of the
global level hinges on the supranational entity’s ability to confine its tasks to the
critical ones of ensuring peace and protecting human rights. But issues of war
and peace are controversial; there is no a priori reason to assume that these can
be safely left to relatively depoliticised bodies. It is also difficult to foresee that
there will not be strong issue-linkages with other concerns that stem directly
from efforts to ensure peace and protect human rights. Also from a normative
perspective it is hard to see that these issues can be singled out from for instance
matters of economic justice (Lafont 2008).
Habermas also underlines that the global system must be hierarchical in
order to ensure peace; a central condition here is the availability of means of
power and non-selective application of law. That in turn “engenders the spectre
if not of a hyper-centralised world state, then at least the possibility of a suprana-
tional order in which for all practical purposes the UN operates, in the final in-
stance, as a military arbiter. At least in this context, ‘constitution’ and ‘state’
remain more closely linked than Habermas wants to concede.” (Scheuerman
2008, p. 141-2) But with a more compelling global structure the presumption of
weak democratic legitimation becomes problematic. How to ensure the democ-
ratic legitimacy of the central global level thus remains an unresolved problem.
Why this becomes a problem also relates to the manner in which Habermas
depicts the second, transnational, level, and in particular, the EU. An important
assumption is that the member states will retain their democratic constitutional
arrangements and function as proper pillars of the EU system. The question is
how that can be squared with the cumulative effect of Europeanisation, and the
manner in which the member states are incorporated in the EU. The EU as a
transnational system is not situated over and above the member states; it is an
amalgam of supranational institutions and transgovernmental arrangements. This
matters to the quality of state constitutional democracy in the member states,
because their democratic arrangements are transformed and programmed to take
the EU into account. Thus, their role as pillars of democratic legitimation is me-
diated through and increasingly dependent on the processes that take place at the
EU-level. As we will show in the next section, it is possible to construe this in a
manner that is consistent with key tenets of democratic constitutionalism but that
requires interpreting the two main innovations that the EU is based on in a dif-
ferent manner than does Habermas. With regard to the first innovation that
Habermas refers to, namely primacy (Habermas 2012, p. 11), it is important to
note that constitutionally speaking EU law does not enjoy primacy as a separate
legal system which Habermas implies, but as the manifestation of those tasks
that the member states have collectively decided to do together. The difference is
important.22 Habermas’ position is vulnerable to what we may term ‘the false
lure of primacy’. His rendition of how it works in practice does not provide ade-
quate safeguards to ensure a sufficiently good anchorage in the key constitutional
principles that we associate with the democratic constitutional state. This also
implies that any learning process at the European level is bound to be stymied
due to inadequate normative uptake.
The other innovation, that of shared sovereignty, ends up only amplifying
this. It is based on the tenet that the EU and the member state levels ought to be
co-equal (“the EU citizenry as a whole shares the constitution-building power
with a limited number of ‘constituting’ states which acquire a mandate from their
peoples to collaborate in founding a supranational political community” (Haber-
mas 2012, p. 11), or drawing on what Habermas discerns directly from Bog-
dandy: “Theoretically speaking it is more convincing to conceive of the indi-
viduals, who are (simultaneously) citizens of the States and of the Union, as the
only subject of legitimation” (Habermas 2012, p. 36, italics in the original).
What is problematic is how Habermas links the notion of co-equality to the es-
22 Consider constitutional conflicts. Conflicts that pit European against member state constitu-
tional law are conventionally understood as vertical, and as pitting two legal systems against
another. But from the perspective of the theory of constitutional synthesis, most of them are
horizontal or a mix of vertical and horizontal. The matter is whether European law is a proper
manifestation of the common constitutional traditions of the member states or whether it fa-
vours one in particular or whether it veers off and as such becomes problematic.
tablishment of the EU. This process can be construed he notes, when “interpreted
in teleological terms, as though the more or less contingent historical outcome
has been the deliberate result of a regular constitutional convention.” (Habermas
2012, p. 31) More specifically, “the foundation of the European Union can be
conceived retrospectively as though the citizens involved (or their representa-
tives) were split into two personae from the beginning; in that case every person
as a European citizen in the constitution-founding process encounters herself, as
it were, as a citizen of an already constituted national people.” (Habermas 2012,
p. 38) The problem with this analysis is that the moment of founding did not
include any body that was democratically instructed or had a democratic man-
date from the European citizens who at that point in time were not singled out as
a distinct category of European citizens. The real change occurred in 1979 when
the European Parliament was directly elected by the citizens of the European
Union. Habermas is correct in assuming that the system had a built-in anticipa-
tion that it could over time come to express the will of European citizens through
democratically elected, and accountable, institutions. But Habermas does not
capture the distinct manner in which the EU was initially established and espe-
cially the distinct manner in which the member states lent their constitutional
democratic credibility to the EU because they understood the EU to be an author-
ised extension of their own constitutional structures. In Habermas’ account there
is no structure to enforce justifications that give consistent sustenance to consti-
tutionally entrenched democratic legitimacy at the EU-level.23 The upshot is that
Habermas’ conception of the primacy of European law lacks a proper democratic
anchoring.
A further implication is that the analysis that Habermas provides of what
went wrong in the EU is not based on an adequate account of where the process
of EU democratic constitutionalisation went awry. Much of Habermas’ current
critique of the EU is apt, but the prescriptions for how to get out of the conun-
drum are less convincing. In this connection it might be a point to note that the
EU is not a transnational organisation through volition or choice; it is so first and
foremost because the EU is a case of stateness denied. Strengthening this struc-
ture to deal with the crisis by allocating more competences to the EU-level may
not necessarily render it more suitable as a cosmopolitanising vehicle. For in-
stance, further building up its military and defence capabilities within the present
structure will not improve democratic oversight and control.
Habermas’ theory relies on the EU’s ability to serve a vital bridging func-
tion and to mediate between the nation-state and the global level. That is a com-
plex balancing act that Habermas’ theory does not provide us with sufficiently
23 This line of analysis is also highly vulnerable to the allegation that the ECJ performed a legal
coup d’etat, as especially Stone-Sweet (2007) has argued.
clear directions for how to handle effectively. There are several conundrums:
Will not an EU with clear constraints on stateness be better at sustaining the
democratic constitutional arrangements of the member states relatively intact
than a more conventional federal-type structure? At the same time, a tightly
constrained EU will likely be a weaker cosmopolitan building-block because it
will be less capable of keeping the nation-states’ exclusivist proclivities in check.
Will an EU with stronger elements of statehood be more effective globally but
also more imposing on the member states? As we will show in the next section,
the key to unlocking the conundrums can only be found if we adopt a different
way of thinking about the EU, incidentally one that is closer to the facts on the
ground.
2.3 A cosmopolitan alternative? The theory of constitutional synthesis
In the previous section, we have argued that neither radical cosmopolitanism nor
cosmopolitanised democratic constitutionalism provides a satisfactory constitu-
tional theory for the European Union and European Union law. We argued that
radical pluralism makes an unnecessary break with the long tradition of democ-
ratic constitutional law. Instead of clarifying the “nationalistic” bias that has
grown within the democratic constitutional tradition, it opts for transcending the
grammar of democratic constitutional law tout court, and in the process, opens
the ways for the return of classical liberal constitutionalism (soft and hard gov-
ernance and neoliberalism come hand in hand). Cosmopolitanised democratic
constitutionalism offers a sound normative basis, but fails to come to terms with
the actual constitutional evolution and configuration of the European Union. As
a result, it is also incapable of giving a complete account of the legitimacy basis
of the European Union and of providing guidance in the solving of constitutional
conflicts.
In this section we present an alternative cosmopolitan constitutional theory
of the European Union: constitutional synthesis. It builds on the two constitu-
tional theories we have described in the first section, but tries to overcome their
shortcomings. Constitutional synthesis shares many of the basic premises and
insights of cosmopolitanised democratic constitutionalism, but rather than rely-
ing on a historically retrospective as if approach it shows how the actual consti-
tutional path of the European Union had a built-in normative cosmopolitanism
that lends itself to the development of a distinct theory of cosmopolitan constitu-
tionalism.
The theory of constitutional synthesis (Fossum and Menendez 2011) takes
as its points of departure two fundamental facts of the European experience.
First, the EU was forged in a historical situation that provided a ‘cosmopoli-

tan opening’ (notably) in Europe.24 The hard learnt lessons of two world wars in
two decades led to national constitutional provisions (notably the Italian, French
and German) or new constitutional conventions (in the other three Member
States of the original EEC, resulting in a constitutional amendment in the Nether-
lands and in decisive judicial rulings in Belgium and Luxembourg) that aimed at
rendering the states and the constitutions open and cooperative, or what is the
same, that rejected the autarchic road to democratic constitutionalism. European
states wanted to retain and reinforce their identity as Social and Democratic
Rechtsstaaten, but in the understanding that the only normatively sound and
realistic way of achieving that was by means of opening themselves up. By
authorising and mandating supranational integration, post-war constitutions aim
at embedding national constitutions within a broader supranational legal frame-
work with a clear cosmopolitan orientation.25 Indeed, as just said, postwar consti-
tutions not only enabled but mandated integration, or what is the same, clearly
pointed to wider and more encompassing political structures, decision-making
processes and substantive norms that could realise the ideal of the Social and
Democratic Rechtsstaat beyond the nation-state.
That influence was reinforced through a second ‘fundamental fact’, namely
that the EU was born amidst and represents an effort to establish a supranational
entity in a system of already established constitutional democratic states. As just
said, the distinguishing postwar feature was that these states recognised that they
could only retain democracy through a form of binding co-operation that would
also have direct constitutional implications. National statehood was bound to be
transformed in the process (the transformation was indeed decided at the national
constitutional level when inserting integration clauses in the fundamental law, or
when the constitution came to be interpreted as open and cooperative through
emerging constitutional conventions), but not transcended. National constitutions
were to find ways of integrating in a transnational and supranational constitu-
tional space, but they were not to be transcended by the standard “revolutionary
constitutionalism” expedient of writing a supranational constitution. The Euro-
pean Union was to emerge through the integration through democratic constitu-
24 The EU, as Jürgen Habermas (1998b) has noted, is a case of learning from disaster. See also
Fossum (2011).
25 Article 79 (3) of the German Basic Law’s eternity clause deems amendments that might nega-
tively affect human dignity or the principle of democracy to be unconstitutional. The Court has
recently noted that the Basic Law’s eternity guarantee ‘makes clear ... that the Constitution of
the Germans, in correspondence with the international development which has taken place in
particular since the existence of the United Nations, has a universal foundation which is not
supposed to be amendable by positive law.’ (German Federal Constitutional Court 2009)
tional law of states that were already constitutional democracies themselves; to

be precise, they were Social and Democratic Rechtsstaaten.
These two facts have four major consequences for the shaping of the consti-
tutional theory of the European Union.
The first one is that the European path to the establishment of a suprana-
tional democratic order is different from the constitutional paths followed at the
national level. European Union law is neither the result of revolutionary constitu-
tionalism (a “constitutional moment” which marks a new constitutional begin-
ning by the laying down of a constitutional text) nor of evolutionary constitu-
tionalism (the unfolding in the fullness of time of constitutional conventions,
confirmed in critical political moments as the fundamental law of the land). It is
the result of a recombination of the elements of constitutional unfolding: consti-
tution-making, structural constitutionalisation, substantive constitutionalisation.
The European path to a democratic constitution is synthetic: as is the case with
revolutionary constitutionalism, synthetic constitutionalism proceeds by refer-
ence to an explicit and written set of constitutional norms, the collective of na-
tional constitutional norms joined up by the regulatory ideal of developing into a
common constitutional law; as is the case with evolutionary constitutionalism,
constitutional standards are fleshed out in due time by a bottom-up approach
very much related to the resolution of specific constitutional problematiques.
European integration presupposes the creation of a new legal order, but not the
creation of a new set of constitutional norms; a key source of the legitimacy of
the new legal order is indeed the transfer of national constitutional norms to the
new legal order.
The second one is that the collective of national constitutions and national
constitutional law are to be regarded as the basic building-blocks of European
constitutional law. Indeed, the postwar period can be seen as a coordinated con-
stitutional moment in which a clear will to become stable Social and Democratic
Rechtsstaaten (and thus, states where the primacy of the democratic and socially
just constitution is clearly affirmed) is seen as coming hand in hand with creating
a transnational and supranational constitutional space. The primacy of the consti-
tution of the Social and Democratic Rechtsstaat requires projecting the constitu-
tion to the supranational level. This entails that:
national constitutions and national constitutional law are to be regarded as

the deep constitutional law of the European Communities. In the absence of
a pan-European supranational constitutional moment (missing a European
constitution written in a supranational revolutionary constitutional moment)
the collective of national constitutions projected to the Community level,
the constitutional law common to the Member States of the European
Communities, is the grounding democratic legitimacy block of European

Union law. The founding Treaties, far from being the key set of constitu-
tional norms of the Union (as has been argued over and again in the legal
and political science literature) should be seen as providing the concrete
formulation of some of the constitutional norms contained in the common
constitutional law to the Member States. Not only were the Treaties a rag-
bag of constitutional, legal and administrative provisions, but in constitu-
tional terms, they were patently incomplete (and they may be said to remain
so even after the amendments and reordering of the Treaties operated by the
Lisbon Treaty at its entry into force in 2008). In summary, a process of con-
stitutional synthesis entails that the constitutions of the participating states
take on a new seconded role as a part of the emerging collective constitu-
tional law of the new polity. Each national constitution would then start to
live a ’double constitutional life’: Each would continue as a national consti-
tutional arrangement, whilst it would also simultaneously be a part of the
collective, European, constitution. Constitutional synthesis therefore pre-
sumes that there is a substantive identity between national constitutional
norms and Community constitutional norms.
But, at the same time, the process of integration requires national constitu-
tional norms to be reflexive, open to the critical arguments that derive from
the positive constitutional law of other Member States.
The third is that the institutional capacities and structure of the European Union
are the result of a complex dynamic of emulation, adaptation and experimenta-
tion. The institutional structure is incomplete, and has to be completed as the
process unfolds. A major part of the process results from uploading common
patterns of institutional structure from the Member States; but there is also adap-
tation (which implies tinkering with national institutional designs and structures
to ensure the proper achievement of supranational goals) and outright experimen-
tation. The process is guided by constitutional norms and standards. The point is
thus not only and not mainly to ensure functional goals and purposes, but also to
ensure the legitimacy of the resulting constitutional order. This explains the
peculiar principle of institutional balance, which ensures the institutional design
of the Union is part of the transmission belt of democratic legitimacy from the
national to the supranational level of government.
The fourth is the central role of time in the development of this constitu-
tional order. This applies to the legal realm; it also applies to the institutional
structure that is set up to carry this legal order at the supranational level. The
‘synthetic founding moment’ is one where a rudimentary supranational institu-
tional structure is set up. The details and reach of this are worked out over time,
as the process of synthesis proceeds and comes to cover a broader range of pol-
icy areas. Constitutional synthesis can therefore be described as the combination
of normative synthesis, institutional development and consolidation, and ac-
commodation of difference. These three processes, it is important to underline,
come with very different inner logics: the first exerts a centripetal pull towards
homogeneity, the second and third contend with built-in centrifugal elements.
This complex structure is one where there is one supranational law but several
institutions that apply the supranational law in an authoritative manner. The
peculiar combination of a single law and a pluralistic institutional structure stems
from the fact that there is no ultimate hierarchical structuring of supranational
and national institutions. The peculiar combination is, if anything, compounded
by the pluralistic proclivities of institutional consolidation at the supranational
level. The ensuing structure is far more fragile and susceptible to upsets, whether
brought on by external environmental shocks or upsets, or the many built-in
tensions in the multilevel EU structure. Constitutional synthesis as a process has
a built-in propensity for self-subversion.
The upshot is that the conditioning context from which a constitutional
theory for the European Union may be discerned is one of statism modified by
supranationalism; it is not one of supranationalism somehow transcending sta-
tism. Having said that there are at least two distinct features of this new modified
statism.
Conceptually speaking, it is a case of stateness being disassociated from
(uniform and unified) state sovereignty. That is apparent in the manner in which
stateness manifests itself. As we shall see in more detail below, it is a curiously
bottom-up process in the sense that the constitutive states lend the supranational
entity their stateness; the EU’s stateness in that sense depends on the member
states’ willingness to sustain this relationship. While we have argued (and keep
on arguing) that this peculiar constellation had a massive normative surplus in
the first decades of integration, it runs the risk of becoming a road block in the
path towards the politicisation and democratisation of the European Union. 26
At the same time, the particular political configuration of the EU with the
distinct form of ‘bottom-up stateness’ that it draws on is embedded in a distinct
constitutionalism, and in a complex blend of cosmopolitanism and federalism.
Indeed, it is the novelty of what is aimed at (not in the sense of transcending
26 As Hobbes and Rousseau agreed, sovereignty depends on the actual capacity to act: It dissolves
itself when political action is blocked by the structural design of the constitution (See Hobbes
1996, chapter XIX and chapter XXI.12) Rousseau book I, chapter 7. Whether post-national or
not, the state as the centre of imputation of the general will must be capable of acting. Other-
wise, as Heller rightly indicated, there is no chance for democratic politics, something that was
learnt only too late in the interwar period, and we may be running the risk of also relearning
too late (Heller, 1942).
democratic constitutionalism, but aiming at a very different way of realising it)

that comes a long way to account for the novelty of the path that was followed.
The cosmopolitan component manifests itself most explicitly in the regula-
tory ideal of a common constitutional law, which draws its normative credence
from the universal potential of the key constitutional principles of the national
Social and Democratic Rechtsstaaten. The regulatory ideal has two main roles.
On the one hand it preserves the universal core of the key constitutional
principles. On the other, it provides concrete prescriptions for how to embed
them in concrete institutional-legal form within the distinct pattern of stateness in
Europe, and with due respect to what is common to the constitutional traditions
of the member states.
As such, the regulatory ideal forms the leitmotif for the ensuing process of
constitutional synthesis: of the putting in common of national constitutional
norms (normative synthesis), and of the development of a supranational institu-
tional structure (institutional development). Both of these processes must ac-
commodate the already large difference and diversity that exists in Europe, in
terms of different legal systems, institutional structures, language regimes, and
cultures. The viability of the system depends on a spirit of federalism that helps
to reconcile integration and accommodation of difference/diversity. In the first
stages of the process, conflicts are fundamentally horizontal. They involve dif-
ferent understandings of how a certain constitutional principle should be opera-
tionalised; or how a conflict between constitutional principles should be sorted
out. European constitutional law is forged by solving the conflict. It is indeed an
optical illusion to claim that there is a conflict between European and national
constitutional law. The conflict is between competing understandings of how the
regulatory ideal of European constitutional law should be concretised. The “fed-
eral” spirit involves in this case an element of learning from other constitutional
traditions, of constitutional reflexivity triggered by the constitutions with which
the European constitutional field is shared. As time passes, however, and Euro-
pean constitutional law gains depth and breadth, truly vertical conflicts emerge.
The “federal spirit” then does not require, as the European Court of Justice has
claimed over and again, an unconditional primacy of supranational law. Indeed,
we have argued, that the issue should be solved starting from an analysis of the
underlying national constitutional norms, and giving to the supranational under-
standing preference only to the extent that it resonates with a well-argued and
well-articulated set of national constitutional norms and the very logic of federal
inclusiveness favours the supranational solution. It is the regulatory ideal of the
Social and Democratic Rechtsstaat that must be the umpire of European constitu-
tionality.
Constitutional synthesis affirms that the legitimacy of the European Union

results from the key role that the collective of national constitutions play as the
deep constitutional law of the European Union (which accounts for the authori-
sation to integrate in the absence of an explicit supranational constitutional mo-
ment: the democratic license comes from the projecting of national constitutions
to the supranational level) and from the fundamental role that the design of the
institutional structure (institutional balance) and of the decision-making process
(double democratic legitimacy) play in ensuring the transmission of democratic
legitimacy from the national to the supranational level. This corresponds in a
very innovative way to the federal principle. There is no need of assuming a
purely substantive legitimacy, which cleanses out democratic will formation and
contestation from the process of integration, as radical cosmopolitanism does.
There is no divide between the national and the supranational when it comes to
legitimacy credentials. And there is no need of making complex exercises in
constitutional gymnastics to get to a double legitimacy in personal terms, making
the legitimacy of the Union rest in citizens qua European citizens and qua na-
tional citizens, as Habermas does. To simplify greatly, legitimacy is ensured
through the distinct manner in which national constitutions are projected to the
European level. Some might argue that this claim rests on the same kind of retro-
spective as if approach that Habermas applies. But that is not the case. We do not
start from a postulate that is out of synch with the historical record. The actors
themselves did not articulate an explicit constitutional theory, but they left nu-
merous building-blocks that we could assemble to build such a theory. Our re-
construction of what actually took place enabled us to put these bits and pieces
together to form a coherent theoretical account. When democratic constitutional
states agree to integrate by means of setting up a supranational entity, including
provisions to authorise integration in their constitutional orders but without
equipping the supranational entity with (or submitting to) a democratically estab-
lished supranational constitution, they commit their national constitutions to the
task of ensuring that the system (EU institutions and member states) collectively
upholds the constitutional norms. The recurrent references to the common consti-
tutional traditions of the Member-States is another way of expressing the norma-
tive-regulative ideal that all aspects of this extended constitutional arrangement
must be in compliance with in order to ensure the core constitutional norms un-
derpinning the democratic constitutional state. The omnipresence of critical
comparative arguments; the frequent resort to the “common constitutional tradi-
tions”; and the conditioning weight of actually existing institutions and legal
provisions form a coherent albeit unarticulated underlying theory of constitution-
al synthesis.
Constitutional synthesis assumes the central and fundamental role played by

processes of constitutionalisation for several reasons. First is the onus on Euro-
pean integration as a legally ordained process of securing peace. Second is that
European integration is the foremost example in history of establishing a system
of democracy that is constitutionally stabilised in a context of already established
constitutional democracies. The system that is being established – a political and
legal experiment – cannot carry the burden of legitimacy whilst it is being estab-
lished. Instead it must constantly prove to the constituting systems that it is ca-
pable of serving the constitutional principles that the entire construct is based in.
The normative burden is shifted to the overarching entity only when the consti-
tuting members – states and citizens – agree to do so. Thus, from a normative
perspective there is neither primacy nor shared sovereignty in the manner
Habermas describes these terms for the EU. What is implied here is rather that
the process of integration is one of establishing what form and level of integra-
tion is needed to ensure the best possible realisation of the core constitutional
principles embedded in the member states. There is no a priori answer to this
question because the process is unprecedented.
Finally, constitutional synthesis can reconstruct the process of constitutional
integration and the resulting European constitutional law in a way that is capable
of integrating the record of facts without losing its normative edge. The aspira-
tion to combine the regulatory ideal of a single law guaranteeing equality to its
recipients, and a pluralistic institutional structure, where the final word on the
substantive content of the common law is shared, rather than monopolised, is
congenial to the establishment of what is substantially a constitutional structure
through an international legal form (the founding and amending Treaties). Simi-
larly, the assignment of a role to the ECJ in the guardianship of European consti-
tutionality is not reflected in explicit constitutional provisions, but results from
the construction of specific Treaty provisions in the light of the substantive con-
stitutional nature of Community law. In that very same light, constitutional syn-
thesis is capable of distinguishing between different types of constitutional con-
flicts. Instead of renouncing any normative edge regarding the primacy of Euro-
pean law, constitutional synthesis retains the normative potential of national
constitutions. One thing is horizontal conflicts, conflicts between diverging na-
tional constitutional articulations of constitutional principles. If solving these
conflicts is essential for the realisation of the normative ideal of equality before
the law (if the conflicts come in an area where the Union should be competent),
Union law does not represent the imposition of a supranational standard in a top-
down fashion on national legal orders, but makes up the very constitutional ter-
rain wherein the conflict among national legal orders is sorted out. If, on the
contrary, we find a genuinely vertical conflict, in which supranational law con-
tradicts a relevant majority of national constitutional norms, Union law plays a

very different role. And there are very good reasons to put into question that the
last substantive word should be with supranational law.
3 Conclusion
This chapter has considered the prospects for a viable cosmopolitan constitu-
tional theory. A key issue in that regard is whether such a cosmopolitan constitu-
tional theory would compel us to embark on large-scale conceptual innovation,
or whether we can rely on established constitutional terminology and state-based
categories. Our assessment has sought to take proper heed of Rainer Schmalz-
Bruns’ important insight to the effect that such a theory cannot build on the na-
tion-state, but must instead be based in more general principles of statehood –
understood as a hierarchical system of self-intervention. That insight has in-
formed our assessment of the European Union as a possible candidate for a vi-
able cosmopolitan constitutional theory. Our reconstruction of the European
experience has shown that it is possible to discern elements of a distinct cosmo-
politan constitutional theory from the European integration process, not the least
because the European Union has had a constitutional-democratic vocation from
the outset. It is also clear that this vocation was not articulated as part of an ex-
plicit constitutional theory and in fact had to be discerned through reconstruction.
In the chapter we assessed two other attempts at devising a cosmopolitan consti-
tutional theory based on the European experience, which were contrasted with
our own. We found that our approach is more descriptively accurate than the two
alternatives presented here. We also argue that it can be properly grounded nor-
matively speaking. For constitutional synthesis to work there must be a viable
process of federalisation, to develop the necessary trust and the federal spirit or
federal comity that is a vital prerequisite for living together. The European Union
was for a long time en route but has now also clearly veered off from the federal-
ising path. The benchmark is not integration as such but federalisation which
includes finding a viable balance of integration and preservation of differ-
ence/diversity coupled with accommodation, in order to develop a viable system
of self-rule and shared rule.
These comments underline the need for operating with a rooted notion of
cosmopolitanism, which is explicitly embedded in a viable federalism. That
implies on the one hand that a theory of cosmopolitan constitutionalism must be
embedded in a set of universal principles and a set of institutional arrangements
that help to embed these principles in a concrete institutional and cultural context.
The theory thus needs a cosmopolitan leitmotif that is embedded in and reflects
the core constitutional principles’ universal character, as well as the manner in

which these principles have been embedded in a system of states within a given
territory or region. As such, it also needs a measure of stateness in order to en-
sure democratic autonomy and self-governing through hierarchical self-
intervention. The reconciliation of the three regulatory ideals of the Social and
Democratic Rechtsstaat (the Rechtsstaat, the democratic state, the social state) is
empirically impossible if state organised coercion cannot be used so as to avoid
that the socio-economic rights of capital holders lead to the dematerialisation of
the Rechtssaat, to use Heller’s terms. Cosmopolitanism as a political project
needs to have macroeconomic, tax and expenditure underpinnings. Otherwise it
becomes, as is most of the time the case with radical cosmopolitanism, an aes-
thetically superior variant of oligarchy (neoliberalism being the most common
oligarchical political theory nowadays). Further, the constitutional theory needs
to be underpinned by a viable federalism that spells out how the system is inter-
nally structured and that also spells out how it concretely deals with the external
world. The system must be imbued with the spirit of federalism in two comple-
mentary senses, because federalism is about self-rule and shared rule, and about
how to balance and reconcile the two. The internal structuring of the entity is
forged according to the precept of reconciling self-rule and shared rule; the same
principle will apply to the entity’s relations to the external world, but now at a
different order of magnitude.
This particular combination is compatible with several ways of structuring
or relating to stateness. That hinges on the nature or scope of initial consent,
combined with the procedures for eliciting consent for deeper integration over
time. A viable cosmopolitanisation may require the co-existence of these forms.
One is a top-down version that is based on an explicit initial commitment to stay
together in a constitutional arrangement and contains procedures for consensual
deepening. Such a system is based on the standard hierarchical system of self-
governing that is typical of the state formation. That system must be normatively
speaking subject to constant challenge from outside in the best critical cosmo-
politan manner in order to retain inclusiveness. The other way is more bottom-up
and based on limited initial constitutional consent and a constrained institutional
structure, combined with procedures for consensual deepening over time. Such a
system is based on bottom-up or borrowed or conferred stateness. It is dynamic
and has provisions for further conferral of core elements of stateness to the cen-
tral level, provided it meets with core normative criteria. The combination of
these versions within a global system of cosmopolitan norms, rules and princi-
ples may be able to sustain a cosmopolitan constitutionalising impetus with
global reach.
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Deliberative Kritik –

Kritik der Deliberation

Daniel Gaus Franziska Martinsen

ISBN 978-3-658-02859-6 ISBN 978-3-658-02860-2 (eBook)

Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Natio-

Die Wiedergabe von Gebrauchsnamen, Handelsnamen, Warenbezeichnungen usw. in die-

Gedruckt auf säurefreiem und chlorfrei gebleichtem Papier

Deliberative Kritik – Kritik der Deliberation. Einleitung in die Festschrift ......... 9

Teil 1: Kritik der Deliberation

Deliberative Politik und demokratische Legitimität: Perspektiven der Kritik

Was heißt Deliberation? Eine theoriegeschichtliche Betrachtung ...................... 49

Intersubjektivität und Interindividualität. Anmerkungen zu den

Legitimität, Demokratie und Gerechtigkeit: Zur Reflexivität normativer

Deliberative und aleatorische Demokratietheorie ............................................. 149

Teil 2: Deliberative Kritik

Die deliberative Demokratie im Lichte der gesellschaftlichen

Reflexive Constitutionalism in Crisis ............................................................... 201

Parlamentarismus und egalitäre Massendemokratie ......................................... 223

Deliberativer Supranationalismus in der postdemokratischen

Die verdrängte Demokratie. Zum Verhältnis von Demokratietheorie

Demoi-kratie ohne Demos-kratie – welche Polity braucht eine

Cosmopolitan Constitutionalism: Pie-in-the-sky or Path to the Future? ........... 323

Deliberativer Supranationalismus in der Krise ................................................. 353

Autorinnen- und Autorenverzeichnis ................................................................ 373

Die Herausgeberinnen und Herausgeber

Cosmopolitanism has had a long career as a political theory, and as a programme

O. Flügel-Martinsen et al. (Hrsg.), Deliberative Kritik – Kritik der Deliberation,

of this chapter). A viable cosmopolitan constitutional theory is important in mak-

here is that a measure of stateness is required for a viable democratic constitu-

2.1 Radical European cosmopolitanism

By “radical European cosmopolitanism” we refer to the constitutional theories of

“Governance” is however a highly ambivalent and clearly ‘overstretched’13

13 For the notion of concept-stretching, see Sartori (1970).

(2002:313) Gerstenberg argues that this can be achieved through a horizontaliza-

Radical European cosmopolitanism seems to us incapable of delivering a viable

while the rhetoric is one of transcendence, it might not be outlandish to wonder

2.2 Cosmopolitanised democratic constitutionalism

If radical cosmopolitanism breaks away from the democratic constitutional tradi-

2.2.1 The overall design of cosmopolitanised democratic constitutionalism:

Habermas both builds on Kant’s reasoning (juridification – taming power

2.2.2 The European Union

In a world marked by a deeply embedded dialectic of Schmittian and Kantian

2.3 A cosmopolitan alternative? The theory of constitutional synthesis

First, the EU was forged in a historical situation that provided a ‘cosmopoli-

tional law of states that were already constitutional democracies themselves; to

 national constitutions and national constitutional law are to be regarded as

Communities, is the grounding democratic legitimacy block of European

democratic constitutionalism, but aiming at a very different way of realising it)

Constitutional synthesis affirms that the legitimacy of the European Union

Constitutional synthesis assumes the central and fundamental role played by

tradicts a relevant majority of national constitutional norms, Union law plays a

the core constitutional principles’ universal character, as well as the manner in

Archibugi D (2008) The Global Commonwealth of Citizens: Towards Cosmopolitan

Brunkhorst, Hauke, Prof. Dr., Universität Flensburg, Institut für Soziologie.

Buchstein, Hubertus, Professor für Politische Theorie und Ideengeschichte an

Eberl, Oliver, Dr. phil., Mitarbeiter am Institut für Politikwissenschaft der

O. Flügel-Martinsen et al. (Hrsg.), Deliberative Kritik – Kritik der Deliberation,

Fossum, John Erik, Professor für Politikwissenschaft am ARENA – Centre for

Flügel-Martinsen, Oliver, PD Dr. phil, Akademischer Rat für Politische Theo-

Hitzel-Cassagnes, Tanja, PD Dr. phil., Institut für Politische Wissenschaft der

trums für Europäische Rechtspolitik an der Universität Bremen und Teilzeitpro-

Kreide, Regina, Professorin für politische Theorie und Ideengeschichte an der

Martinsen, Franziska, Dr. phil., Mitarbeiterin am Institut für Politische Wis-

national constitutions and national constitutional law are to be regarded as